Chronological narrative in the matter of Miami Valley Fair Housing Center v. The Carillon House Association regarding the Pet Etiquette brochure — by Jim McCarthy

As a resident of Carillon House, I arrived home from work at the Miami Valley Fair Housing Center (MVFHC) sometime the week of March 2, 2020, to find the “Pet Etiquette Brochure” in our mailbox. I read the brochure and found issues with the language in the brochure that said:

“All pets must be taken in and out through the N. Garage exit door. Service, therapy and emotional support pets are not exempt from this policy. The ADA requirement is that “reasonable accommodations” are made for service animals. Reasonable accommodations have been made by using the elevators, N. Garage ramp and N. Garage exits.” See Pet etiquette brochure (3/2/2020).

As a civil rights advocate and Fair Housing Practitioner for more than 26 years, I knew that:

1. Service, therapy and emotional support animals ARE NOT PETS, and referring to them as pets confuses everyone and leads to mistakes that violate the spirit and letter of the fair housing laws at the state and federal level;
2. The Americans with Disabilities Act (ADA) was not the correct federal law applicable to the situation at the Carillon House the Board was attempting to address; and
3. The suggestion that an accommodation had already been made for “service, therapy and emotional support” animals by allowing the use of elevators, north garage ramp and exits was both wrong and offensive to anyone who needs or uses a service or emotional support animal, now or in the future.

The next day, I took the brochure into the Fair Housing Center and turned it over to the enforcement staff for handling. On March 7, 2020, the responsible staff person at MVFHC sent a letter to the Association in care of Gwyn Rotramel at Apple Management, with a “cc” to Shauna Adams, as the President of the Association Board. MVFHC requested a response by March 18, 2020 and included with the letter copies of the U.S. Dept. of Housing & Urban Development & U.S. Dept. of Justice Joint Statement on Reasonable Accommodations under the Fair Housing Act, and HUD’s Service Animals & Assistance Animals for People with Disabilities in Housing and HUD-funded Programs. See Letter to Carillon House (3/7/2020).

The Fair Housing Center received no response for nearly two weeks. The Board chose not to engage directly with MVFHC and work out a cost-free resolution; instead, the Board turned the matter over to the Association’s legal counsel, Kaman & Cusimano LLC. Garrett Humes, an attorney with Kaman & Cusimano, wrote in response to MVFHC’s letter on 03/20/2020. The letter said the board proposed making three changes to the policy in response to MVFHC’s concerns. See Letter from Garrett Humes of Kaman & Cusimano (3/20/2020).

That same day, MVFHC responded to Mr. Humes’ and explained that it was in agreement with one of the proposed changes, but could not agree to the other changes proposed by the board, and explained why MVFHC would not agree. See Letter to Garrett Humes of Kaman & Cusimano (3/20/2020).

MVFHC received an unsolicited copy of a draft brochure—that did not include the objectionable language about “service, therapy, and emotional support” animals that MVFHC found objectionable—and was told the draft brochure was the final version the committee had agreed upon for submission to the Board. See Draft brochure from Carillon House.

On March 25, 2020, Mr. Humes wrote again to MVFHC saying that he agreed there appeared to be confusion regarding these issues, but that some of the confusion was on the Fair Housing Center’s end. The letter goes on to raise other issues and examples the Board believed to be important. See Letter from Garrett Humes of Kaman & Cusimano (3/25/2020).

On March 26, 2020, MVFHC responded to Mr. Humes saying it respectfully disagreed with a number of points in the 3/25/2020 letter and would consider the appropriate enforcement action to pursue. See Letter to Garrett Humes of Kaman & Cusimano (3/26/2020).

MVFHC next contacted Stephen M. Dane, of Dane Law LLC and requested that he represent MVFHC moving forward. Mr. Dane is known throughout the fair housing and civil rights communities for litigating hundreds of fair housing and civil rights claims on behalf of victims of discrimination and the advocacy organizations who represent them. Dane has received numerous awards and honors for his civil rights work from organizations throughout the country, and has represented MVFHC in numerous other cases.

On April 2, 2020, Mr. Dane wrote to Mr. Hume, on behalf of MVFHC proposing a resolution to remove specific language and language that distinguished assistance animals from pets, and made a few other suggestions that were not contingent upon settlement of the matter. See Letter from Steve Dane to Garrett Humes of Kaman & Cusimano (4/2/2020).

Next began a series of emails and phone calls between the attorneys attempting to arrive at language on which both MVFHC and the Carillon House Board could agree. See Emails between attorneys (4/8/2020–5/1/2020).

On April 8, 2020, Mr. Humes sent a proposed draft of the revisions that the Board and he had prepared based upon prior communications with MVFHC. See Carillon Board’s proposed revisions (4/8/2020).

On April 20, 2020, Mr. Dane on behalf of MVFHC emailed Mr. Humes and responded to the latest version of the Board’s revised language. Additionally, Dane provided a copy of the draft Pet Etiquette Brochure—that did not include the objectionable language about “service, therapy, and emotional support” animals MVFHC found objectionable.

Included also was a copy of a News Release from the U.S. Dept. of Justice dated 03/12/2020, which announced that the DOJ had just filed a federal fair housing lawsuit alleging violations of the Fair Housing Act based upon some of the same issues that MVFHC and Carillon were discussing. [Note: Mr. Dane did not provide a copy of the DOJ Complaint, but Mr. Humes certainly could have accessed it. I am providing it here for background information.] See Department of Justice news release (3/12/2020) and United States v Dorchester Owners Association complaint (3/12/2020).

On April 22, 2020, Mr. Humes for the Board responded citing a decision in a case from nine years earlier (in 2011) — Stevens v. Hollywood Towers & Condo. Ass'n, 836 F. Supp. 2d 800, and suggested that the manner in which the Association might restrict companion animals was “more nuanced than the position outlined” in previous communications from MVFHC and its attorney.

MVFHC did not find the case persuasive for a number of reasons. The 2011 decision in Stevens relied upon an even earlier case, from 2003, Prindable v. Ass'n of Apartment Owners of 2987 Ka/akaua, 304 F.Supp.2d 1245, 1257 (D. Haw. 2003). The Prindable case involved reasonable accommodation to keep a service animal in a building that did not permit pets whatsoever. However, The Carillon House permits and welcomes pets. In Prindable, the court found that “a service animal must be a reasonable accommodation, and nothing in the FHA precludes the imposition of appropriate rules and regulations designed to lessen the impact of housing a pet in a no-pet building.”

The Court continued, “After all, many residents choose to live in a no-pet building because of allergies, fear of animals, belief that such a building will have higher property values, or countless other reasons that are entitled to respect.” Since Carillon House already permits pets and the Court’s rationale in a case from 17 years prior was “the imposition of appropriate rules and regulations designed to lessen the impact of housing a pet in a no-pet building”, AND that in 2020 the Dept. of Justice was pursuing a case on some of the very same grounds MVFHC was raising to Carillon, MVFHC did not find the case law cited by Mr. Humes persuasive.

On April 23, 2020, Mr. Humes for the Board emailed Mr. Dane a second revised version of proposed language for the Pet Etiquette Brochure. See Carillon Board’s second proposed revisions (4/23/2020).

At the same time, I had been conducting additional research to support MVFHC’s position, and decided to investigate HOAleader.com—a resource that Carillon House Association President Shauna Adams has often referred to in meetings and in notices to owners and residents as “a national professional organization for homeowner associations”, and upon which the Board relies for instructional webinars on various situations faced by Homeowners and Condominium Owners Associations, and according to Ms. Adams’ 03/23/2020 email to Carillon House owners and residents most recently a HOAleader.com webinar on COVID-19.

What I learned is that HOAleader.com is a membership organization to which HOAs can subscribe for a modest annual amount. The HOAleader.com website says that paying members receive access to:

• “an ever-expanding library of exclusive content, written by our attorney editors and experienced journalists. We constantly research the latest developments affecting homeowner and condominium associations across the U.S. Then we publish plain-English analyses of what those developments mean to you as an HOA leader”; and
• “You get clear information about what you need to do now to comply with HOA laws, steer clear of legal trouble, avoid or resolve conflicts within your homeowners association, make HOA management easier, and safeguard your community association’ property values and quality of life”; and
• “Special Reports from HOAleader.com. These exclusive Special Reports from HOAleader.com are available to members for free download.”

In further research, I found that each of these Special Reports from HOAleader.com is valued at $99 per issue for non-members. Additionally, I discovered that one was a 42-page booklet called Pets at Condos and HOAs: Best Practices for the Challenges that Come with Residents’ Animals. Inside that booklet beginning on page 17 is a feature called Talking Points for Associations Regarding Requests for Assistance and Service Animals, in regard to assistance and service animals suggests:

1. Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance or service animal? (In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to either question is “no,” then the Fair Housing Act and related regulations don’t require a modification to the association’s pet policies, rules, or covenants.

If the answer to both questions is “yes,” the association will need to provide an exception to its rule, covenant, or policy to permit a person with a disability to live with and use an assistance/service animal in all areas of the premises (i.e., dwelling unit, lot, and common areas) where residents are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the association’s services. See Pages 17–18 from HOAleader.com Special Report.

The Carillon Board continued to object to clear, definitive language that mirrored what HUD and the DOJ have published in multiple documents. At this point, it is important to recall that MVFHC had already provided the Board with written copies of the following:

1. The HUD & DOJ Joint Statement on Reasonable Accommodations, dated 05/17/2004; plus
2. The HUD Guidance on Service & Assistance Animals for People with Disabilities in Housing and HUD-funded Programs, dated 03/25/2013 that plainly stated “Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals.”; plus
3. The HUD Guidance on Assessing a Person’s Request to Have and Animal as a Reasonable Accommodation Under the Fair Housing Act, dated 01/28/2020. This document plainly states, “One common request housing providers receive is for a reasonable accommodation to providers’ pet or no animal policies so that individuals with disabilities are permitted to use assistance animals in housing†, including public and common use areas.” Then HUD goes on to state flatly “Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.‡; plus

   †For purposes of this guidance, the term “housing” refers to all housing covered by the Fair Housing Act, including apartments, condominiums, cooperatives, single family homes, nursing homes, assisted living facilities, group homes, domestic violence shelters, emergency shelters, homeless shelters, dormitories, and other types of housing covered by the FHA.

   ‡See 24 C.F.R. § 5.303(a).

4. The DOJ News Release, dated 03/12/2020, that showed the U.S. Department of Justice under the Trump Administration filing a federal lawsuit arguing that the condo association had “policies, that, among other things, exclude all assistance animals—including service animals—from the Dorchester’s common areas,”

On May 1, 2020, Mr. Humes for the Board wrote requesting MVFHC provide whatever changes it wanted to the revised policy language that the Board and he had developed and shared with MVFHC on 04/08/2020. MVFHC’s attorney responded that same day saying:

“My clients are still not completely comfortable with the revised language. However, they have indicated that these further revisions to that paragraph would be acceptable:

The Fair Housing Act (FHA) makes it unlawful for housing providers, including condominium associations, to refuse to make a reasonable accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling. One common request housing providers receive is for a reasonable accommodation to providers’ pet or no animal policies so that individuals with disabilities are permitted to use assistance animals in housing, including public and common use areas. Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities. Residents with disabilities may request reasonable accommodations to any rules and deed restrictions in order to have equal opportunity to enjoy and use a dwelling. Accommodation requests should be submitted to via email to gwyn@applemgmt.com or by mail to Apple Property Management, PO Box 752108, Dayton, OH 45475.”

Dane continued, “This language is taken nearly verbatim from HUD’s Notice issued January 28, 2020 regarding certain obligations of housing providers, including condominium associations, under the Fair Housing Act (FHA) with respect to animals that individuals with disabilities may request as reasonable accommodations.

We don’t see why there would be an objection to quoting directly from the HUD guidance. What do you think? The rest of the brochure is fine.”

There was no follow-up to Mr. Dane from Mr. Humes. On May 15, 2020 the Board emailed members of the Association three additions/revisions to the Carillon House Handbook of Rules and Information, saying,

“The Board has made three additions/revisions to the Carillon House Handbook of Rules and Information. Please print the attachments and insert them into your handbook as indicated below. Please note that the Pet Policy has been revised to include more information from Fair Housing. It should also replace the Pet Etiquette brochure that was distributed a few months ago. These additions/revisions to the Handbook will take effect immediately.”

The revised Pet Policy included the language that on 05/01/2020 Mr. Dane had told Mr. Humes MVFHC would agree to have included in a revised Pet Etiquette brochure.

On May 21, 2020, Mr. Dane and Mr. Humes spoke by telephone and then Mr. Dane sent a letter to Mr. Humes formalizing MVFHC’s request that the Carillon House Association reimburse it for the diversion of its resources and for attorney fees incurred in connection with the Pet Policy brochure matter. See Letter from Steve Dane to Garrett Humes of Kaman & Cusimano (5/21/2020).

On June 9, 2020, Mr. Humes for the Board responded to MVFHC’s reimbursement request, denying the board had done anything that violated its obligation to grant accommodations to disabled residents. Mr. Humes’ letter did not address the issue that the Board had published and distributed 100+ copies of the Pet Etiquette brochure that included a statement that indicated a limitation, or discrimination based on handicap. The letter asked for additional legal support for MVFHC’s various positions communicated since the original letter of 03/07/2020.

Mr. Humes’ letter goes on to say that “the Association denies that it has committed any discriminatory act which constitutes a violation of the Fair Housing Laws. Moreover, MVFHC is not a prevailing party that is entitled to recovery of any attorney fees or other damages.” See Letter from Garrett Humes of Kaman & Cusimano (6/9/2020).

After receiving the letter of 6/09/2020, the MVFHC staff presented the matter to MVFHC’s Board of Directors for review and discussion. Subsequently, the Fair Housing Center’s Executive Committee authorized the filing of a federal lawsuit for reimbursement of its costs and expenses.

The lawsuit was filed in the Federal District Court on 06/19/2020. As it often does with enforcement actions, MVFHC posted a news release of the filing on its website, and sent copies of the news release to local media outlets. See MVFHC news release (6/19/2020) and MVFHC v Carillon House Association complaint (6/19/2020).

On Monday, June 22, 2020, Carillon House Association Board President, Shauna Adams emailed the owners at Carillon House saying, “I need to inform you that the Carillon House Association is being sued by the Miami Valley Fair Housing Center, Inc. (MVFHC), a small, local, private, non-profit organization.” The email went on to say “Upon the release of the brochure, MVFHC informed us that the language in the brochure had to change to comply with the Fair Housing Act. Despite making the changes as recommended by our attorney, the MVFHC is pursuing a lawsuit against the association.”

On July 7, 2020, Steve Dane was contacted by Karma Johnson, Complex Claims Adjuster with Hallmark Financial Services, the insurance carrier for The Carillon House Association Board. Ms. Johnson’s email explained “We insure Carillon House Condominium. We received copy of the lawsuit filed by your client, Miami Valley Fair Housing. Our general liability policy has numerous coverage issues in handling the lawsuit, but we are interested in resolving for something reasonable. The lawsuit states that your clients incurred $6572. This is a high amount two months of attorney fees? Can you please explain the figure?”

That same day, Mr. Dane responded to Ms. Johnson saying:

“Ms. Johnson — Thank you for your inquiry. Sorry I was not available when you called earlier today.

Attached is a pre-filing demand for reimbursement of costs incurred by the Miami Valley Fair Housing Center (MVFHC) in conducting its investigation and completing its resolution of fair housing civil rights claims against Carillon House. As you can see from the last page, the time and expense incurred by MVFHC for that investigation and time spent negotiating a resolution was $4,072.

It incurred an additional $2,500 in attorney’s fees because the Carillon House initially refused to correct its unlawful Pet Brochure, and MVFHC was forced to engage its own attorney to bring the matter to resolution. Attached is just one letter indicating that MVFHC attempted to resolve the matter without counsel in March, 2020. But because the Carillon House resisted such efforts, it took me and MVFHC two more months (and several more letters) to convince Carillon House to correct its mistake. That’s where the additional $2,500 comes into play.”

Between July 7 and July 15, 2020, Mr. Dane and Ms. Johnson continued negotiations and ultimately, MVFHC agreed to a reduction of $1,600 and settled the matter for $4,972.00. I signed the release agreement on 07/15/2020, and Mr. Dane emailed it back to Ms. Johnson. See Emails between Karma Johnson of Hallmark Financial and Steve Dane (7/7/2020–7/15/2020) and Signed release agreement (7/15/2020).

On July 21, 2020, MVFHC received the settlement check for $4,972.00 from Hallmark Financial Services, and the Voluntary Dismissal of the lawsuit was filed with the Court on 07/24/2020. See Notice of Voluntary Dismissal (7/24/2020).

On August 25, 2020, the Carillon Board emailed Carillon House owners and residents to update them on the recently resolved legal matter. The letter claimed to include a copy of the final settlement agreement, however the agreement was not attached but is available to you here. With any negotiated settlement of a fair housing lawsuit, the Defendant is given a clause that states there is no admission of liability or fault, in exchange for the money paid and any promises made. Unlike most Defendants against whom MVFHC brings a complaint, the Carillon House Association Board was unwilling to receive training from Miami Valley Fair Housing Center—or any other source—with the goal of avoiding any additional violations, and unwilling to make any promises as to future compliance as part of the settlement. Therefore this settlement only involved money. See Carillon House legal update (8/25/2020).