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Court rules dog ownership 'reasonable accommodation'.

Pet owners have long believed that their animal companions give them great emotional support--and a California court has enshrined that concept in law.

The California Court of Appeal has ruled that a condominium association must make a reasonable accommodation for a disabled couple by allowing them to keep their dog, Pooky, despite the association's no-dogs policy. The ruling rejected a defense argument that only trained and certified service dogs should qualify for this exception: "Pooky did not need special skills.... It was the innate qualities of a dog, in particular a dog's friendliness and ability to interact with humans, that made it therapeutic." (Auburn Woods Homeowners Ass'n v. Fair Employment and Housing Comm'n, 18 Cal. Rptr. 3d 669 (Ct. App. 2004).)

"There isn't any other decision quite like this in California," said Athena Roussos, a Sacramento lawyer who represented Pooky's owners. "But it is based on solid legal principles. And now, this ruling will set a precedent"--unless it is overturned by the state supreme court.

Pooky's saga began in Auburn, California, in 1999, when Jayne Elebiari adopted the small terrier from an animal shelter. Several years earlier, Jayne's husband, Ed, had been in a serious car accident that had left him brain-injured, permanently disabled, and severely depressed. He was diagnosed with bipolar disorder, seizure disorder, and obsessive-compulsive disorder. Jayne, who worked as a paralegal, also suffered from recurring depression. Both were under psychiatric care.

According to the Elebiaris' lawsuit, as soon as Jayne brought Pooky home, the couple's mental and physical health improved rapidly. But the homeowners association at Auburn Woods, the condominium development where the couple lived, did not allow dogs as pets and told them that they had to get rid of Pooky or pay a fine.

Jayne wrote to the management, asking for a waiver as a reasonable accommodation for her disabilities. She enclosed a letter from her psychologist stating that Pooky provided therapeutic benefits. She also offered to adhere to a strict set of rules regarding when and where she would walk Pooky and promised to keep him from disturbing other residents. When Auburn Woods failed to respond, Jayne placed Pooky with friends and filed a complaint with the state's Fair Employment and Housing Commission (FEHC).

The commission sued on the Elebiaris' behalf in 2001. Both Ed's psychiatrist and Jayne's psychologist testified that caring to Pooky had been highly beneficial--especially to Ed, whose "emotional well-being improved substantially," his doctor said. The administrative law judge for the FEHC found in the Elebiaris' favor and awarded them damages for emotional distress. A trial court in Placer Count' later overturned the ruling, and the Elebiaris and the FEHC appealed.

The appeals court rebuked both Auburn Woods--calling one of its defense claims "patently unmeritorious"--and the lower court, saying, "The FEHC decision that a companion dog in this case constituted a reasonable accommodation for the Elebiaris' disabilities was supported by substantial evidence, and the trial court erred in reaching a contrary conclusion."

The court also found that Auburn Woods's nine-month refusal to respond to Jayne's request constituted a refusal to make reasonable accommodations. The judges noted that this was a primary reason the administrative law judge found in the Elebiaris' favor.

Auburn Woods challenged the emotional-distress award, saying that the Elebiaris' reported reactions to losing their dog were not those of a "reasonable person." But the appeals court responded that "in cases filed under nondiscrimination statutes, damages are awarded for injuries actually suffered by a claimant; the issue of 'reasonableness' does not come into play." The court affirmed the damages award.

Auburn Woods has petitioned the state supreme court for review. The Elebiaris, meanwhile, have sold their condominium and moved to New York. Pooky remains width the friends who originally took him in.

"The family became very attached to Pooky. But Jayne and Ed have adopted a new dog--Pooky II," said Roussos. "In the end, we are all very, very happy with the outcome."
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Title Annotation:California
Author:Sileo, Carmel
Publication:Trial
Date:Jan 1, 2005
Words:655
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