This week the Nebraska Supreme Court found that a homeowner did not prove his emotional support pit bull was a “reasonable and necessary accommodation” under the federal Fair Housing Act (“the Act”).
The Facts: Chewy the Pit Bull & the Dangerous Dog Ordinance
In 1984, the homeowner became disabled due to partial paralysis on his left side. His ongoing medical issues caused him to be easily frustrated. In 2015, he got an American Staffordshire terrier—a pit bull named Chewy—for companionship and emotional support.
In 2016, the city where he lived passed a “dangerous dog” ordinance. Certain breeds—including pit bulls—were prohibited within city limits, except existing dogs could be “grandfathered in” upon licensing prior to January 1, 2017. Violation of the ordinance was a Class IIIA misdemeanor.
The homeowner failed to license Chewy prior to the deadline. City police cited him. The homeowner obtained a physician’s statement recommending he keep the dog inside as a therapy animal. The homeowner filed a lawsuit to stop the enforcement of the ordinance. The trial court entering an injunction against the city finding that the ordinance violated the Act.
The Federal Fair Housing Act
Among other protected categories, the Act prohibits the denial of housing on the basis of disability. The Act seeks to provide fair housing throughout the United States, and courts are “to give generous construction to the Act’s broad and inclusive language.” Discriminatory housing practices are prohibited, and it is also “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed any right granted or protected” under the Act. Discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations in may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
To prove a claim under the Act, the petitioner must show (1) she exercised or enjoyed any right granted or protected under the Act, (2) the respondent’s conduct constituted interference, and (3) a causal connection existed between the exercise or enjoyment of the right and respondent’s conduct.
A Reasonable and Necessary Accommodation
When is an accommodation reasonable and necessary? It depends. The analysis is fact intensive and involves balancing the needs of the parties, assessing both financial and administrative costs and burdens. Generally, “[a] defendant must incur reasonable costs and take modest, affirmative steps to accommodate the handicapped as long as the accommodations sought do not pose an undue hardship or a substantial burden.”
Is Chewy a Reasonable and Necessary Accommodation?
It did not matter that Chewy wasn’t a “service dog” as defined in the Americans with Disabilities Act. The Act here does not have minimum regulatory requirements qualifying animals as reasonable accommodations. Also, the U.S. Department of Housing and Urban Development has ruled that emotional support animals do not require task-specific training.
Several courts outside of Nebraska have found the use of an emotional support pet in one’s own home–despite rules or laws to the contrary–were reasonable accommodations. Similarly, having Chewy in the homeowner’s home met the “reasonable” element of an accommodation and didn’t undermine the city’s ability to enforce its ordinance.
Even so, the court found Chewy wasn’t “necessary” under the Act. “The concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” Necessary is “more than helpful or conducive. It suggests instead something indispensable, essential, something that cannot be done without.” Here, the homeowner’s evidence certainly showed Chewy was helpful and encouraging to him, but he did not show Chewy was necessary. No medical professional testified to the therapeutic benefits of having Chewy or how Chewy assisted in the homeowner’s mental or emotional well-being. And the homeowner did not explain why non-prohibited dog breeds were not reasonable and alternative accommodations. Ultimately, the court found, “Brooke has failed to meet his burden of proof that his requested accommodation is necessary for him to receive the same enjoyment from his home as a nondisabled person would receive.” Wilkinson v. City of Arapahoe, 302 Neb. 968 (2019).
Take Aways If you’re a landlord, homeowners’ association, city administrator, or other property owner/manager covered by the federal Fair Housing Act, do you have a process in place to meet the federal Fair Housing requirements in providing reasonable and necessary accommodations? What policies or rules do you have in place that may need waived or amended to accommodate those with emotional support animals? Do you have a policy and process in place to evaluate requests for accommodations? And have you trained your property managers and boards on those policies and processes?