KENNEDY HOUSE INC v. PHILADELPHIA COMMISSION ON HUMAN RELATIONS (2016)

ORDER

NOW, this 11th day of July, 2016, the Order of the Court of Common Pleas of Philadelphia County is REVERSED.

I respectfully dissent because I believe that Jan Rubin, the applicant seeking a housing accommodation from the Kennedy House, Inc. (Kennedy House), presented sufficient evidence demonstrating a nexus between her disability and the assistance provided by her dog Mira.

Section 9–1108 of the Philadelphia Fair Practice Ordinance (Ordinance) provides that “[i]t shall be an unlawful housing and real property practice to deny or interfere with the housing accommodation, commercial property or other real property opportunities of an individual or otherwise discriminate based on his or her ․ disability․” Phila. Code § 9–1108(1). Section 9–1102(1)(e) of the Ordinance defines “discrimination” as follows:

Any direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of actual or perceived ․ disability ․ or other act or practice made unlawful under this Chapter or under the nondiscrimination laws of the United States or the Commonwealth of Pennsylvania.

Phila.Code § 9–1102(1)(e) (emphasis added).

Section 804(f) of Title VIII of the federal Civil Rights Act of 1968, commonly referred to as the Fair Housing Act (FHA), makes it unlawful to discriminate in the sale or rental of a dwelling against a person based on a disability. 42 U.S.C. §§ 3604(f)(1), (2). Discrimination under Section 804(f) of the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

As the Majority recognizes, Ms. Rubin suffers from numerous conditions, including “(1) degenerative disc disease at multiple levels of her spine; (2) spinal stenosis at multiple levels of her spine; (3) fibromyalgia; (4) chronic pain; and (5) central nervous system sleep apnea.” (Slip op. at 2) (citing Philadelphia Commission on Human Relations (Commission) Decision, Findings of Fact (FOF) ¶ 13). The Majority also notes that these conditions affect Ms. Rubin's mobility and that said conditions and the pain associated therewith “often make[s] it difficult for her to order her day, to get out of bed, to remember to take her medications, and [to] do other simple tasks such as to take a shower, comb her hair[,] and get dressed.” Id. (citing FOF ¶ 21).

In response to a request from Kennedy House, which maintained a no-dog policy and from which she sought a housing accommodation, Ms. Rubin submitted a letter from her primary care physician, Craig Wynne, M.D., stating that “[Ms.] Rubin has multiple medical issues that affect her mobility. She benefits from the support of a service dog. She currently has a dog that serves this role for her. Please consider allowing [Ms. Rubin] to keep the dog. Loss of this animal would impair her ability to function.” (Reproduced Record (R .R.) at 154.) Dr. Wynne also later submitted, again at the request of Kennedy House, a certification form verifying that Ms. Rubin was disabled and that the requested accommodation was “consistent with her needs associated with her disability.” (Certification Form, Rubin Ex. 3.)

Ms. Rubin later explained at a Kennedy House Membership Committee meeting that her dog Mira assists her “in ordering her day, and in remembering when to take medications, eat meals, [and] get up and out of bed․” (Slip op. at 4) (citing FOF ¶ 22). In her complaint filed with the Commission, Ms. Rubin alleged that Mira also provides her with “emotional support” when she is unable to leave the house for long periods of time. (Complaint ¶ 13.) In this complaint, Ms. Rubin also noted that Mira “would always be on a leash [,] ․ would avoid elevator cars with other residents[,] ․ would exit through the rear entrance instead of the lobby[, and p]ublic and private areas would be kept clean and odor free.” (Complaint ¶ 35.)

Ms. Rubin reiterated the same in her testimony before the Commission. Ms. Rubin also offered testimony from Mira's veterinarian, Stephen Meister, D.M.V. Dr. Meister testified that he has served as Mira's veterinarian since 2007 or 2008 and currently sees Mira at Ms. Rubin's house. He noted that it was “well-documented” in the veterinary field that “in the elderly or disabled, emotional support animals provide tremendous help to them,” especially in studies of depression and isolation. (FOF ¶ 25; R.R. at 71.) Dr. Meister explained that support animals “provide structure” in the lives of such people and encourage them “to get up and move around and provide for the animal․” Id . He stated that, based upon his personal observations, Ms. Rubin's disability had significantly worsened between 2008 and 2013 and that Mira assists Ms. Rubin with “what to do in normal situations,” “lets her know when she needs to go out and when she needs to be consoled,” and requires Ms. Rubin to be “as mobile as she possibly can.” (FOF ¶ 26; R.R. at 72.)

The Commission credited the testimony of Ms. Rubin and Dr. Meister,¹ and concluded that “the record clearly establishes a nexus between the requested accommodation and Ms. Rubin's disability, as the dog Mira ‘alleviates one or more identified symptoms or effects of [Ms. Rubin's] disability.’ “ (Commission Decision, Conclusion of Law ¶ 93.) The Court of Common Pleas of Philadelphia County (trial court) adopted the decision of the Commission as its own and held that the Commission's conclusions were based upon substantial evidence of record. I agree with the trial court that the record in this case, including the credited testimony discussed above, supports the Commission's conclusion that Ms. Rubin established a nexus between the requested accommodation and her disability.

However, the Majority concludes to the contrary that “there is no question that Mira does not provide assistance to Ms. Rubin directly related to her mobility; the only disability documented by Dr. Wynne.” (Slip op. at 22–23.) I do not agree. The record establishes that Ms. Rubin has numerous, significant medical conditions, all of which contribute to her lack of mobility. Mira essentially assists Ms. Rubin in remembering to take her medications and encourages her to get out of bed and take care of herself and Mira. I would conclude that this type of support directly relates to Ms. Rubin's mobility disability.

Moreover, both Kennedy House and the Majority cite to the case of Smith v. Powdrill, No. CV 12–06388 DDP RZx, 2013 WL 5786586 (C.D.Cal. Oct. 28, 2013), for support. In that case, the complainant, who suffered from various mental disabilities, sought a waiver of the defendant's no-pet rule as an accommodation for the same. Similar to Ms. Rubin, the complainant asserted that her companion dog helped her keep “a regular routine of caring for [her]self, motivates [her] to get out of bed, clean, maintain relationships with friends and family, and to exercise.” Id. at *1. The complainant submitted a letter from her psychiatrist verifying these disabilities, which inhibited her “ability to take care of herself, get out of bed, interact with others and remain focused,” id. at *5, and her need for a support animal. The court in that case concluded that the complainant had met her burden of establishing that the reasonable accommodation was necessary.

Kennedy House and the Majority seem to imply that “caring for oneself and keeping a regular routine,” (slip op. at 19), are strictly related to a psychological disability and require proof thereof in order to establish the necessary nexus for an accommodation. However, I do not believe that the nature of the disability, i.e., mental or physical, is controlling. In other words, it should not matter whether a person needs an accommodation for a mental or physical disability. Rather, the question in these cases is nexus and the sufficiency of the evidence presented by the person seeking the accommodation. In this case, both the Commission and the trial court concluded that Ms. Rubin had presented sufficient evidence to meet her burden and the record supports this conclusion.

Hence, I would affirm the order of the trial court denying Kennedy House's statutory appeal.

FOOTNOTES

1.  The Commission also credited the testimony of James Giblin, General Manager of Kennedy House.