Abuse of Rights
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ABUSE OF ADA RIGHTS

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 a 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 to transform their pet into a service animal.

Florida Case. The Sun Harbor HOA in Florida 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 restrictions). 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.)
California Fines. For a license, a person must sign an affidavit stating the dog is a trained assistance dog. Anyone filing a false affidavit faces six months in jail and/or $1,000 fine. (Food & Agric. Code §30850.) Any person who knowingly and fraudulently represents himself or herself, through verbal or written notice, to be the owner or trainer of any canine licensed/qualified/identified as a guide, signal, or service dog shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or by both fine and imprisonment. (Penal Code §365.7.)

Recommendation: Even though Florida HOAs can prohibit pets, California has effectively ended the practice. Even so, California allows for reasonable pet restrictions. When faced with a request for accommodation for a nonconforming pet, associations should consult legal counsel.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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