In our most recent blog post, we discussed the issue of accommodation of service dogs, and specifically arecent Florida case, Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer[1]. In this post, we’ll discuss another facet of that case: the individual liability of the Board president of the Sabal Palm COA for his actions.

To briefly recap the facts of that case: Deborah Fischer acquired a large service dog named Sorenson, in violation of Sabal Palm’s pet policy. Sabal Palm requested that Fischer produce copies of her medical records from all healthcare providers who had ever diagnosed or treated her disability, as well as “all documents” relating to Sorenson. Deborah provided Sabal Palm with some, but not all, of her medical records.

Contending that Deborah had not provided sufficient information, Sabal Palm sued the Fischers, seeking a declaratory judgment that it need not permit Deborah to keep Sorenson. The Fischers counterclaimed against, among others, Martin Silvergold, the president of Sabal Palm’s board of directors, for refusing to allow Sorenson as a reasonable accommodation.

Board President Silvergold argued that he was immune from suit because of the doctrine of “officer immunity,” which generally makes officers of nonprofit corporations immune from personal liability for actions or inaction on behalf of the nonprofit. This doctrine, however, is codified in state laws, and cannot override federal laws such as the FHA or ADA. And even if the “officer immunity” doctrine were not trumped by federal law, it only protects officers who act in good faith in accordance with their duty of care to the Association.[2] Because the Fischers presented enough evidence that Silvergold personally participated in the discriminatory acts, he was not immune from personal liability, and the case against him could proceed.

In the court’s subsequent opinion, it found that Silvergold was liable as a matter of law, and that the only remaining issue to be determined by the trial court was that of the amount of damages. The court held, rather scathingly:

There is no genuine dispute that Silvergold personally contributed to Sabal Palm’s refusal to reasonably accommodate Deborah. Silvergold testified in his deposition that, as the President of Sabal Palm’s Board of Directors, he voted against Deborah being allowed to have Sorenson and to sue Deborah. Since Sabal Palm’s refusal to simply grant her request to keep Sorenson is the basis of her refusal-to-accommodate claim, it follows that Silvergold personally contributed to the FHA violation. He therefore violated the FHA himself. The Court grants the Fischers summary judgment against Silvergold on the issue of liability. The case will proceed against him on the issue of damages.

In cases of refusal to accommodate a disability under the FHA, punitive damages may be awarded. Thus, in considering accommodating owners or tenants who have or who have requested to obtain a service dog, board members of an Association must exercise caution. Under most circumstances, it may be best to grant the request after a reasonable inquiry: a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. Once these things have been established, denial of a request for accommodation should be done only with extreme caution and after consultation with your Association’s attorney.

[1] Some of the facts in this blog post are taken from the court’s previous opinion in this case, at Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer, 2014 U.S. Dist. LEXIS 32705 (S.D. Fla. Mar. 13, 2014). As the procedural posture of this case was somewhat complicated, there are two written opinions issued within just a few days of each other.

[2] The exact standards a director is held to vary under the laws of different states. This case was decided under Florida law, but the Washington Nonprofit Corporations Act contains similar provisions.