Arnal v. Aspen View Condo. Ass'n, Inc., Civil Action No. 15–cv–01044–WYD–MJW

• Citation: 226 F.Supp.3d 1177
• Decision Date: 27 December 2016
• Docket Number: Civil Action No. 15–cv–01044–WYD–MJW
• Parties: Alvaro J. ARNAL, Plaintiff, v. ASPEN VIEW CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation; Aspen Snowmass Care, Inc. D.B.A. First Choice Properties & Management, Inc., a Colorado corporation; Aspen Snowmass, LLC D.B.A. First Choice Properties & Management, a foreign limited liability company; Jack Smith, an Individual; and Heather Vicenzi, an Individual; Defendants.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

226 F.Supp.3d 1177

Alvaro J. ARNAL, Plaintiff,

v.ASPEN VIEW CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation; Aspen Snowmass Care, Inc. D.B.A. First Choice Properties & Management, Inc., a Colorado corporation; Aspen Snowmass, LLC D.B.A. First Choice Properties & Management, a foreign limited liability company; Jack Smith, an Individual; and Heather Vicenzi, an Individual; Defendants.

Civil Action No. 15–cv–01044–WYD–MJW

United States District Court, D. Colorado.

Signed December 27, 2016

Phyllis Ann Roestenberg, Phyllis A. Roestenberg, Esq., Law & Mediation, Denver, CO, for Plaintiff.

Debra J. Oppenheimer, HindmanSanchez, P.C., Lakewood, CO, John Kevin Bridston, Holland & Hart, LLP, Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

THIS MATTER is before the Court on Defendants' Motion for Summary Judgment (ECF No. 70), filed on March 2, 2016. The matter arises out of allegations by Plaintiff Alvaro J. Arnal ("Arnal"), that Aspen View Condominium Association, Inc. ("AVCA" or the "Association"), and Aspen Snowmass Care, Inc., D.B.A. First Choice Properties & Management, Inc. ("FCP") (collectively "Defendants"), acts constitute discrimination, retaliation, and interference with contract in violation of the Fair Housing Amendments Act of 1988 ("FHA") at 42 U.S.C. §§ 3601 –3619. Defendants argue that Plaintiff cannot raise any genuine issue of material fact as to any element of their claim, and that Defendants are entitled to judgment as a matter of law. Accordingly, I will address the claims of discrimination, retaliation, and interference with contract under the FHA.

II. BACKGROUND

At all times relevant, Arnal owned and continues to own, Unit 201 (the "Unit"), a two bedroom unit in the Aspen View Condominiums, together with co-owner Clinton Coerdt. On October 11, 2013, Arnal sent an email to Defendants, notifying the Association that he intended to lease his unit to a woman who had a service dog. (ECF No. 70–5). In his email, Arnal asked the Association about its policy regarding service dogs, in light of their no-pet policy. (See ECF No. 70–4, No–Pet Policy). The Association advised Arnal that it needed to seek legal counsel on the question. Arnal sent seven additional emails inquiring about the Association's decision between October 14, 2013 and November 13, 2013 to follow-up on his initial October 11, 2013 request. (ECF No. 83–3).

Arnal's tenant, Natasha MacArthur, leased and moved into the unit with her dog, Stevie Nicks, on November 22, 2013. (ECF No. 70–8). On December 24, 2013, Defendants provided a letter from the then AVCA President, stating its policy for service dogs, and a list of questions for anyone seeking an accommodation for a service dog to Arnal. (ECF No. 70–10). The letter instructed Arnal to provide information and documentation no later than January 6, 2014. Arnal sent a written reply to the Association on January 3, 2014, in which he identified MacArthur as the person requesting the accommodation, Stevie Nick's certification identification number, and the dog's breed and weight. (ECF No. 70–11). No additional information was provided at that time.

On January 8, 2014, two members of the Association's Board of Directors, Heather Vicenzi and Cliff Mohwinkel, met with Arnal, MacArthur and Stevie Nicks. During the interview, MacArthur orally disclosed the nature of her claimed disability and the claimed purpose of her dog for the first time. The parties discussed getting a doctor's note from Dr. Niebur to substantiate the claimed disability and disability-related need for the dog. AVCA's President conveyed MacArthur's need for an "epilepsy alert dog," in an email to other Board members, and described the dog as "very sweet and well behaved. Very affectionate." (ECF No. 70–13).

On January 20, 2014, the Association, through its Board of Managers, sent Arnal a letter conditionally approving the use of a service dog named "Stevie" for MacArthur. (ECF No. 70–15). The decision, in pertinent part, was pending upon acceptable presentation of two documents: "1) Stevie's certification and evidence that he will be helpful in preventing seizures; [and] 2) Doctor's letter that certifies that Stevie is necessary to treat Natasha's condition even though Natasha is not with the dog for sizable chunks of time. Dr. Neibuhr [sic] was selected and is acceptable to the board." Id. (emphasis in original).

Further, the Board provided the following conditions: "1) Stevie must wear a leash with a service dog harness at all times when it is outside unit # 201 and inside the Aspen View Condominiums' common elements area (called "premises" below), 2) Stevie must not urinate or defecate on the premises. [Tenant] or appointed dog watcher/walker must be with the dog at all the times. This person must clean up the mess at every event[,] 3) Stevie must not be a nuisance: barking and making noise, behaving in a threatening manner, or causing a nuisance that would not be acceptable for a human to make." Id. "Failure to meet the conditions would result in an automatic fine starting from the date of receipt of the notice. The fine would be $50 per day to Arnal, as owner of the unit." Id. (emphasis in original).

The Board sent a follow up letter on January 28, 2014, informing Arnal that it had not yet received the requested documents, and reiterated that documentation was needed to approve MacArthur's service dog request. (ECF No. 70–16). The letter stated that "failure to submit the required information mentioned above will automatically trigger a $50/day fine on the 5^th of February as prescribed in our general rules statement... Failure to comply will require us to evict the dog after the 12^th of February." Id. On January 30, 2014, Arnal emailed the Board to express concerns about the validity of some of the Board's requests. (ECF No. 70–17).

In the email, Arnal stated that MacArthur asked that the Board contact Rosie Girardot, the Client & Community Relations Manager at Canine Support Teams, to help answer questions and get the necessary documentation. Id. "Canine Support Teams is the organization that certified Stevie as a service dog and they can provide [the Board] with a copy of Stevie's certification as well as proof that [MacArthur] needs Stevie because of her condition." Id. The email concluded with concerns regarding the enforceability of the conditions imposed by the Board. Id.

The Board responded, stating that "[t]he board has unanimously agreed that this is not an acceptable response (see below)." Id. The Board President then instructed the Board to "[p]roceed with the fines to Mr. Arnal and attendant eviction of the dog as agreed upon and presented previously, if the appropriate response is not received in a timely manner." Id. The Board attached HUD Notice: FHEO–2013–01, titled "Subject: Service Animals and Assistance Animals for People with Disabilities in Housing and HUD–Funded Programs," to the email to Arnal." (ECF No. 70–18).

On January 31, 2014, Arnal emailed the Board to communicate that MacArthur was unable to visit the doctor by February 5, 2014, but she agreed to have Canine Support Services release her medical records directly to the Board. (ECF No. 70–19). Arnal inquired whether providing MacArthur's medical records in lieu of a doctor's note, along with a copy of Stevie's certification card would be enough to satisfy the Board's requirements to allow Stevie to reside at Aspen View. Id. Internal emails between Board members indicate that "[i]f the information sent to us establishes the need for [MacArthur] to have Stevie even when she does not need the dog for large tracks of time (which is our request) then I agree." Id.

On February 8, 2014, the Board received an email and attachments from Rosie Girardot, which explained how the service animal helps alleviate MacArthur's disability, along with a copy of Stevie Nick's expired certification card information, and a physician's statement explaining how the assistance dog will contribute to MacArthur's independence. (ECF No. 83–6). The Association's counsel sent a letter to Arnal, dated February 14, 2014, which stated that the Board concluded that the documentation provided was "wholly inadequate" to satisfy the Board's requests, citing, in pertinent part, that no documentation of MacArthur's disability was provided, and that no reliable documentation was supplied to verify MacArthur's disability-related need for her dog. (ECF No. 70–17).

The Board gave Arnal until February 20, 2014, to comply with the requests, and failure to do so would entitle the Association to demand the removal of Stevie Nicks. Id. The Board received a letter from Dewayne Niebur, M.D., dated February 18, 2014, which stated that "Patient has a medical concern that requires a service dog. Currently she has Stevie Nicks, a golden retriever." (ECF No. 70–21). The Board rejected Dr. Niebur's February 18, 2014 note, as not sufficiently detailed for the Board's satisfaction. (ECF No. 83–4).

On March 4, 2014, Arnal's counsel advised the Board of MacArthur's intent to vacate the unit by April 1, 2014, "in large part because she is concerned that the continued stress of this situation and the prospect of further contention with the Board and the Association will cause her to suffer from seizures..." (ECF No. 70–25). The Association responded in a letter dated March 7, 2014, which expressed the Board's willingness to allow MacArthur to maintain the presence of her dog in the unit until April 1, 2014. (ECF No. 70–26). The Board, however, explained that the fine structure would remain in place, and that the only way to prevent the fines is to remove the dog from the premises. Id. The letter makes clear that the Association would file an action to enforce the Association's covenants on April 2, 2014, should Arnal fail to remove the dog from his unit. Id.

Dr. Niebur provided a second letter, dated March 11, 2014, that more explicitly explained that...