Posted by: Patricia Salkin | August 2, 2015

Fed. Dist. Court in FL Dismisses Reasonable Accommodation Claim for Pet Sheep on Ripeness Grounds

Maria Sherrer obtained a pet sheep as a comfort animal to alleviate the symptoms of depression. Miami, Dade County, Florida cited Sherrer for keeping a sheep on her residential property in violation of the County’s zoning code. Sherrer sued the County, alleging violations of the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. Claiming that the County was liable for not granting her a reasonable accommodation from its zoning laws to allow her to keep her comfort sheep..

The Court held that Sherrer’s claims that the County failed to grant her a reasonable accommodation to keep her sheep were not yet ripe, noting that a person claiming that a zoning ordinance violates a federal right must first request a variance from the ordinance before a challenge to its application is ripe for judicial review.

Although the Eleventh Circuit had not ruled directly on the issue of whether a variance request is a prerequisite to challenging a zoning ordinance under the Fair Housing Act, the Rehabilitation Act, or the Americans with Disabilities Act, the court had pointed out that several courts have held that “if there is a local procedure (such as a variance process)” through which a person can obtain the accommodations she wants, “she must use that procedure first and come away unsatisfied prior to filing suit in federal court.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 n.11 (11th Cir.2008).  A person may skip the variance-request step and jump right into court if “it is clear that the result of the variance procedures is foredoomed.” United States v. Village of Palatine, Ill., 37 F.3d 1230, 1234 (7th Cir.1994). Sherrer alleged that Miami–Dade County’s staff would “definitely” give a negative recommendation of her variance request to the Zoning Board. The court stated a negative staff recommendation is not the same as asserting that the Zoning Board would definitely deny Sherrer’s variance request.

Sherrer alleged that the variance request process would take four to six months and would be an undue delay in considering the request. The court stated that a four to six month turn-around time for a decision on a variance request does not equate to a constructive denial of the request. Moreover, since Sherrer had not even requested a variance, she cannot allege that the County failed to make a timely determination of that request.

The court explained that if a person with a disability needs a reasonable accommodation, he or she must ask for it. Hialeah Hous. Auth., 418 Fed.Appx. at 876. If the requested accommodation relates to a zoning ordinance, the request must go through the variance process. Village of Palatine, Ill., 37 F.3d at 1233. Until a variance request has been presented and rejected, a claim that a zoning ordinance discriminates is not ripe. Village of Palatine, Ill., 37 F.3d at 1233. Here, Sherrer had admittedly not presented a variance request. Therefore, her challenge to the County’s zoning ordinance prohibiting sheep on residential property was not yet ripe.

The Court held that Sherrer’s claim that the County failed to grant her a reasonable accommodation from the usual zoning process may proceed, noting that a challenge to the variance process, as not reasonably accommodating the needs of persons with disabilities, is ripe for judicial review.

The Court also held that the Rooker–Feldman doctrine precluded it from reviewing the state court’s decision regarding Sherrer’s past zoning violations. The County argued that the Rooker–Feldman doctrine barred Sherrer from challenging the state court’s decision to cite her for the zoning code violation in federal court.  “Under the Rooker–Feldman doctrine, the authority to review final decisions from the highest court of the state is reserved to the Supreme Court of the United States.” Dale v. Moore, 121 F.3d 624, 626 (11th Cir.1997).  When Sherrer’s doctor told her that a support animal would help her, Sherrer did not apply for a variance to the County’s zoning ordinance to allow her to keep a sheep on her residential property. Instead, she simply got an emotional support sheep, kept it on her property, and received a citation because keeping the sheep violated the County’s zoning ordinance. A County hearing officer determined that she had violated zoning ordinances, and a Circuit Court Judge later affirmed that decision. The Court said it does not have subject-matter jurisdiction to reconsider the Circuit Court’s decision to affirm the hearing officer’s conclusion that Sherrer violated County zoning ordinances because the ADA does not authorize independent federal appellate review of final state court decisions.

The Court also noted that “Title II of the ADA states that ‘no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Morgan v. Christensen, 582 Fed.Appx. 806, 809 (11th Cir.2014) (citing 42 U.S.C. § 12132). Sherrer alleged that the County’s zoning-variance procedures discriminated against her by requiring her to pay a fee, publicly disclose her disability, provide materials irrelevant to her disability, and then wait four to six months. These allegations are enough. The County claims that the sheep does not meet the definition of a “service animal” in the Code of Federal Regulations. However, Sherrer’s claims were not that her sheep was a service animal but rather that it is an assistance animal or emotional support animal. There is currently no definition of an emotional support animal in the Code of Federal Regulations. Her claims were that the County failed to grant her a reasonable accommodation from the usual zoning-variance process 

Sherrer v Miami-Dade County, 2015 WL 4396784 (SD FL 7/17/2015)


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