AOAO Liliuokalani Gardens at Waikiki v. Taylor
Filing
54
ORDER DENYING DEFENDANT/COUNTERCLAIM PLAINTIFF JOEL LEE TAYLOR'S MOTION FOR PARTIAL SUMMARY JUDGMENT 26 ; DENYING PLAINTIFF ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENS AT WAIKIKI'S MOTION FOR PARTIAL SUMMARY JUDGMENT 31 ; AND DENYING JOINDER IN MOTION FOR PARTIAL SUMMARY JUDGMENT BY COUNTERCLAIM DEFENDANT ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENSAT WAIKIKI 30 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/31/2012. ~Order follows hearing held 7/23/ 2012. Minutes: 51 ~ (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on September 4,2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ASSOCIATION OF APARTMENT
OWNERS OF LILIUOKALANI
GARDENS AT WAIKIKI, a Hawaii
nonprofit corporation, by its
Board of Directors,
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
JOEL LEE TAYLOR,
)
)
Defendant
_____________________________ )
CIVIL NO. 11-00751 LEK-BMK
ORDER DENYING DEFENDANT/COUNTERCLAIM PLAINTIFF JOEL LEE TAYLOR’S
MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFF
ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENS AT
WAIKIKI’S MOTION FOR PARTIAL SUMMARY JUDGMENT; AND DENYING
JOINDER IN MOTION FOR PARTIAL SUMMARY JUDGMENT BY COUNTERCLAIM
DEFENDANT ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENS
AT WAIKIKI
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.
BACKGROUND
Taylor purchased an apartment in the Liliuokalani
Gardens at Waikiki condominium project (“Liliuokalani Gardens”)
in 2011.1
[Complaint at ¶¶ 7, 35.]
The AOAO represents that
Taylor had first considered purchasing a unit in Liliuokalani
1
Neither motion provides much factual background, so the
Court draws heavily from the original Complaint. [Dkt. no. 1.]
2
Gardens in 2009 and at that time was aware of the AOAO’s no-pets
policy.
[Id. at ¶¶ 23-24.]
Taylor entered into a purchase
agreement but conditioned the purchase on being able to keep his
dog, Nell, as an accommodation for his mental disability.
[Id.
at ¶ 24.]
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.
¶¶ 25-26.]
[Id. at
Alex E. Torres, M.D. (“Dr. Torres”) responded to the
questionnaire, but the AOAO claims that “some of his responses
were incomplete and others were unclear.”
[Id. at ¶ 27.]
Dr.
Torres indicated that Taylor suffers from “‘agarophobia [sic] and
social phobia - permanent condition’.”
[Id. at ¶ 28.]
In
response to the question “What major life activity or activities
are the subject of Patient’s disability or record of
disability?”, Dr. Torres stated: “Neuro-science report
establishes a brain chemistry imbalance.
Epinephrine is very
low, dopamine is optimal, serotonin is very low.
Very low levels
of serotonin promote agarophobia [sic] and social phobia.
‘Caring for oneself’ is possible with his service dog.”
¶ 29.]
[Id. at
The AOAO contends that “Dr. Torres failed to indicate how
the requested accommodation would alleviate or mitigate
3
[Taylor’s] disability or otherwise assist him in using and
enjoying the dwelling.
Dr. Torres instead indicated ‘[i]t would
provide a safe haven from outside stress and allowing [sic] a
refuge from the outside world.’”
in Complaint).]
[Id. at ¶ 30 (some alterations
The answers to the questionnaire also did not
state what training, if any, Nell had received.
[Id. at ¶ 32.]
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.
¶ 39.]
[Id. at
Taylor apparently has represented Nell’s services as
that:
4
she must be quartered with me so as to be on
call when I am required to engage with the
general public to care for myself. . . . I
refer you to the training required to act as
an “emotionally supportive” Service Dog.
There is none other than being a calming
support in stressful situations.
[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:
from a handicap as defined under 42 U.S.C.
§3602(h) or a disability under HRS §515-2,
and submits that even assuming the owner
qualifies as a disabled person under the FHA,
Plaintiff is not required under 42 U.S.C.
§ 3604(f)(3)(B) or HRS § 515-3(11), or any
other provision of the FHA or its Hawai‘i
counterpart, to waive its no pet policy and
permit the owner to keep a dog that has not
received any training which would make it
particularly suited to ameliorate the unique
problems of the owner’s disabilities.
[Id. at ¶ 2.]
On March 12, 2012, the magistrate judge issued a
briefing schedule on motions for partial summary judgment on the
applicability and validity of Prindable v. Association of
Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D.
5
Hawai‘i 2003), as it applies to the present case.
I.
[Dkt. no. 25.]
Taylor Motion
A.
Motion
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.]
1.
No FHA Limitation to Trained Animals
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.’”
6
[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).2]
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.
2
[Id. at 10 (citing
Taylor notes that 24 U.S.C. § 100.204(b) provides an
illustration of an unlawful refusal to make a reasonable
accommodation: it is “‘a violation of § 100.204 for the manager
of [a “no pets”] apartment complex to refuse to permit [a blind
applicant] to live in the apartment with a seeing eye dog
because, without the seeing eye dog, the blind person will not
have an equal opportunity to use and enjoy a dwelling.’” [Mem.
in Supp. of Taylor Motion at 9-10 (alterations Taylor’s) (quoting
24 C.F.R. § 100.204(b), Example (I)).] Taylor contends that the
“example does not limit reasonable accommodations under the FHA
to seeing eye dogs - the example is merely illustrative . . . .”
[Id. at 10 (emphasis in original).]
7
HUD v. Dutra, 1996 WL 657690 (HUDALJ 1996)).]
HUD also issued a
memorandum in February 2011 that stated:
[Animals] with or without training, and
animals that provide emotional support have
been recognized as necessary assistance
animals under the reasonable accommodation
provisions of the FHAct and Section 504. The
new ADA regulation does not change this
FHAct/Section [504] analysis, and
specifically notes, “[u]nder the FHAct, an
individual with a disability may have the
right to have an animal other than a dog in
his or her home if the animal qualifies as a
‘reasonable accommodation’ that is necessary
to afford the individual equal opportunity to
use and enjoy a dwelling, assuming that the
animal does not pose a direct threat.”
[Id. at 11 (some alterations Taylor’s) (some citations omitted)
(quoting Taylor Motion, Exh. 1 at 2).]3
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.
(citing 73 Fed. Reg. 63834 (Oct. 26, 2008)).]
[Id. at 12
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
3
Taylor did not file a separate concise statement of facts
or otherwise attach a declaration authenticating the exhibits.
8
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)).]
2.
Interpretation of Prindable
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, 557 S.E.2d 787 (W. Va. 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
9
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 Court applied the ADA definition of
service animals to the FHA’s reasonable accommodation provision,
that decision is of little value because the DOJ subsequently
brought suit against the same defendant, charging that its
requirement of certification violated the FHA.
[Id. at 17
(citing Taylor Motion, Exh. 5 (Complaint in Case No. 04-cv00783)).]
In that subsequent case, the Government and Kenna
Homes entered into a consent decree in which Kenna Homes agreed
10
to change its rules to allow residents to keep both “service
animals” and “emotional support animals.”
[Id. at 18 (citing
Taylor Motion, Exh. 6 (consent decree)).]
3.
Subsequent Cases Reject Prindable
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.”
(quoting 666 F. Supp. 2d at 860).]
[Id. at 18-19
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.
11
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.’”
4.
[Id. (quoting 778 F. Supp. 2d at 1036).]
State Law
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:
refuse to make reasonable accommodations in
rules, policies, practices, or services, when
the accommodations may be necessary to afford
a person with a disability equal opportunity
to use and enjoy a housing accommodation;
provided that if reasonable accommodations
include the use of an animal, reasonable
restrictions may be imposed.
Haw. Rev. Stat. § 515-3(9).
Taylor contends that the change in
12
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.]
Similarly, Taylor argues that the HCRC issued a
memorandum on July 25, 2011 to clarify that “assistance animals
include ‘animals that provide emotional support that alleviates
one or more symptoms or effects of a person’s disability.’”
[Id.
(quoting Taylor Motion, Exh. 7).]
B.
AOAO’s Memorandum in Opposition to the Taylor Motion
1.
Interpretation of Prindable
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
13
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):
Plainly, most animals are not equipped
“to do work or perform tasks for the benefit
of an individual with a disability.” There
must instead be something – evidence of
individual training - to set the service
animal apart from the ordinary pet. The
primary handicap at issue in this case is
mental and emotional . . . rather than
physical in nature. It therefore follows
that the animal at issue must be peculiarly
situated to ameliorate the unique problems of
the mentally disabled. This is not a taxing
requirement, however, and there are no
federally-mandated animal training standards.
[Id. at 5 (alterations AOAO’s)(quoting Prindable, 304 F. Supp. 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).]
14
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 of
the disability and makes the animal necessary for purposes of the
FHA.”
[Id. at 7.]
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
15
(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.”
8.]
[Id. at 7-
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 (1971)).]
2.
State Law Consistent with Prindable
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
16
reasoning, and the state legislature did not indicate that it
intended to confer such rights upon disabled persons.
10-11.]
[Id. at
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.]
C.
HCRC’s Amicus Curiae Brief in Support of Motion
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:
a) the court erroneously applied the [ADA]
Title III (public accommodations) service
animal standards to the reasonable
accommodations provision under the FHA;
b) the plaintiff in Prindable only claimed
that his dog was a trained service animal,
and the issue of whether an untrained
assistance animal can be a reasonable
accommodation was never argued or decided;
and c) the correct standard to determine if
an animal can be a reasonable accommodation
is whether the animal performs a disabilityrelated assistance or provides a disabilityrelated benefit needed by the person with a
disability.
17
[Id.]
1.
Reasonable Accommodations under the FHA
The HCRC argues that the FHA’s implementing regulations
do not require that all animals used as accommodations be
specially trained.
[Id. at 4-5 (citing 24 C.F.R. § 100.24).]
The HCRC represents that HUD has held in its administrative
decisions that non-trained emotional support animals may be
reasonable accommodations if they are shown to be necessary to
alleviate the symptoms of a disability.
[Id. at 5 (citing HUD v.
Dutra, 09-93-173-8, 1996 WL 657690 (HUD ALJ Nov. 12, 1996)
(landlord violated the FHA by refusing to provide a reasonable
accommodation for a therapeutic cat for a disabled person with
fibromyalgia and anxiety); HUD v. Riverbay Corp., 02-93-0320-1,
1994 WL 497536 (HUD ALJ Sept. 8, 1994) (landlord violated FHA by
refusing to provide a reasonable accommodation for a companion
dog for a disabled person with schizoid personality disorder)).]
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.
(citing 73 Fed. Reg. 63835-63836 (Oct. 27, 2008)).]
[Id.
The HCRC
notes that, because HUD regulations and interpretations are
18
accorded great weight, Meyer v. Holley, 537 U.S. 280, 287-88
(2003), courts have followed HUD’s standards and interpretations
in holding that assistance animals without specialized training
may be reasonable accommodations.
2.
[HCRC Brief at 7.]
State Law
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 (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.”
10.]
[Id. at
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.
19
The legislature, however,
chose to keep the traditional definition of “service animal,”
which required the animal to be trained.
(citations omitted).]
[Id. at 11-12
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.”
at 12-13 (citations omitted).]
[Id.
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.
3.
Interpretation of Prindable
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 which Kenna Homes allowed the individual to keep her emotional
support dog that did not have specialized training.
[Id. (citing
In re Kenna Homes, Coop. Corp., 557 S.E.2d 787, 798 (W. Va.
2001); Overlook Homes, 666 F. Supp. 2d at 806-61)).]
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
20
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. . . .
required.”
Special training is not
[Id. at 16-17 (internal footnotes and citations
omitted).]
D.
AOAO’s Memorandum in Opposition to the HCRC Brief
The AOAO’s arguments in opposition to the HCRC Brief
incorporate many of the arguments it raised in opposition to the
Taylor Motion.
21
1.
No Support for the HCRC’s Position
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.
22
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 (2005)).]
The AOAO argues that agency interpretations
contained in opinion letters, policy statements, agency manuals,
and other formats that lack the force of law do not warrant
deference.
[Id. (citing United States v. Mead Corp., 533 U.S.
218, 234 (2001); Christensen v. Harris Cnty., 529 U.S. 576, 58687 (2000)).]
The AOAO contends that 24 C.F.R. § 100.204 is
unambiguous, and “[t]here is nothing in the statute or
implementing regulations which provides that an emotional support
dog, for a person claiming a disability, is always a reasonable
accommodation under the FHA.”
[Id. at 7.]
Rather, the AOAO
argues that “[t]he question of what is a reasonable accommodation
is determined on a case by case basis.”
2.
[Id.]
Amendments to Hawai‘i Revised Statutes § 515-3
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
23
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.]
3.
Prindable’s Interpretation of the FHA
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.]
4.
Effect of the Consent Decrees
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.4
The AOAO contends that Rule 56(c)(2) of the
Federal Rules of Civil Procedure requires certified copies from
the issuing court.
[Id. at 10 (citing Bias v. Moynihan, 508 F.3d
4
The AOAO raises this argument in its opposition to the
HCRC Brief, however, it appears to reference the exhibits to the
Taylor Motion.
24
1212, 1224 (9th Cir. 2007)).]
E.
Taylor’s Reply
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 pet would to a
nondisabled person.”
[Id. at 3.]
Taylor counters that, “if a
disabled person is not in need of the benefits provided by an
emotional support animal, then there is no need for a reasonable
accommodation in the first instance, either with or without a
specialized training requirement.”
[Id.]
Second, Taylor argues that the administrative
authorities he presented are properly before the Court as the
25
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 . . . .”
II.
[Id. at 4-5.]
The AOAO Motion
A.
Motion
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.
1.
Minimum Standards Established in Prindable
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. . . .’”
26
[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.
2.
Prindable’s Distinction between Animals as
Reasonable Accommodations and Animals as Pets
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, 861 A.2d 194, 202-03 (N.J. Super. 2004);
Timberline Mobile Home Park v. Wash. State Human Rights Comm’n,
122 Wash. App. 2 896, 902 (2004); Storms v. Fred Meyer Stores,
Inc., 129 Wash. App. 1 820, 826-27 (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, 18 Cal. Rptr. 3d 669, 682 (2004)).]
27
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 ADA
definition of ‘service animal.’”
[Id. at 10.]
It states that
those courts differentiate between the ADA and the FHA and
conclude that ADA regulations do not apply to residential housing
governed by the FHA.
3.
[Id. at 9.]
Equal Opportunity versus Better Opportunity
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:
[f]ailure to set any standard would obfuscate
the difference between waiving a no pet
28
policy for an ordinary pet as opposed to an
animal reasonable and necessary to afford a
disabled person equal opportunity to use and
enjoy a dwelling. Without a minimum
standard, disabled persons requesting
accommodations to no pet policies would be
afforded greater opportunities to use an
enjoy a dwelling than those who are not
disabled, a situation that the FHA was never
intended to support.
[Id. at 13.]
B.
Taylor’s Memorandum in Opposition
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].”
Opp. to AOAO Motion at 4 (footnote omitted).]
[Mem. in
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[.]”
AOAO Motion at 1, 6).]
[Id. at 4-5 (quoting Mem. in Supp. of
Rather, Taylor contends that “[t]he only
issue is whether an animal must satisfy the ADA definition of
29
‘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 factspecific [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. at 7 (some alterations Taylor’s)
(quoting Bronk, 54 F.3d at 429).]
STANDARD
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).
30
DISCUSSION
I.
Exhibits to the Taylor Motion
The Court first addresses the AOAO’s objections to
Exhibits 3, 5, 6, and 85 to the Taylor Motion, claiming that they
are not properly authenticated.
In response, Taylor argues that
the complaints filed in other district courts and the HUD
decision are public documents appropriate for the Court’s
consideration, and the consent decree is not offered for the
truth of the matters asserted.
At the hearing on the present
Motions, Taylor further argued that the documents are admissible
under Rules 901, 902, or 201 of the Federal Rules of Evidence.
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:
A trial court can only consider admissible
evidence in ruling on a motion for summary
judgment. See Fed. R. Civ. P. 56(e); Beyene
v. Coleman Sec. Servs., Inc., 854 F.2d 1179,
1181 (9th Cir. 1988). Authentication is a
“condition precedent to admissibility,” and
this condition is satisfied by “evidence
sufficient to support a finding that the
matter in question is what its proponent
claims.” Fed. R. Evid. 901(a). We have
5
Exhibit 3 is the Complaint in United States v. Fox Point
at Redstone Ass’n, Inc. et al., Case No. 2:11CV01069. Exhibit 5
is the Complaint in United States v. Kenna Homes Cooperative
Corp., Civil Action No. 2:04-0783, and Exhibit 6 is the Consent
Decree and Dismissal Order in that case. Exhibit 8 is the Charge
of Discrimination in United States Department of Housing & Urban
Development v. Berry Condo Ass’n et al., HUD ALJ No. 02-0005-048.
31
repeatedly held that unauthenticated
documents cannot be considered in a motion
for summary judgment. See Cristobal v.
Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994);
Hal Roach Studios, Inc. v. Richard Feiner &
Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir.
1989); Beyene, 854 F.2d at 1182; Canada v.
Blain’s Helicopters, Inc., 831 F.2d 920, 925
(9th Cir. 1987); Hamilton v. Keystone
Tankship Corp., 539 F.2d 684, 686 (9th Cir.
1976).
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.
II.
Application of Prindable to the Present Case
A.
Background
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
32
stress, poor sleep patterns [and] problematic ailments” resulting
from trauma.
Prindable, 304 F. Supp. 2d at 1249 (alteration in
original).
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.”
50.
Id. at 1249-
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 repondents 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.”
The 1988 amendments to the Fair Housing
Act (“FHA”), codified at 42 U.S.C. §§ 3601 to
3631, make it unlawful to “discriminate
against any person . . . in the provision of
services or facilities in connection with
[his] dwelling, because of a handicap” of
that person or any person associated with
that person. See 42 U.S.C. §§ 3604(f)(2),
33
3604(f)(2)(A), 3604(f)(2)(C) (1994).
“Discrimination” includes “a refusal to make
reasonable accommodations in rules, policies,
practices, or services, when such
accommodation may be necessary to afford [a
handicapped] person equal opportunity to use
and enjoy the dwelling.” 42 U.S.C.
§ 3604(f)(3)(B) (1994). The FHA does not,
however, “extend a preference to handicapped
residents,” United States v. California
Mobile Home Park Management Co., 29 F.3d
1413, 1418 (9th Cir. 1994), and, therefore,
“accommodations that go beyond affording a
handicapped [person] ‘an equal opportunity to
use and enjoy a dwelling’ are not required by
the Act.” Hubbard v. Samson Management
Corp., 994 F. Supp. 187, 191 (S.D.N.Y. 1998)
(quoting Bryant Woods Inn, Inc. v. Howard
County, 124 F.3d 597, 605 (4th Cir. 1997)).
Persons wrongfully denied a reasonable
accommodation have recourse in state or
federal court. 42 U.S.C. § 3613(a)(1)(A)
(1994). To prevail on a claim for failure to
make a reasonable accommodation, the
plaintiff must establish (1) that he or an
associate of his is handicapped within the
meaning of § 3602(h) and, that the defendant
knew or should have known of this fact;
(2) that an accommodation may be necessary to
afford the handicapped person an equal
opportunity to use and enjoy the dwelling;
(3) that such accommodation is reasonable;
and (4) that the defendant refused to make
the requested accommodation. See 42 U.S.C.
[§] 3604(f)(3)(B); [United States v.
California Mobile Home Park Management Co.
(“California Mobile Home II”), 107 F.3d
[1374,] at 1380 [(9th Cir. 1997)]; Janush v.
Charities Housing Dev. Corp., 169 F. Supp. 2d
1133, 1135 (N.D. Ca. 2000); In re Kenna Homes
Coop. Corp., 210 W. Va. 380, 557 S.E.2d 787,
794 (2001); Bryant Woods Inn, 124 F.3d at
603. This “inquiry is highly fact-specific,
requiring case-by-case determination.”
California Mobile Home, 29 F.3d at 1418.
Prindable, 304 F. Supp. 2d at 1254 (alterations in Prindable)
34
(footnote omitted).
Regarding the second prong of the FHA “reasonable
accommodation” analysis, the Prindable court incorporated the
ADA’s definition of “service animal” and stated:
In certain circumstances, service
animals may be necessary accommodations. See
Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.
1995); California Mobile Home, 29 F.3d at
1417; Fulciniti v. Village of Shadyside
Condo. Ass’n, Civ. No. 9601825, 1998 U.S.
Dist. Lexis 23450, at *14 (W.D. Pa. 1998 Nov.
20, 1998). The term “service animal” is not
defined by the FHA or the accompanying
regulations, but it is understood for
purposes of the Americans with Disabilities
Act of 1990 (“ADA”) 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 . . . .” 28
C.F.R. § 36.104 (2002). This description
comports with the example of a reasonable
accommodation for a blind rental applicant
provided by the agency regulations to the
FHA, see 24 C.F.R. § 100.204(b) (2002), and
with case law. See Bronk, 54 F.3d at 429;
Green v. Housing Auth. of Clackamas, 994 F.
Supp. 1253, 1256 (D. Or. 1998); In re Kenna
Homes, 557 S.E.2d at 796–97. The Court
agrees with and adopts the ADA definition for
purposes of the reasonable accommodation
requirement of § 3604(f)(3)(B).
Plainly, most animals are not equipped
“to do work or perform tasks for the benefit
of an individual with a disability.” See
Bronk, 54 F.3d at 429 n.6. There must
instead be something — evidence of individual
training — to set the service animal apart
from the ordinary pet. See id.; Fulciniti,
1998 U.S. Dist. Lexis 23450, at *6–8; Green,
994 F. Supp. at 1256; In re Kenna Homes, 557
S.E.2d at 797. The primary handicap at issue
in this case is mental and emotional
(specifically, depression, anxiety and
35
dizziness) rather than physical in nature.
It therefore follows that the animal at issue
must be peculiarly suited to ameliorate the
unique problems of the mentally disabled.
See Proffer v. Columbia Tower, No.
98–CV–1404–K (AJB), 1999 U.S. Dist. Lexis
16676, at *18–19 (S.D. Cal. March 4, 1999);
Green, 994 F. Supp. at 1255. This is not a
taxing requirement, however, and there are no
federally-mandated animal training standards.
See Green, 994 F. Supp. at 1255–56.
Prindable avers that “Einstein has been
individually trained to provide emotional
support[ ] and to alert me to any unusual
circumstances.” (Prindable Decl. ¶ 54); see
also id. ¶¶ 7, 19. The record contains no
additional admissible evidence of Einstein’s
qualifications as a trained service animal.
Indeed, in response to questions from the
Court, Plaintiffs’ counsel acknowledged that
Einstein is not individually trained and
possesses no abilities unassignable to the
breed or to dogs in general.
“Obviously, a dog cannot acquire
discernable skills as a service dog without
some type of training.” In re Kenna Homes,
557 S.E.2d at 797. Unsupported averments
from Prindable and slight anecdotal evidence
of service are not enough (particularly in
light of counsel’s candid admission) to
satisfy Plaintiffs’ burden in opposition to
summary judgment. Cf. In re Kenna Homes, 557
S.E.2d at 798. Plaintiffs needed something
more — an affidavit detailing Einstein’s
training, a declaration from Einstein’s
veterinarian or a certificate from any
licensed training school — to survive summary
judgment. See id. at 797. Again, this is
not a heavy burden. But the Court has
searched the record and finds nothing that
would lead a reasonable jury to conclude that
Einstein is an individually trained service
animal.
It also remains whether the AOAO’s
refusal to allow an exemption from article
36
VI, § 11 caused Prindable to be denied equal
use and enjoyment of unit 102. See
California Mobile Home II, 107 F.3d at 1380.
There is little evidence going to this
question, but it follows that if there is no
genuine issue of material fact as to whether
Einstein is an individually trained service
animal capable of assisting Prindable in a
relevant way, there is likewise no genuine of
issue of material fact as to whether the
accommodation is necessary. In other words,
if Einstein is not a proper service animal
(as opposed to a pet), an exemption from
article VI, § 11 for Einstein is not
necessary to afford Prindable an equal
opportunity to use and enjoy the dwelling.
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.”
B.
Id. at 1260.
“Service Animal” versus “Assistance Animal”
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
37
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.
and the DOJ have shown an increasing acceptance of emotional
38
HUD
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 was
presented with a resident’s claim that his dog was a “service
animal” under the FHA and thus a “reasonable accommodation” for
his disability.
See 304 F. Supp. 2d at 1256 (“Prindable avers
that ‘Einstein has been individually trained to provide emotional
support[ ] and to alert me to any unusual circumstances.’”
(alteration in original) (citations omitted)).
It is no
surprise, then, that the district court sought an applicable
definition of “service animal” with which to evaluate Einstein’s
qualifications.
The district court did not consider the
possibility of a broader definition of “assistance animal,”
because it was only confronted with a claim concerning a “service
animal.”
Upon determining that the record contained no
indication that Einstein had received individual training, the
court held that “there is no evidence that would lead a
39
reasonable jury to conclude that Einstein is an individually
trained service animal . . . .”
Id. at 1260 (emphasis added);
see also id. at 1257 (finding “nothing that would lead a
reasonable jury to conclude that Einstein is an individually
trained service animal” (emphasis added)).
It was only at the
hearing that Prindable conceded that Einstein had not received
any training and suggested that the dog’s “unconditional love”
was sufficient to qualify him as a service dog.
n.25.
Id. at 1256-57 &
Plainly, the analysis in Prindable was focused solely on
whether Einstein was a “service animal,” which requires some
indicia of specialized training.
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.
40
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.”
8/7/12 (dkt. no. 52), at 10-11.]
[7/23/12 Hrg. Trans., filed
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.
III. Analysis of “Assistance Animal”
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.
41
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 held that, to establish a claim of discrimination on
a theory of failure to reasonably accommodate, a plaintiff is
required to show:
(1) that the plaintiff or his associate is
handicapped within the meaning of 42 U.S.C.
§ 3602(h); (2) that the defendant knew or
should reasonably be expected to know of the
handicap; (3) that accommodation of the
handicap may be necessary to afford the
handicapped person an equal opportunity to
use and enjoy the dwelling; (4) that the
accommodation is reasonable; and (5) that
defendant refused to make the requested
accommodation.
DuBois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.2d
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
42
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
43
training is necessary.
This determination must be the result of
a fact-specific inquiry and case-by-case determination.
Mobile Home Park, 107 F.3d at 1380.
See Cal.
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 policy pursuant to a reasonable
accommodation request . . . it can require that the animal have
received some individual training . . . .”
[AOAO Motion at 2-3.]
The Court CONCLUDES that the AOAO cannot categorically deny a
reasonable accommodation request for an emotional support animal
merely because the animal has not received specialized training.
Similarly, while the Court agrees that the ultimate outcome in
44
Prindable is not applicable to the present case, the Taylor
Motion is DENIED in that it seeks a ruling categorically stating
that Nell does not need specialized training before the AOAO is
required to allow him to keep Nell in contravention of the nopets policy.
Whether Nell qualifies as an “assistance animal” or
“reasonable accommodation” will depend largely on the
determination of Taylor’s disability and the accommodation
necessary to ameliorate the effects of the disability.
This
issue is not before the Court on the present motions, and, as
such, the Court makes no determination whether Nell, as an
untrained emotional support animal, is a “reasonable
accommodation” under the FHA and relevant state laws.
CONCLUSION
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.
prejudice.
//
45
Both motions are denied without
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 31, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
AOAO LILIUOKALANI GARDENS AT WAIKIKI, ET AL. V. JOEL LEE TAYLOR;
CIVIL NO. 11-00751 LEK-BMK; ORDER DENYING DEFENDANT/COUNTERCLAIM
PLAINTIFF JOEL LEE TAYLOR’S MOTION FOR PARTIAL SUMMARY; DENYING
PLAINTIFF ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENS
AT WAIKIKI’S MOTION FOR PARTIAL SUMMARY JUDGMENT; AND DENYING
JOINDER IN MOTION FOR PARTIAL SUMMARY JUDGMENT BY COUNTERCLAIM
DEFENDANT ASSOCIATION OF APARTMENT OWNERS OF LILIUOKALANI GARDENS
AT WAIKIKI
46
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