Fair Housing Enforcement Activities re Emotional Support Animals

http://www.hud.gov/offices/fheo/enforcement/2009hudcharges.cfm

1. Reasonable accommodation for a child that needed a support animal with
part of the complaint based on an “unreasonable pet license.” Cooperative
lost.

Schein v. Townsend House Corp (a cooperative, 09-29-08)

http://www.hud.gov/offices/fheo/enforcement/mostajo.pdf

2. Rosie was registered and listed as a service dog with the New York
Department of Mental Health & Hygiene, but the cooperative still objected
and began eviction proceedings (while still collecting maintenance fees).
The cooperative lost the case.

Gary Wynn v. 405 East 82nd Street Cooperative (01-22-09)

http://www.hud.gov/offices/fheo/enforcement/09_HUD_v_405East82ndStCoop.pdf

3. This is a failure to design for accessibility case. Equity Homes lost
the case and the condominium seems to have disappeared from the case.

Fair Housing of the Dakotas v. Equity Homes, Sertoma Condominium (03-10-09)

http://www.hud.gov/offices/fheo/enforcement/dakota-vs-eh-sertoma.pdf

To Your Pet Owner Empowerment!

Fair Housing Enforcement Cases re Emotional Support Animals originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on April 12, 2009.

UNITED STATES OF AMERICA
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF ADMINISTRATIVE LAW JUDGES
)
The Secretary, United States Department of ) Housing and Urban Development, ) on behalf of )
)
MARIA MOSTAJO and MARK SCHEIN ) on behalf of AARON SCHEIN, )
)
Charging Party, )
) FHEO No. 02-08-0768-8
v. ) THE TOWNSEND HOUSE CORP., )
)
Respondent. )
)
CHARGE OF DISCRIMINATION
JURISDICTION
1. On July 2, 2008, Complainants Maria Mostajo and Mark Schein filed a verified
complaint with the U.S. Department of Housing and Urban Development (“HUD”) on behalf of themselves and their minor child, Aaron Schein. Complainants allege that Respondent refused to grant them a reasonable accommodation in violation of the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq. (“Act”). In particular, Complainants allege that Respondent unlawfully denied their request to permit their minor child to have a medicallyprescribed emotional support animal as a reasonable accommodation. 42 U.S.C. §§ 3604(0(2), (0(3)(B).
2. The Act authorizes the Secretary of HUD to issue a Charge of Discrimination
(“Charge”) on behalf of aggrieved persons following an investigation and determination that reasonable cause exists to believe that a discriminatory housing practice has occurred. 42 U.S.C. § 3610(g)(1)-(2). The Secretary has delegated to the General Counsel (54 Fed. Reg. 13121), who has re-delegated to the Regional Counsel (67 Fed. Reg. 44234), the authority to issue such a Charge, following a determination of reasonable cause.
3. The Director of the Office of Fair Housing and Equal Opportunity (“FHEO”) for the
New York/New Jersey Region, on behalf of the Assistant Secretary for FHEO, has authorized this Charge because he has determined after investigation that reasonable cause exists to believe that a discriminatory housing practice has occurred. HUD’s efforts to conciliate the complaint were unsuccessful. See 42 U.S.C. § 3610(b).
LEGAL AUTHORITY IN SUPPORT OF CHARGE
4. It is unlawful to discriminate against any person in the terms, conditions, or privileges
of the sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a disability of that person or a person residing in that dwelling after it is sold, rented or made available. 42 U.S.C. § 3604(0(2). Discrimination includes a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B).
PARTIES:
5. Complainants Maria Mostajo and Mark Schein are tenant-shareholders of Apartment
3F at 176 E. 71st Street, New York, New York 10021. They are the parents of Aaron Schein, an 11-year old boy with disabilities who resides with Complainants (the “Child”). The Child has been diagnosed with Autistic Spectrum Disorder (Asperger’s Syndrome), a pervasive developmental disorder, and Central Auditory Processing Disorder. The Child’s Asperger’s Syndrome combined with his Central Auditory Processing Disorder significantly impair his day-to-day functioning, including his ability to learn, hear and care for himself
6. Respondent is The Townsend House Corp. (“Townsend House”), a private
cooperative development. Townsend House is a 20-story apartment building with 97 cooperative apartments and is located at 176 East 71st Street, New York, New York 10021.
FACTUAL ALLEGATIONS IN SUPPORT OF CHARGE
7. Respondent maintains a policy prohibiting dogs and other pets in the building, even
on a temporary basis. This policy is contained within Respondent’s —House Rules,” which constitute part of the shareholders’ Proprietary Lease Agreement.
8. In or about February 2007, Complainants wrote a letter to Respondent requesting a
reasonable accommodation for their son. Specifically, Complainants requested an exception to the no-pet policy to permit the Child to have a dog as a medicallyprescribed emotional support animal.
9. Complainants’ request informed Respondent of their son’s medical condition and was
accompanied by psychological reports to confirm the Child’s diagnoses and literature outlining the benefits of such a dog.
10. In response to Respondent’s concern that the documentation Complainants previously
provided did not clearly state that the Child suffered a disability that required an emotional support animal, in April 2007, Complainants provided Respondent with
two letters from the Child’s medical providers addressing his disability and recommending a dog as an emotional support animal.
11. On August 1, 2007, David Berkey, counsel for Respondent, informed Complainants
that Respondent asked to have an independent professional retained to confirm the Child’s medical condition, provided Complainants consented and agreed to cover the expense. Complainants objected to having their son subjected to additional evaluation. They suggested to Mr. Berkey that the independent physician speak to the Child’s doctors to obtain any information necessary to make his/her evaluation.
17. On December 5, 2007, Mr. Berkey informed Complainants that Respondent was
considering retaining Dr. Nancy Crown, Ph.D. to evaluate the Child’s medical condition.
13. On December 18, 2007, Mr. Berkey told Complainants that Respondent was ready to
proceed, but required clarification on some issues. Among other things, Respondent wanted to know if Complainants agreed to cover the entire cost of the evaluation, not simply to “share” the cost with Respondent, as well as any legal fees incurred by Respondent in connection with reviewing the request for a reasonable
accommodation.
14. In Dr. Crown’s January 28, 2008 report, she opined that the Child’s condition was a
disability under the ADA and agreed with the previous psychologist’s assessment of the Child’s developmental disability and reasonable recommendation for a dog.
15. In or about March 2008, Mr. Berkey informed Complainants that Respondent had
granted the request, but it was conditioned on Complainants’ agreement to comply with the terms contained in a Pet License Agreement.
16. On May 23, 2008, Mr. Berkey provided Complainants with a revised Pet License Agreement.
17. The Pet License Agreement at issue contained unreasonable restrictions. In pertinent
part, the Pet License Agreement provides:
2. …. The term of this Agreement shall be for so long as [the Child] resides in the Apartment and a therapy animal is helpful for treatment of his disability. Should [the child] leave the apartment for an extended period of time (e.g., to attend preparatory school or college) the dog may not continue to be kept in the Apartment.
3. It is specifically understood and agreed by and between LICENSOR and LICENSEES that this License Agreement and the privilege hereby granted is conditioned upon compliance by LICENSEES with the following terms and conditions:
(a) the dog is for the therapeutic treatment of [the Child] and he should be trained to and be capable of taking care of the dog;
(b) the dog must weigh less than 10 pounds fully grown;
(c) when transporting the dog in the building, the passenger elevator may not be used; the service elevator or the stairs shall be used to transport the dog between floors of the building;
(d) when transporting the dog in the service elevator or public spaces of the building, it must be kept in a carrier case (in such event a leash is not required) or hand carried and on a leash and the dog may not be released from the carrier case or placed on the ground until it is inside your apartment or beyond the doorway of the doctors’ offices located on either side of the building entryway;
(f) the tenace may not be used to exercise the dog or for playing ball or other similar games with the dog;
(g) the dog may not be left alone in the apartment for more than two (2) consecutive hours;
(i) should the dog be walked by professional dog walkers, they shall not tie up any animals on the building property or on the sidewalks in front of the building at any location inside area bounded by the doorways of the doctor’s offices located on either side of the building entryway;
(k) the dog may not be replaced by LICENSEE unless the prior written consent of LICENSOR is obtained pursuant to a new license agreement, which consent shall not be unreasonably withheld or delayed;
(i) LICENSEES must register the dog with the New York City Department of Health and Mental Hygiene (A Board of Health) or other such agency having jurisdiction thereof and provide LICENSOR with proof of such registration;
(n) LICENSEES shall provide LICENSOR with proof of the existence of a Homeowner’s Insurance policy providing liability coverage in the face amount of not less than $1,000,000.00 for bodily injury and property damage or in such other amounts as may be established by the board in its reasonable discretion from time to time.
(vi) LICENSOR, in its reasonable discretion, shall have the right to determine that the dog licensed by it shall be muzzled at such time as the dog is present in a building service elevator, public hallway, stairwell, lobby or other such areas of the property of LICENSOR as may be designated.
(xviii) Complainants objected to restrictions imposed by the Pet License Agreement and
provided alternate language for Respondent’s consideration.
19. On June 23, 2008, Complainant Schein met with Respondent’s Board of Directors to
discuss the terms of the Pet License Agreement, including Complainants’ objections.
20. On June 30, 2008, after consideration of Complainants’ objections and suggested
language, Respondent informed Complainants that it was only willing to adjust the weight limit to that of a fully grown dog up to 25 pounds. Respondent refused to modify or remove any other restriction.
21. The delay since February 2007, in providing Complainants with a timely response to
their reasonable request has prevented treatment for the Child. More specifically, the continued delay caused Complainants to lose opportunities to select an appropriate dog for the Child. It also caused Complainants to lose the opportunity for the Child and dog to attend a training program that was available during the Summer of 2007 and 2008, which would have allowed Complainants to avoid any interference with the Child’s regular school year.
27. Respondent has billed Complainants for the legal services it received in order to
review the request for a reasonable accommodation, as well as for the cost associated with Dr. Crown’s evaluation of the Child.
FAIR HOUSING ACT VIOLATIONS:
23. Respondent has violated the Act because the unreasonable restrictions placed on
Complainants, as well as the unreasonable delay in providing Complainants with a timely response to the request, constitute a discriminatory refusal to make a reasonable accommodation in their rules, policies, practices, or services, when such an accommodation was necessary to afford Complainants and the minor Child an equal opportunity to use and enjoy their dwelling. 42 U.S.C. §§ 3604(0(2), (0(3)(B);
see also 24 C.F.R. § 100.204(a).
CONCLUSION:
WHEREFORE, the Secretary of HUD, through the Office of General Counsel and pursuant to 42 U.S.C. § 3610(g) (2) (A), hereby charges Respondent with engaging in discriminatory housing practices in violation of 42 U.S.C. §§ 3604(0(2), (0(3)(B) and prays that an order be issued that:
1. Declares that the discriminatory housing practices of Respondent as set forth above
violate the Fair Housing Act, 42 U.S.C. §§3601-3619;
2. Enjoins Respondent, its agents, employees, and successors, and all other persons in
active concert or participation with it, from discriminating because of disability against any person in any aspect of the rental, sale, use or enjoyment of a dwelling pursuant to 42 U.S.C. § 3612 (g) (3);
3. Enjoins Respondent, its agents, employees, and successors, and all other persons in
active concert or participation with it, from implementing, applying or otherwise enforcing any policy or practice requiring aggrieved persons to bear costs associated
with making a request for a reasonable accommodation;
4. Awards such damages pursuant to 42 U.S.C. §3612(g) (3) as will fully compensate
Complainants for emotional distress, including embarrassment and humiliation, inconvenience, and economic loss caused by Respondent’s discriminatory conduct;
5. Awards a civil penalty against Respondent for violation of the Act, pursuant to 42
U.S.C. §3612(g) (3); and
6. Awards such additional relief as may be appropriate under 42 U.S.C. §3612(g) (3).
Respectfully submitted,
John J. C6h111
Regional Counsel for New York/New Jersey
Henrye,Schoenfeld
Associate Regional Counsel
for Program Enforcement and Litigation
A. I 41.e1 DeMoura Attorney Advisor
Office of Regional Counsel U.S. Department of Housing and Urban Development 26 Federal Plaza, Room 3500 New York, New York 10278-0068 (212) 542-7734
Date: September 29, 2008

Pets in Condos + Cooperatives: Legal Victory re Emotional Support Animal for Disabled Child originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on March 28, 2009.

Hi Joyce,

Thank you for your support. It was an unbelievable battle, and I still have many wounds. My ‘fight for justice’ has affected my personal and public life negatively. It all began when I had a serious fall out of my wheelchair on 1-27-08. As I was trying to open the door while holding my young Lhasa Apso dog back, so that he wouldn’t get out the door, I literally "fell on my face." I went to the emergency room at Blake Medical Center for emergency services, which included X Rays of my head and facial bones. The cost of that visit was $948.00 and I soon had a black eye and the right side of my face was swollen and bruised from my hairline to my chin.

Needless to say, my co-owner Jim was upset. I had previously injured myself in other similar instances. He decided to "fix the problem," and I told him that I was allowed to make my home accessible through ADA. Jim installed a dog gate in the patio area to keep the dogs safe and secured. They could easily access the patio by a doggy door in the living room.

Everyone knew that I did not personally do the work and install the gate, but I was given a "Violation" in my name only. I was ordered to take the gate down by an attorney who represents our management company and three Board of Directors members. I am treasurer of the board and knew nothing about the intention to issue me this violation; another director hadn’t been consulted either. I quickly learned that ADA covers public property only. HUD manages private property. I contacted the Florida Commission on Human Relations. I felt they were showing me blatant discrimination.

I was a coordinator of the Peer program at the Metropolitan Center for Independent Living, MCIL, before I moved to Florida in 2001. I was familiar with the rights of People with Disabilities, PWDs, through ADA, etc. Norm Coleman was the mayor of Saint Paul, MN when I was about to move. I was on the Mayors Advisory Committee for PWDs since 1994: he is now a MN Senator. As I was preparing to move, Mayor Norm Coleman proclaimed Feb 21, 2001 "Linda Lattin Day" for all my work and contributions that I gave to all people in the city. I was very honored: I thought you had to be dead to have a day dedicated to you!

In an unbelievable amount of emails from the board ordering me to take the gate down, the president said: "There is no way this is a case of discrimination. If anyone should feel harassed it is Ellen and I who keep getting the ADA thrown in our faces. All you had to do is consult the board. And if we let board members go ahead and do things without following procedure, what does that say to the rest of the community? Procedures still need to be followed, even by people with disabilities. You have gone ahead and had work done on your unit without getting approval (that probably would have been if all the facts and reasons had been given) and then cried discrimination. It is what gives people with disabilities a bad name."

On 6-25-08 the Respondents: three board of directors & the management company agreed to "ensure to the best of its ability, that its policies, performance and conduct shall continue to demonstrate a firm commitment to the Florida Civil Rights Act of 1992, as amended Sections 760.20-37, Florida Statutes, (2005) and the Civil Rights Act of the United States (42 U.S.C. 1981 and 1982 and 3601 et. seq.)

They "agreed that Board members, employees, agents and representatives shall continue to deal in an equal and impartial manner, without regard to race, color, religion, sex, national origin, handicap, or familial status, with all persons making inquiry for rental and/or purchase, and with any buyers, prospective buyers, tenants, prospective tenants, application for rental or purchase, and all persons enjoying, or seeking to enjoy residency and services and privileges afforded therewith."

"It is understood that this agreement does not constitute a judgment on the part of the Commission that did nor did not violate the Fair Housing Act of 1983, as amended, Section 760.20-37, Florida Statutes (2002). The Commission does not waive its rights to process any additional complaints against the Respondents, including a complaint filed by a member of the Commission."

"Respondent agrees to waive and release any and all claims against the Complainant with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of law appropriate jurisdiction as to the date of this Agreement." and so on, and so on.

Their reason for giving me the violation was "because she didn’t ask."

The "Conciliation Agreement" includes "Complainant agrees to refrain from making false, defamatory, or disparaging comments, in any manner or medium, including the painting of messages on her vehicle, about the Condominium Association, Inc.; any member of it’s Board of Directors; Condominium Management Services, Inc.; or any employee of the Condominium Management Services, Inc. regarding the issues raised in her complaint, or the issues that could have been raised in her complaint."

I have quoted the "Conciliation Agreement; FCHR No.: 28-92497, HUD No. 04-08-0807-8 directly. I am not making false, defamatory, or disparaging comments.

Ultimately I wish I could afford to buy a home elsewhere and leave the respondents in my dust, but I live on my SSDI, which is below the poverty level, and I feel lucky to have a home!

Thank you for your kind words and thoughts.

Sunshine & Smiles,
Linda L. Lattin

HOA Pet Gate Case Gone Amuck originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on July 30, 2008.