LESLIE E. KOBAYASHI, District Judge.
Before the Court is Defendant/Counterclaim Plaintiff Joel Lee Taylor's ("Taylor") Motion for Partial Summary Judgment ("Taylor Motion"), filed on May 18, 2012. [Dkt. no. 26.] The Hawai'i Civil Rights Commission ("HCRC") filed its Brief of Amicus Curiae Hawai'i Civil Rights Commission in Support of Defendant's Motion for Partial Summary Judgment Filed on May 18, 2012 ("HCRC Brief"), on June 19, 2012. [Dkt. no. 42.] Plaintiff Association of Apartment Owners of Liliuokalani Gardens at Waikiki, a Hawai'i nonprofit organization, by its Board of Directors ("AOAO"), filed its memoranda in opposition to the Taylor Motion and the HCRC Brief on July 2, 2012. [Dkt. nos. 43, 47.] Taylor filed his reply on July 9, 2012. [Dkt. no. 49.] Also before the Court is the AOAO's Motion for Partial Summary Judgment ("AOAO Motion"), filed on May 21, 2012. [Dkt. no. 31.] The AOAO, as counterclaim defendant, filed its Joinder in Motion for Partial Summary Judgment ("AOAO Joinder") on May 21, 2012. [Dkt. no. 30.] Taylor filed his memorandum in opposition on July 7, 2012, [dkt. no. 45,] and the AOAO did not file a reply. These matters came on for hearing on July 23, 2012. Appearing on behalf of the AOAO were Dan C. Oyasato, Esq., and Lissa H. Andrews, Esq; appearing on behalf of Taylor were Christopher Brancart, Esq., and Leba Kaufmann, Esq.; and appearing on behalf of the HCRC was Livia A. Wang, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Taylor Motion is HEREBY DENIED without prejudice, and the AOAO Motion and AOAO Joinder are HEREBY DENIED without prejudice, for the reasons set forth below.
Taylor purchased an apartment in the Liliuokalani Gardens at Waikiki condominium project ("Liliuokalani Gardens") in 2011.
In or around July 2009, in response to Taylor's request that the AOAO make an accommodation to its no-pets policy, the AOAO gave Taylor a questionnaire to be completed by a physician to provide information for the AOAO to consider in evaluating whether an accommodation is necessary and appropriate. [Id. at ¶¶ 25-26.] Alex E. Torres, M.D. ("Dr. Torres") responded to the questionnaire, but the AOAO claims that "some of his responses
Taylor did not follow through with the purchase agreement in 2009, but, on or around April 27, 2011, he purchased a different unit at Liliuokalani Gardens. [Id. at ¶ 35.] At that time, he renewed his request for an accommodation to permit him to keep his dog in the unit and provided the AOAO with the 2009 answers to the questionnaire. [Id. at ¶ 36.] The AOAO was unable to contact Dr. Torres, who had apparently moved to Puerto Rico. [Id. at ¶ 37.] The AOAO claims that Taylor "did not submit any additional medical information that would indicate [Taylor] suffers from a physical or mental impairment which substantially limits one or more of his major life activities, has a record of having such an impairment, or is regarded as having such an impairment." [Id. at ¶ 38.]
The AOAO states that, on information and belief, Nell has not received any training to do work or perform tasks which ameliorate any of Taylor's symptoms or conditions. [Id. at ¶ 39.] Taylor apparently has represented Nell's services as that:
[Id. at ¶ 40.] The AOAO contends that Nell is a "companion" or "pet whose mere presence allows [Taylor] to `function in a calm collected manner in crowded environments such as airline travel and grocery stores.'" [Id. at ¶ 41.]
On or around November 9, 2011, Taylor moved into his unit, and the AOAO has allowed Nell to remain in the unit pending the outcome of this action. [Id. at ¶¶ 42-43.]
On December 12, 2011, the AOAO filed the present action again Taylor, arguing that Taylor does not suffer:
Taylor takes the position that Senior United States District Judge Alan C. Kay's decision in Prindable "erroneously applied the [Americans with Disabilities Act of 1990 ("ADA") ] definition of service animals to the FHA, imposing a requirement that does not exist in the text of the FHA or its implementing regulations" and "conflicts with administrative interpretations of the FHA and ADA and more recent case law." [Mem. in Supp. of Taylor Motion at 8.]
Taylor first argues that the FHA does not limit reasonable accommodations to specially trained "service animals." Taylor claims that the term "service animals" is not used in the FHA, which simply prohibits "`a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.'" [Id. (alteration Taylor's) (quoting 42 U.S.C. § 3604(f)(3)(B)).] Taylor argues that, under the FHA, "no category of accommodation request is precluded as a matter of law[,]" and "[t]he reasonable accommodation analysis is a `highly fact-specific [inquiry], requiring case by case determination.'" [Id. at 8-9 (some alterations Taylor's) (some citations omitted) (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir.1994)).]
Taylor further argues that the FHA's implementing regulations do not contain any requirement that a service animal be specially trained. [Id. at 9.] The United States Department of Housing and Urban Development ("HUD"), which is charged with administering the FHA, has not promulgated any regulation that would limit reasonable accommodation under the FHA to dogs with special training. [Id. at 9-10 (citing 24 C.F.R. § 100.204).
Taylor contends that HUD has interpreted the FHA's reasonable accommodation provision to require accommodations for non-trained emotional support animals. He cites a case in which a HUD administrative law judge issued a decision finding that a landlord had violated the FHA by refusing to grant a mentally disabled man a reasonable accommodation to allow him to keep his emotional support cat in a no-pets apartment. [Id. at 10 (citing HUD v. Dutra, 1996 WL 657690 (HUDALJ 1996)).] HUD also issued a memorandum in February 2011 that stated:
[Id. at 11 (some alterations Taylor's) (some citations omitted) (quoting Taylor Motion, Exh. 1 at 2).]
Taylor argues that other HUD interpretations not directly applicable here evidence that animals do not need to have special training. In 2008, regarding pet ownership by elderly persons with disabilities in HUD-assisted public housing, HUD issued a final rule that public housing can no longer require that an assistance animal have special training. [Id. at 12 (citing 73 Fed.Reg. 63834 (Oct. 26, 2008)).] That rule recognized that "`[s]ome animals perform tasks that require training, and others provide assistance that does not require training.... [E]motional support animals do not need training to ameliorate the effects of a person's mental and emotional disabilities.'" [Id. (alterations Taylor's) (quoting 73 Fed.Reg. 63836).]
Taylor cites to federal cases filed by the Department of Justice ("DOJ") over failures to grant reasonable accommodations to tenants with emotional support animals that lack specialized training as violations of the FHA. He argues that, of such cases filed since 2003, "[e]ach of those has been resolved with a consent decree, settlement, or favorable jury verdict." [Id. at 13 (footnote and citations omitted).] He also contends that the DOJ has acknowledged that the definition of "service animal" under the ADA does not affect the FHA. [Id. at 14-15 (citing 42 U.S.C. 12134(c); 75 Fed.Reg. 56236, 56240 (Sept. 15, 2010)).]
Taylor argues that the district court erred in its analysis in Prindable and mistakenly relied on three cases: Bronk v. Ineichen, 54 F.3d 425 (7th Cir.1995); Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D.Or.1998); and In re Kenna Homes, 210 W.Va. 380, 557 S.E.2d 787 (2001). [Id. at 15.]
Taylor argues that Prindable misread Bronk as requiring special training for assistance animals under the FHA, when the Seventh Circuit actually held that the FHA does not require that an animal must have training credentials in order to be a reasonable accommodation. [Id. at 16 (citing 54 F.3d at 430).] Taylor argues that the Seventh Circuit found that the lower court had erroneously instructed the jury that the service dog had to have credentials from an accredited training school. "While professional training may have been relevant to whether the dog was able to aid the plaintiffs as a hearing dog in coping with their deafness, it was not `its sine qua non.'" [Id. (emphasis Taylor's) (quoting 54 F.3d at 431).]
As to Green, which also involved a hearing dog, the Ohio district court applied the ADA definition of a service animal, because the case involved an ADA claim. [Id. at 16-17.] Taylor contends that Green cannot "be read to limit the reasonable accommodation provisions of the FHA to specially trained animals." [Id. at 17.]
Regarding Kenna Homes, Taylor argues that, even though the West Virginia Supreme
Next, Taylor argues that, subsequent to the Prindable decision in 2003, HUD and the DOJ adopted final rules clarifying that the ADA definition of "service animal" does not apply to FHA reasonable accommodation claims. Two federal district courts then rejected Prindable and held that emotional support animals do not need specialized training to qualify as a reasonable accommodation under the FHA. [Id.]
Taylor argues that, in Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp.2d 850 (S.D.Ohio 2009), the district court found that the requirements for emotional support animals "`must be evaluated in the appropriate context of housing' as opposed to that of public accommodations covered by the ADA." [Id. at 18-19 (quoting 666 F.Supp.2d at 860).] That court concluded that an animal without specialized training could be a reasonable accommodation. [Id. at 19.]
Similarly, Taylor argues that Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.N.D.2011), agreed with the Overlook analysis and adopted the DOJ's rule that the ADA "service animal" definition was not applicable to the FHA reasonable accommodations standard. That court held that "`the FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.'" [Id. (quoting 778 F.Supp.2d at 1036).]
Finally, Taylor argues that the Hawai'i Discrimination in Real Property Transactions Act ("HDRPTA"), which tracks the FHA and is intended to conform to federal law, does not limit reasonable accommodations to specially trained service animals. Taylor argues that, until 2011, HDRPTA made it unlawful to "`refuse to engage in a real estate transaction with a person or to deny equal opportunity to use an enjoy a housing accommodation due to a disability because the person uses the services of a guide dog, signal dog, or service animal[.]'" [Id. at 20 (quoting Haw.Rev.Stat. § 515-3(8) (repealed)).] Effective July 1, 2011, the legislature deleted that section and its references to "guide dog," "signal dog," and "service animal." [Id. (citing 2011 Haw. Sess. Laws 175 §§ 1(5), 8 (S.B. No. 892)).] The current law now makes it unlawful to:
Haw.Rev.Stat. § 515-3(9). Taylor contends that the change in language to the more general "use of an animal" bolsters the conclusion that state law does not limit reasonable accommodations to specially trained animals. [Mem. in Supp. of Taylor Motion at 21.]
The AOAO argues that Taylor takes an overly narrow reading of Prindable. It contends that Taylor "limits his focus to that portion of the Court's decision that imports the ADA definition of service animals into its FHA analysis.... This nearsighted reading of the Court's decision fails to credit the Court's insight into the larger picture of what is required for an animal to be a reasonable and necessary accommodation under the FHA." [Mem. in Opp. to Taylor Motion at 3-4.] The AOAO argues that "critics of Prindable have failed to grasp the foundation upon which Prindable was drafted, that in order for an animal to be a reasonable and necessary accommodation under the FHA, the animal needs to have something that sets it apart from the ordinary pet." [Id. at 4.] It notes that the Prindable court's adoption of the ADA's definition of "service animal" was a logical minimum standard, not a limitation of the animals that fall within § 3604(f)(3)(B):
[Id. at 5 (alterations AOAO's)(quoting Prindable, 304 F.Supp.2d at 1256).] The AOAO contends that "[t]he use of the ADA definition of `service animal' was merely a conduit to the global conclusion that there had to be something more about the animal that distinguishes it from the ordinary pet." [Id.] It argues that, "even if not individually trained, if the dog had some ability that was peculiarly suited to ameliorate the unique problems of the mentally challenged, that could meet the requirement that the dog was necessary to afford a disabled person an equal opportunity to use and enjoy their dwelling." [Id. at 5-6.] In other words, the Prindable court "merely required that there be something that sets the animal apart from the ordinary pet." [Id. at 6 (citing Prindable, 304 F.Supp.2d at 1256).]
Next, the AOAO argues that the FHA does not require accommodations that provide an increased benefit or greater opportunity beyond those provided to a person without a handicap. It argues that a reasonable accommodation is only necessary if, without the accommodation, the disabled person will likely be denied an equal opportunity to enjoy the housing of their choice. [Id. (citing Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir.1996)).] To this end, the AOAO argues that Prindable sets the minimum standard necessary to demonstrate the link between the animal and the condition the animal purportedly ameliorates. Without such a standard, there would be no way to discern whether the animal provided any appreciable benefit to the owner that would afford him or her an equal opportunity to use and enjoy his dwelling. "In other words, it is that individual training the animal received or that special skill the animal possesses that links the animal directly to the effects
The AOAO contends that the FHA does not require accommodations that "`increase a benefit to a handicapped person above that provided by a nonhandicapped person with respect to matters unrelated to the handicap[.]'" [Id. (quoting Bryant Woods Inn v. Howard Cnty., 124 F.3d 597, 604 (4th Cir.1997) (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir.2008))).] According to the AOAO, "[i]f the animal provides the disabled person with a benefit that a nondisabled person would not be able to receive that is unrelated to the disability, then the accommodation is not necessary." [Id. at 7-8.] In other words, if an animal provides comfort and companionship to an owner not in need of those benefits and similar benefits are not provided to nondisabled owners, the animal would not qualify as a reasonable accommodation. Prindable ensures that there is a link between the disability and the benefits of the accommodation. [Id. at 8-9.]
Furthermore, the AOAO argues that the unreported cases and consent decrees cited by Taylor should be disregarded, as unreported cases carry no precedential value. [Id. at 9 (citing Hart v. Massanari, 266 F.3d 1155 (9th Cir.2001)).] The AOAO urges the Court to disregard the consent decrees, which are the products of negotiation and compromise by the parties that are confined to the four corners of the decree. [Id. at 10 (citing United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971)).]
The AOAO maintains that Taylor's argument that the recent changes to the HDRPTA support the conclusion that state law does not limit reasonable accommodations to trained animals is pure conjecture. The AOAO argues that there is no indication that such changes were made in response to Prindable or related reasoning, and the state legislature did not indicate that it intended to confer such rights upon disabled persons. [Id. at 10-11.] The AOAO contends that "[t]he Hawaii Legislature had the opportunity to be more specific and afford greater rights that [sic] those provided under federal law, and chose simply to indicate that it intended to conform to federal law." [Id. at 12.]
The HCRC Brief asserts that an untrained assistance animal may be a reasonable accommodation under Haw.Rev.Stat. Chapter 515, because "the relevant standard is not whether the animal has been specially trained, but whether the animal performs the disability-related assistance or provides the disability-related benefit needed by the person with the disability." [HCRC Brief at 3.] The HCRC urges the Court not to follow Prindable, because:
[Id.]
The HCRC argues that the FHA's implementing regulations do not require that
The HCRC further contends that HUD regulations governing HUD-assisted housing recognize that untrained animals can provide assistance needed by persons with disabilities and state that assistance animals do not require specialized training if there is a demonstrated nexus between his or her disability and the function that the assistance animal provides. [Id. (citing 73 Fed.Reg. 63835-63836 (Oct. 27, 2008)).] The HCRC notes that, because HUD regulations and interpretations are accorded great weight, Meyer v. Holley, 537 U.S. 280, 287-88, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003), courts have followed HUD's standards and interpretations in holding that assistance animals without specialized training may be reasonable accommodations. [HCRC Brief at 7.]
The HCRC represents that it has an agreement with HUD in which the state's reasonable accommodations provisions in Haw.Rev.Stat. Chapter 515 must be substantially equivalent to the FHA. [Id. at 8-9 (citing HCRC Brief, Decl. of William Hoshijo; 24 C.F.R. § 115.201).] Federal law is a minimum floor "beneath which state law protections against discrimination cannot drop, rather than a `ceiling' above which state law protections cannot rise." [Id. at 9 (citing Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 290-92, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987)).]
As to the 2011 amendments to Haw.Rev. Stat. § 515-3, the HCRC argues that "[t]he legislative history of Hawai'i's fair housing laws shows a steady expansion of coverage for persons with disabilities, as well as the expansion of accommodations to enable such persons to use and enjoy their dwellings." [Id. at 10.] In 1997, HUD notified the State that the language relating to accommodations for guide, signal, and service dogs was too restrictive. In response, the HCRC attempted to broaden the relevant statute by adding the term "service animal" and deleting any specialized training requirement. The legislature, however, chose to keep the traditional definition of "service animal," which required the animal to be trained. [Id. at 11-12 (citations omitted).] In 2011, the legislature adopted the HCRC's recommendations to include all types of assistance animals by deleting § 515-3(8) and its references to "guide dog," "signal dog," and "service animal" and replacing with "an animal." [Id. at 12-13 (citations omitted).] The current statute now states that, "if reasonable accommodations include the use of an animal, reasonable restrictions may be imposed...." Haw.Rev.Stat. § 515-3.
Finally, the HCRC argues that the AOAO's reliance on Prindable is misplaced. It notes that, since that decision, the DOJ and HUD have clarified that the animal standards in the ADA do not apply to the FHA. [Id. at 15.] Furthermore, the parties in the Kenna Homes case subsequently entered into a consent order in
The HCRC further argues that Prindable did not address whether an untrained support animal can be a reasonable accommodation under the FHA or Haw.Rev. Stat. Chapter 515, as the plaintiff in that case argued that his dog was trained to provide emotional support, although that assertion was not supported in the record. As such, the district court did not squarely address whether an untrained emotional support dog was a reasonable accommodation. [Id. at 15-16 (citing Prindable, 304 F.Supp.2d at 1256-57).]
Moreover, the HCRC states that footnote 25 of the Prindable decision "suggests that some type of training is necessary for an animal to be a reasonable accommodation, reasoning that otherwise every person with a mental disability would be entitled to the dog or animal of their choice, and there would be no logical reason to deny an accommodation for these animals." [Id. at 16 (citing 304 F.Supp.2d at 1257).] The HCRC contends that "this is the wrong standard for determining whether an animal is necessary as a reasonable accommodation.... [A] person... must demonstrate that the animal is needed to alleviate at least one identified symptom or effect of the person's disability.... Special training is not required." [Id. at 16-17 (internal footnotes and citations omitted).]
The AOAO's arguments in opposition to the HCRC Brief incorporate many of the arguments it raised in opposition to the Taylor Motion.
First, the AOAO argues that the authorities cited in the HCRC Brief do not support the HCRC's position. Regarding the FHA and its implementing regulations, the AOAO argues that there is nothing that supports HCRC's interpretation that "reasonable accommodation" includes an animal that provides "emotional support" for a disabled person without showing anything further. The AOAO argues that, the example of the seeing-eye dog in 24 C.F.R. § 100.204 "evidences the FHA's intent to place restrictions as to the use of service animals, and that not every emotional support animal claimed by a person with a disability qualifies as a reasonable accommodation." [Mem. in Opp. to HCRC Brief at 4.]
The AOAO also argues that the HCRC's reliance on HUD regulations, policy statements, and administrative decisions is misplaced, because those authorities are not controlling. The AOAO argues that HUD regulations regarding HUD-assisted housing do not apply to the present case. As for the February 2011 memo HUD issued to its agencies, the AOAO argues that it "is not controlling and cannot trump the actual interpretation of the FHA statute and it's [sic] implementing regulations." [Id. at 5.]
Similarly, the AOAO argues that HUD's administrative rulings, regulations, and policy statements are not entitled to deference under the facts of this case. Contrary to the HCRC's position that HUD's interpretation of the FHA is accorded great weight, the AOAO contends that "a court's prior judicial construction of a statute `trumps' an agency's interpretation if the prior court's decision holds that the statute is unambiguous...." [Id. at 6 (citing Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820
Contrary to the HCRC's argument that the 2011 amendment of § 515-3 evidences the legislature's intent to include emotional-support animals as a "reasonable accommodation" the AOAO argues that "[t]he Hawaii legislature chose not to provide greater protections to persons with disabilities, and amended the statute to conform with federal law." [Id. at 9.] The AOAO contends that, when the legislature amended the statute, it was aware of the potential problems caused by emotional-support animals, but instead chose not to mention emotional-support animals. [Id. at 8-9.]
Next, the AOAO argues that the Prindable decision correctly interprets the FHA for the reasons set forth in the AOAO Motion and in its memorandum in opposition to the Taylor Motion. [Id. at 9.]
Finally, the AOAO argues that the settlement agreements made by HUD and third parties have no bearing on the present case, because the housing providers made no admissions of liability, and the "consent decrees between housing providers and the DOJ/HUD are settlement agreements, not adjudications of any claims brought by the DOJ/HUD." [Id.]
The AOAO requests that the Court strike and not consider Exhibits 3, 5, 6, and 8, as they are not properly authenticated.
Taylor argues that specialized training is not necessary to ensure disabled persons receive equal opportunity. He contends that the AOAO's reliance on Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir.2008), is misplaced, because that case "relie[d] on authorities outside of the Ninth Circuit that construe the FHA's reasonable accommodation provisions as only covering accommodations that `address the needs created by the handicaps' themselves." [Reply in Supp. of Taylor Motion at 2-3 (quoting 544 F.3d at 1226 (emphasis in original)).] Taylor contends that this argument was rejected by the Ninth Circuit in Giebeler v. M & B Associates, 343 F.3d 1143, 1154 (9th Cir.2003).
Taylor contends that the "AOAO's argument rests on the faulty premise that an emotional support animal provides the exact same benefits to a disabled person as a
Second, Taylor argues that the administrative authorities he presented are properly before the Court as the unpublished HUD ALJ decisions are not equivalent to unpublished Ninth Circuit decisions, but are public documents appropriate for consideration. [Id. at 4 (citing Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir.1999) (HUD's interpretation of the FHA in adjudicative proceedings is entitled to deference)).] He argues that the Court's consideration of the consent decrees are similarly appropriate, because they are "guidance reflecting the interpretation of the FHA by the United States Department of Justice[,]" not "offered for the truth of the matters alleged in the charge of discrimination...." [Id. at 4-5.]
The AOAO Motion seeks partial summary judgment that, before it is required to waive its no-pets policy pursuant to a reasonable accommodation request made by a disabled resident, it can require that the animal have received some individual training to do work or perform tasks for the benefit of that resident.
The AOAO first recounts the standards established by this district court in Prindable. Based on the ADA definition, the court defined "service animal" to include "`any guide dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability....'" [Mem. in Supp. of AOAO Motion at 7 (alteration AOAO's)(quoting 28 C.F.R. § 36.104).] The court concluded that "there is no evidence that would lead a reasonable jury to conclude that [the dog] is an individually trained service animal and, therefore, nothing to show that an accommodation for [the dog] may be necessary to afford [the plaintiff] an equal opportunity to use and enjoy the dwelling." Prindable, 304 F.Supp.2d at 1260.
The AOAO next argues that courts disagree whether an animal must be specially trained to assist a disabled person. It cites a number of cases that agree with the reasoning in Prindable and require some evidence of individual training. [Mem. in Supp. of AOAO Motion at 8 (citing Oras v. Housing Auth. of the City of Bayonne, 373 N.J.Super. 302, 861 A.2d 194, 202-03 (2004); Timberline Mobile Home Park v. Wash. State Human Rights Comm'n, 122 Wn.App. 2896, 902 (2004); Storms v. Fred Meyer Stores, Inc., 129 Wn.App. 820, 826-27, 120 P.3d 126 (2005)).] Conversely, the AOAO acknowledges that other courts have rejected the reasoning in Prindable that requires that the animal be held to the standards of a service animal under the ADA. [Id. (citing Lucas v. Riverside Park Condominiums Unit Owners Ass'n, 776 N.W.2d 801, 809 (N.D.2009); Auburn Woods I Homeowners Ass'n v. Fair Emp't & Housing Comm'n, 121 Cal.App.4th 1578, 18 Cal.Rptr.3d 669, 682 (2004)).]
The AOAO argues that, "[i]n their effort to discredit the Prindable analysis, the opposing courts have focused their attention away from the Prindable requirement that there be something `to set the service animal apart from the ordinary pet,' to the Hawaii District Court's reliance on the
The AOAO argues that the Prindable court "set out to distinguish between an animal that would meet the requirement of the FHA as a reasonable accommodation and an ordinary household pet. To that end, the Court looked to the ADA for guidance on defining what would be a minimum standard for such an accommodation." [Id. at 10.]
The AOAO argues that Prindable set a minimum standard to distinguish a pet from an animal that affirmatively enhances a disabled individual's quality of life by ameliorating the effects of his or her disability. [Id. at 11.] In order to avoid allowing a disabled individual to keep a mere "pet," the AOAO contends that Prindable requires that the animal must have received some form of training. [Id. at 12.] It argues that:
[Id. at 13.]
In opposition to the AOAO Motion, Taylor incorporates the arguments he presented in conjunction with the Taylor Motion and argues that "the Prindable decision was wrongly decided, relying on inapposite regulations under the [ADA]." [Mem. in Opp. to AOAO Motion at 4 (footnote omitted).] Rather, he argues that no specialized animal training is required in the housing context. [Id.]
Taylor first argues that, contrary to the AOAO's characterization of the question before the Court as whether "a dog that has not received any training `and does not perform any work to ameliorate the conditions of its disabled owner' can nonetheless be a reasonable and necessary accommodation[,]" he argues that "whether the presence of the dog ameliorates the effects of Taylor's disability is not a question to be addressed in these cross-motions[.]" [Id. at 4-5 (quoting Mem. in Supp. of AOAO Motion at 1, 6).] Rather, Taylor contends that "[t]he only issue is whether an animal must satisfy the ADA definition of `individually trained service animal' in order to trigger a reasonable accommodation duty under the fair housing laws." [Id. at 5.]
Finally, Taylor argues that, instead of "categorically deny[ing] reasonable accommodation requests for emotional support or companion animals for the mentally or emotionally disabled[,]" as urged by the AOAO, the Ninth Circuit mandates a "`highly fact-specific [inquiry], requiring case by case determination.'" [Id. at 6 (some alterations Taylor's) (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416, 1418 (9th Cir.1994)).]
Taylor contends that the AOAO's argument that he would be entitled to a "better" opportunity — instead of an "equal" opportunity — "fails to recognize that an emotional support animal without any special training may `affirmatively enhance[] a disabled [person's] quality of life by ameliorating the effects of the disability.'" [Id.
The standard for summary judgment is well known to the parties and the Court and does not bear repeating here. See, e.g., Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696 F.Supp.2d 1163, 1176 (D.Hawai'i 2010).
The Court first addresses the AOAO's objections to Exhibits 3, 5, 6, and 8
The Court agrees with the AOAO and strikes Exhibits 3, 5, 6, and 8 to the Taylor Motion. On a summary judgment motion, the parties are obligated to provide admissible evidence:
Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.2002) (footnotes omitted). None of the documents are authenticated, and the Court declines to take judicial notice of those unauthenticated documents. Accordingly, Exhibits 3, 5, 6, and 8 to the Taylor Motion are HEREBY STRICKEN.
Prindable involves separate claims for reasonable accommodations under the FHA by two plaintiffs, John Dubois and his partner, Timothy Prindable. First, Dubois requested that the defendant, Association of Apartment Owners of 2987 Kalakaua, allow him an exception to the building's no-pets policy, because he was concerned about his personal safety. Before waiting for the defendant's reply, Dubois brought a dog, Einstein, into the his unit. The defendant determined that "personal safety" was not a valid justification for an exemption from the pet policy and required Dubois to remove Einstein from the property. Dubois then asserted that he needed to keep a dog to "cope with the stress, poor sleep patterns [and] problematic
Subsequently, Prindable requested that the defendant make an exception for Einstein, because he "has a medical illness for which a dog is necessary for his improvement." Id. at 1249-50. The defendant requested that Prindable provide an acceptable form of certification from a physician regarding his disability and how a pet would alleviate the effects of his handicap. Prindable sought such diagnoses from a variety of physicians, who opined that Prindable suffered from depression and a pet would "have a positive impact on [his] condition and a separation from his pet would exacerbate his condition." Id. at 1250. Pending the defendant's decision, Prindable was allowed to keep Einstein in his apartment. Shortly thereafter, Prindable filed a complaint with the HCRC, alleging that the respondents had failed to make a reasonable accommodation for him in light of his handicap. Id. at 1251.
The district court discussed the general construction of the FHA and its test for a "reasonable accommodation."
Prindable, 304 F.Supp.2d at 1254 (alterations in Prindable) (footnote omitted).
Regarding the second prong of the FHA "reasonable accommodation" analysis, the
Id. at 1256-57 (alterations in Prindable) (footnotes omitted).
The court concluded that "there is no evidence that would lead a reasonable jury to conclude that Einstein is an individually trained service animal and, therefore, nothing to show that an accommodation for Einstein may be necessary to afford Prindable an equal opportunity to use and enjoy the dwelling." Id. at 1260.
The parties ask the Court for a determination whether the district court's decision in Prindable is applicable to the present case so as to preclude Taylor's claim that Nell is a reasonable accommodation under the FHA. The AOAO argues that Prindable correctly sets the minimum standard for animals as reasonable accommodations to no-pet policies. The AOAO urges the Court to adopt Prindable's reasoning that an animal must have some evidence of individual training to be deemed a reasonable accommodation. [Mem. in Supp. of AOAO Motion at 13.] Conversely, Taylor argues that Prindable is erroneous because it "relied on inapposite regulations under the [ADA], applicable to public accommodations, to require an emotional support animal to have specialized training to qualify as a reasonable accommodation in the context of private housing under the [FHA]." [Mem. in Supp. of Taylor Motion at 1.] Rather, he contends that "the text of the federal and state fair housing laws and implementing regulations, agency interpretations and persuasive court decisions indicate that no specialized training is required in the housing context." [Id.]
As a preliminary matter, the Court considers the development of the FHA and state law to include not only "service animals," but "assistance animals" as reasonable accommodations. Taylor and the HCRC have presented persuasive arguments that the FHA has evolved to recognize "assistance animals," including "emotional support animals," as reasonable accommodations. They also argue that Chapter 515 of the Hawai'i Revised Statutes tracks federal law and has been amended to allow animals as reasonable accommodations beyond only "service animals." The Court agrees that both federal and state law, while not explicitly embracing "emotional support animals" as unequivocal "reasonable accommodations," does not preclude them as such. HUD and the DOJ have shown an increasing acceptance of emotional support animals, and Haw.Rev.Stat. § 515-3, while not explicitly mentioning emotional support animals, invites the possibility of their acceptance with the broad limitation of "use of an animal." Accordingly, this Court acknowledges that the law has changed since Prindable was decided in 2003 by increasing acceptance of "assistance animals" as possible "reasonable accommodations."
Upon a close reading of the Prindable decision, the Court notes that Judge Kay did not confront the exact issue presently before this Court. In Prindable, the court
Conversely, the present case requires the Court to consider whether Nell is an "assistance animal" that, by her very presence, provides emotional support to ameliorate Taylor's disability. As extensively briefed by Taylor and the HCRC, the concept of an "assistance animal," distinguishable from a "service animal," is a relatively recent occurrence and has become more prominent in the law in the nine years since the district court decided Prindable. Because this Court is not confronting the same issue as the Prindable court, it need not adopt the ADA definition of "service animal" or otherwise conclude that an untrained animal is not a reasonable accommodation per se.
Accordingly, the Court finds that Prindable is distinguishable from the present case. To the extent Prindable focused on the characteristics of an alleged "service animal," the instant matter turns on the characteristics of an alleged "assistance animal." In any event, this Court largely agrees with much of Prindable's analysis and empathizes with the district court's struggle to differentiate an ordinary pet from an animal that provides "something more" to its disabled owner such that it can be a "reasonable accommodation" under the FHA. As this Court explained at the hearing, "[t]he framework in Prindable appears to be rigid. However, the determination of being a service dog has to be more than being a pet.... So what we are left with here is how that definition overlaps and is also different from one another." [7/23/12 Hrg. Trans., filed 8/7/12 (dkt. no. 52), at 10-11.] For the reasons discussed above, the Court FINDS that Prindable is distinguishable from the instant matter and CONCLUDES that its holding is inapplicable to the present case.
Having determined that Prindable is not controlling, the Court turns to the issue whether a pet must have individualized training to be a reasonable accommodation under the FHA.
The FHA provides that actionable housing discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]" 42 U.S.C. § 3604(f)(3)(B). The Ninth Circuit has
DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.2006) (some citations omitted) (citing United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir. 1997)). The Ninth Circuit has repeatedly acknowledged that "`[t]he reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.'" Id. (quoting Cal. Mobile Home Park, 107 F.3d at 1380).
At the hearing on the present motions, the Court queried the parties regarding the appropriate starting point of the FHA analysis. Taylor took the position that the analysis begins with the disabled individual, [7/23/12 Hrg. Trans. at 52,] while the AOAO argued that the Court should first look at the accommodation [id. at 28].
The Court agrees with Taylor, insofar as he contends that the Court must first examine Taylor's claimed disability before it can determine whether Nell is a reasonable accommodation. Although the Ninth Circuit has not explicitly announced the order in which to examine the five factors, it appears to address them in order. See, e.g., Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir.2003) (discussing the factors in order, beginning with the plaintiff's handicap). Indeed, only by first looking at the individual and his disability can a court determine whether the requested accommodation appropriately alleviates the disability. To start the analysis with the accommodation without reference to the disability makes it impossible to ascertain whether the accommodation is "necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling" or "reasonable."
Because the analysis must start with the disability, the Court cannot say, as a matter of law, that an untrained emotional support animal unequivocally is or is not a reasonable accommodation under the FHA. In some instances, a plaintiff may have a disability that requires an assistance animal with some type of training; in other instances, it may be possible that no training is necessary. This determination must be the result of a fact-specific inquiry and case-by-case determination. See Cal. Mobile Home Park, 107 F.3d at 1380. The Court believes that this analysis ensures that only those with proper disabilities are afforded accommodations such as assistance animals; it will not, as portended by the AOAO, result in everyone who wants a pet being afforded an assistance animal, so long as they label it an emotional support animal. Rather, because the animal must alleviate the disability, only those with disabilities will be afforded this accommodation. See Hubbard v. Samson Mgmt. Corp., 994 F.Supp. 187, 191 (S.D.N.Y.1998) ("accommodations that go beyond affording a handicapped [person] `an equal opportunity to use and enjoy a dwelling' are not required by the [FHA]" (quoting Bryant Woods Inn, Inc. v. Howard County, Maryland, 124 F.3d 597, 605 (4th Cir.1997))).
Accordingly, the AOAO Motion is DENIED to the extent it seeks summary judgment "declaring that before it is required to grant a waiver of its no pet
On the basis of the foregoing, Taylor's Motion for Partial Summary Judgment, filed May 18, 2012, is DENIED, and the AOAO's Motion for Partial Summary Judgment, filed May 21, 2012, and the Joinder in Motion for Partial Summary Judgment, filed May 21, 2012, are HEREBY DENIED. Both motions are denied without prejudice.
IT IS SO ORDERED.
