Stay, Fido, Stay.
We are used to seeing K-9 officers assist human handlers on drug busts. We do not bat an eye at seeing a dog help its visually impaired owner cross the street. Now, with the New Jersey Supreme Court’s unanimous decision in Players Place II Condominium v K.P. and B.F. (A-60/61-22) (088139), we will certainly be seeing more dogs working as emotional support animals in residential places.
The case began when Defendant K.P. purchased a unit in the Plaintiff’s Condominium (hereinafter “Players”). K.P. then married B.F. and they lived in the unit together. B.F. had a long history of mental illness dating back to the seventh grade. She had anxiety, depression, bipolar disorder, PTSD, and ADD. She was on several medications for her conditions.
K.P. and his wife, B.F., notified Players that they were looking into adopting an emotional support dog, but that it would “likely” be over the 30-pound limit that Players allowed for in its bylaws. Before Players had a chance to respond, the defendants adopted a 63-pound dog named Luna. Players warned that it would commencing litigation, and Defendants warned they would also file a complaint for disability discrimination under both the anti-discrimination portions of the Fair Housing Act (FHA) and the Law Against Disabilities (LAD). Suit commenced as promised.
The Chancery Court held a bench trial over several days. Players’ President testified that their policy does not mention emotional support animals (ESA’s) and considers any animal living with a person as a pet. He admitted that two ESA requests had been granted in the past. B.F.’s social worker testified about B.F.’s long struggle with mental health. The social worker testified that she had “never prescribed an ESA or known a doctor to do so,” and that it was more common for patients to decide to adopt an ESA on their own. She noted that ESAs can have a huge benefit for those suffering from mental health, as the animals could “decrease symptoms” and improve the quality of life and “ability to function day to day.” In B.F.’s case, after obtaining Luna she reported her depressive episodes were milder than before, and she spent less time in the closet during crying spells and was better able to handle stressors. The social worker also warned that should Luna be taken away, the effects on B.F. could be disastrous. A psychiatrist further testified that B.F. had been unable to be in the unit alone before obtaining Luna, but now was able to.
Players called a forensic psychologist as an expert witness. The psychologist admitted that B.F. had “some mental illnesses,” although the precise nature varied slightly from those of her providers. However, the expert did not find that B.F.’s mental illnesses caused a “substantial limitation” of her major life activities. He noted she had done “quite well” through her life before getting Luna, and therefore Luna was not required for B.F. to enjoy the unit.
In its ruling, the lower Court found that B.F. was not “handicapped or disabled” under the LAD. However, under equitable grounds, as the dog “lessened [B.F.’s] episodes” and had not “been at all disruptive,” Luna would be allowed to stay.
The Plaintiff appealed on the grounds that its rules should have been enforced and Luna should not be allowed to stay, and the defendants crossappealed alleging that the Court erred in finding that B.F. was not disabled, and therefore unable to shift fees under the LAD or the FHA. The Appellate Court issued a divided opinion, modifying and affirming the lower court’s decision. The Plaintiff appealed as of right pursuant to R. 2:2-1(a)(2).
The New Jersey Supreme Court began its analysis by focusing on the New Jersey LAD and the FHA. The LAD prohibits discrimination based upon a person’s disability. A disability is defined as “any mental, psychological, or developmental disability […] which […] is demonstrable medically or psychologically by accepted clinical or laboratory diagnostic techniques.” Mental illnesses are included in this definition. The FHA states that “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person who is handicapped] equal opportunity to use and enjoy a dwelling.” 42 U.S.C. 3504(f)(3)(B). The LAD’s definition of disability is far broader than the FHA’s. State law does not require that such a disability “result in substantial limitation of a major life activity.” The question the court must address is not whether an ESA will “cure” or “eliminate” the disability, but whether it will alleviate “at least one symptom of the disability.”
The Court also recognized that “assistance animals are not pets.” As such, unlike with pets, housing providers may not limit the breed or size of a dog used as a service or support animal only because of the size or breed. However, they may limit animals that pose a “direct threat” “to the health and safety of other” that “cannot be eliminated or reduced to an acceptable level.”
In sum, the Court found that when assessing a claim under the LAD, the disabled tenant has the initial burden to show that the requested accommodation was necessary to “afford him… an equal opportunity to use and enjoy a dwelling.” The housing authority may not bar the tenant’s request relying on an internal “no pets” policy. The burden then shifts to the housing authority to show that the accommodation requested is “unreasonable.” The Court recognized that litigation would result if an agreement could not be reached between the parties, but during that time, “the parties should engage in good-faith, interactive discussions to evaluate the accommodation and explore possible alternatives.” The Court noted that there must be an inquiry as to the “cost” to the provider and the “benefit” to the tenant.
This holding is a great win for renters or housing association owners who have or plan to adopt emotional support animals, but any exuberance should be tempered with the understanding that this case left several questions for future review. How much alleviation of mental health symptoms is necessary to shift the burden of the housing authority to prove unreasonableness? Unlike Luna, what constitutes significant disruption from an animal?
The New Jersey Supreme Court is still silent regarding the woman who attempted to take a peacock as an Emotional Support Animal on a 2018 Newark flight
