Fair Housing for Persons with Disabilities….What can a housing provider ask you?

Fair Housing is your right, use it


By: Sharon Langer

At Disability Independence Group, we receive many inquiries from tenants or persons who live in condominiums or neighborhood associations about overly intrusive questions about disabilities, and why the person would need an accommodation because of his or her disability.

The underlying rule is that a person with a disability or a person associated with a person with a disability (such as a child with a disability) has the right to apply for and live in any housing unit regardless of their disability, and are entitled to an accommodation because of their disability. The only exceptions is where the disability poses a direct threat to the community or the accommodation would be a fundamental alteration to the development. When a housing provider rejects a tenant with a disability based on something related to their disability, it has violated the law.

A person with a disability is defined as a person who lives with a mental or physical disability that substantially limits their ability to perform one or more life activities; a person that has a record of the disability; or a person that is considered by others to have a disability. A housing provider may not ask you questions about the nature or extent of a disability when you apply to rent or buy an apartment or house.

Further, a housing provider cannot ask questions about a disability or need for an accommodation if the disability or need for an accommodation is obvious. An example of an obviously reasonable request would be the need of a person who uses a wheelchair or a walker to have a designated accessible parking space by the entrance to the apartment.In some cases a landlord may be able to ask for proof of the disability or proof of the relationship between the disability and the requested accommodation. If the disability is not obvious or the need for an accommodation or modification is not obvious, the landlord may only ask for necessary disability-related information.

A person with a disability may offer verification of their impairment by:

  • Offering a finding from the Social Security Administration of Disability
  • Offering a doctor, medical provider, peer support group, non-medical service agency or reliable third party’s information about their disability.

Further, for need for a certain accommodation, where the need is not obvious, you should offer a statement from a medical professional.

If you need a structural change at you home (such as grab bars in a bathroom), or even the common areas of a condominium (such as ramping steps, or a pool lift), in most circumstances, you will be responsible for the costs of providing the structural element. However, in some jurisdictions, and in all federally funded apartment complexes, the housing provider would be responsible for the costs in installing the accessible structural element.

If you have any questions, or need more information, please go to our website at http://www.justdigit.org, or call us at (305) 669-2822.

Owning an Accessible Home


by Zachary Trautenberg  – zkylet@me.com

picture of Zachary Trautenberg in a motorized wheelchair in a home under constrution

Zachary Trautenberg

What is a home? A home is a place to call your own. It is a place where you feel safe and are most comfortable. Owning your home can give you a sense of security and the ability to create a sanctuary. It allows you to have control and freedom. If done right a person with a disability should feel the least disabled in their own home. It will take a lot of time and planning, but steps can be taken reduce limitations.

There are lots of great resources that can support a person with a disability who owns their own home. When it comes to taxes you can write off many of the modifications that are made for accessibility. In many counties you can also be exempt from paying property taxes. Organizations like Vocational Rehabilitation can assist with the cost of certain modifications. Blue Badge Homes, http://www.bluebadgehomes.com, is new website that acts as a marketplace for accessible real estate. Chances are you will never find exactly what you want. Just look for something with good bones and potential. The fun is getting to make it exactly the way you want it. Do not be afraid to get messy, get creative, and think way outside the box.

If you like this article and want to read more by Zachary Trautenberg, check out his blog Independent and Accessible Living at http://www.independentaccessibleliving.com.

Work Incentives Planning and Assistance (WIPA) Projects


By: Lesly Quin

WIPA projects are community-based organizations that receive grants from SSA to provide all Social Security and SSI disability head shot of Lesly Quin beneficiaries (including transition-to-work aged youth) with free access to work incentives planning and assistance. Each WIPA project has counselors called Community Work Incentives Coordinators (CWIC) who:

Provide work incentives planning and assistance to our beneficiaries with disabilities to assist them in achieving financial independence;

Conduct outreach efforts to those beneficiaries (and their families) who are potentially eligible to participate in Federal or state employment support programs; and

Work in cooperation with Federal, state, and private agencies and nonprofit organizations that serve beneficiaries with disabilities.

If you are one of the many SSDI or SSI disability beneficiaries who want to work, a WIPA project can help you understand the employment supports that are available to you and enable you to make informed choices about work and achieving financial independence.

If you would like to reach out to Lesly contact Jonathan in our office at 305 669 2822 or email him at: info@justdigit.org

A Mother of an Adult with Down Syndrome’s Worst Nightmare


A Mother of an Adult with Down Syndrome’s Worst Nightmare

Karl Hunt

Karl Hunt

Mr. Dietz,

I have just found a note hanging on my door that Reflections will not be renewing my lease. my worse fear, Karl has been hiding in his room since this has all began. the officer had told the Manager that this was all a mistake but now my world has come crashing down. i cannot even think of where i will get the money to move and work at the same time or even where we will go. i am sorry, bad things do happen to good people. . i have no idea what we are going to do, thank you for all your support so far but to add to this burden i am going to have back off this and make sure Karl doesn’t end up homeless.


On August 25, 2012, Karl Hunt, a 23 year old man with Down Syndrome, went into the office of his Palm Beach rental community, Reflections.  Karl loves to watch a Japanese anime cartoon television series called Fullmetal Alchemist.  While explaining the cartoon in the office, he drew on a map of the property and the property manager thought he said that he was going to sacrifice her, and then trap all of the residents in their apartments and set the property on fire.

As a result of this, the property manager decided that Karl, or his mother Dyan, should not live in Reflections which was then owned by the nationwide owner of rental property, AIMCO.   Dyan Hunt tried to explain that Karl has an intellectual disability and because of his disability, he cannot adequately explain himself. Dyan also offered to send Karl to a day facility so he would not be at the development when she was at work.

Despite Ms. Hunt’s pleas, the property manager rebuked Ms. Hunt and advised that words like that “should not come out in a joking matter. It did not make a difference – Karl had to go.

Five days after the incident, the property manager called the police to Ms. Hunt’s home and deliver a trespass notice.  They came to the Hunt home with the police deputy to confront the intellectually disabled young man.  According to the AIMCO property log:

Karl was asleep Deputy Kushell had her wake him up.  He came out to the living room and was told that he was not in any trouble but he would be if he is to ever return to the Clubhouse/Office at any given time.  This was repeated to him 2 times, and then Deputy Kushell asked him to repeat it so that he understands what it means and will obey his orders.  He was advised that if he is seen or visits the Clubhouse/Office that he will go with him to the police department and he will not be home. Karl nodded and repeated he understood and said he will not visit us anymore.

For the six years that Karl had lived at Reflections, he was well known to the employees of the property, and this was a surprise for Dyan.  During the day, Karl Hunt would go to the common areas, and listen to Disney sing-a-long and Pokémon songs on his headphones.  The property manager would constantly yell at Karl and demand that he leave the pool area or the community room, but no one ever complained to his mother about Karl’s behavior.  Further, unbeknownst to his mother, Karl was used to perform tasks around the development, such as cleaning bathrooms, taking out the trash, and other jobs in the community, without being paid.

In preparation for having to move, Ms. Hunt was forced to pack up everything in her apartment unit and begin the moving process, giving away much of her property.  However, on or about November 29, 2012, a new management company, JMG Realty, Inc., bought Reflections of West Palm Beach, and permitted the Hunts to remain residents at Reflections. Prior to allowing the Hunts to remain on the premises, they interviewed the employees and determined that unless they had experienced problems at the facility, they should renew the Hunt’s lease.

The Fair Housing Act makes it illegal to discriminate in housing practices on the basis of a disability.  A person’s disability, no less than his or her race or sex, is an impermissible reason to deny equal access to housing opportunities. Congress’ intent in enacting the Fair Housing Act is as follows:

The Fair Housing Amendments Act … is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.

On behalf of Karl and herself, Dyan Hunt brought an action against the property owner and manager, AIMCO, for housing discrimination.  If any housing provider decides that a person with a disability is a direct threat to the safety of others, a housing provider is required to conduct an individualized assessment that is based on reliable objective evidence.  Guidance by the Department of Housing and Urban Development provides as follow:

The Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. A determination that an individual poses a direct threat must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct, or a recent history of overt acts). The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat. Consequently, in evaluating a recent history of overt acts, a provider must take into account whether the individual has received intervening treatment or medication that has eliminated the direct threat (i.e., a significant risk of substantial harm). In such a situation, the provider may request that the individual document how the circumstances have changed so that he no longer poses a direct threat. A provider may also obtain satisfactory assurances that the individual will not pose a direct threat during the tenancy. The housing provider must have reliable, objective evidence that a person with a disability poses a direct threat before excluding him from housing on that basis.

The reasoning behind this requirement of substantiating a “direct threat” is to deter property owners from recklessly evicting residents with developmental, intellectual, or psychological disabilities based upon a perceived direct threat without any determination of actual or imminent harm.  Even if AIMCO had viewed his statements regarding a Japanese anime cartoon as a direct threat, the determination does not end at that point, and it would have not been a difficult inquiry for a housing provider to do.  For example, the subsequent owner, JMG Realty, conducted a proper inquiry by accepting medical proof from Ms. Hunt, interviewing employees, and reviewing Karl Hunt’s history, thereby allowing him to live at Reflections without any restrictions.

The trial court dismissed the Hunts’ case and the Hunts have now filed their appeal last week in the Eleventh Circuit Court of Appeals and are requesting that the court clarify the law that the mere allegation of a threat by a tenant, without any individualized assessment based on reliable objective evidence, is not sufficient to deny housing to a person with an intellectual disability and that AIMCO had a duty to honor the request for accommodation made by Ms. Hunt.

Karl and his favorite band, One Direction

Karl and his favorite band, One Direction


The Miami Foundation is having their 3rd annual Give Miami Day on November 20, 2014.  The event starts at midnight on November 20th and lasts for 24 hours. Disability Independence group will be a part of this amazing event.  Support DIG and join the movement.  http://givemiamiday.org/#npo/disability-independence-group-inc

Litigation: Treatment Alternatives


By: Matthew Dietz

Treatment Alternatives – The importance of having sober houses in residential areas –

“I sought my soul, but my soul I could not see. I sought my God, but my God eluded me. I sought my brother and I found all three …”Martin Luther King Jr.

Alcoholism and drug addiction are considered impairments under the definitions of a disability, because as a medical matter, addiction is a chronic illness that is never cured but from which one may nonetheless recover. It is a truism that the longer one is in alcohol or drug abuse treatment and surrounded by recovering people, the better the outcomes for long term sobriety. Group living arrangements in a sober house help recovering addicts to keep sober because of the transparency, and they also provide residents with fewer opportunities to be lonely — a major trigger for relapse into addiction.

I had the pleasure of representing Treatment Alternatives in their attempts to develop a larger and more comprehensive group home for persons recovering from addiction. For over 25 years, Treatment Alternatives has offered a continuum of care approaches to treatment, providing residents with a step down or up a level of treatment, determined by need. Men and women live in gender-specific, tight-knit communities that allow them to go to school or work. There are strict schedules about rising, treatment, work, evening house meetings and mandatory curfew. To help clients learn how to engage in life without drugs or alcohol, weekend activities are conducted as a group. Everyone participates in activities-whether it is going bowling, fishing, going to the movies, going to the beach, boating, or go-carting.The residents learn to support each other as they individually and communally meet the challenges of early sobriety. The family environment at Treatment Alternatives creates a safe, secure, and compassionate environment in which men and women can build their foundation for sobriety.
It is important to have such facilities located in residential communities because it gives these people the opportunity to reintegrate into community-based living. Although there is no danger in it, many neighbors object to living near these homes.
However, the Fair Housing Act prohibits a city or town from refusing to allow these people the ability to live in a dwelling when the refusal is based on generalizations and stereotypes of people’s disabilities and the attendant threats of safety that often
accompany these beliefs. While a city or town can regulate land use and pass zoning laws, the Fair Housing Act was intended to prohibit the use of zoning regulations to limit the ability of persons with disabilities to live in the residence of their choice in the community. This means that a municipality must change, waive,or make exceptions in their zoning rules to ensure people with disabilities the same opportunities as those without disabilities, taking into consideration the impact of the zoning rule upon the disabled person.
For sober living homes, you have several unrelated people living together in a single dwelling, and this may require a request to change a zoning regulation that limits a dwelling to a single family of related persons. This request to change–or reasonable accommodation– depends on many factors, including the size of the group home, the neighborhood surrounding the group home, and the utilities available for the group home.
For Treatment Alternatives, the goal is for the client to return to his or her life as a productive human being. Each resident must acknowledge, understand and address the basic responses to the life that he or she has lived, and unless that is done, the addict will endlessly repeat thought and behavior patterns; thus leading to relapse again and again— a painful but common occurrence.

11th Circuit Decision in Bhogaita v. Altamonte Heights Condominum



The Trial Team

Ajit Bhogaita, Kane the Dog, Aaron Bates, Esq. and Matt Dietz, Esq.

Nos. 13-12625; 13-13914
D. C. Docket No. 6:11-cv-01637-GAP-DAB
Plaintiff – Appellee,
Defendant – Appellant.

Appeals from the United States District Court for the Middle District of Florida

(August 27, 2014)
Before ED CARNES, Chief Judge, DUBINA, and SILER,* Circuit Judges.
* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit Court of
Appeals sitting by designation.
Case: 13-12625 Date Filed: 08/27/2014 Page: 1 of 25

Case: 13-12625 Date Filed: 08/27/2014 Page: 2 of 25

DUBINA, Circuit Judge:
Appellee Ajit Bhogaita persuaded a jury that Appellant Altamonte Heights Condominium Association,
Inc., (“the Association”) violated the disability provisions of the Federal and Florida Fair
Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and Fla. Stat. § 760.23(9)(b), respectively, when
it enforced its pet weight policy and demanded Bhogaita remove his emotional support dog from his
condominium. The jury awarded Bhogaita $5,000 in damages, and the district
court awarded Bhogaita more than $100,000 in attorneys’ fees. The Association appealed both the
judgment entered on the jury’s verdict and the award of attorneys’ fees. We consolidated the
appeals and now affirm.
A. Factual History
The Association is a non-profit homeowner’s association for a condominium complex located in
Altamonte Springs, Florida. Bhogaita is a United States Air Force veteran who suffers from
post-traumatic stress disorder (“PTSD”) that developed after a sexual assault he endured during his
military service.
In 2001, Bhogaita bought a condominium unit managed by the Association and subject to its rules.
Among those rules, the Association prohibited occupants from keeping dogs weighing more than
twenty-five pounds. In 2008, Bhogaita acquired a dog, Kane, that exceeded the weight limit. Though
no medical professional prescribed the dog initially, Bhogaita’s psychiatric symptoms improved with Kane’s
presence, so much so that Bhogaita began to rely on the dog to help him manage his condition. He
kept the dog for the next two years.
On May 4, 2010, the Association demanded that Bhogaita remove Kane from his unit, pursuant to the
weight limit. Bhogaita responded by providing the first of three letters from Dr. Shih-Tzung Li,
his treating psychiatrist, explaining that the dog was an emotional support animal. The first
letter, written on May 7, read in relevant part:
Due to mental illness, Mr. Bhogaita has certain limitations regarding social interaction and coping
with stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability
to live independently and to fully use and enjoy the dwelling unit, I am prescribing an emotional
support animal that will assist Mr. Bhogaita in coping with his disability.

(R. 36-6 at 2.)1 In the second letter, sent days later, Dr. Li added specific information about
the dog. He wrote that Bhogaita “has a therapeutic relationship with this specific dog, Kane. As an
emotional support animal, Kane serves to ameliorate otherwise difficult to manage day to day
psychiatric symptoms in Mr. Bhogaita.” (R. 36-6 at 3.)
In July, the Association responded by sending Bhogaita its first request for additional information
regarding his disability and the need for accommodation. Specifically, it asked him:


1. What is the exact nature of your impairment? How does it substantially limit a major life
2. How long have you been receiving treatment for this specific impairment?
3. How many sessions have you had with Dr. Li?
4. What specific training has your dog received?
5. Why does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy
your dwelling?
(R. 36-7 at 2 (numbering added).)
Bhogaita responded later that month by providing a third letter from Dr. Li, in which the doctor
indicated the nature and cause of the disability for the first time: He was treating Bhogaita for
“Anxiety related to military trauma.” (R. 36-6 at 4.) Dr. Li explained further:
. . . [Bhogaita’s condition] limits his ability to work directly with other people, a major life
activity. Currently he has been hired to perform
technical support work from home. He is able to work with the assistance of his emotional support
animal. Otherwise his social interactions would be so
overwhelming that he would be unable to perform work of any kind.
I am familiar with the therapeutic benefits of assistance animals for people with disabilities such
as that experienced by Mr. Bhogaita. Upon request, I would be happy to answer other questions you
may have concerning my recommendation that Mr. Bhogaita have an emotional
support animal. Should you have additional questions, please do not hesitate
to contact me. (R. 36-6 at 4.)
Shortly thereafter, Bhogaita also sent a response to the Association in which he answered the
Association’s questions in turn. Bhogaita identified his diagnosis and incorporated by reference
Dr. Li’s third letter to explain how his PTSD “affects major life activities.” (R. 35-5 at 17.) He
also claimed an additional disability related to five knee surgeries and two separate knee injuries arising from his military
service and stated that Kane “provides mobility assistance to compensate” for those injuries. (R.
35-5 at 17.)
After receiving Dr. Li’s three letters and learning of Bhogaita’s knee problems, the Association
sent Bhogaita a second request for information on August 17, 2010. The Association’s second letter
stated, in relevant part:
1. Please list each individual disability that you feel your pet is required for in order for you
to offset the effects of those individual disabilities. Originally you claimed one disability, now
you are claiming another disability. Please list all related disabilities.
2. Please provide documentation from a medical professional(s) that clearly
supports that you have any of the disabilities noted above, disabilities that substantially limit a
major life activity, and that you are in need of a trained “support animal” that exceeds the 25
pound weight limit for that disability. Please include contact physician information as well.
(Note: You have already provided documentation regarding your claim related to mental health
issues; however, your psychiatrist has not indicated that you need an oversized pet for this
disability. This should be clarified by him if you want the exception for this particular condition
3. If you add names of any additional medical professional(s) from your original submission only of
Dr. Li, please include how many sessions you have had with those additional physicians similar to
the information you provided regarding your sessions with Dr. Li.
4. Please provide all information related to the professional training your pet has successfully
completed regarding the assistance you claim he/she is required to offer you as a support animal.
This requested information shall include the type of training the pet received specific to the
disability, the dates of training, the location of training, names and contact name of the
trainer(s), and copies of any certificates of successful completion.
(R. 36-8 at 2-3 (numbering added).)

Nearly two and a half months passed, during which time Bhogaita did not respond. On November 3,
2010, the Association sent a third request for information, this time requesting a sworn statement
from Dr. Li to include “specific facts”:
1. “[D]etail[ing] the exact nature of [Bhogaita’s] alleged mental disability”;
2. Listing the treatment he was receiving, including “a list of all medications, the number of
counseling session per week, etc.”;
3. Explaining “how the diagnosis was made”;
4. Listing “the total number of hours and sessions of mental health treatment
. . . received from the psychiatrist”;
5. Disclosing how long Dr. Li had been treating Bhogaita as well as how long Bhogaita had been in
treatment generally;
6. Answering whether Bhogaita’s “condition is permanent or temporary”;
7. Listing treatments “prescribed . . . moving forward”;
8. Describing “how the mental disability substantially limits [Bhogaita’s]
major life activities”; and
9. Explaining why a smaller dog would not sufficiently provide Bhogaita
“an equal opportunity to enjoy his unit.”
(R. 35-5 at 24.) Additionally, the Association sought documentation on “the individualized
training” the dog received, including dates, contact information for the trainer, and copies of any
certifications. (R. 35-5 at 24.) That letter went on to state that Bhogaita was to respond by
December 6, and if he did not, the letter would “serve as the Association’s formal demand for
[Bhogaita] to remove any dogs over 25 lbs from [his] unit no later than December 10, 2010.” (R.
35-5 at 25.) If Bhogaita failed to comply, the Association said it would “be forced to file for
Arbitration.” (R. 35-5 at 25.) It instructed Bhogaita, “PLEASE GOVERN

Rather than responding, Bhogaita filed a complaint with the United States Department of Housing and
Urban Development (“HUD”) and the Florida Commission on Human Relations (“the Commission”). He
claimed that the Association’s conduct amounted to a failure to make a reasonable accommodation in
violation of the disability provisions of the Federal and Florida Fair Housing Acts. In January
2011, HUD and the Commission issued findings of cause against the Association. Accordingly, the
Association agreed to allow Bhogaita to keep Kane.
B. Procedural History
In October 2011, Bhogaita brought suit. On the Association’s motion, the district court dismissed
Bhogaita’s claim of disability discrimination brought under
42 U.S.C. § 3604(f)(2), while his reasonable accommodation claim, under § 3604(f)(3) and analogous Florida law, survived.
After discovery, the parties filed cross motions for summary judgment. Though the district court
denied the Association’s motion for summary judgment, it granted Bhogaita’s motion in part, finding
that Dr. Li’s letters supplied “sufficient information,” and concluding that the Association’s
indeterminate delay, evidenced by escalating requests for information, amounted to a constructive
denial of Bhogaita’s request. Bhogaita v. Altamonte Heights Condo.
Ass’n, Inc., No. 6:11-cv-1637, 2012 WL 6562766, at *7 (M.D. Fla. Dec. 17, 2012).


The district court reasoned that the demand that Bhogaita remove his dog “if he did not provide
[the Association] with information it was not entitled to receive” amounted, as a matter of law, to
a constructive denial of the request for accommodation. Id. Accordingly, the district court granted
summary judgment in favor of Bhogaita on the refusal to accommodate element only.
A two-day jury trial followed. Because of the partial grant of summary judgment, the jury did not
consider whether the Association had refused Bhogaita’s request for accommodation. After
presentation of the evidence, the jury returned a verdict in favor of Bhogaita: It found that
Bhogaita was disabled and requested an accommodation for his disability, that the accommodation was
necessary and reasonable, and that Bhogaita suffered damages because of the Association’s refusal
to accommodate. It awarded Bhogaita $5,000 in compensatory damages but declined to award punitive
There were a number of post-trial motions. The district court denied the Association’s motions for
judgment as a matter of law and for a new trial, where the Association raised the same arguments it
raises here. The district court also denied Bhogaita’s motion for a permanent injunction, as the
Association had already agreed to allow Kane to remain. Finally, the court ordered the Association
to pay $127,512 in attorneys’ fees, almost $70,000 less than the sum Bhogaita’s lawyers sought. The
Association timely appealed.

(1) Whether the district court properly granted partial summary judgment to
Bhogaita on the refusal-to-accommodate element.
(2) Whether there was sufficient evidence for the jury to find that Bhogaita has a disability that
substantially limits a major life activity.
(3) Whether there was sufficient evidence to support the conclusion that
Bhogaita’s requested accommodation was necessary.
(4) Whether the district court erred in its jury instructions with respect to the
(5) Whether the district court abused its discretion in allowing Bhogaita’s dog to remain in the
courtroom as a demonstrative exhibit.
(6) Whether the district court erred in its award of attorneys’ fees.

“We review a district court’s grant of summary judgment de novo, viewing the record and drawing all
factual inferences a light most favorable to” the non- moving party. Mazzeo v. Color Resolutions
Int’l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014); see also Sunbeam Television Corp. v. Nielsen
Media Research, Inc.,
711 F.3d 1264, 1270 (11th Cir. 2013) (applying the same standard when reviewing
a partial grant of summary judgment). A court must grant summary judgment “if

the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Likewise, we review the denial of judgment as a matter of law de novo, and disturb the jury’s
verdict only when there is no material conflict in the evidence, such that no reasonable person
could agree to the verdict reached. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1275 (11th
Cir. 2008).
Our review of jury instructions is simultaneously de novo and deferential. Id. at 1276. “We review
jury instructions de novo to determine whether they misstate the law or mislead the jury to the
prejudice of the objecting party” but give the district court “wide discretion as to the style and
wording employed.” Id. We “reverse only where we are left with a substantial and ineradicable
doubt as to whether” the district court properly guided the jury. State Farm Fire & Cas. Co. v. Silver Star
Health & Rehab., 739 F.3d 579, 585 (11th Cir. 2013) (internal
quotation marks omitted).

We review evidentiary rulings for abuse of discretion. Fid. Interior Constr., Inc. v. Se.
Carpenters Reg’l Council of the United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1258
(11th Cir. 2012). Likewise, “[w]e review the award of attorney’s fees and costs for an abuse of
discretion,” examining underlying questions of law de novo and those of fact for clear error.
Goldsmith, 513 F.3d at

The FHA prohibits discriminating against a person on the basis of a “handicap,”2 or a disability,
by refusing to make reasonable accommodations when necessary to afford the person equal opportunity
to use and enjoy a dwelling. Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 6, 102
Stat. 1619 (codified at 42 U.S.C. § 3604(f)(3)(B)). The FHA and the Florida Fair Housing
Act are substantively identical, and therefore the same legal analysis applies to each. Loren v.
Sasser, 309 F.3d 1296, 1299 n.9 (11th Cir. 2002).
A successful failure-to-accommodate claim has four elements. To prevail, one must prove that (1) he
is disabled within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) the
requested accommodation was necessary to afford him an opportunity to use and enjoy his dwelling,
and (4) the defendants refused to make the accommodation. Schwarz v. City of Treasure Island, 544
F.3d 1201, 1218-19 (11th Cir. 2008).
A. Bhogaita was entitled to partial summary judgment on the refusal-to- accommodate element.

2 The FHA refers to discrimination based on “handicap” rather than disability. 42 U.S.C.
§ 3604(f). Disability scholars, however, generally prefer the term “disability” to handicap, and
the Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended
at 42 U.S.C. §§ 12101–12213) (“ADA”), reflects that preference. For this reason, we treat the
terms interchangeably and elect to use “disability” and the preferred possessive construction. See
Giebeler v. M&B Assocs., 343 F.3d 1143, 1146 n.2 (9th Cir. 2003) (using the terms interchangeably
and stating the same rationale for doing so); Michelle A. Travis, Impairment as Protected Status: A
New Universality for Disability Rights, 46 GA. L. REV. 937 (2012) (referring throughout to persons
“with disabilities” rather than “disabled persons”).

The Association argues the district court erred when it granted partial summary judgment,
precluding the jury from considering whether the Association denied Bhogaita’s requested
accommodation. The FHA does not demand that housing providers immediately grant all requests for
accommodation. Schwarz, 544 F.3d at 1219 (“‘[T]he duty to make a reasonable accommodation does not simply spring from the
fact that the handicapped person wants such an accommodation made.’” (quoting Prindable v. Ass’n of
Apt. Owners, 304 F. Supp. 2d 1245, 1258 (D. Haw. 2003), aff’d sub nom. DuBois v. Ass’n of Apt. Owners,

453 F.3d 1175 (9th Cir. 2005))). Once a provider knows of an individual’s request for
accommodation, the provider has “‘an opportunity to make a final decision . . ., which necessarily
includes the ability to conduct a meaningful review’” to determine whether the FHA requires the
requested accommodation. Id. (quoting Prindable, 304 F. Supp. 2d at 1258).
The failure to make a timely determination after meaningful review amounts to constructive denial
of a requested accommodation, “as an indeterminate delay has the same effect as an outright
denial.” Groome Res. Ltd. v. Parish of Jefferson,234 F.3d 192, 199 (5th Cir. 2000). The Joint Statement of two federal agencies

counsels similarly: “An undue delay in responding to a reasonable accommodation request may”
constitute a failure to accommodate. Department of Justice and HUD, Joint Statement on Reasonable
Accommodations at 11 (May 17, 2004), available at
http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (last visited August 7, 2014) (“Joint
Bhogaita requested an accommodation in May 2010. More than six months later, when he filed a
complaint with HUD and the Commission, the Association had not responded to his request except to
request additional information and to indicate that if Bhogaita failed to provide that information,
the Association would file for arbitration. The Association insists that its deliberative process
was ongoing and that its requests were only meant to help it discern whether Bhogaita had a
disability requiring accommodation. To assess whether the partial grant of summary judgment was
error, we ask whether a reasonable fact finder could have concluded–based on the record
evidence–that the Association was still undertaking meaningful review.
We answer that question in the negative. The Association produced no evidence at the summary
judgment stage to support its contention that it had not constructively denied Bhogaita’s request.
Neither Bhogaita’s silence in the face of requests for information the Association already had nor
his failure to provide information irrelevant to the Association’s determination can support an inference that the
Association’s delay reflected an attempt at meaningful review.
Dr. Li’s three letters,4 all submitted to the Association before its August 17

letter, contained the information the Association needed to make a determination: They described
the nature and cause of Bhogaita’s PTSD diagnosis,5 stated that Bhogaita was substantially impaired
in the major life activity of working, and explained that the dog alleviated Bhogaita’s symptoms.
Though Dr. Li’s letters identified a cognizable disability and explained the necessity of
accommodation, the August 17 request sought the same information already provided. Bhogaita’s
failure to respond to that request cannot support the Association’s position because the
Association possessed all the information essential to its determination.
Likewise, Bhogaita’s failure to respond to the November 3 request for information cannot support an
inference that the Association was still undertaking meaningful review. That it is “incumbent upon”
a skeptical defendant “to request documentation or open a dialogue” rather than immediately
refusing a requested accommodation, Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 895 (7th

4 Though the Association offered evidence at trial suggesting that the letters were copied-
and-pasted form letters, a fact that might have created a credibility question, it produced no such
evidence at the summary judgment stage.
5 It is of no moment that Bhogaita’s own July letter to the Association mentioned his knee problems
for the first time and without supporting medical documentation. If the Association
had all the essential information to make a determination regarding one disabling condition–
PTSD–it did not need proof of an additional disability.

Cir. 1996), does not entitle a defendant to extraneous information. Generally, housing providers
need only the information necessary to apprise them of the disability and the desire and possible
need for an accommodation. See, e.g., Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010)
(holding in a reasonable accommodation claim brought under the ADA that employers need “enough
information to know of both the disability and desire for an accommodation” (internal quotation
marks omitted)); Joint Statement at 14 (counseling that, “[i]n most cases, an individual’s medical
records or detailed information about the nature of a person’s disability is not necessary for”
determining whether an accommodation is required).
The Association’s critical inquiries were whether Bhogaita’s PTSD amounted to a qualifying
disability and whether Kane’s presence alleviated the effects of the disorder. Cf. Schwarz, 544
F.3d at 1226 (holding that an accommodation is necessary under the FHA when it addresses the needs
the disability creates). The November 3 letter requested, in addition to the pertinent information
it already had thanks to Dr. Li’s letters: “additional information regarding Bhogaita’s treatment,
medications, and the number of counseling sessions he attended per week; details about how the
diagnosis was made; whether the condition was permanent or temporary; and ‘details of the
prescribed treatment moving forward.’” Bhogaita, 2012 WL 6562766, at *7 (quoting R. 35-5 at 24).

The requested information exceeded that essential for the Associations’ critical inquiries. On the
record before it, the district court was correct in declining to hold Bhogaita’s silence in the
face of the last two letters against him and in determining that the Association had not pointed to
evidence from which a jury could find that the Association had denied his request for a reasonable
B. Bhogaita offered sufficient evidence to show he has a disability within the meaning of the
A person has a disability under the FHA if, among other things, he has “a physical or mental
impairment which substantially limits one or more of such person’s major life activities.” 42
U.S.C. § 3602(h). The parties agree that Bhogaita suffers suffers from a physical or mental
impairment, and they agree that working is a major life activity. They depart company, however, on
whether Bhogaita’s impairment substantially limited his ability to work. When considering what it
means for an impairment to limit substantially one’s ability to work, we
find cases interpreting and applying the ADA relevant.

When interpreting the pre-ADAAA definition of “disability,” a definition virtually identical to the
FHA’s definition of “handicap,” the Supreme Court of the United States concluded that an impairment
substantially limits one’s ability to work only where it renders a person “unable to work in a
broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2151


We apply the same interpretation here because of the similarity between the pre- amendment ADA and
the FHA. Compare 42 U.S.C. 12102(2)(A) (2008) (defining disability, with respect to an individual,
as “a physical or mental impairment that substantially limits one or more of the major life
activities of such an individual”) with 42 U.S.C. § 3602(h)(1) (defining “handicap” as “a physical
or mental impairment which substantially limits one or more of such person’s major life
Bhogaita presented ample evidence at trial to show that his PTSD left him unable to work in a broad
class of jobs. Bhogaita’s own testimony revealed his belief that colleagues persecuted him, a
belief that made it practically impossible for him to work outside his home. Dr. Li’s letters
stated that Bhogaita’s condition “limits his ability to work directly with other people” and that
social interactions had the tendency to be so overwhelming for Bhogaita, they could possibly render
him “unable to perform work of any kind.” For one to gain remuneration of any
sort one must engage, at a minimum, with either a superior or a customer, and most jobs require
much more. To note that the cloistered laboratory scientist occasionally presents his research to
others and that the warehouse stocker takes some direction from supply managers is to acknowledge
that the sales clerk, the teacher, and the construction foreman, for example, interact
significantly and almost constantly. Certainly jobs requiring significant social interaction amount to a broad class.
Viewing the evidence in the light most favorable to the jury’s verdict and drawing all inferences
in its favor, a reasonable jury could agree to the verdict reached. See Goldsmith, 513 F.3d at 1275
(“We will reverse only if the facts and inferences point overwhelmingly in favor of one party, such
that reasonable people could not arrive at a contrary verdict.” (internal quotation marks
omitted)); Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007) (explaining that when
considering a renewed motion for judgment as a matter of law, the court does not review the jury’s
findings except to consider whether there was sufficient evidence to support them). The district
court did not err in denying judgment as a matter of law on the disability element.
C. Bhogaita produced evidence supporting the conclusion that the requested accommodation was
A successful FHA accommodation claim requires that the accommodation sought be “necessary to afford
[the claimant] equal opportunity to use and enjoy” the relevant dwelling. 42 U.S.C. §
3604(f)(3)(B). “The word ‘equal’ is a relative term that requires a comparator to have meaning.”
Schwarz, 544 F.3d at 1226. Under the FHA, the comparator is a person without a disability, and an
accommodation extends an equal opportunity when it addresses the needs the

disability creates. Id. Thus, a “necessary” accommodation is one that alleviates the effects of a
disability. Id. The jury was properly instructed to that effect. (R.
131 at 9 (explaining that to prove necessity, Bhogaita had to “show, at a minimum, that the
accommodation affirmatively enhances [his] quality of life by ameliorating (or reducing) the
effects of his disability”).)
Some other arrangement, such as having a lighter-weight dog permitted by the Association’s policy,
might similarly alleviate Bhogaita’s symptoms, and evidence of such could be relevant to the
reasonableness determination, which asks whether the requested accommodation “is both efficacious
and proportional to the costs to implement it.” Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002). It is not, however, relevant to the necessity determination,
which asks whether the requested accommodation ameliorates the disability’s effects. Schwarz, 544
F.3d at 1226. Both necessity and reasonableness are required, id. at 1218-19, but in this appeal,
the Association does not raise the issue of reasonableness with respect to Bhogaita’s requested
accommodation. For that reason, we do not engage in the “highly fact-specific” reasonableness
inquiry, which would require a balancing of the parties’ needs. Oconomowoc, 300 F.3d at
784. The question we address is a different, more limited one: whether Bhogaita offered sufficient
evidence that having the dog would affirmatively enhance his quality of life by ameliorating the
effects of his disability.

Bhogaita produced evidence from which a reasonable fact finder could conclude that his dog
alleviated the effects of his PTSD. Specifically, Dr. Li’s letters said that Kane assists Bhogaita
“in coping with his disability,” (R. 36-6), and “ameliorate[s]” Bhogaita’s “psychiatric symptoms,”
(R. 36-7), and that without the dog, Bhogaita’s “social interactions would be so overwhelming that he would be unable
to perform work of any kind.” (R. 46-6 at 2.) In sum, the letters directly support the jury’s
verdict: The requested “accommodation was necessary to afford [Bhogaita] an opportunity to use and
enjoy the dwelling.” (R. 131 at 1.) D. The jury instructions do not warrant reversal.
The Association argues that the district court erred in its jury instructions, identifying in one
case language that it should not have included and in another language the Association says it
should have. Neither amounts to reversible error.
We examine jury instructions in context, considering “the allegations of the complaint, the
evidence presented, and the arguments of counsel when determining whether the jury understood the
issues or was misled.” Gowski v. Peake, 682 F.3d
1299, 1315 (11th Cir. 2012). So long as the “instructions, taken together, properly express the law
applicable to the case, there is no error even though an isolated clause may be inaccurate,
ambiguous, incomplete or otherwise subject to criticism.” State Farm Fire & Cas. Co., 739 F.3d at
585 (internal quotation marks omitted).


First, the court’s instruction on “major life activities” was not overbroad in listing, among other
examples, “interacting with others and essential capabilities necessary for working in a broad
class of jobs” to explain that term. Considering the record as a whole, the instruction was sound.
The court listed ten activities not as a comprehensive anthology but as an illustration of what it
meant to be “of central importance to daily life as distinguished from tasks associated with a
particular job.” (R. 130 at 8.) It then directed the jury’s attention to the issues before it by
clarifying that Bhogaita “alleged that his impairment substantially limited [his] ability to work
and interact with others.” (R. 130 at 8.) The court did not tell the jury it could or should
consider the other activities listed.
Moreover, even if we assumed the inclusion of “interacting with others” in the instructions was
technically incorrect, there was unlikely any prejudice to the Association. Badger v. So. Farm
Bureau Life Ins. Co., 612 F.3d 1334, 1339 (11th Cir. 2010) (“We will not disturb a jury’s verdict
unless the charge, taken as a whole, is erroneous and prejudicial.” (internal quotation marks
omitted)). In closing argument, Bhogaita’s counsel focused on Bhogaita’s ability to interact with others as it
related to his working, rather than as an independent activity. The court devoted thirteen lines of
text in its jury instructions to what it meant for an impairment to limit substantially one’s
ability to work and never mentioned interacting with others separately from working with others.
“Our practice is not to nitpick the instructions for minor defects.” Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1283 (11th Cir. 2008). Reversing based on the inclusion of “interacting with others” would
require one to assume that the jury concluded that Bhogaita’s PTSD substantially impaired his
ability to interact with others but not his ability to work in a broad range of jobs, such as those
requiring significant social interaction. That is a speculative assumption and, based on the
evidence and argument, an unlikely one. Therefore, the instruction does not warrant reversal.
Nor does the court’s refusal to give the Association’s requested necessity instruction require
reversal. The Association insists the instruction was incomplete because it did not refer to
Bhogaita’s “use[] and enjoy[ment]” of his unit. (R. 121 at 2.) But establishing an accommodation’s
necessity requires only proof the accommodation “address[es] the needs created by the handicap,”
Schwarz, 544 F.3d at 1226, and the instruction given properly expressed that principle. (R. 130 at 9 (“To prove
that the desired accommodation is necessary, [Bhogaita] must show, at a minimum, that the
accommodation would affirmatively enhance [his] quality of life by ameliorating (or reducing) the
effects of his disability.”).) It affirmatively required the jury to find “an identifiable
relationship, or nexus, between the requested accommodation and [Bhogaita’s] disability.” (R. 130
at 9.)
Moreover, based on the contents of the letters the Association concedes it received from Bhogaita
and Dr. Li, no reasonable fact finder could conclude that

the Association was unaware of Bhogaita’s asserted need for an accommodation. Because nothing
supported the Association’s theory it lacked knowledge, it was
not error for the court to refuse to instruct the jury on that theory. Ad-Vantage Tel. Directory
Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336, 1349 (11th Cir. 1987) (holding that a
trial court must instruct the jury on a litigant’s theory of the case only if the litigant makes a
proper request and “there is any competent evidence to support the theory”).
E. In allowing the dog to remain in the courtroom, the court did not abuse its discretion.
The Association insists the dog’s presence in the courtroom and at Bhogaita’s side during his
testimony was unfairly prejudicial, as it suggested that Bhogaita required the dog at all times,
and that this prejudicial effect substantially outweighed any probative value the dog may have had.
See Fed. R. Evid. 403 (permitting courts to “exclude relevant evidence” if the danger of “unfair
prejudice” substantially outweighs its probative value). The district court hearing this case
concluded otherwise, but that is the nature of the broad discretion granted to trial courts
determining evidentiary matters. Gray ex rel. Alexander v. Bostic,
720 F.3d 887, 893 (11th Cir. 2013) (explaining that the abuse of discretion
standard implies a range of choices). And this discretion is particularly broad with respect to
Rule 403 determinations. Sprint/United Mgmt. Co. v. Mendelsohn, 552

U.S. 379, 384–85, 128 S. Ct. 1140, 1145 (2008). A district court abuses its discretion to admit
relevant evidence when its decision rests on a clearly erroneous fact-finding, “an errant
conclusion of law, or an improper application of law to fact.” Fid. Interior Constr., Inc., 675
F.3d at 1258 (internal quotation marks omitted). Nothing suggests that the district court’s
decision allowing the dog to remain present as a demonstrative exhibit rested on any of the three.
F. The district court did not err in awarding attorneys’ fees.
The FHA allows a prevailing party to recover reasonable attorneys’ fees and costs. 42 U.S.C. §
3613(c)(2). “[A] ‘prevailing party’ is one who has been awarded some relief.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 121 S. Ct. 1835, 1839
(2001). Bhogaita’s award of $5,000 in compensatory damages represents relief, and, despite the
Association’s insistence otherwise, was not nominal. See Farrar v. Hobby, 506 U.S. 103, 108, 113 S.
Ct. 566, 571 (1992) (noting that an award of one dollar was nominal); Black’s Law Dictionary 447
(9th ed. 2009) (defining
“nominal damages” as “[a] trifling sum awarded when a legal injury is suffered but there is no
substantial loss or injury to be compensated”). Thus, he is entitled to reasonable fees and costs.
We do not consider whether the amount of fees awarded was an abuse of discretion, as the
Association contends only that Bhogaita should have been awarded no fees at all.
Because we conclude from the record that there is no merit to any of the
arguments the Association makes in this appeal, we affirm the judgment entered on the jury’s
verdict and the district court’s order awarding Bhogaita attorneys’ fees.
Case: 13-12625 Date Filed: 08/27/2014 Page: 25 of 25

Litigation UPDATE – Sabal Palm Condominiums v. Fisher


Former Teacher with Multiple Sclerosis obtains a $300,000 settlement in her fight to keep her service animal in her home in Broward County

On May 8, 2014, Deborah Fischer and Larry Fischer obtained a $300,000 settlement against their condominium association for their three-year long fight to keep Deborah’s service dog, Sorenson, in their home. As part of the settlement, Sabal Palm Condominiums of Pine Island Ridge agreed to promulgate policies that do not request unnecessarily intrusive information about a person’s disability, especially in circumstances where the disability is obvious, and where the use of the dog evidently lessen the effects of the disability.

(click here to read more)

Litigation: Solodar v. OPC Lake Point Tower


After more than three years, and a jury trial, Mrs. Carollee Solodar will finally receive the parking spot she deserves (and requires)!  Carollee and her husband Donald Solodar live in a lanai in North Palm Beach and have been allowed to park in a service area by their home for many years.  Following Mrs. Solodar suffering a heart attack, she was upset that she was blocked in and complained to the management.  As a result of her complaint, the Board of Governors of the Condominium decided to bar all vehicles from the parking area and insisted that Mrs. Solodar park in the garage down seventeen steps and three times the distance from her home.

Seeing as Mrs. Solodar’s condition was exponentially worsened when she exerted too much energy, such as walking from her allotted parking spot to her front door, she, along with her husband and her doctor, deemed it necessary that she park closer to her destination.  The Solodars therefore requested a reasonable accommodation for Mrs. Solodar to be able to park in the service area, as she had always done.

Lake Point Tower Condominium however did not respond positively to the Solodars’ request and instead demanded additional information from her doctors as well as videotaped her doing exercise necessary for her cardiovascular health.  The Board could not understand that just because a person did not “look disabled” did not mean that they were not in need of the accommodation.

Disability Independence Group represented the Solodars and as so, presented the argument that Mrs. Solodar has a disability that warrants a reasonable accommodation in accordance with the Fair Housing Act.  The Board of Governors attempted to argue that the request was unreasonable and would require the hiring of more staff members to monitor the service area.  They also proposed an alternative solution to the problem and suggested that Mrs. Solodar park in a pre-designated accessible parking space over 300 feet away. With staff already in place to monitor the service area, the claim of additional staff was found to hold no merit, and the alternative accommodations were simply not reasonable. After a nine day jury trial, the jury’s verdict was in favor of the Solodars.  The verdict stated that Mrs. Solodar is a person with a disability who requested an accommodation which is necessary to afford her the opportunity to equally use and enjoy her dwelling.  Since Lake Point Tower did not provide her with the requested accommodation, they were required to do so by the U.S. District Court Judge presiding over the case.

This is an important win for the Solodars for they now have the ability to use and enjoy their home, as well as an important win for all persons with invisible disabilities who require accommodations.  Many people who live with significant disabilities do not always display the symptoms of their disability, and are not given reasonable accommodations; an act of discrimination.  It was a long road getting Mrs. Solodar her access to her accommodation however the hard work was worth it in the end!