International Association of
Assistance Dog Partners
Federal Appeals Court Rules on Landlord's Exclusion of Hearing DogNote: This copyrighted article is intended to give general information about an area of the law. It is not intended as individual legal advice and should not be used for that purpose. Please consult an attorney for specific information about your own situation.
by Ilene Caroom, Esq.
A federal court of appeals has ordered a new trial in the case of two Wisconsin women whose landlord refused to allow them to keep a dog they claimed was a hearing dog. The name of the case is Bronk v. Ineichen, and it can be found in law libraries in a book called 54 F.3d 425 - a librarian can help you find it. It was decided on May 11, 1995. This case is critically important to all assistance dog users. It is the first time a federal court has told us two things: How it will be determined if a dog really is an assistance dog: and what factors will be considered in deciding whether reasonable accommodation requires admitting a dog.
Here’s what happened: Roommates Alisha Bronk and Monica Jay sued Bernard Ineichen, the landlord under the federal Fair Housing act, the Wisconsin state discrimination law and the city of Madison’s housing discrimination ordinance. The jury decided that the dog, Pierre, was not a hearing dog and refused to award them any relief.
Bronk and Jay appealed and the higher court said that it was not wrong for the jury to decide that the evidence proved Pierre was not a hearing dog. But the appeals court said the trial judge had confused federal, state and local law when she instructed the jury on the law. Therefore, the appeals court sent the case back for a new trial, so that this technical error could be corrected.
It is possible that another jury will see the evidence differently and decide that Pierre is a hearing dog. But that is not a foregone conclusion. Besides, the important thing about the case is that it is the first to come from a federal appeals court and lawyers and judges through the country will use it in future cases. So let’s see what we can learn from this case.
1. The court said that if Pierre were a hearing dog, the landlord would-be required to admit him. If not, the landlord could exclude him. What evidence did Bronk and Jay have that Pierre was hearing dog? Unfortunately, they did not have much.
The dog was trained by Bronk’s brother, "an amateur with no demonstrated experience in training hearing dogs." Bronk claimed that Pierre was certified but could produce no evidence that he was. A witness who formerly lived with Bronk and Jay testified that she saw no evidence he was trained. The defendant had an expert witness who testified about the level of training given hearing dogs. Bronk and Jay had no comparable witness to testify about Pierre’s training and their claims about what Pierre could do were contradictory.
What this means to you and me is that professional training and certification are very persuasive evidence that your dog really is an assistance dog. Your say so alone may not be enough to prove your dog’s status. Whether or not you like it, independent review of your dog’s performance by a professional trainer will be given more weight than your own opinion, just as it is in other fields – we don’t simply accept a teacher’s word that he is good, we demand credentials.
2. Bronk and Jay admitted that they had lived together before in other apartments without a hearing dog. The court let the jury decide whether or not they had demonstrated that they needed a hearing dog.
The court said that one of the factors in deciding whether or not an accommodation is reasonable will be the benefit provided to the disabled individual. A disabled person must show that the accommodation requested will "affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability."
Will it be enough to say that your dog helps you? This case seems to say that, if push comes to shove, you may be required to demonstrate that the services your dog provides improve your situation by compensating for your disability. The appeals court said, "If Pierre were not necessary as a hearing dog, then his presence in the townhouse was not necessarily a reasonable accommodation."
Remember that reasonable accommodation is all that is required under the ADA. We can expect this decision to be cited as precedent in reasonable accommodation cases all over the country. (Note that most state laws differ by providing an absolute right of access for qualifying dogs.)
Bronk v. Ineichen is the first case to address these important issues, and it probably won’t be the last. In our legal system, laws like the ADA mean what the courts say they mean, so we must be aware of these interpretations. If a case is decided in your area, let the IAADP know. We’ll try to spread the word.
(copyright Ilene C. Caroom, 1995)