Saturday, August 30, 2014

Another Out-Of-Control Condo Association Feels The Bite After Jerking Around Disabled Veteran & His Emotional Support Dog In Violation Of Federal, Florida Fair Housing Acts; Appeals Court OKs $5K In Compensatory Damages, Sticks HOA w/ $127K+ Tab For Homeowner's Legal Fees

Courthouse News Service reports:
  • A condo association must pay $5,000 in damages, plus $127,000 in attorneys' fees, for insisting that a veteran with PTSD get rid of his emotional support dog,(1) the 11th Circuit ruled.

    Ajit Bhogaita is a U.S. Air Force veteran who suffers from post-traumatic stress disorder after he was sexually assaulted during his military service.

    In 2001, he bought a condo unit in Altamonte Springs, Florida. The condo association prohibits keeping dogs weighing more than 25 pounds, but Bhogaita bought a dog, Kane, in 2008 that was over the weight limit.

    "Bhogaita's psychiatric symptoms improved with Kane's presence, so much so that Bhogaita began to rely on the dog to help him manage his condition," according to the judgment.

    When the association ordered him to get rid of Kane two years later, Bhogaita argued that the dog was an emotional support animal, and filed a complaint with the U.S. Department of Housing and Urban Development.

    After a civil trial, a jury awarded Bhogaita $5,000 in compensatory damages for the Association's refusal to accommodate his disability. The court also awarded him $127,000 in attorneys' fees. The 11th Circuit affirmed the jury's verdict, and the fee award Wednesday.

    "Bhogaita produced evidence from which a reasonable fact finder could conclude that his dog alleviated the effects of his PTSD. Specifically, Dr. Li's letters said that Kane assists Bhogaita 'in coping with his disability,' and 'ameliorate[s]' Bhogaita's 'psychiatric symptoms,' and that without the dog, Bhogaita's 'social interactions would be so overwhelming that he would be unable to perform work of any kind,'" Judge Joel Dubina said, writing for the three-judge panel.

    The association also insists that it was prejudiced by the court's decision to allow Kane's presence in the courtroom and at Bhogaita's side during his testimony.

    "A district court abuses its discretion to admit relevant evidence when its decision rests on a clearly erroneous fact-finding, 'an errant conclusion of law, or an improper application of law to fact,'" the judge said. "Nothing suggests that the district court's decision allowing the dog to remain present as a demonstrative exhibit rested on any of the three."

    As Bhogaita's $5,000 recovery was not nominal, he was entitled to attorneys' fees as the prevailing party, Dubina wrote.
Source: Condo Must Pay For Causing Dog's Eviction.

For the ruling, see Bhogaita v. Altamonte Heights Condo Assoc., Nos. 13-12625; 13-13914 (11th Cir. August 27, 2014).

Go here for other stories on emotional support animals and the Fair Housing Act.

(1) An emotional support animal is an assistance animal that does not receive any specialized training to assist those with mental disabilities, but whose function is to simply provide motivation and emotional support to their owners (and that apparently qualifies as a 'reasonable accommodation' in connection with the enforcement of the federal Fair Housing Act; however such an assistance animal may not qualify as a 'service animal' in connection with the enforcement of the federal Americans With Disabilities Act). Emotional support animals are to be contrasted with what the literature refers to as 'service animals', animals that do receive specifice training to do work or perform tasks for those with disabilities.

See generally:
It should be noted that, in enforcing the Americans with Disabilities Act, it appears that 'service animals' may be limited to dogs, and that said dogs must have received the necessary training to do work or perform tasks for their owners (see Revised ADA Requirements - Service Animals). It doesn't appear that, in enforcing the Fair Housing Act, there are similar requirements for an animal to qualify as an emotional support/assistance animal constituting a 'reasonable accommodation' for its owner in connection with the enforcement of that owner's housing rights (although I suspect that the animal's owner will at least need a doctor's note prescribing the animal for the owner/patient's emotional stability, or possibly some other objective proof). See Reasonable Accomodations Under The Fair Housing Act - Q & A # 6, 11, 17.

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