STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION Scottsdale Cluster Condominium III Association, Inc., Petitioner, v. Dino Hanna, Respondent. / Case No. 2009-01-9044 FINAL ORDER Pursuant to notice, the undersigned arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes convened a formal hearing in this case on August 26, 2009. The hearing was conducted by telephone. During the hearing, the parties presented testimony of witnesses with cross-examination and documents. 1. For the Association Appearances JOSEPH R. CIANFRONE, P.A. 1964 Bayshore Blvd. Dunedin, FL 34698 2. For the Respondent ANTHONY G. BASSONE, P.A. P.O. Box 2194 Palm Harbor, FL 34682-2194 Procedural History On April 6, 2009, the Scottsdale Cluster Condominium III Condominium Association, Inc. ( Association ) filed a Petition asking that the Respondent be ordered to remove a large, afghan dog from his unit, as required by the Condominium Declaration at 1
Article XIII, Paragraph D. On April 22, 2009, the Respondent was ordered to file an Answer. On May 21, 2009, the Respondent Answered, admitting the dog was living with him, but raising the affirmative defense that the dog was a service animal that performed tasks to accommodate his disability and allowed him to use and enjoy his condominium. The Respondent cites the Florida Fair Housing Act and the Florida Vocational Rehabilitation Statute as legal authority for his affirmative defense. [ 760.20, et seq., and 413.08, Fla. Stat. (2009), respectively]. The statutes cited entitle Respondent to a reasonable accommodation in the form of a service animal, if the statutory requirements are met. On June 25 and July 22, 2009, the parties attended Case Management Conferences. As a result of the Case Management Conferences, the parties agreed to the following: 1. The Respondent s Answer alleges an affirmative defense to the Petitioner s demand to remove the dog from the unit; 2. Respondent asserts his affirmative defense under Florida law only. A final hearing was held August 26, 2009. ISSUES 1. Is the Respondent disabled or handicapped within the meaning of either the Florida Fair Housing Act, 760.20, et seq., or 413.08, Fla. Stat. (2009)? 2. If so, what is the Respondent s disability? 3. Did the Association know or should the Association have known of the Respondent s disability or handicap? 2
4. Did the Association know that an accommodation of a service animal was necessary to afford the Respondent equal opportunity to use and enjoy his condominium? 5. Is the requested accommodation of the service animal reasonable? 6. What task(s) does the service animal perform that help alleviate the Respondent s disability? 7. Did the Petitioner refuse to make the requested accommodation? FINDING OF FACTS 1. The Association is the corporate entity that manages the residential condominium in Pinellas County, Florida, which is limited to residents who are age 55 and older. 2. Respondent owns Unit 1594 and is a member of the Petitioner s Association. Respondent lived in the unit with his wife, Janet, for more than 10 years; she died on June 19, 2008. 3. Since 2003, Respondent has been a paraplegic and confined to a wheel - chair. From 2003 until her death in June of 2008, Respondent s wife assisted him with daily, unspecified tasks. 4. Respondent states he is somewhat hard of hearing, but he does not wear a hearing aid. He is able to converse without difficulty, and he hears Leo bark and make other noises. 5. After Respondent s wife died in 2008, Respondent s daughter and son-inlaw brought him their afghan dog Leo to live with him. 6. Respondent s daughter and son-in-law own a unit in the same condominium complex as Respondent, but they moved into the Respondent s unit after Janet s death to help care for the Respondent and for Leo. 3
7. The dog serves the following needs for Respondent: A. Keeps him company; B. Barks when someone comes to the door; C. Picks things up. 8. The dog has not been trained to perform tasks for the Respondent. 8. Respondent s wheelchair is motorized, and he often goes to the Association s swimming pool during the week, by himself, in his wheelchair, to relax; he does not take the dog with him. 9. Respondent does not walk the dog or otherwise take care of him because he is unable to do so; Respondent s daughter and son-in-law take care of the dog. 10. Article XIII, Paragraph D of the Association s Declaration states, in pertinent part, as follows: No pets shall be permitted in any of the units or on the common elements other than one cat per unit, birds.... nor shall any pet be allowed to disturb or create a nuisance to other unit owners.... 11. The Association has taken several complaints from unit owners about the aggressive actions of the dog, and several of those individuals fear the dog for that reason and because of the dog s size. 12. Leo is an afghan dog that stands at least 2.5 feet tall. 13. When Leo is being walked, he often breaks away from his handler and sometimes lunges at people who are walking on the sidewalk. On one occasion, Leo lunged at a boy on his bicycle, who fell off his bike as a result of the dog s actions. for Leo. 14. Respondent has not requested an accommodation from the Association 4
CONCLUSIONS OF LAW The Division has jurisdiction over this matter pursuant to 718.1255, Fla. Stat. (2009) to determine the authority of the board of directors to require the Respondent owner to take action involving his unit. It is undisputed that A. The Respondent has a dog named Leo living with him; B. The Association s Declaration, at Article XIII, Paragraph D, prohibits having a dog in any unit; C. The Respondent is a paraplegic whose wife died in June of 2008; D. The Respondent has never requested an accommodation to have a service dog in his unit for his disability; Under the Florida Fair Housing Act, it is unlawful to discriminate against a person by refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to enjoy a dwelling. Hawn v. Shoreline Towers Phase I Condo. Ass n, Inc., No. 3:07-cv-97/RV/EMT, 2009 WL 691378, at *4 (N.D. Fla. March 12, 2009) citing 42 U.S.C. 3604 (f)(3)(b); accord Fla. Stat. 760.23(9)(b). The Respondent argues that the Declaration s prohibition against dogs is unlawful as applied to him because he is being denied a reasonable accommodation that would allow him to use and enjoy his dwelling under the Florida Fair Housing Act and Vocational Rehabilitation Act ( 760.20, et seq., Fla. Stat. (2009) and 413.08, Fla. Stat. (2009)). To prevail on this affirmative defense, it is necessary that the Respondent carry the burden of going forward to present evidence of the following: 5
1. He is disabled or handicapped within the meaning of the Florida Fair Housing Act; 2. The Association knew that an accommodation was necessary to afford the Respondent equal opportunity to use and enjoy his condominium; 3. Such an accommodation is reasonable; and, 4. The Association refused to make the requested accommodation. Hawn v. Shoreline Towers Phase I Condo. Ass n, Inc., No. 3:07-cv-97/RV/EMT, 2009 WL 691378, at *4 (N.D. Fla. March 12, 2009). Respondent has not met his burden of going forward as to paragraphs (2), and (3), rendering it unnecessary to determine the question posed in paragraph (4). As to paragraph (1), there is no question Respondent is disabled. There is ample proof that Respondent is a paraplegic and has been in a wheelchair because of that disability since 2003. Paragraph (2) requires Respondent to provide some evidence that the Association knew that an accommodation was necessary to allow him equal opportunity to use and enjoy his condominium as a paraplegic. Respondent states that his wife helped him until she died in June of 2008. The dog was brought to his condominium unit within a month of her death, and the Respondent s daughter and son-in-law moved in soon thereafter. There is no evidence that the Respondent has ever asked the Association for an accommodation after his wife died. In fact, he did not mention to the Association that he needed a service animal for his paraplegia at the time the supposed need arose (when his wife died in 2008) and before Leo came into the condominium. The first notice to the Association that the Respondent would claim the need for a service animal was in a letter dated December 3, 2008, in response to the Association s first pre-arbitration 6
letter, dated November 20, 2008. The December 3, 2008, letter defied the Association s right to require Respondent to remove the dog, stating that Respondent had a right to keep his dog in contravention of the Declaration because the dog is a service animal under the Florida Fair Housing Act and the Federal Fair Housing Act. However, this December 3, 2008, notification identified the dog s purpose as being companionship a purpose not related to the Respondent s paraplegia. The December 3, 2008, notification includes a letter from Dr. Lara, the Respondent s treating physician, also dated December 3, 2008, stating, in pertinent part, as follows: Mr. Hanna has a chronic paralysis and is wheelchair bound, he has issues of chronic cellulites as well as more recently he has begun to have problems with a depression and issues related to hypertension. In the recent past year, he has had the death of his partner in life and wife of 25 years, the death of his mother as well as his brother. At this point, he has been trying to recuperate and we have been working with him to help him with his depression that he has developed in consequence to the chronicity of his medical problems as well as the issues that have socially affected him in the recent year. It has been noted that the patient has a dog in his apartment and this letter is to substantiate that this dog does represent for the patient a significant amount of comfort especially during this time of significant emotional issues that he has been dealing with. It is noted that the dog is the only company that the patient currently has on a regular, ongoing basis as he is currently living alone since the death of his wife, In addition, the dog also provides for him assistance within his apartment by alerting him when somebody is at the door and providing protection.... [emphasis added] The dog was already living with the Respondent at this juncture. No request for such accommodation had been made to the Association prior to the dog moving in, nor was one ever made. Dr. Lara is a family practitioner, not a psychologist or a psychiatrist. Accordingly, his statement about the necessity for the dog to comfort the Respondent ventures into an area outside his expertise and renders that portion of his opinion without authority 7
and invalid. Moreover, Dr. Lara s medical notes of his March 6, 2009, examination of the Respondent contradict those statements: 3) History of depression. Overall he has done relatively well in reference to recuperating from the death of his wife and for the most part he appears to have a good support system. Hence, at this point no longer requiring any medications in this regard.... [Respondent s composite Exhibit A]. To whatever extent Dr. Lara is qualified to diagnose a depression disability, the Respondent did not have one in July 2009, when Dr. Lara determined that Respondent 1. No longer needed medication for his depression; and, 2. Had a good support system. Based upon the foregoing, there is no evidence that the Respondent had a disability other than his paraplegia. Because the Respondent did not request an accommodation for his paraplegia, the Association could not have discriminated against him by refusing to make the requested accommodation and requiring removal of the dog. Notwithstanding the Respondent s failure to request an accommodation, it is appropriate to conclude that the presence of the dog violated the governing documents for additional reasons. The dog, Leo, as stated in both Dr. Lara s notes and the testimony of witnesses established that the dog helps the Respondent with the following tasks: 1. The dog s barking alerts the Respondent when someone is at the door; 2. The dog protects the Respondent in an unspecified way. With regard to the barking alert, Respondent presented no evidence that a dog bark was necessary to alert the Respondent that someone is at the door. No medical 8
records or testimony was offered to establish that the Respondent could not hear either the doorbell or a knock at the door. Respondent acknowledged he hears the telephone ring and that he converses with those who visit him. Accordingly, the dog is not reasonably necessary to alert Respondent that someone is at the door. As to the dog s usefulness to protect Respondent, no evidence was offered as to what that protection is, particularly protection that his wife provided, but he now no longer has. Even if the dog could be considered an accommodation for the Respondent s disability, that accommodation would not be reasonable, given the fact that the dog lunges at passers-by. Based upon the foregoing, IT IS ORDERED: On or before October 30, 2009, the Respondent is to permanently remove any dog from his unit. DONE AND ORDERED this 22 nd day of September 2009, at Tallahassee, Leon County, Florida. Shirley J. Whitsitt, Arbitrator Dept. of Bus. & Prof. Reg., Arbitration Section 1940 North Monroe Street Tallahassee, Florida 32399-1029 Fax: (850) 487-0870 Trial de novo and Attorney s Fees As provided by 718.1255 Fla. Stat. (2009), this decision is binding on the parties unless a complaint for trial de novo is filed within 30 days of the date of this Order; additionally, the prevailing party is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed within 45 days of the date of the Final Order. 9
CERTIFICATE OF SERVICE I certify that a true copy of the foregoing Final Order was served upon the following individuals by U.S. mail, postage prepaid, this 22 nd day of September, 2009: Joseph R. Cianfrone, Esq. Joseph R. Cianfrone, P.A. 1964 Bayshore Blvd. Dunedin, FL 34698 Anthony G. Bassone, Esq. Anthony G. Bossone, P.A. 1410 Alt. U.S. 19 North, Ste. A Palm Harbor, FL 34683 Shirley J. Whitsitt 10