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Association of Apartment Owners of Liliuokalani v. Joel Lee Taylor

August 31, 2012


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


Before the Court is Defendant/Counterclaim Plaintiff Joel Lee Taylor's ("Taylor") Motion for Partial Summary Judgment ("Taylor Motion"), filed on May 18, 2012. [Dkt. no. 26.] The Hawai'i Civil Rights Commission ("HCRC") filed its Brief of Amicus Curiae Hawai'i Civil Rights Commission in Support of Defendant's Motion for Partial Summary Judgment Filed on May 18, 2012 ("HCRC Brief"), on June 19, 2012. [Dkt. no. 42.] Plaintiff Association of Apartment Owners of Liliuokalani Gardens at Waikiki, a Hawai'i nonprofit organization, by its Board of Directors ("AOAO"), filed its memoranda in opposition to the Taylor Motion and the HCRC Brief on July 2, 2012. [Dkt. nos. 43, 47.] Taylor filed his reply on July 9, 2012. [Dkt. no. 49.] Also before the Court is the AOAO's Motion for Partial Summary Judgment ("AOAO Motion"), filed on May 21, 2012. [Dkt. no. 31.] The AOAO, as counterclaim defendant, filed its Joinder in Motion for Partial Summary Judgment ("AOAO Joinder") on May 21, 2012. [Dkt. no. 30.] Taylor filed his memorandum in opposition on July 7, 2012, [dkt. no. 45,] and the AOAO did not file a reply. These matters came on for hearing on July 23, 2012. Appearing on behalf of the AOAO were Dan C. Oyasato, Esq., and Lissa H. Andrews, Esq; appearing on behalf of Taylor were Christopher Brancart, Esq., and Leba Kaufmann, Esq.; and appearing on behalf of the HCRC was Livia A. Wang, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Taylor Motion is HEREBY DENIED without prejudice, and the AOAO Motion and AOAO Joinder are HEREBY DENIED without prejudice, for the reasons set forth below.


Taylor purchased an apartment in the Liliuokalani Gardens at Waikiki condominium project ("Liliuokalani Gardens") in 2011.*fn1 [Complaint at ¶¶ 7, 35.] The AOAO represents that Taylor had first considered purchasing a unit in Liliuokalani Gardens in 2009 and at that time was aware of the AOAO's no-pets policy. [Id. at ¶¶ 23-24.] Taylor entered into a purchase agreement but conditioned the purchase on being able to keep his dog, Nell, as an accommodation for his mental disability. [Id. at ¶ 24.]

In or around July 2009, in response to Taylor's request that the AOAO make an accommodation to its no-pets policy, the AOAO gave Taylor a questionnaire to be completed by a physician to provide information for the AOAO to consider in evaluating whether an accommodation is necessary and appropriate. [Id. at ¶¶ 25-26.] Alex E. Torres, M.D. ("Dr. Torres") responded to the questionnaire, but the AOAO claims that "some of his responses were incomplete and others were unclear." [Id. at ¶ 27.] Dr. Torres indicated that Taylor suffers from "'agarophobia [sic] and social phobia - permanent condition'." [Id. at ¶ 28.] In response to the question "What major life activity or activities are the subject of Patient's disability or record of disability?", Dr. Torres stated: "Neuro-science report establishes a brain chemistry imbalance. Epinephrine is very low, dopamine is optimal, serotonin is very low. Very low levels of serotonin promote agarophobia [sic] and social phobia. 'Caring for oneself' is possible with his service dog." [Id. at ¶ 29.] The AOAO contends that "Dr. Torres failed to indicate how the requested accommodation would alleviate or mitigate [Taylor's] disability or otherwise assist him in using and enjoying the dwelling. Dr. Torres instead indicated '[i]t would provide a safe haven from outside stress and allowing [sic] a refuge from the outside world.'" [Id. at ¶ 30 (some alterations in Complaint).] The answers to the questionnaire also did not state what training, if any, Nell had received. [Id. at ¶ 32.]

Taylor did not follow through with the purchase agreement in 2009, but, on or around April 27, 2011, he purchased a different unit at Liliuokalani Gardens. [Id. at ¶ 35.] At that time, he renewed his request for an accommodation to permit him to keep his dog in the unit and provided the AOAO with the 2009 answers to the questionnaire. [Id. at ¶ 36.] The AOAO was unable to contact Dr. Torres, who had apparently moved to Puerto Rico. [Id. at ¶ 37.] The AOAO claims that Taylor "did not submit any additional medical information that would indicate [Taylor] suffers from a physical or mental impairment which substantially limits one or more of his major life activities, has a record of having such an impairment, or is regarded as having such an impairment." [Id. at ¶ 38.]

The AOAO states that, on information and belief, Nell has not received any training to do work or perform tasks which ameliorate any of Taylor's symptoms or conditions. [Id. at ¶ 39.] Taylor apparently has represented Nell's services as that:

she must be quartered with me so as to be on call when I am required to engage with the general public to care for myself. . . . I refer you to the training required to act as an "emotionally supportive" Service Dog.

There is none other than being a calming support in stressful situations. [Id. at ¶ 40.] The AOAO contends that Nell is a "companion" or "pet whose mere presence allows [Taylor] to 'function in a calm collected manner in crowded environments such as airline travel and grocery stores.'" [Id. at ¶ 41.]

On or around November 9, 2011, Taylor moved into his unit, and the AOAO has allowed Nell to remain in the unit pending the outcome of this action. [Id. at ¶¶ 42-43.]

On December 12, 2011, the AOAO filed the present action again Taylor, arguing that Taylor does not suffer: from a handicap as defined under 42 U.S.C. §3602(h) or a disability under HRS §515-2, and submits that even assuming the owner qualifies as a disabled person under the FHA, Plaintiff is not required under 42 U.S.C. § 3604(f)(3)(B) or HRS § 515-3(11), or any other provision of the FHA or its Hawai'i counterpart, to waive its no pet policy and permit the owner to keep a dog that has not received any training which would make it particularly suited to ameliorate the unique problems of the owner's disabilities. [Id. at ¶ 2.]

On March 12, 2012, the magistrate judge issued a briefing schedule on motions for partial summary judgment on the applicability and validity of Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D. Hawai'i 2003), as it applies to the present case. [Dkt. no. 25.]

I. Taylor Motion

A. Motion

Taylor takes the position that Senior United States District Judge Alan C. Kay's decision in Prindable "erroneously applied the [Americans with Disabilities Act of 1990 ("ADA")] definition of service animals to the FHA, imposing a requirement that does not exist in the text of the FHA or its implementing regulations" and "conflicts with administrative interpretations of the FHA and ADA and more recent case law." [Mem. in Supp. of Taylor Motion at 8.]

1. No FHA Limitation to Trained Animals

Taylor first argues that the FHA does not limit reasonable accommodations to specially trained "service animals." Taylor claims that the term "service animals" is not used in the FHA, which simply prohibits "'a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.'" [Id. (alteration Taylor's) (quoting 42 U.S.C. § 3604(f)(3)(B)).] Taylor argues that, under the FHA, "no category of accommodation request is precluded as a matter of law[,]" and "[t]he reasonable accommodation analysis is a 'highly fact-specific [inquiry], requiring case by case determination.'" [Id. at 8-9 (some alterations Taylor's) (some citations omitted) (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994)).]

Taylor further argues that the FHA's implementing regulations do not contain any requirement that a service animal be specially trained. [Id. at 9.] The United States Department of Housing and Urban Development ("HUD"), which is charged with administering the FHA, has not promulgated any regulation that would limit reasonable accommodation under the FHA to dogs with special training. [Id. at 9-10 (citing 24 C.F.R. § 100.204).*fn2 ]

Taylor contends that HUD has interpreted the FHA's reasonable accommodation provision to require accommodations for non-trained emotional support animals. He cites a case in which a HUD administrative law judge issued a decision finding that a landlord had violated the FHA by refusing to grant a mentally disabled man a reasonable accommodation to allow him to keep his emotional support cat in a no-pets apartment. [Id. at 10 (citing HUD v. Dutra, 1996 WL 657690 (HUDALJ 1996)).] HUD also issued a memorandum in February 2011 that stated:

[Animals] with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under the reasonable accommodation provisions of the FHAct and Section 504. The new ADA regulation does not change this FHAct/Section [504] analysis, and specifically notes, "[u]nder the FHAct, an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a 'reasonable accommodation' that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the animal does not pose a direct threat." [Id. at 11 (some alterations Taylor's) (some citations omitted) (quoting Taylor Motion, Exh. 1 at 2).]*fn3

Taylor argues that other HUD interpretations not directly applicable here evidence that animals do not need to have special training. In 2008, regarding pet ownership by elderly persons with disabilities in HUD-assisted public housing, HUD issued a final rule that public housing can no longer require that an assistance animal have special training. [Id. at 12 (citing 73 Fed. Reg. 63834 (Oct. 26, 2008)).] That rule recognized that "'[s]ome animals perform tasks that require training, and others provide assistance that does not require training . . . . [E]motional support animals do not need training to ameliorate the effects of a person's mental and emotional disabilities.'" [Id. (alterations Taylor's) (quoting 73 Fed. Reg. 63836).]

Taylor cites to federal cases filed by the Department of Justice ("DOJ") over failures to grant reasonable accommodations to tenants with emotional support animals that lack specialized training as violations of the FHA. He argues that, of such cases filed since 2003, "[e]ach of those has been resolved with a consent decree, settlement, or favorable jury verdict." [Id. at 13 (footnote and citations omitted).] He also contends that the DOJ has acknowledged that the definition of "service animal" under the ADA does not affect the FHA. [Id. at 14-15 (citing 42 U.S.C. 12134(c); 75 Fed. Reg. 56236, 56240 (Sept. 15, 2010)).]

2. Interpretation of Prindable

Taylor argues that the district court erred in its analysis in Prindable and mistakenly relied on three cases: Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995); Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253 (D. Or. 1998); and In re Kenna Homes, 557 S.E.2d 787 (W. Va. 2001). [Id. at 15.]

Taylor argues that Prindable misread Bronk as requiring special training for assistance animals under the FHA, when the Seventh Circuit actually held that the FHA does not require that an animal must have training credentials in order to be a reasonable accommodation. [Id. at 16 (citing 54 F.3d at 430).] Taylor argues that the Seventh Circuit found that the lower court had erroneously instructed the jury that the service dog had to have credentials from an accredited training school. "While professional training may have been relevant to whether the dog was able to aid the plaintiffs as a hearing dog in coping with their deafness, it was not 'its sine qua non.'" [Id. (emphasis Taylor's) (quoting 54 F.3d at 431).]

As to Green, which also involved a hearing dog, the Ohio district court applied the ADA definition of a service animal, because the case involved an ADA claim. [Id. at 16-17.] Taylor contends that Green cannot "be read to limit the reasonable accommodation provisions of the FHA to specially trained animals." [Id. at 17.]

Regarding Kenna Homes, Taylor argues that, even though the West Virginia Supreme Court applied the ADA definition of service animals to the FHA's reasonable accommodation provision, that decision is of little value because the DOJ subsequently brought suit against the same defendant, charging that its requirement of certification violated the FHA. [Id. at 17 (citing Taylor Motion, Exh. 5 (Complaint in Case No. 04-cv-00783)).] In that subsequent case, the Government and Kenna Homes entered into a consent decree in which Kenna Homes agreed to change its rules to allow residents to keep both "service animals" and "emotional support animals." [Id. at 18 (citing Taylor Motion, Exh. 6 (consent decree)).]

3. Subsequent Cases Reject Prindable

Next, Taylor argues that, subsequent to the Prindable decision in 2003, HUD and the DOJ adopted final rules clarifying that the ADA definition of "service animal" does not apply to FHA reasonable accommodation claims. Two federal district courts then rejected Prindable and held that emotional support animals do not need specialized training to qualify as a reasonable accommodation under the FHA. [Id.]

Taylor argues that, in Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009), the district court found that the requirements for emotional support animals "'must be evaluated in the appropriate context of housing' as opposed to that of public accommodations covered by the ADA." [Id. at 18-19 (quoting 666 F. Supp. 2d at 860).] That court concluded that an animal without specialized training could be a reasonable accommodation. [Id. at 19.]

Similarly, Taylor argues that Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F. Supp. 2d 1028 (D.N.D. 2011), agreed with the Overlook analysis and adopted the DOJ's rule that the ADA "service animal" definition was not applicable to the FHA reasonable accommodations standard.

That court held that "'the FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.'" [Id. (quoting 778 F. Supp. 2d at 1036).]

4. State Law

Finally, Taylor argues that the Hawai'i Discrimination in Real Property Transactions Act ("HDRPTA"), which tracks the FHA and is intended to conform to federal law, does not limit reasonable accommodations to specially trained service animals. Taylor argues that, until 2011, HDRPTA made it unlawful to "'refuse to engage in a real estate transaction with a person or to deny equal opportunity to use an enjoy a housing accommodation due to a disability because the person uses the services of a guide dog, signal dog, or service animal[.]'" [Id. at 20 (quoting Haw. Rev. Stat. § 515-3(8) (repealed)).] Effective July 1, 2011, the legislature deleted that section and its references to "guide dog," "signal dog," and "service animal." [Id. (citing 2011 Haw. Sess. Laws 175 §§ 1(5), 8 (S.B. No. 892)).] The current law now makes it unlawful to: refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an animal, reasonable restrictions may be imposed.

Haw. Rev. Stat. § 515-3(9). Taylor contends that the change in language to the more general "use of an animal" bolsters the conclusion that state law does not limit reasonable accommodations to specially trained animals. [Mem. in Supp. of Taylor Motion at 21.]

Similarly, Taylor argues that the HCRC issued a memorandum on July 25, 2011 to clarify that "assistance animals include 'animals that provide emotional support that alleviates one or more symptoms or effects of a person's disability.'" [Id. (quoting Taylor Motion, Exh. 7).]

B. AOAO's Memorandum in Opposition to the Taylor Motion

1. Interpretation of Prindable

The AOAO argues that Taylor takes an overly narrow reading of Prindable. It contends that Taylor "limits his focus to that portion of the Court's decision that imports the ADA definition of service animals into its FHA analysis . . . . This nearsighted reading of the Court's decision fails to credit the Court's insight into the larger picture of what is required for an animal to be a reasonable and necessary accommodation under the FHA." [Mem. in Opp. to Taylor Motion at 3-4.] The AOAO argues that "critics of Prindable have failed to grasp the foundation upon which Prindable was drafted, that in order for an animal to be a reasonable and necessary accommodation under the FHA, the animal needs to have something that sets it apart from the ordinary pet." [Id. at 4.] It notes that the Prindable court's adoption of the ADA's definition of "service animal" was a logical minimum standard, not a limitation of the animals that fall within § 3604(f)(3)(B):

Plainly, most animals are not equipped "to do work or perform tasks for the benefit of an individual with a disability." There must instead be something -- evidence of individual training - to set the service animal apart from the ordinary pet. The primary handicap at issue in this case is mental and emotional . . . rather than physical in nature. It therefore follows that the animal at issue must be peculiarly situated to ameliorate the unique problems of the mentally disabled. This is not a taxing requirement, however, and there are no federally-mandated animal training standards. [Id. at 5 (alterations AOAO's)(quoting Prindable, 304 F. Supp. at 1256).] The AOAO contends that "[t]he use of the ADA definition of 'service animal' was merely a conduit to the global conclusion that there had to be something more about the animal that distinguishes it from the ordinary pet." [Id.] It argues that, "even if not individually trained, if the dog had some ability that was peculiarly suited to ameliorate the unique problems of the mentally challenged, that could meet the requirement that the dog was necessary to afford a disabled person an equal opportunity to use and enjoy their dwelling." [Id. at 5-6.] In other words, the Prindable court "merely required that there be something that sets the animal apart from the ordinary pet." [Id. at 6 (citing Prindable, 304 F. Supp. 2d at 1256).]

Next, the AOAO argues that the FHA does not require accommodations that provide an increased benefit or greater opportunity beyond those provided to a person without a handicap. It argues that a reasonable accommodation is only necessary if, without the accommodation, the disabled person will likely be denied an equal opportunity to enjoy the housing of their choice. [Id. (citing Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996)).] To this end, the AOAO argues that Prindable sets the minimum standard necessary to demonstrate the link between the animal and the condition the animal purportedly ameliorates. Without such a standard, there would be no way to discern whether the animal provided any appreciable benefit to the owner that would afford him or her an equal opportunity to use and enjoy his dwelling. "In other words, it is that individual training the animal received or that special skill the animal possesses that links the animal directly to the effects of the disability and makes the animal necessary for purposes of the FHA." [Id. at 7.]

The AOAO contends that the FHA does not require accommodations that "'increase a benefit to a handicapped person above that provided by a non-handicapped person with respect to matters unrelated to the handicap[.]'" [Id. (quoting Bryant Woods Inn v. Howard Cnty., 124 F.3d 597, 604 (4th Cir. 1997) (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008)).] According to the AOAO, "[i]f the animal provides the disabled person with a benefit that a nondisabled person would not be able to receive that is unrelated to the disability, then the accommodation is not necessary." [Id. at 7-8.] In other words, if an animal provides comfort and companionship to an owner not in need of those benefits and similar benefits are not provided to ...

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