Saturday, October 29, 2016

Pennsylvania Appeals Court Nixes Mobility-Impaired Co-Op Purchaser's Request For Companion Pooch; Says Need For Animal Provides No Direct Assistance For Particular Disability As Described By Her Physician In Doctor's Note

In Philadelphia, Pennsylvania, The Legal Intelligencer reports:
  • The Commonwealth Court held in Kennedy House v. Philadelphia Commission on Human Relations, No. 1263 C.D. (2016), that a residential cooperative building was not required to provide an accommodation in the form of a waiver of its no-dog policy when an ­applicant could not demonstrate a nexus between her disability and the assistance provided by her dog. The 2-1 decision, filed on July 11, 2016, reversed the Court of Common Pleas affirmance of a Philadelphia Commission on Human Relations adjudication that concluded that Kennedy House violated Section 9-1108(1) of the Philadelphia Fair Practice Ordinance when it denied an accommodation request.

    The dispute began when Jan Rubin ­applied to join the Kennedy House residential cooperative and requested a waiver of its no-dog policy so she may live with her 11-year-old dog, Mira, who Rubin described as a service dog. Kennedy House asked for a letter attesting to a need for the accommodation. The letter she provided from her physician stated that she suffers from multiple medical issues that affects her mobility, benefits from the service the dog provides and that the absence of the dog would impair her ability to function.(1) Her physician then certified in writing, at Kennedy House's request, that she was disabled as defined by federal law and the accommodation was consistent with needs associated with her disability. She was then required to attend a Kennedy House Membership Committee Hearing where she informed the committee that Mira assists her in ordering her day, and in remembering when to take medications, eat meals and get up and out of bed. Her request was denied on the basis that the requested accommodation did not comply with both their own rules and federal law.

    Rubin essentially reiterated her needs when she testified before the commission. However, on cross examination she was asked if Mira performed any tasks that helped her with mobility issues. She ­replied in the negative, stating that the dog "has a timing thing, it reminds me of what I am supposed to be doing." Critically, Rubin further testified that she has not been diagnosed with a mental disability or a psychological ­condition. Her doctor's letters did ­contain any reference to the same.

    The commission found the required nexus between her disability and the need for a companion dog by referring to the relevant portions of the Fair Housing Act of 1968, 42 U.S.C. Section 3604(f), which was amended in 1988 by adding subsection 804(f) ­prohibiting discrimination based on disability. In short, the commission found that the dog provided emotional support that ­alleviated one or more identified disabilities. The commission associated the help the dog ­provided as aiding her to lead a more ordered life—the very thing that her significant chronic pain makes it difficult for her to accomplish. The Court of Common Pleas adopted the commission's findings as its own, finding that its conclusion was based upon substantial evidence.

    In its appeal, Kennedy House agreed that Rubin has a physical disability that limits her ­mobility. Kennedy House alleged the dog would provide only emotional ­support, which was unrelated to Rubin's mobility issues and, since there was no evidence of an emotional or psychological disability, it was error for the commission to order that she be placed at the top of the waiting list for a new unit, with an 
accommodation.

    The issue for the Commonwealth Court was whether Rubin carried her burden that the need for the dog was necessary to afford her an equal opportunity to use and enjoy the unit she sought to purchase, citing Lapid-Laurel v. Zoning Board of Adjustment of Township of Scotch Plains, 284 F. 3d 442, 446 (Third Circuit 2002).

    In order to prove necessity, a plaintiff must establish a nexus between the disability and the assistance the service animal provides (which is not required to be trained), per HUD interpretive rule Pet Ownership for the Elderly and Persons with Disabilities, 73 FR 63834-01 (2009).

    The Commonwealth Court held she failed to establish the nexus between her disability and the assistance provided by the assistance dog, Mira, citing Bryant Woods Inn v. Howard County, Maryland, 124 F. 3d. 587, 604, which holds "if the proposed accommodation provides no direct amelioration of a disability's effect, it cannot be said to be necessary. The court determined that the direct amelioration of the disability's effect was lacking. The court referred to her testimony where she stated that Mira does not assist her with her mobility—but assists her in reminding her to get out of bed and take medications—which the court interpreted as not directly related to the disability described by her physician.

    The majority cited cases where cats, dogs and a miniature horse were deemed necessary to alleviate both mental and physical ailments. The court distinguished these cases from Rubin's because each contained medical documentation attesting to both mental and physical disabilities.
For more, see Court Interprets Nexus Between Disability and Assistance Dog.
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(1) The resident's condition is described in the following excerpt from the court ruling:
  • Ms. Rubin is 61 years of age and suffers from: "(1) degenerative disc disease at multiple levels of her spine; (2) spinal stenosis at multiple levels of her spine; (3) fibromyalgia; (4) chronic pain; and (5) central nervous system sleep apnea."

    Ms. Rubin's conditions affect her mobility and "limit her ability to stand to about [10] to [15] minutes, and her ability to sit to a maximum of [20] to [30] minutes before the pain becomes significant."

    Ms. Rubin finds it difficult to cook for herself or climb stairs. (Id.) Her conditions have "significantly worsened over the past two years," and she "can no longer work."

    Her conditions and the pain from which she suffers "often make[s] it difficult for her to order her day, to get out of bed, to remember to take her medications, and [to] do other simple tasks such as to take a shower, comb her hair[,] and get dressed."

    To assist her in everyday life, Ms. Rubin employs two part-time caregivers and is assisted by her 10- or 11-year-old Plott Hound named Mira. "Mira does not have special training and is a stay-at-home animal that does not accompany Ms. Rubin to places of public accommodation." emotional support

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