SERVICE & COMPANION ANIMALS

SERVICE & COMPANION ANIMALS

Service animals and comfort animals are not the same. A "service animal" is one specially trained to assist the disabled retrieve objects, open doors, guide the blind, etc. A "companion" animal has no special training but provides emotional support to relieve anxiety and depression.

Widely Abused. Both service and companion animals are invaluable to the disabled. Unfortunately, the perfectly fit have abused disability rights to get around pet restrictions. The subterfuge starts by persuading their doctor to write a letter that the disallowed animal is necessary to their patient's health. The person then goes on the internet and pays a certificate mill to "certify" that their dog is a service animal. For a few dollars more, they can receive special dog tags and other paraphernalia for their newly minted service animal. And voila, their pet is exempt from the association's restrictions. A recent case in Florida addressed this practice.

Florida Case. The Sun Harbor HOA prohibited dogs. One member, Vincent Bonura, invited his fiancee to move in with him and she brought her dog in violation of the association's restriction. The association sent a violation letter and Bonura lied about having a dog. He later admitted to it but then claimed it was a registered service animal necessary for his fiancee's disability. He provided the association with a certificate he purchased on the internet.

The association was skeptical and requested evidence that his fiancee suffered from a handicap and asked what special training the dog had received to accommodate her handicap. Bonura ignored the board and litigation ensued. At trial, the fiancee's newly hired psychiatrist testified that he believed the dog helped her anxiety and depression. When the court ruled for Bonura, the association appealed.

Reversal. The court of appeals reversed. The justices noted that federal courts have long recognized that,

[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs' request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.

The court found that Bounura had refused to comply with the association's request for reasonable documentation of his fiancee's disability and the need for a service dog. Even more problematic for Bonura, testimony failed to establish that his fiancee suffered from a disability.

Reviewing the record, there was no competent, substantial evidence indicating any substantial limitation on one or more of Ms. Vidoni's major life activities. In fact, the testimony indicated Ms. Vidoni was able to travel and work without the dog. Along those same lines, the evidence also failed to establish the necessity of the accommodation. Ms. Vidoni admitted that she was not as dependent on the dog as she had been originally and she could be independent of the dog at times including for work. (Sun Harbor v. Bonura.)

RECOMMENDATION: Even though Florida HOAs are allowed to prohibit pets, California has effectively ended the practice. Even so, California allows for reasonable pet restrictions (weight limitations, number limitations, etc.). When faced with a request for accommodation for a nonconforming pet, associations should consult legal counsel.

PAINT COLORS

QUESTION: Our HOA requires homeowners receive approval from an architectural committee before painting their homes. The committee does not have any standards for reviewing paint colors. Can they deny a color simply because they don't like it?

ANSWER: Yes they can reject a paint color simply because they don't like it. That is precisely why an architectural committee exists--to make aesthetic decisions about what is appropriate for the community and what is not.

Another important function of the Association is to preserve the aesthetic quality and property values within the community. (Cohen v. Kite Hill.)

Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. (Dolan-King v. Rancho Santa Fe.)

Written Standards. Not having written standards, however, is a problem. It leads to discord and potential litigation because members jump to the conclusion that they are somehow being discriminated against if their request is denied. If the committee were to adopt written standards, applicants would know what colors to choose from and would submit a conforming color, thereby avoiding rejection.

Disapproval Requirements. Per the Davis-Stirling Act, any decision by the architectural committee must be in writing. If a proposed change is disapproved, the committee's decision must include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision.

RECOMMENDATION: All associations should adopt clearly defined architectural standards. Once adopted, enforcement of those standards must be in good faith and not arbitrary or capricious.