Live Blogging The Managers’ Munch — Rentals

I’m attending the Utah Chapter of the Community Association Institute’s monthly Manager’s Munch today; the subject is Rentals in Community Associations. The first speaker, Paul Smith of the Utah Apartment Association is advocating the regulation, but not the prohibition of, rentals in associations.

Paul recommends using a local, attorney-reviewed lease contract; he also recommends that the board suggest the screening, by owners, of the potential tenants. If you do that, he says, make certain that the information regarding tenants is kept confidential. Next, require owners to identify their tenants.

Paul suggests that tenants should also be kept abreast of the owners’ deficiencies; he suggests that associations advise tenants of pending amenity disruptions. Leases should inform unit owners of the association’s governing documents.

According to Paul, cities are actively encouraging participation in the Good Landlord programs, in which municipalities provide disproportionate fees for non-participating landlords, in order to encourage training and education.

Paul contends that most cities won’t touch a definition of a family; that’s the first matter upon which he and I differ significantly. I suggest that my associations look to and incorporate those definitions into their restrictions; Paul’s co-presenter, Kirk Cullimore more or less retracted that assertion.

Now Kirk Cullimore is up, taking on the difficult task of attempting to explain conflicts and overlaps between municipality, state and federal laws. His advice, with which I agree, is that you find the most restrictive requirement, and comply with it.

Kirk recommends that associations should inspect units more than they traditionally have. He suggests that utility companies may be willing to provide information as to the recipients of bills. Kirk also suggests using the state DMV database; I’d recommend extreme caution in that area, because the subscription agreement on that information contains significant limitations on its proper and improper use.

Kirk is now talking of nuisance evictions; he contends (and I agree) that they are difficult in Utah. A “three day comply and vacate” notice is often ineffective by itself; even if it’s not, they make a good trail, and can lead to the service of what Kirk calls a “Three Day Get the Hell Out” notice. (I like that term, but probably wouldn’t put it on a pleading…)

Kirk suggests a required lease addendum for the community; I agree that this approach is superior to the imposition of a form lease.

Pet, or Service Animal? (Again…)

A new Florida Federal District Court case has some good reasoning and guidance dealing with the pet vs. service animal distinction, and how an association should respond to requests for a service animal accommodation.

The case, Hawn v. Shoreline Towers Phase 1 Condominium Association, involved the Davis C. Hawn’s assertion that his Labrador retriever, Booster, was a service animal who was “dually trained to help [Mr. Hawn] both physically and psychologically.

Booster was originally introduced to the association’s board as a “pet”, and Mr. Hawn sought a six month trial period “to give folks a chance to prove that they love their pets as onel would love any other family member.” There’s no evidence that the association did anything in response to this letter, but about a year later, Mr. Hawn sought permission to keep Booster as his “service animal”. His letter asserted physical and psychological disabilities, supported by a letter from a psychologist and a chiropractor.

The association thereafter attempted on two different occasions to get more information regarding Mr. Hawn’s alleged handicap; no further information was provided. As a result, the association sent a letter stating “at this time, we must deny your request…”; Mr. Hawn responded by filing a complaint with the Florida Commission on Human Relations (FCHR). The FHCR ultimately found in favor of Mr. Hawn; following that, he filed his claim in the Florida Federal District Court, alleging violation of the Federal Fair Housing Act and the intentional or reckless infliction of emotional distress.

The defendants moved for summary judgment, contending that Haws had failed to meet his burdens. The court, while assuming that Hawns was handicapped, found for the association based upon the fact that the association had no knowledge or reason to know that he was, in fact handicapped. The court noted that the association had never denied the accommodation, but rather had twice requested — unsuccessfully — to obtain additional evidence of the handicap and/or the need for the accommodation.

The court, in its opinion, reviewed and relied extensively upon a Hawaii case of several years ago, Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawaii 2003), affirmed, Dubois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006). The Prindable/Dubois case, like this case, involved a patient association which sought, unsuccessfully, to receive medical evidence to support the need for an alleged service animal.

Haws provides strong support for associations’ rights to request competent evidence for the need for a requested service animal. In those instances where the need for a service animal is not obvious, associations can and should insist upon adequate and appropriate medical evidence, so that legitimate requests for accommodation are granted, and unwarranted requests are denied.

Service Animals, Revisited Again

A recent edition of the New York Times Magazine included a rather lenghty, but interesting and (I thought) balanced article on the controversy surrounding companion animals.

The article addresses a number of service and companion species, including miniature horses, monkeys, goats, parrots, iguanas and ducks. The article addresses the Justice Department’s proposed rulemaking respecting the Americans With Disabilities Act. As regular readers know, the ADA does not apply to most community associations. The applicable act in the community association realm is the Fair Housing Act, and it has many similarities, but also significant differences.

Because many courts and most owners don’t draw a distinction between the ADA and the FHA, however, and because the issues in the article apply to both Acts, I recommend it to those who are interested in the issues. Please remember, however, that the article deals with the ADA, and the rights and responsibilities of associations and residents under the FHA differ greatly from the rights and responsibilities of providers and customers under the ADA.

Salt Lake Valley’s Pool Rules

The Salt Lake Valley Health Department has weighed in on the Crypto problem, and they have a slightly different take on the State’s rule:

Any child under three years old, any child not toilet trained, and anyone who lacks control of defecation shall wear a water resistant swim diaper and waterproof swimwear. Swim diapers and waterproof swimwear shall have waist and leg openings fitted such that they are in contact with the waist or leg around the entire circumference.

I don’t remember reading anything about “under three” in the Utah State rule, but if I operated a public pool in Salt Lake County (Heaven forbid), I wouldn’t look any further. I’d post that, and hope to be done with it until Labor Day.

Besides the three year old restriction, doesn’t “anyone who lacks control of defecation” sound better than “those who cannot control evacuative bodily functions”?

Er, on second thought, maybe not.

New Proposed Pool Rules

The Utah Department of Health has submitted a proposed rule to try to avoid, or at least minimize the risk of, another Cryptosporidiosis outbreak this summer; a link to their release on the proposed rule is here.

For those of you who just want the quick summary, here it is, according to the Department of Health:

SUMMARY OF THE RULE OR CHANGE: The following additions have been made: 1) a definition of a cleansing shower has been added; 2) a requirement for operators to follow The Centers for Disease Control Fecal Accident Response Recommendations; 3) a requirement prohibiting swimmers from swimming if they have diarrhea, or have had diarrhea within the last two weeks; 4) a requirement for young children and those who cannot control evacuative bodily functions to wear swim diapers or waterproof swimwear; 5) requirements pool operators must follow in response to the Department of Health issuance of Cryptosporidiosis “Watches” and “Warnings”; 6) modifications to the requirement for drain covers that are less than 24 inches by 24 inches to meet the cited ANSI/ASME standard rather than requiring a listing by a laboratory that has tested the drain cover using the ANSI/ASME standard; 7) a requirement to provide soap for patrons in the shower area, in addition to lavatories; and 8)the drain cover requirement is relaxed to allow large drain covers that meet the standard but that have not been independently certified to meet the standard.

Regular readers of this blog, and those who know me, are well aware that I’m a strong advocate of relying upon others for assistance in rulemaking and enforcement; these rules, if adopted, will help associations protect the health of owners and guests while avoiding the risks associated with familial status discrimination under the Fair Housing Act.

Some Very Useful Information

Lawyers, board members, association managers and involved unit owners ought to take some time to access and read this “Joint Statement of the Department of Housing and Urban Development and the Department of Justice.” The document provides guidance on reasonable accomodations under the Fair Housing Act.

I’ll be reading it this weekend, and will post some of the more interesting and helpful portions of the guide over the next few days. (So, if you are not yet a subscriber to this blog, now would be a good time to become one. If you wish to subscribe, enter your email address to the left.)

It Depends Upon How You Phrase It

At last weekend’s legal seminar, I reminded my audience that the Fair Housing Act’s protections against familial status prohibit discrimination against families with children, and as a result have resulted in fines against associations who require children to wear diapers in the pool.

So, remember that if you require anyone to wear diapers in the pool, your rule must be age neutral. “Those requiring diapers must wear them in the pool” is OK; “Children must wear diapers in the pool” is not.