In a South Carolina case, due to specious complaints from several residents in an affluent gated community that a homeowner’s dogs confined by an invisible fence frightened them, the POA alleged the dogs were “dangerous.” Subsequently, the POA mandated the homeowner construct a wrought iron fence around the sizable property- at a cost to the homeowner of over $120,000.
Yet, the dogs had never escaped the property, were friendly to persons who entered the property, and other than on one occasion were friendly to dogs and cats that wandered on the property. Moreover, the lone exception occurred with only one of the homeowner’s four dogs and only when a loose intact male dog from outside the neighborhood entered the property to instigate an aggressive event with an intact male residing on the grounds.
The large dogs often barked at passersby. However, they never left the perimeter of the electronically fenced property, which was a high-end system that had battery backup to continue operation should there be a general power outage. Furthermore, the dogs were service dogs, where their principal ADA task was to nonviolently bark at the approach of persons, which mitigated the anxiety of the homeowner, who suffered from PTSD after experiencing a physical assault that required hospitalization and a burglary.
Given an objective view of the facts, the homeowner rightfully believed the POA’s demands were unreasonable, unwarranted, discriminatory, arbitrary, and onerous. Therefore, to strengthen legal efforts, the homeowner contracted with a CPT expert.
CPT’s Mark Spivak read documents, witness statements, depositions, and social media posts; listened to recorded phone calls; viewed still photos, Ring camera videos, and phone videos; and conducted thorough statutory research to author a report evaluating whether the POA’s claims and concomitant mandate were reasonable, equitable, and within their purview. The report analyzed:
- The pertinent statutory definition of “dangerous;”
- Whether the dogs exhibited behavior that met the legal definition of dangerous;
- The potential danger of the dogs based on their breed, historical behavior, and current management;
- Whether the POA possessed the expertise and legal right to categorize the dogs as dangerous;
- whether a categorization of dangerous by the POA and any associated actions were consistent with how the POA acted with other dog-owning property owners or whether the actions were arbitrary and capricious;
- Whether the dogs qualified as service animals under the definitions of the ADA and FHA;
- Whether the FHA was the more pertinent code relevant to the homeowner’s rights as a disabled person;
- What rights were granted the homeowner within the ADA and FHA;
- The relevance of the term “reasonable accommodations” within the germane legislation;
- The pertinence of the term “strict liability” when objectively reviewing the conflict with the loose dog;
- The local statutory code specific to Public Nuisance and Dog at Large;
- Whether the POA possessed the expertise, objectivity, and legal right to evaluate the incident differently than a trained Animal Control Officer;
- Whether the Attractive Nuisance Doctrine applied to the case;
- Whether the construction of a $120,000 wrought iron fence was onerous or a reasonable accommodation; and
- Whether there were other solutions that more reasonably served the needs of all concerned parties.
Subsequently, the POA withdrew its requests.
