United States Court of Appeals

McGary v. City of Portland,
386 F.3d 1259 (9th Cir. 2004)
Keys: Z-SAF, Z-ACC
A homeowner with AIDS filed suit under the Fair Housing Act, the Americans with Disabilities Act, and parallel state and local laws, claiming that the city discriminated against him when it denied his request for additional time to remove debris from his yard, as required by a city nuisance ordinance. After denying the homeowner’s request and while the homeowner was hospitalized with complications from his condition, the city had removed the debris, charged the homeowner $1,818.83 for the service, and placed a lien on his property in that amount. The district court dismissed the action for failure to state a claim upon which relief can be granted.
The Ninth Circuit reversed each of the district court’s holdings and reinstated the homeowner’s claims in full, rejecting the city’s argument that the FHA’s language concerning impairment of “use and enjoyment” is limited to complete denial of the use of a home. The court held that the imposition of even a comparatively small financial burden, where disability is linked to the need for an alteration to a neutral policy, can run afoul of the FHAA. The court, however, refused to reach the merits of the case, noting that “the reasonable accommodation inquiry is highly fact-specific, requiring case-by-case determination.” The court likewise reinstated the homeowner’s ADA claim, holding that facially neutral policies can violate the ADA when they unduly burden people with disabilities, regardless of whether those policies are consistently enforced, and that no comparative analysis between disabled and non-disabled individuals is required.

Smith v. Pacific Properties and Development Corp.
358 F.3d 1097 (9th Cir. 2004)
Keys: P-STD, O-ACC
A disability rights organization instituted and organized a program of paired testing to determine whether newly constructed multifamily units complied with the design and construction requirements of the Fair Housing Act. On the basis of its findings, the organization and one of the testers (Smith), filed suit. The trial court held that neither Smith nor the organization had standing under the FHA because neither Smith nor other members had any interest in actually purchasing or renting property from the defendant. Reversing, the Ninth Circuit held that disability “testers” like Smith had individual standing, and that the disability rights organization had standing “separate and apart” from the individual plaintiff (deceased at the time of the appeal) because it had alleged sufficient “frustration of mission” and “diversion of resources” to survive a motion for summary judgment.

Burgess v. Alameda Hous. Auth.
98 Fed. Appx. 603 (9th Cir. 2004)
Keys: L-ACC, L-FIN
A pro se plaintiff sued the housing agency under, inter alia, the Fair Housing Act, the ADA and California state law, alleging injury because of the agency’s failure to timely transfer her Section 8 rental assistance voucher extension paperwork to the appropriate housing authority. The district court granted the agency’s motion to dismiss with respect to each of these causes of action. On appeal, The Ninth Circuit reversed with respect to the plaintiff’s FHA, ADA and state law claims, and remanded those to the district court. The court found that her statements that she was “often sick” and at times “unable to do much of anything” adequately, although just barely, alleged a physical impairment that substantially limits a major life activity, and that the housing agency failed to accommodate her disability by granting a second extension.

ARIZONA

Arizona State Court Decisions

Cimarron Foothills Community Association v. James and Betty Kippen,
79 P. 3d 1214 (Ariz. App. 2003)
Keys: Z-RST
The community association sued operators of an elder care home for nine residents, seeking to enforce conditions, covenants and restrictions (CCRs) requiring that recreational vehicles be housed in a garage or other structure. The home’s operators counterclaimed, alleging that the association had denied a request for reasonable accommodation to waive the garage requirement. The operators claimed that waiver of the rule was necessary because the RV was used to transport residents and their medical equipment, and because the cost of garage would be a burden. The state appeals court affirmed a trial court judgment for the association, holding that the Fair Housing Act does not excuse non-compliance with CCRs where operators of the care home did not show that the cost of a garage would literally put them out of business or otherwise render their operation financially non-viable. Having failed, in the appeals court’s view, to demonstrate the necessity of their proposed accommodation, operators are not entitled under the FHA to a waiver of the garage requirement.

CALIFORNIA

California State Court Decisions

Auburn Woods I Homeowners Ass’n v. Fair Employment & Hous. Comm’n
121 Cal. App. 4th 1578 (Cal. App. 2004)
Keys: L-PTS, P-PRC, L-COS
A married couple living in a condominium sought permission from their condominium association to keep a small companion dog, claiming that caring for the animal alleviated the symptoms of their severe depression, and that cat ownership was not feasible because they were allergic. The association refused their request, citing the association rule prohibiting dog ownership. The husband had been diagnosed with hydrocephaly, seizure disorder, bipolar disorder and obsessive-compulsive disorder, and his wife had been diagnosed with major depression. Both submitted a statement to the association from psychiatrists indicating that their emotional well-being had improved since purchasing the dog, and recommending that they be allowed to keep the dog

The couple filed a claim with the state fair housing enforcement agency. Subsequently, an administrative law judge found that both the husband and wife had disabilities within the meaning of the law, that the association had notice of their disabilities, that the association had not requested additional substantiating documentation, and that a companion dog would have been a reasonable accommodation. A state trial court vacated the agency’s decision, and the couple appealed to the California Court of Appeals. That court reinstated the state agency determination, finding that it was supported by substantial evidence and should not have been overturned. The court found the relevant standard of appeal particularly important: the agency decision could be overturned only for abuse of discretion. Reviewing courts, both trial and appellate, are limited to determining whether, viewing the evidence in the light most favorable to the agency’s findings, those findings were based on substantial evidence. The trial and the appellate courts must uphold the agency’s decision unless the entire record is so lacking in evidentiary support as to render the decision unreasonable.

HAWAII

United States District Court

Prindable v. Assoc. of Apartment Owners of 2987 Kalakaua
304 F.Supp.2d 1245 (D.Haw. 2003)
Keys: L-PTS, L-ACC
A condominium unit owner and resident sued the condominium association, claiming that it denied them permission to have an emotional support dog to ameliorate the effects of a psychiatric disability. The federal trial court granted the association’s motion for summary judgment, concluding that while one of the plaintiffs was a person with a disability under the Fair Housing Act, there was insufficient evidence that the animal provided any service or support to that person. At the hearing, plaintiffs’ counsel admitted that the dog was not individually trained and possessed no abilities that were unique to its breed in terms of providing emotional support or assistance.

WASHINGTON

Washington State Court Decisions

Timberlane Mobile Home Park v. Washington State Human Rights Commission
95 P.3d 1288 (Wash.App. 2004)
Keys: L-PTS, L-ACC
A woman who experienced severe migraine headaches filed a claim of discrimination with the state fair housing enforcement agency, alleging that the mobile home park had discriminated against her on the basis of disability when it expelled her because of her disability and her use of a service dog she claimed could “respond to” her migraines. After an investigation and hearing, the agency found in her favor and ordered the payment of compensatory and emotional distress damages. On appeal, the state trial court affirmed the administrative decision, and the mobile home park owners sought review by the Court of Appeals. That court held that plaintiff’s untrained dog was not a “service animal” under the discrimination statute, and reversed the agency determination. Citing Prindable (see Hawaii, above), the court held that “because most animals are not equipped to work or perform tasks for the disabled, there must be some evidence of individual training to set the service animal apart from the ordinary pet.” Having failed to do so, the plaintiff’s claim must fail.

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