Civil Law

This may very well be a week with two blog entries for three reasons. First, there is the blog that will be the subject of this blog entry. Second, if I have this figured right, this is the last week that the Supreme Court has for issuing opinions before their summer recess. I am particularly waiting on the Loper Bright case, which we discussed here. Third, the week of July 1, I will be out of town all week.

 

Turning to the blog entry for this week, it is a case out of the Supreme Court of New Jersey that offers a roadmap for dealing with ESA’s in terms of how the process works with respect to the burden of proof and the like. It also illustrates just how fine the line is between ESA and a psychiatric service animal. The case of the day is Players Place II Condominium Association Inc. v. K.P. and B.F., here. It was decided by the Supreme Court of New Jersey on March 13, 2024. By way of full disclosure, I have represented individuals on very similar fact patterns. As usual, the blog entry is divided into categories, and they are: facts; LAD/FHA overview; proper framework for addressing ESA’s; applicability of the proper framework up to the facts of this case; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Players Place II is a condominium community Gloucester Township, New Jersey. Defendant bought a unit there in May 2018. Pets are allowed but they must weigh less than 30 pounds at maturity. The policy exempts dogs used for the blind from the weight restriction but does not mention emotional support animals. In August 2018, defendant’s girlfriend and now spouse, moved into the unit. She has several different mental health conditions.

 

On August 2, 2018 the defendants notified the HOA that they were considering adopting an emotional support dog that would likely be over the 30 pound pet limit and asked what medical documentation would be needed. On August 5, 2018, a dog was adopted from a shelter to live with them as an ESA. At maturity, the dog would weigh more than 30 pounds. In fact, she weighs 63 pounds in January 2019. The HOA pushed back hard, which led to the owners of the unit saying that the dog was an emotional support dog and furnishing documentation from a psychiatric nurse practitioner saying that the now wife suffers from mood and anxiety disorder and would benefit from an ESA.

 

In response, HOA counsel said that they would immediately commence an action at law seeking a court order barring any dog weighing more than 30 pounds. In response to the HOA, the owners of the unit said that they would file a complaint with HUD if the HOA denied the claim.

 

In late September early October 2018, the HOA’s Board President saw the owners walking the dog on the condominium grounds. At no point did anyone file a noise complaint or claim that the dog caused any property damage. On October 3, 2018, the HOA filed a complaint against the owners. In response, the owners of the unit claimed that the HOA had violated the New Jersey Law Against Discrimination (LAD) and the Fair Housing Act (FHA).

 

B.F., the wife of K.P., has bipolar II disorder. She also has panic disorder, PTSD, depressive episodes, as well as ADHD. At trial, the licensed clinical social worker testified that the dog was making a big positive difference for B.F. For example, B.F.’s depressive episodes were shorter and more mild to moderate than before. She also improved her ability to cope with stressors.

Also at trial, a licensed clinical psychologist testified that B.F. had a long history of mental illness dating back to the seventh grade. She had experienced severe anxiety and depression at a young age and was placed on medication then. Her medications presently included two mood stabilizers, an antidepressant, an antipsychotic, and Adderall for the ADHD. She also testified that before getting the dog that B.F. could not be alone in the condo. With the dog, she is now comfortable staying alone in the condo as long as she had the dog with her. When she is panicking or decompressing, the dog will sit in the closet with her for hours and lick her face when she cries. In the opinion of the licensed clinical psychologist, the dog keeps B.F. stable.

 

B.F. at trial explained that she had struggled with mental health issues in middle school and identified her diagnosis, medication, treatment providers, and ongoing symptoms. She also noted that she had raised the idea of an emotional support animal with her therapist. She had a larger dog while growing up that she always found comforting. Smaller dog did not provide her with the same level of relaxation because they were loud and yappy and gave her more anxiety. Instead, she bonded with her adopted larger dog right away. B.F. explained that the dog lies with her in the closet when she is going through an episode and licks away her tears. She also added that her symptoms have dramatically decreased in length and frequency since she has had the dog.

 

II

LAD/FHA Overview

 

1. The New Jersey Law Against Discrimination define disability as a: “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness including epilepsy and other seizure disorders, and which shall include . . . any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which [1] prevents the typical exercise of any bodily or mental functions or [2] is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. [N.J.S.A. 10:5-5(q)]
2. Case law has considered various mental illnesses and psychological disorders as disabilities under the LAD (New Jersey Law against Discrimination), such as: ADHD; depression; other psychiatric disorders; posttraumatic stress disorder; anxiety; and panic attacks.
3. When a disability is not readily apparent, i.e. non-observable, the LAD requires expert medical evidence.
4. Regulations implementing the LAD make it, “unlawful for any person to . . . [r]efuse to make reasonable accommodations in rules, policies, practices or services, or reasonable structural modifications, when such accommodations or modifications may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling, including public and common areas.” This regulation applies to condominium associations.
5. Under the FHA, it is unlawful to discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap. 42 U.S.C. §3604(f)(1). Discriminatory housing practices include a refusal to make reasonable accommodations and roles, policies, practices, or services, when such accommodations are necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.
6. The LAD is an equivalent agency to HUD. Accordingly, the LAD has to be construed in a way that permits the LAD to qualify as a certified agency. So, the LAD must provide rights, procedures, and remedies substantially equivalent to those provided in the FHA.
7. Critically, the LAD defines disability more broadly than the FHA because unlike the FHA, the LAD does not include any requirement that a disability result in substantial limitation of a major life activity. See ¶ 1 of this section.

 

III

Proper Framework for Addressing ESA’s

 

1. The disabled tenant has the initial burden to show the requested accommodation is necessary to afford him or her or them an equal opportunity to use and enjoy a dwelling.
2. The burden of proof then shifts to the housing provider to show that the requested accommodation is or was unreasonable.
3. Whether the pet is of sufficient assistance to a tenant and whether the accommodation is unreasonable involve fact sensitive inquiries. The costs to the provider and the benefits to the tenant both merit consideration. The requested accommodation must enhance a disable plaintiff’s quality of life by ameliorating the effects of the disability. However, courts may also consider the likely costs or administrative burden to be incurred by the housing provider to accommodate an ESA.
4. Federal courts have similarly found that a reasonable accommodation includes the use of an ESA, despite the existence of an HOA rule prohibiting such an animal (the court cites to a case we discussed in our blog here).
5. Both the agency implementing the LAD and HUD have published guidance about ESA’s. The Division implementing the LAD has advised the public that a housing provider may need to make an exception to a no pet policy to permit a tenant with a disability to keep an ESA.
6. If a disability and disability-related need for an ESA are not obvious or otherwise known, a housing provider may request reliable documentation from the person’s treating healthcare professional. The housing provider, in turn, must conduct an individualized assessment of the request and may deny it if allowing an ESA would create an undue burden on its operations.
7. The HUD guidance (which we discussed here), extends beyond service animal to animals providing therapeutic emotional support for individuals with disabilities that alleviate at least one identified symptom or effect of a physical or mental impairment. Neither ESA’s nor service animals are subject to pet policy rules.
8. Housing providers may not limit the breed or size of a dog used as a service animal or support animal just because of the size or breed. However, they can refuse a request if the specific animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level.
9. According to HUD, residents can request a reasonable accommodation either before or after requiring an assistance animal. If the request lacks information about a person’s disability or the need for an animal, HUD encourages housing providers to engage in good faith dialogue with the requestor, i.e. the interactive process. If a request is denied because it would impose a fundamental alteration to the nature of the provider’s operations or an undue financial and administrative burden, the housing provider should engage in the interactive process to discuss alternative ways to accommodate a person’s disability related needs.
10. The Division implementing the LAD echoes HUD’s guidance in its brief it filed.
11. In short, in a case like this: 1) a resident of a condominium complex is entitled under state and federal law to request an accommodation to a pet policy in order to keep an emotional support animal; 2) The individual must first demonstrate they have a disability under the LAD; 3) In addition, they must show that the requested accommodation may be necessary to afford them an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2); 4) The housing provider then has the burden to prove the requested accommodation is unreasonable; 5) As part of that process, the parties should engage in a good-faith, interactive dialogue to exchange information, consider alternative options, and attempt to resolve or narrow any issues; and 6) If that collaborative effort fails and litigation follows, courts will inevitably need to balance the need for, and benefits of, the requested accommodation against the costs and administrative burdens it presents to determine whether the accommodation is reasonable.
12. In a footnote, the New Jersey Supreme Court notes that service animals have a completely different analysis and are not subject to a balancing test.

 

IV

Applicability of the Proper Framework (§II of This Blog Entry). to the Facts of this Case

 

1. B.F. has a disability as experts on both sides diagnosed her with psychological disabilities.
2. The proofs about the medical condition were developed at trial. However, the HOA could have asked for more information in response to the initial request for an accommodation. Under HUD guidance, housing providers can ask individuals to provide information confirming they have a disability and that they need a support animal. A housing provider cannot ask for medical records or medical examination.
3. A resident has the initial burden to demonstrate the accommodation they seek is necessary in order to afford an equal opportunity to use and enjoy a dwelling. This requirement asked whether the requested accommodation ameliorates the disability’s effects. In essence, the critical question is whether the accommodation alleviates at least one symptom of the disability and not whether the accommodation will cure or eliminate the disability. Here, there was plenty of evidence showing that the dog alleviates at least one symptom of her disability.
4. LAD does not require that a mental health professional recommend or prescribe an emotional support animal. It also does not require that the resident establish a specific need for a dog exceeding the HOA’s weight limit.
5. When possible, it is preferable to engage in a collaborative conversation in advanced. That said, it isn’t always possible to know whether an ESA that is acquired will help ameliorate symptoms.
6. An ESA has to be allowed unless it fundamentally alters the housing provider’s operations or imposes an undue financial or administrative burden on the housing provider.
7. Whether the animal has been trained is not a relevant consideration because ESA’s are not individually trained to perform specific tasks associated with their owner’s disability.
8. This kind of case is not a contract case at all but rather a case sounding in disability discrimination and should be dealt with in that way.

 

IV

Thoughts/Takeaways

 

1. As mentioned at the top, I have represented individuals in a very similar matter. A very critical point to take from this case is that the line between an ESA and an animal used to ameliorate symptoms of a person with MH can be very fine indeed. Also, as this case notes, service animals are not subject to this balancing test. An argument can be created from the facts in this opinion, that the dog discussed in this case was actually a service animal. In particular, when B.F. was in severe distress, the dog would join her in the closet and lick away her tears. If the dog is recognizing and responding to that situation and is being rewarded for doing that, then I would argue that the dog has been trained to recognize and respond to that situation and is a service animal.
2. State laws do not always define a disability in the same way as the ADA and the FHA do. New Jersey is one such state. Illinois is another. New Jersey goes even further than the ADA and the FHA because it does not require a substantial limitation on a major life activity. Instead, it has alternative ways to establish a disability.
3. I have seen quite frequently a resident tell me they have an ESA. It doesn’t take much questioning to find out that the ESA is actually a psychiatric service animal trained to deal with their MH in a variety of ways. Once the dog is a service animal, that puts the dog and the case on a completely different field.
4. Whether an emotional support animal is involved, is a fact intensive inquiry.
5. In my opinion, a service animal can be one utilized only in the home. Mine certainly is. I am, as everyone knows, a deaf proud individual who functions entirely in the hearing world with Bluetooth technology, lipreading, and advanced hearing aids. I very much utilize my dog while I work virtually. However, I don’t need my dog outside of the residence I am inhabiting on a day-to-day basis. While I practice law virtually, my dog does act as a service animal by alerting me to sounds that I wouldn’t otherwise hear.
6. The case offers an excellent roadmap for any landlord dealing with ESA requests.
7. Hard to believe that an ESA could ever result in an undue financial or administrative burden or fundamentally alter the housing provider’s operations.
8. Direct threat as we know from our blog is a term of art. While HUD guidance doesn’t talk about what it direct threat is, I would suggest analogizing it to the requirements set out in Chevron v. Echazabal (requiring an individualized analysis and objective evidence).
9. This case makes clear that everything short of direct threat, fundamental alteration, or undue burden, must be attempted first before denying the ESA.
10. With respect to ESA’s, it is unnecessary for the dog to be trained. However, as this case makes clear and I have seen in my own practice, it is not hard at all to consider a dog trained to deal with a variety of MH conditions when they flare up. Also, anybody can train their animals to be a service animal.
11. Whenever dealing with reasonable accommodation/modification requests, always engage in the interactive process. We discussed the do’s and don’ts of the interactive process here.
12. I am not licensed in New Jersey. When it comes to LAD, a New Jersey license attorney should be consulted.

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