Author Topic: 2nd case, was Re: U.S. District Court Issues Important Emotional Support Animal  (Read 176 times)

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Offline responsiblek9

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https://fairhousing.foxrothschild.com/2017/10/articles/disability/u-s-district-court-issues-important-emotional-support-animal-medical-verification-opinion/

U.S. District Court Issues Important Emotional Support Animal Medical Verification Opinion

October 24, 2017

Quote
In an important decision concerning medical verifications and emotional support animals, a U.S. District Court judge last week issued an opinion confirming that letters which only provide that a resident has a “mental illness” or has “certain limitations” are insufficient.  The judge was unmoved by such rote language and noted that the resident presented “no medical facts to support her claim she was disabled.” The court also noted the resident identified “no activity, no less a ‘major life activity’ that she claims was impaired by her ‘mental illness’”. The judge then concluded “the diagnosis may be accurate, but it fails to set forth any facts regarding if or how any of [the resident’s] conditions ‘substantially limits’ a major life activity.”

« Last Edit: November 20, 2017, 05:11:31 PM by Kirsten »
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Offline Kirsten

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I think I've dug up the case they're talking about:  https://scholar.google.com/scholar_case?case=16436406566944353686&q=Houston+v.+DTN+Operating+Company&hl=en&as_sdt=6,26&as_vis=1

Am reading and processing it into our case law collection now.
Kirsten and Tardis
In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline SandyStern

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It doesn't tell us anything we didn't already know, but it's good.
Maybe the consumer protection people will jump on the "registries" now. Their letters are worthless.

Offline Kirsten

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Okay, that was the correct court decision for the second case, but not the same case as in the first post because the quotes referenced in the link from the first post were not present in the decision.

Quick summary of this second case, now that I've read the key bits:

This one is informative about what you have to do to get your case heard in court.  As I've mentioned before, in terms of getting automatic accommodation for public access with a service animal, you don't have to prove you are disabled, spell out the exact nature of your disability, or answer questions about your disability BUT that does not apply when you are in court and your position depends on whether or not you have "standing" as a person with a disability.

What is "standing"?  Standing is when you can prove that law was written to protect you.  Prove it, not just assert it.  If the other side stipulates that you are disabled or admits that it believed you were disabled, then you can maybe skip over that bit.  But if they question whether you are disabled, then you have to prove to the judge that you are.  That means medical documentation that proves you have been diagnosed, that lays out not that you are substantially limited but precisely HOW you are limited (so the judge can determine whether or not it is "substantial"), and precisely how the accommodation you were denied directly relates to your disability.  You've pretty much got to have the mindset that you're willing to bare your soul to the judge and to the other side about the specific nature of your disability and how it affects you and if you know you can't or won't go there if it comes to that, then don't file suit in the first place.  It's something you're going to need to expect to happen and then count yourself super lucky if somehow it manages not to happen.

In this case, the second one (I think I'm going to split these two cases to make them make sense), in this case, the plaintiff, a student in a more or less dorm situation, ultimately lost her case because she failed to provide the judge with the proof of disability that he requested multiple times of her.  Without that standing, none of the laws she claimed where violated by discriminatory action could be adjudicated and were dismissed.  The whole thing came tumbling down.

So now, looking at it from my perspective, as an advocate who tries to advise people with disabilities how best to deal with negotiations with landlords, and with some "reading between the lines" I'm going to tell you how I think this thing went wrong before it ever went to court.  I'm doing this for instructive purposes, for those who find themselves in a similar sounding situation so that they might enjoy a better outcome by making different choices.  I said I was "reading between the lines" which means making some assumptions that might or might not be true, so what I say should not be considered a judgment of the plaintiff herself.  I'm just using what I understand of her situation for instruction.

Where it went wrong:
1.  Moved in with animal before getting approval for the ESA accommodation.  Remember, having an ESA in no pets housing is not automatic.  The landlord can say "yes," or "no."  You must wait for the answer before moving the animal in because it is possible the landlord could legally deny your request in which case you would be in violation of the contract you signed about not bringing a pet.

2.  Did not answer landlord's legitimate requests for additional information so it could make the determination about whether or not to grant the accommodation.  The landlord is entitled to a list of things you cannot do (a list of your substantial limitations) for which you are requesting the accommodation.  You don't have to list every single limitation you have, but do need to list all that are directly the cause for needing the accommodation.  The landlord is also entitled to know exactly how the accommodation you request is supposed to address those limitations.

Suppose you say, "I'm disabled and need a yew tree outside my window."  Of course that's going to puzzle the landlord.  It's not good enough to imply the reasoning (I want an ESA for emotional support).  You're going to have to spell it out, both the limitations and the relationship between those limitations and the accommodation you are requesting.  This is a landlord, and especially a dorm landlord.  They've heard some doozies of requests and they need to figure out whether your request is one of the doozies or is legitimate.  Do you have to name the disability?  No, not for the landlord (prolly do have to name it for the judge though if it goes to court).  But you do have to spell out what your substantial limitations are that require the animal and how that animal is related to those limitations.

3.  An ESA needs to be an ideal pet, meaning it has to be one that does not disturb other neighbors.  Because ESA or not, if it disturbs other neighbors, it's okay for the landlord to make you remove the animal from the premises.  In this case, there were multiple complaints of nuisance barking (not just a yip here or there, but long soliloquies when the owner was absent from the apartment).

4.  Dudes, don't sign the lease until you and the landlord agree about the animal.  Why?  Because if you sign the lease you are obligated to pay for that apartment regardless of whether you actually live in it.  So if the landlord legally denies your accommodation and you can't live there with your animal, you still gotta pay the rent or find someone else to take your place and pay it.

5.  Don't buy an ESA letter or registration on line.  The landlords know about these services, just like teachers know about buying term papers online.  They aren't necessarily stupid just because they aren't hip.  Take it for granted that they know already all about these services or that if they don't they're going to figure it out soon enough--then where does that leave you?

6.  Use our sample letter.  Guess what our sample is based on?  Yeah, I based ours on the official one from HUD with a little pinch of coaching about how to fill it out.  Our letter and theirs both address the list of limitations and the nexus between the animal and disability.  Why?  Because the law says the landlord is entitled to know these two things and if it isn't obvious just glancing at you, then you gotta spell it out in writing.  Now I need to go double check our letter.
Kirsten and Tardis
In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline Kirsten

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Our sample letter:  http://servicedogcentral.org/content/node/261

check (does include list of substantial limitations and explanation of nexus or relationship between limitations and animal)
Kirsten and Tardis
In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline Kirsten

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template for doctor's letter:  http://servicedogcentral.org/content/node/304

check (does include list of substantial limitations and nexus between animal and limitations)

Please note:  those two things are there for a reason.  They are necessary and the landlord has a right to ask for them if you leave them out.  Leaving them out may also delay or prevent you getting approved.
Kirsten and Tardis
In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest