JUSTICE RABNER: COUNSEL, I WANT TO TELL YOU. DAVID J. BYRNE: GOOD AFTERNOON.
COURT SMART IS NOT ON. CAN'T HEAR. DAVID J. BYRNE: DECIDE TO ACCOMMODATE.
IN K.P., AUGUST 8TH, 2018 E-MAIL, THE DEFENSE ASSOCIATION IT GOES TO BELIEVE DEFENDANTS
UNDERMINING CAN'T HEAR NO COURT SMART. DAVID J. BYRNE: TRIAL, THE DEFENDANT'S
DISHONESTY WORSENED NENS, ABOUT DEFENDANTS I CANNOT BELIEF YOU. WHEN IT COMES TO POSSIBLE
NONOBSERVABLE DISABILITIES AS OPPOSED TO ONE'S BLINDNESS OR WHEELCHAIR CON FEEN MENT FOR
EXAMPLE, IT ALLEGES VERACITY, CREDIBILITY MUST BE OF PARAMOUNT IMPORTANCE, THE MORE BRACE
SENT A RESIDENTS DISHONESTY, THE MORE DIFFICULT IT WOULD BE FOR A FACT FINDER TO DETERMINE
WHETHER THE RESIDENTS DIERD DETERMINES IS NECESSARY FOR L A D. NO ONE
DISAGREES IN ORDER TO GET A HOUSING PROVIDER'S ACCOMMODATION IT IS RULES, PRACTICES POLICIES
AN SERVICES THE RESIDENTS SHOULD HAVE TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT
ONE, SHE IS DISABLED FOR PURPOSES FD NJLAD AND TWO THE PRECISE ACCOMMODATION SOUGHT IS
NECESSARY TO AFFORD OTHER EQUAL USE AN ENJOYMENT OF THE DWELLING, THE LATTER. THE
THIRD CIRCUIT I THINK WROTE IT BEST, IF A PROPOSED ACCOMMODATION PROVIDES NO DIRECT AM
ELIORATION OF A DISABILITY'S EFFECT, IT CANNOT BE SAID TO BE NECESSARY. EVERYONE
AGREES, I THINK THAT THAT'S HOW COURT'S SHOULD ADJUDICATE THESE DISPUTES, THE ASSOCIATION
ADVOCATED FOR THAT AT ALL LEVELS OF THIS CASE AN OBVIOUSLY A FACT FINDER'S DETERMINES
OF NECESSARY HAS TO INVOLVE AN INCREDIBLY FACT SENSITIVE DETERMINES, THE DEFENDANTS AN
THE ATTORNEY GENERAL CORRECTLY SAY THAT A DESIRED ACCOMMODATION MIGHT BE NECESSARY EVEN
IF A MENTAL HEALTH PROFESSIONAL HAS NOT PRESCRIBED OR EVEN RECOMMENDED IT.
HOWEVER, THE TRIAL COURT DID NOT FIND THAT A DEAL WAS NOT NECESSARY BECAUSE NO ONE, THE
TRIAL COURT FOUND THE DOG WAS NOT NECESSARY BECAUSE IN PART THEY LIED, MENTAL HEALTH
PRESCRIBED APPEND OR RECOMMENDED IT. B TESTIFIED AND SWORE VIA INTERROGATORY
ANSWERS THAT THE D'AGOSTINO WAS PREK PRESCRIBED BY MENTAL HEALTH PROFESSIONAL'S HOWEVER,
B.F.'S THEY ARE PEST SAID SHE NEVER RECOMMENDED ANY ANIMAL. IN FACT B.F.'S
THERAPIST TOLD THE TRIAL COURT SHE DID NOT EVEN LEARN ABOUT THE DOG UNTIL AFTER IT WAS
ADOPTED. SIMILARLY B.F.'S NURSE PRACTITIONER TESTIFIED SHE NEVER SUBSCRIBED PRESCRIBED
ANY ANIMAL SO AGAIN THE TRIAL COURT DID NOT INCORRECTLY PREEB,. NO, THE
TRIAL COURT DECIDED THAT THE DOG WASN'T NECESSARY BECAUSE DEFENDANT'S LIED WHEN THEY SAID
THAT IT WAS. KEFT'S BRAZEN DISHONEST STEE WAS SO CRUCIAL TO THE COURTS BRO
BECAUSE THE DEFENDANTS WERE THE ONLY WITNESSES WHO CONCLUDED THAT THE DOG HAD ANY AM ME
AL I DON'T REMEMBER RAT ACTIVE EFFECT ON B.F. AT ALL, DR. CANNON NEVER CONCLUDED, THAT
THE DOG AMELIORATED HER CONDITION, ONLY THE DEFENDANTS DID, IN. IN ADDITION
SHOEFS OO WELL COMPENSATED STENOGRAPHER SHE MET WITH THEM ONE TIME FOR A LITTLE OVER AN
HOUR AN NEVER SUCKED B.F. TO AN I M E, NEVER HAD HER UNDERGO ANY PSYCHOLOGICAL TESTING,
DR. CANNON TESTIMONY WAS MERELY VARIATIONS OF WHAT THEY TOLD ME FROM WHAT SHE TOLD ME,
THE SUBJECTIVE CONTENTS AS TO WHETHER A DIRECT LINK EX ESS BETWEEN THE 70 PLUS POUND
DOG AND EQUAL OPPORTUNITY. IN THAT REGARD, IT WAS EXTREMELY PROBATIVE TO THE
TRIAL COURT THAT DEFENDANT'S ADOPTED THE DOG BECAUSE IT DIDN'T BARK AT THE SHELTER AND
BECAUSE B.F. HAD A BIG DOG WHEN SHE WAS A CHILD, NOT BECAUSE THE DOG WOULD ACTUALLY AM
ELIORATE HER SYMPTOMS, B.F. LEFG WITH MULTIPLE FIREARMS WHILE THINKING ABOUT ABOUT SUICIDE
WAS PROBATIVE TO DEFENDANT'S POOR JUDGMENT. B.F. LYING IN 2017 ON HER FIREARM
PURCHASE APPLICATION WAS PROBATIVE AS TO THE LENGTHS THAT THE DEFENDANTS WOULD AND DID
ULTIMATELY GO TO GET AROUND OBSTACLES AN TO GET WHAT THEY WANTED. IN THE EVEN
EACH COURT APPLIED THE STANDARD THAT EVERYONE BELIEVED SHOULD HAVE BEEN APPLIED. THERE
WAS AMPLE EVIDENCE TO SAY THE DOG WAS NOT NECESSARY, THIS COURT ALSO INVOLVED GUN LAW
VIELGZ, IT STATED THAT DEFENSE TO A TRIAL COURT'S FACT FINDINGS IS ESPECIALLY APPROPRIATE
WHEN THE EVIDENCE IS LARGE TESTIMONIAL AN INVOLVES QUESTIONS OF CREDIBILITY APPEND
THANK YOU YOU UNLESS THE COURT HAS ANY QUESTIONS WHICH I WILL BE GLAD TO ANSWER I CAN GO
ON TO OTHER POINTS. SFLFRMENT WE'RE HERE IN A CASE AN APPEAL OF RIGHT WITH A DISSENT
AN WE'RE HERE TO PROVIDE SOME GUIDANCE AN PRINCIPLES THAT MIGHT APPLY IN THIS AREA SO
LETS START WITH THE DEFINITION OF DISABILITY. DO YOU DISPUTE THAT B.F. WAS
DISABLED? DAVID J. BYRNE: THE ASSOCIATION IS NOT APPEALING THE APPELLATE
COURT'S RULING IN THAT REGARD. DOES THAT ANSWER YOUR QUESTION, YOUR HONOR.
CHIEF JUSTICE RABNER: IS THAT AN ISSUE BEFORE THE COURT AT THIS POINT AS
YOU SEE IT. DAVID J. BYRNE: AS I SEE IT THE ANSWER IS NO BECAUSE THE APPELLATE
COURT MADE A RULING AS TO THE DEFINITION OF DISABILITY, BUT WAS CONTRARY TO THE TRIAL
COURT'S DEFINITION, I BELIEVE. WE HAVE CHOSEN NOT TO APPEAL THAT AND I OBVIOUSLY THE
DEFENDANT'S WOULDN'T APPEAL THAT, EITHER. CHIEF JUSTICE RABNER: AND THE SECOND
PRONG CARRIES THE DATA, BERN BERN WE THINK THAT IS THE ISSUE IN DISPUTE, BUT YOUR HONOR,
I DON'T THINK THAT THE ISSUE -- I DON'T THINK THAT THE STANDARD IS IN DISPUTE, FRANKLY,
I THINK THAT THE PARTIES AGREE, AS I TRIED TO SAY IN MY PRELIMINARY STATEMENT, I THINK
THE PARTIES AGREE THAT THE SECOND PRONG IS THAT THE ANIMAL HAS TO BE THE PRECISE
ACCOMMODATION, I SHOULD SAY ANIMAL IN THIS CASE SFLRJTS I WAS REFERRING TO THE SECOND PART OF
THE DEFINITION, NONE STRABL, MEDICALLY OR BICEP ABDOMINAL MEDICAL DIAGNOSTIC TECHNIQUES.
DAVID J. BYRNE: THE ASSOCIATION IS NOT CHALLENGING THE APPELLATE COURT'S
POSITION IN THAT REGARD SFLFRMENTS WHAT MUST A PARTY WITH A DISABILITY SHOW TO OBTAIN
A HOUSING ACCOMMODATION. IS IT REQUIRED THAT THEY NONE NEED OR THAT THE
EMOTIONAL SUPPORT ANIMAL MAY BE NEEDED. BERN BERN NO, THEY HAVE TO ACTUALLY SHOW NEED.
IT HAS TO BE NECESSARY. I MEAN MAY BE NECESSARY IS -- JUSTICE WAINER APTER:
DON'T THE REGULATIONS SAY MAY BE NECESSARY. DAVID J. BYRNE: I THINK WE BRIEFED
THAT POINT I THINK ADEQUATELY BY SAYING MAYBE HEALY IS. IF MAYBE DOESN'T MEAN IS OR WAS
THEN MAYBE MEANS ANYTHING. ESSENTIALLY BY RULING THAT ANY RESIDENT IS ENTITLED TO AN
ANIMAL THAT MAY BE NECESSARY TO HELP THE PERSON, THAT ESSENTIALLY MEANS THAT EVERY HOUSING
PROVIDER IN NEW JERSEY MUST ALLOW ANIMALS WHICH FRANKLY AS A DOG OWNER I WOULDN'T BE TOO
UPSET ABOUT SFLFRMENT TO YOUR READ THE DETERMINES MAY BE NECESSARY MEANS YOU MUST COME
FORWARD WITH CONCRETE PROOF THAT IT IS, IN FACT, NECESSARY, NOT THAT THE AGENCY PUT FORENSIC
IN THE REGS, THOUGH. DAVID J. BYRNE: I'M SORRY, YOUR HONOR, ONE MORE TIME.
THE COURT: THAT DOESN'T APPEAR TO BE WHAT THE AGENCY SAID. DAVID J.
BYRNE: 'THE DIVISION OF CIVIL RIGHTS POSITION IS UNFORTUNATELY PROBLEMATIC AN IT HAS
CREATED A DYNAMIC WHICH HAS ENCOURAGED PEOPLE TO GO WITH IT'S BETTER TO SAY YOU'RE SORRY
THAN TO ASK PERMISSION. THE COURT: THEY PUT FORTH A STANDARD OF MAY BE
NECESSARY. WHAT DOES THAT TELL US. DAVID J. BYRNE: MAY BE NECESSARY
IS ESSENTIALLY A PROHIBITION AGAINST ANY RULES OR COVENANTS THAT PROHIBIT ANIMALS BECAUSE
I WOULD SIMPLY TAKE THE POSITION THAT I AM -- THE ISSUE OF AN OBSERVABLE DISABILITY IS
EASIER, SUCH AS IT IS. THE NONOBSERVABLE DISABILITY IS MORE CHALLENGING BECAUSE THEY
REQUIRE SOME PROBE INTO THE VERACITY OF THE CLAIM, BUT IF ALL YOU HAVE TO DO IS SAY THAT
AN ANIMAL MAY BE NECESSARY, THEN THERE IS NO STANDARD AT ALL BECAUSE AID AND MAY BE
NECESSARY. JUSTICE WAINER APTER: SO YOU'RE OBJECTING TO THE STANDARD AS YOU
SAY D C R IMPLEMENTED IN ITS REGULATION BUT THAT'S ALSO THE FEDERAL STANDARD THAT KONG
CHOSE TO RIGHT INTO THE STATUTE AND IT ALSO SAYS MAY BE NECESSARY TO AFFORD A PERSON WITH
A DISABILITY AN EQUAL OPPORTUNITY TO ENJOY THE DWELLINGS, YOU'RE ALSO SAYING CONGRESS
HAD IT WRONG AND NO ONE SHOULD HAVE WRITTEN MAY BE NECESSARY, BIN BIRN I AM SAYING CONGRESS
AND ALL THE OTHER COURTS HAVE IT RIGHT MAY BE NECESSARY MEANS IS, AS OPPOSED TO WHAT IT
WAS YEARS AGO, IS MEANS IS, IS NOW MEANS MAYBE. MAYBE MEANS IS. THERE HAS TO BE SOME
STANDARD. IT CAN'T BE MAYBE. MAYBE IS AN LINGUISTIC TOOL THAT A REGULATOR WOULD USE
TO WRITE A PROVISION, BUT IT'S BEEN INTERPRETED AS IS OTHERWISE THERE IS NO STANDARD.
SFLFRNLT WHAT ARE YOU RELYING ON. DAVID J. BYRNE: I WOULD HAVE TO REFRPS
OUR BRIEFS, YOUR HONOR, BUT WE DID BRIEF THAT IN OUR OPPOSITION TO THE AMICUS FOLKS WHO
PUT THAT FORWARD. L I ALSO DON'T BELIEVE, I WILL NOW ANSWER, I CAN ANSWER YOUR QUESTION
MORE SPECIFICALLY IF I LOOK AT IT ON RENL, PERHAPS, BUT I ALSO DON'T BELIEVE THE
DEFENDANTS BELOW MADE THAT ARGUMENT. THE DEFENDANTS BELOW, I THINK CORRECTLY
ASSUMED THAT THEY HAD TO SHOW IS. IT HAS TO ACTUALLY BE NECESSARY. JUSTICE
WAINER APTER: WHEN WE TOOK ABOUT IS AND WHAT IS NECESSARY, YOU SEEM TO BE SAYING THAT
AN ACCOMMODATION CAN NEVER BE NECESSARY UNLESS IT ALTOGETHER MAKES THE DISABILITY GO AWAY.
DAVID J. BYRNE: DEFINITELY NOT YOUR HONOR. I AM NOT SAYING THAT.
JUSTICE WAINER APTER: DO YOU AGREE THEN THAT THE STANDARD IS THAT IT MUST BE -- IT MUST
ALLEVIATE AT LEAST ONE SYMPTOM OF THE DISABILITY AN ALEE YAT, I DO NOT MEAN GO THE SYMPTOM
GO AWAY I MEAN MAKE THE SYMPTOM BETTER. DAVID J. BYRNE: I THINK THAT'S TRUE.
I THINK AS AN ATTORNEY THAT PRACTICES IN THIS AREA, I WILL SAY THAT I THINK FOR THE MOST
PART, MOST REQUESTS ARE PROBABLY UNDER THE STANDARD. I AM NOT GOING TO USE THE POLICY
SITUATION OF WHETHER THEY SHOULD OR SHOULD NOT BE GRANTED. I AM SAYING UN THE STANDARD
THAT I AM ADVOCATING MOST REQUESTS WOULD HAVE TO BE GRANTED BECAUSE BOAST, MOST OF THE
TIME YOU HAVE THAT NEXUS ESPECIALLY WITH NONOBSERVABLE DISABILITIES, FOLKS THAT ARE
UNFORTUNATELY BLIND OR UNFORTUNATELY IN WHEEL CHAIRS, FOR EXAMPLE, THERE ISN'T MUCH BACK
AN FORTH WITH THIS KIND OF THING. JUSTICE WAINER APTER: SO IN THIS CASE,
YOU'RE SAYING THAT THERE WAS NOT SUFFICIENT EVIDENCE THAT THE EMOTIONAL SUPPORT ANIMAL
ALLEVIATED OR MITIGATED, HELPED TO MAKE BETTER, AT LEAST ONE SYMPTOM OF THE DIS ABT?
BERN BIRN RIGHT. YOUR HONOR, I AM SAYING THAT. I AM SAYING THIS IS ONE OF THOSE CASES
WHERE THE FACTS -- THE FACTS ALIGN WITH THE POSITION I AM TAKING. MOST OF THE TIME THEY
DON'T. THE COURT: WE HAVE SOME FACTS. WE HAVE SOME TESTIMONY FROM DR.
CANNON, BUT WE ALSO HAVE A TRIAL COURT FINDING THE TRIAL COURT STATEMENT THAT, QUOTE,
B.F. DEMONSTRATED THAT THIS DOG IS IS ACTIVE TO RELIEF CERTAIN CONDITIONS OF HER MENTAL
HEALTH EITHER BY SHORTENING OR LESSENING THEM, WHY SHOULDN'T WE APPLY THAT?
DAVID J. BYRNE: BECAUSE ULTIMATELY THE JUDGE RULED THAT THE ANIMAL WAS NOT NECESSARY SO
IT WASN'T JUST SIMPLY. THE COURT: BUT ON THIS PRONG, WE HAVE A FINDING,
WHY SHOULDN'T WE RELY UPON IT? BERN BIRN BECAUSE EVERY DOG HAS THAT EFFECT ON EVERY PERSON
UNLESS THEY ARE CRUEL. JUSTICE WAINER APTER: HERE THE TRIAL COURT WAS VERY
SPECIFIC, AFTER THE CHIEF READ A PORTION AN THEN THE TRIAL COURT WENT ON AND SAYS THE
DOG HAS ALLOWED HER TO REMAIN IN THE UNIT WITHOUT HER FIANCE, HER NOW HUSBAND WHICH SHE
COULDN'T DO BEFORE SHE HAD THE DOG. SHE SAID THE DOG SITS NEXT TO HER IF SHE HAS AN
EPISODE IN THE CLOSET WHICH HELPS TO SHORTEN OR LESSEN THE EPISODE AN IT GOES ON.
IF THAT IS A FACTUAL FINDING THAT IT HAS MITIGATED, MEANING, MADE BETTER AT LEAST ONE
SYMPTOM OF THE DISABILITY, SHE CAN BE IN THE APARTMENT ALONE, HER EPISODES IN THE CLOSET
DON'T LAST AS LONG AN THE TRIAL COURT FOUND THAT AS A MATTER OF FACT, EVEN IF THE TRIAL
COURT WAS WRONG ON THE LAW WHY DO WE NOT HAVE TO DEFER TO THAT FACTUAL BELONGING.
DAVID J. BYRNE: B.F.'S BELIEF THAT SHE CANNOT STAY IN THE HOUSE EXCEPT FOR THE DOG IS
NOT EVIDENCE, ESPECIALLY WHEN THE JUDGE CONCLUDED THAT SHE LIED ON MANY OCCASIONS.
THE JUDGE DID FIND THAT B.F. TESTIFIED THAT I CAN NOW STAY IN THE HOME OVERNIGHT BECAUSE
I HAVE THIS DOG. JUSTICE MICHAEL NORIEGA: THERE IS NO OTHER SOURCE FOR
THAT KIND OF SUBJECTIVE ANALYSIS AS TO THE AMELIORATE I HAVE EFFECTS. DAVID
J. BYRNE: THERE IS -- SORRY I INTERRUPTED YOU. JUSTICE MICHAEL NORIEGA:
THERE IS NO OTHER SOURCE FOR THAT PARTICULAR AM MEAL I DON'T REMEMBER RAT I HAVE EFFECT.
DAVID J. BYRNE: THE SOURCE IS THE EXPECT. SHE HAD AN EXPERT. THE EXPERT
COULD HAVE EASELY DONE SOME ACTUAL WORK AND COME TO A CONCLUSION THAT IN FACT, IN FACT,
B.F. WAS UNABLE TO, LET'S SAY, LET'S USE THE JUSTICE'S QUESTION THAT ASKS ABOUT ADMISSION
MITIGATION OR AMELIORATION. THE COURT: I KNOW YOU DON'T LIKE DR. CANNON.
DAVID J. BYRNE: PERMANENTLY SHE IS VERY NICE. CHIEF JUSTICE RABNER:
YOU WERE EXTREMELY CRITICAL OF DR. CANNON IN YOUR OPENING REMARKS. L SHE QUOTED THAT
B.F. STILL QUOTED FROM BOUTS OF DEPRESSION AN ANXIETY BUT THOSE WERE MUCH LESS SEVERE
SO DOESN'T THAT SUPPORT THE TRIAL COURT'S ACTUAL FINDING. DAVID J. BYRNE:
SHE ONLY TESTIFIED, MR. CHIEF JUSTICE THAT B.F. TOLD HER HER SYMPTOMS WERE LESS SEVERE.
IF THAT'S A STANDARD THEN THERE IS NO STANDARD AT ALL. JUSTICE WAINER APTER:
WHAT ABOUT THE CLINICAL SOCIAL WORKER WHO TESTIFIED THAT B.F., MODERATE TO POTENTIALLY
SEVERE SCALE BUT QUOTE AFTER GETTING THE DOG THEY SEEMED TO HAVE DECREASED TO MILD TO
MODERATE AN ANOTHER QUOTE ONE OF THE WAYS THE DOG WAS HELPING WAS HAVING LESS TIMES WHEN
B.F. WOULD GO INTO THE CLOSET IF AT ALL. SHE DEFINITELY, EVEN THOUGH SHE WAS STILL
EXPERIENCING THE DEPRESSIVE EPISODES SEEMED TO BE MORE MOTIVATED. SEEMED TO BE BETTER
ABLE TO GET HERSELF GOING OVERALL SO OVERALL IT HELPED HER WITH DAY-TO-DAY THINGS.
DAVID J. BYRNE: PERHAPS THE ANIMAL WAS NECESSARY BUT WHAT ABOUT THE EVIDENCE THE
JUDGE HEARD AFTER THE DAPGS, AFTER, B.F. HAD THE SAME AMOUNT OF DEPRESSIVE EPISODE INCLUDING
PAPGS. DAVID J. BYRNE: HOW ABOUT THE FACT IN BETWEEN, SHE HAD FIVE INDIVIDUAL
REPORTS OF SUICIDAL REPORTS ALL THE WHILE SHE HAS HANDGUNS. JUSTICE WAINER APTER:
WE DISCUSSED IT IS NOT ACTUALLY MAKING THE DISABILITY GO AWAY IT IS JUST MITIGATING OR
HELPING AT LEAST ONE OF THE SYMPTOMS. DAVID J. BYRNE: BUT IS IT.
JUSTICE WAINER APTER: HERE, THERE IS TESTIMONY THAT IT IS. DAVID J. BYRNE:
ONE OF THE EXPERTS THAT OUR EXPERT DR. SHOOEG TESTIFIED TO WAS MALINGERING WHICH TRANSCENDS
THIS CONTEXT. IT GOES THROUGH ALL OF OUR LIVES, WHICH IS WHEN WE WANT SOMETHING, WE ARE
LIKELY TO REPORT SOMETHING IN A WAY THAT WILL MAKE US MORE LIKELY TO GET WHAT WE WANT.
SHE IS UNDOUBTEDLY GOING TO REPORT THAT HER LIFE IS BETTER AFTER SHE FWETS THE DOG, BUT
YET WHEN SHE GOES IN TO SPEAK WITH HER MENTAL HELL PROFESSIONALS AN WE HAVE THE MEDICAL
RECORDS, A DIFFERENT STORY IS TOLD. SHE IS NOT ACTUALLY BETTER AFTER SHE FWETS THE DOG.
MOST OF THE SITUATIONS, THESE SITUATIONS ARE TROUBLING BECAUSE MOST PEOPLE JSH, JUST
JUST EVERYONE WHO IS MENTALLY ILL NEEDS SOMETHING. WHAT THE JUDGE HAS TO PARSE
OUT HERE, THOUGH, IS THIS DOG ANY DIFFERENT FROM ANY OTHER DOG ANY OTHER ANIMAL THAT WE
ALL -- SOME OF US MAY HAVE IT, WHEN WE SEE IT WE'RE HAPPIER, WHEN WE DON'T SEE IT WE'RE
NOT HAPPY. THE COURT: I AM CONFIDENT THAT YOU ADVANCED THAT ARGUMENT
BEFORE THE TRIAL COURT, THAT SHE IS NO BETTER SHE WAS BEFORE THE DOG, DID THE TRIAL COURT
MAKE THAT FINDING? HAD BERN BERN BUT IT HAD TO BECAUSE IT CONCLUDED THE DOG WAS THAN
NECESSARY. THE COURT: DID THE TRIAL COURT MAKE THAT EXPRESSED FACT UTILIZE
FINDING. DAVID J. BYRNE: NO, THE TRIAL COURT SIMPLY REITERATED WHAT B.F.
TESTIFIED TO AND THEN AN THEREAFTER -- THE COURT: I DON'T KNOW THAT THAT
IS ACCURATE BECAUSE THE TRIAL JUDGE SAID THE COURT DOES BELIEVE THAT B.F. DOT, DOT, DOT
WHAT JUSTICE WAINER APTER AND I READ PREVIOUSLY SO THE COURT MADE THAT DETERMINATION AND
I AM ASKING IF YOUR CONTRARY ARGUMENT IS ONE THE COURT ALSO MADE? DAVID J.
BYRNE: BUT HOW COULD THE TRIAL COURT HAVE MADE A DETERMINATIVE FINDING THAT SHE WAS BETTER
IN SOME WAYS AT THE SAME TIME THE COURT ALSO MADE FINDINGS THAT SHE COMMITTED PERJURY.
JUSTICE WAINER APTER: ALL POINS ON THE NJLAD PORTION SEEMED TO FOCUS THAT
THE TRIAL COURT DID NOT BELIEVE THAT B.F. HAD AN ACTUAL DISABILITY UNDER THE L A D, B.F.
SUFFERED VARIOUS FORMS OF MENTAL DISTURBANCES BUT QUOTE, FAILED TO PROVE SHE WAS HANDICAPPED
OR DISABLED UNDER THE L A D BECAUSE THERE WAS NO ASPECT OF HER DIAGNOSED CONDITIONS THAT
PREVENTED HER FROM NORMAL BODILY FUNCTIONS, DO YOU FRAE THAT WAS INCORRECT, BIN BIRN I
AM SAYING WE HAVE CHOSEN THAT TO BE A HILL NOT TO DIE ON. WE ADVOCATED TRIAL AND I THINK
WE PROVED OUR CASE TO THE TRIAL JUDGE THAT THIS WAS NOT A LEGALLY COG NIEZ SABL I THINK
I PROVED THAT. MY CLIENT HAS CHOSEN THAT THAT'S NOT A HILL IT WANTS TO DIE
ON IN THIS REGARD BECAUSE WE DON'T BELIEVE THAT STRATEGICALLY IT'S LIKELY TO BE REVERSED
AND WE ALSO TOENT THINK IT'S NECESSARY FOR US TO PREVAIL. THE TRIAL COURT
AND YOUR HONOR'S POINT IS AN INSIGHT FULL IN THIS REGARD THAT THE TRIAL COURT'S VIEWS
OF WHAT B.F. BELIEVED ABOUT HERSELF, OKAY, WAS RELEVANT IN SOME WAYS TO THE TRIAL COURT'S
DECISION THAT SHE WASN'T ACTUALLY DISABLED, TO YOU SEE? SO IF THE TRIAL
JUDGE HAD TAKEN THE POSITION THAT THE CONDITION SHE HAS, PRESUMABLY STILL HAS, ARE NOT
SUFFICIENT TO CREATE A DISABILITY FOR THE PERSON'S L A D, THEN THE JUDGE'S CONCLUSIONS
THAT SOMEHOW ON SOME OCCASIONS THE DOG MAKES HER BETTER ARE NOT DISPOSITIVE BECAUSE ON
ONE DAY SHE MIGHT FEEL BETTER, ON THE NEXT DAY SHE MIGHT NOT BE BETTER SO IS THAT THE
STANDARD? IS THAT THE STANDARD THAT ALL A PERSON HAS TO DO IS CLAIM THAT
THEY FEEL BETTER ONCE THEY GET SOMETHING THAT THEY NEED AND THAT IS THE END OF THE
SUBSTITUTION? YOUR HONOR LOOKS LIKE YOU'RE ABOUT TO ASK A QUESTION. L PIERCE
PIERCE IT PIERCE PIERCE IT JUST SEEMS LIKE YOU'RE ASKING THIS COURT TO ESTABLISH A PRETTY
HIGH BAR IN DETERMINING WHETHER THE DOG MAY BE NECESSARY TO AFFORD A PERSON WITH A
DISABILITY THE EQUAL OPPORTUNITY TO CHOICE AN ENJOY A DWELLING, IN THIS CIRCUMSTANCE, THE
DEFENDANT ALREADY HAD THE DOG AN IN ANOTHER CIRCUMSTANCE, IF THIS IS A SCENARIO IN HAD
WHICH THE RESIDENTS MADE AN APPLICATION TO THE ASSOCIATION PRIOR TO GETTING THE DOG AND
MARCH SHALL LD SUPPORT LETS FROM DR. CANNON AN RIM, THE SOCIAL WORKER SAYING EXACTLY
WHAT THOSE TWO INDIVIDUALS TESTIFIED TO, IT SEEMS LIKE THAT WOULD HAVE BEEN SUFFICIENT
FOR THE ASSOCIATION TO FIND THAT AN E S A WOULD HAVE BEEN A REASONABLE ACCOMMODATION?
BIRN BERN I THINK THAT GOES TO ANOTHER POENT I WANTED TO MAKE. SO I WILL SAY THIS.
THOSE OF US OUT IN THE FIELD THAT DEAL WITH THESE THINGS, YES, ON FIRST FLANS, WHAT
I AM SUGGESTING IS THE LAW AND SHOULD BE THE LAW. YOUR HONORS HAVE THE RIGHT -- YOU KNOW,
YOU'RE GOING TO SET WHAT YOU BELIEVE THE RIGHT POSITION IS FOR THIS. IT IS
A HIGH BAR. I THINK THAT'S FAIR. I THINK THE COUNTER TO THAT IS THE DYNAMIC
THAT HAS BEEN SET UP WITH OUR LAWS? OKAY. IF WE LOSE, IF A KOND,
IN GENERAL, LOSES, DECIDES IT DOESN'T LIKE THIS LETTER, THE BAR HAS NOT BEEN MET, IT'S
A BIG ROLL OF THE DIES BECAUSE THERE IS FEE SHIFTING, THERE IS PUNITIVE DAMAGES, I CAN
FILE A COMPLAINT WITH THE GOVERNMENT FOR FREE IF I'M AN AGGRIEVED RESIDENT. THE DECK
IS STACKED AGAINST THE HOUSING PROVIDER, PERHAPS PROPERLY GIVEN THE PURPOSE OF L A D,
BUT THE HIGH BAR IS MITIGATED, NO PUN INTENDED, I GUESS, BY THE FACT THAT THE HOUSING
PROVIDER MUST TREAD VERY, VERY LIGHTLY BECAUSE IF IT IS WRONG, IT'S FWOT A SERIOUS PROBLEM.
THE COURT: DOES THAT SUGGEST THAT THE ATTORNEY GENERAL'S ARGUMENT ABOUT
HAVING AN INTERACTIVE PROCESS BEFORE THE DECISION IS MADE IS A SENSIBLE WAY TO PROCEED?
AND EVEN IF THE D C R ADVICE ABOUT PROVIDING ADDITIONAL INFORMATION UPON
REQUEST AS PART OF THIS PROCESS? DAVID J. BYRNE: YES, YOUR HONOR. THAT'S
A FAIR POSITION, I THINK FOR THE ATTORNEY GENERAL TO TAKE AND FOR ANYBODY TO TAKE; THAT
WOULD, IN SOME WAY, MITIGATE, I GUESS, THE HIGH BAR, THAT YOUR HONOR JUST MENTIONED.
I THINK THAT'S A REASONABLE APPROACH. I WILL SAY, THOUGH, THAT I THINK THE TASH DASH
WE AGREE THAT THERE HAS TO BE A MEANINGFUL INQUIRY UNDER -- THAT'S WHAT I THINK THE LAW
SHOULD BE AN I THINK WE'VE DONE THAT. THE INTERACTIVE PROCESS IS INVOLVED
IN THE HOUSING PROVIDER PROVIDING THEIR INFORMATION THAT THEY THINK SHOULD BE RELIED
UPON, BUT IN THIS CASE, THE ASSOCIATION DID OFFER A D R, YOUR HONOR'S HAVE SEEN THE CONDOMINIUM
CASES WITH A D R AND THERE ARE MANY OF THEM THAT GO TO THE APPELLATE DIVISION, WHEN A
D R SHOULD BE USED AND WHEN IT SHOULDN'T THE ASSOCIATES USED THAT AS AN OPTION AN THE
OWNER, K.P. REFUSED TO PARTICIPATE IN A D R, SO IN SOME REGARD, THE COURT FIND IF THAT WERE
SOME ISSUE IN THIS PARTICULAR SITUATION, THAT THE CONDOMINIUM DID IN FACT ATTEMPT TO CREATE
I THINK CHIEF JUSTICE YOU SAID SOMETHING, COLLABORATE BORE RAT ACTIVE PROCESS OR
DELIBERATIVE PROCESS THAT THE CONDOMINIUM DID ATTEMPT TO DO THAT BUT WAS THWARTED BECAUSE
K.P. DWIETD NOT TO PARTICIPATE IN THAT PROCESS. TO GO BACK TO THE POENT YOUR HONOR
MADE BEFORE ABOUT THE HIGH BURDEN THAT WE THINK SHOULD BE IN PLAY, THE FIRST LETTER.
JUSTICE WAINER APTER: I'M SORRY JUS GOING BACK TO INTERACTIVE PROCESS I THOUGHT
THAT THE ASSOCIATION HAD ACTUALLY SENT A LETTER TO K.P. SAYING THAT IT WILL NOT AN CANNOT
ACCOMMODATE ANY ALLEGED DISABILITY IN REGARDS TO A DOG THAT WAYS IN EXCESS OF 30 POUNDS
AN THEN AGAIN A FEW DAYS LATER, A DOG WAYING MORE THAN 30 POUNDS THAT IS UNDER YOUR CONTROL
OR CONNECTED WITH YOU EVEN ENTERS YOUR, THE XHUNGS WILL SEEK A COURT ORDER BARRING ANY
DOG WEIGHING MORE THAN 30 POUNDS, THAT DOES NOT SEEM LIKE AN INTERACTIVE PROCESS.
DAVID J. BYRNE: WHEN WAS THE LETTER YOUR HONOR WAYNE WAEN IT WAS AN AUGUST 13TH LETTER
BY COUNSEL FOR THE ASSOCIATION TO K.P. AND IT WAS ALSO AN AUGUST 7TH E-MAIL FROM THE
ASSOCIATION TO K.P. NEITHER ONE OF THOSE SEEM LIKE AN INTERACTIVE PROCESS OF SAYING OH,
I'M NOT SURE THAT WE HAVE ENOUGH INFORMATION, I THINK WE NEED MORE INFORMATION ABOUT THIS
OR OH, I'M NOT SURE IF WE CAN ACCOMMODATE A 70 POUND DOG, WHAT ABOUT A 65 POUND DOG.
INSTEAD THAT SAYS IF A DOG WAY WEIGHING MORE THAN 30 POUNDS UNDER YOUR
CONTROL OR CONNECTED WITH YOU EVEN ENTERS THE ASSOCIATION THE ASSOCIATION WILL IMMEDIATELY
COMMENCE AN ACTION AT LAW. HOW COULD THAT POSSIBLY BE AN INTERACTIVE PROCESS.
DAVID J. BYRNE: BECAUSE K.P. LIED TO THE ASSOCIATION IN THE BEGINNING. BEFORE THAT
ALL TOOK PLACE. K.P. TOLD THE ASSOCIATION THAT MY GIRLFRIEND IS MOVING IN
WITH ME, EVEN THOUGH A MONTH EARLIER SHE AN K.P. HAD SIGNED A FORM CONFIRMING THAT SHE WAS
A PERMANENT RESIDENT ALREADY OF THE UNIT. SO WHEN SOMEONE COMES TO YOU AN
WANTS TO BEGIN THIS PROCESS AN THEY LIE TO YOU AT THE BEGINNING, WHAT ARE YOU SUPPOSED
TO DO. THE COURT: WHEN DID YOU OFFER A D R? DAVID J. BYRNE:
ADD R WAS OFFERED ON -- I THINK IT WAS OFFERED IN TASH DASH IT MAY BE IN ONE OF THE LETTERS
THAT YOUR HONOR READ. IT WAS EARLY ON. I THINK THE AUGUST 13TH LETTER, PERHAPS, FROM
ME? IT WAS ONE OF THE LETTERS I WROTE, I BELIEVE. I COULD FIND THAT AND
LOOK -- AN USE HAD THAT IN MY REBUTTAL TIME. ONE OF THE VERY EARLY COMMUNICATIONS
AND THE TRIAL JUDGE FOUND THIS, ON AUGUST 8TH, 2018, THEY LIED TO THE ASSOCIATION AN TOLD
THE ASSOCIATION THAT SHE WAS MOVING IN, EVEN THOUGH SHE HAD JUST TOLD US SEVERAL WEEKS
EARLIER THAT SHE WAS A PERMANENT RESIDENT. THE COURT: CAN I ASK A QUESTION
ABOUT ONE OF THE STATEMENTS THAT HELD UP AND THAT RELATES TO THE FIREARM APPLICATION.
WHAT RELEVANCE DOES THAT HAVE HERE AS. LET'S ASSUME YOU WERE
CORRECT, IF THE APPLICATION WAS ANSWERED FALSELY, DOES THAT UNDERMINE THE EXPERT CONCLUSIONS
ABOUT HER MEDICAL AN HEALTH CONDITION. BERN BIRN WHAT I AM SAYING IS I AM NOT WILLING
TO CONCEDE THAT THE MEDICAL HEALTH PROFESSIONALS CONCLUDED ANYTHING OTHER THAN THEY WERE
ABLE TO LISTEN TO WHAT B.F. TOLD THEM. THE COURT: YOU'RE OWN DOCTOR, DR.
SIEGERT SAID SHE HAD. DAVID J. BYRNE: YOU'RE TALKING ABOUT CONDITIONS.
CHIEF JUSTICE RABNER: IS HER FAILURE ASSUMING THAT WAS NOT PLACED ON THE
FIREARMS APPLICATION DOES THAT UNDERMINE WHAT THE EXPERT TESTIFIED INCLUDING YOURSELF.
DAVID J. BYRNE: NO, NOT IN RELATION TO WHETHER SHE IS LEGALLY DISABLED.
HER VERACITY AN HER FILING OF THE FIREARMS APPLICATION THAT IS FALSE IS RELEVANT TO THE
FACT THAT SHE WANTS THE COURT TO THEN BELIEVE -- SHE WANTS TO COME IN AND SAY BEFORE I
FWOT THIS DOG I CAN'T STAY OVERNIGHT AT THIS APARTMENT BUT NOW I HAVE IT, I CAN, BUT AT
THE SAME TIME, WHEN I WANT TO BUY A FIREARM I AM WILLING TO LIE ABOUT SOMETHING.
THE COURT: DID THE JUDGE ACCEPT THAT ARGUMENT? BIRN BERN WE BELIEVE THE JUDGE DID, WHICH IS
WHY WE WON TSH DASH THE JUDGE DID IN HAD MANY PARTS OF THE OPINION MAKE CONCLUSIONS ABOUT
HONESTY AND DURING THE ACTUAL TESTIMONY, I DON'T KNOW HOW DEEPLY THE COURT GOT INTO THE
ACTUAL TESTIMONY BUT THE COURT SAID MANY TIMES DURING THE COURSE OF THE ACTUAL TESTIMONY
THAT B.F. HAD NOT TASH DASH HAD NOT BEEN TRUTHFUL. THE JUDGE SAID ON THE FIRST PAGE
-- SDMRFRMG THE REASON I RAISED IT TO BEGIN WITH I THINK YOU WOULD ARGUING TO THE EXTENT
THESE FIREARMS LICENSE SHOULD HAVE BEEN, YOU'RE MAKING A. DAVID J. BYRNE:
I AM. THE COURT: DON'T BELIEVE HER BECAUSE SHE LIED HERE BERN BERN IN A
CASE WHERE THE SUBJECTIVE BELIEF OF B.F. IS THE END ALL AN BE ALL OF THIS CASE, HER
WILLINGNESS TO LIE ON A FIREARMS PURCHASE APPLICATION, OKAY, DOES SHOW CREDIBILITY AS
TO WHAT A PERSON IS PREPARED TO DO IN ORDER TO GET WHAT THEY WANT. ANYONE WHO OWNS A DOG,
WHO IS NOT CRUEL TO THE ANIMAL WILL PROBLEM PLEA TELL YOU THAT THERE ARE LIES THEY ARE
PREPARED TO TELL IN ORDER TO KEEP THEIR DOG SO THIS COURT HAS TO MAKE A STANDARD. THIS
STANDARD HAS TO BE AT LEAST BE EVERYBODY HAS FWOT TO COME INTO THIS IN GOOD FAITH, RIGHT?
JUSTICE WAINER APTER: DID THE TRIAL COURT FIND THAT B.F. HAD ACTED IN B.F.
HAD BEEN AN IN CORE RIDGE JIBL LIAR, WHY WOULD THE TRIAL COURT HAVE SAID THE COURT DOES
BELIEVE THAT B.F. THIS DOG HAS REMOOEFD CERTAIN PORTIONS AND ALSO MADE AN EQUITABLE RULING,
THE TRIAL COURT CALLED IT AN EQUITABLE RULING THAT B.F. COULD KEEP THE DOG, SO IF THE
TRIAL COURT FOUND THAT B.F. HAD COME WITH UNCLEAN HANDS, HAD ACTED IN BAD FAITH, WAS NOTHING
BUT A LIAR, WHY WOULD THE TRIAL COURT HAVE FOUND, EVEN THOUGH THE TRIAL COURT WAS WRONG
ON THE LAW IN THE L A D AN FOUND IT WAS RELEVANT FOR L A D FOUND FOR EQUITABLE PURPOSES
IT WAS NECESSARY, WHY WOULD THE TRIAL COURT GO OUT OF THEIR WAY TO HELP B.F. WITH AN
EQUITABLE RULING. DAVID J. BYRNE: THAT'S WHY JUDGE GOOUM DISSENTED IN THE
APPELLATE DIVISION BECAUSE IT WAS NOT LOGICAL FOR THE COURT TO MAKE A RULING THAT B.F.
HAD NOT PROVEN THAT THIS ANIMAL WAS NECESSARY UNDER THE LAW AND ON THE OTHER HAND BY THE
STAY. JUSTICE WAINER APTER: WHETHER OR NOT YOU THINK THAT THE TRIAL
COURT, I'M SORRY HAS THE EQUITABLE AUTHORITY TO IMPOSE THAT WHICH I THINK IS WHAT THE
APPELLATE DIVISION JUDGE WAS DISAGREEING ON,ING YOU AGREE THAT IN ORDER FOR THE TRIAL COURT
TO SAY THAT IT WAS MAKING THIS EQUITABLE RULING, IT COULD NOT HAVE THOUGHT THAT B.F. WAS
ONLY ACTING IN BAD FAITH WAS ONLY AN IN CORE RIDGE JIBL LIAR, ETC. DAVID J.
BYRNE: IF YOU WANT AN EQUITABLE DECISION TO WITHSTAND SCRUTINY, YEAH YOU WOULD HAVE TO
SAY THAT, BUT IF YOU SIMPLY WANTED THE DOG TO STAY BECAUSE NO ONE WANTS TO ASK SOMEONE
TO TAKE A DOG OUT OF THEIR HOME, THEN NO. MY POSITION IS THAT IF YOU CONSIDER
ALL THE EVIDENCE IN THE CASE, THIS JUDGE WAS CONVINCED, OKAY, THAT B.F. AND K.P. WERE
NOT HONEST FROM THE VERY BEGINNING AN THROUGHOUT THE TRIAL. I MEAN THEY LIED AT THE TRIAL.
JUSTICE MICHAEL NORIEGA: WHAT DO WE DO WITH THE COURT'S FIENDING THAT THE
TRIAL COURT DID BELIEVE THAT THERE WAS SOME RELIEF OF THE EFFECTS OF THE DISABILITY?
BERN BIRN YOUR HONOR HAVE TO TAKE THE POSITION THAT THE STANDARD SHOULD BE PROVING NECESSARY
AND THAT THE NECESSARY HAS TO INVOLVE SOMETHING OTHER THAN THE SUBJECTIVE I FEEL LIKE
I AM ARGUING THE CASE BEFORE, THE SUBJECTIVE BELIEF THAT THEY ARE BETTER. THE STANDARD
CANNOT BE I JUST HAVE TO TELL YOU THAT I FEEL BETTER BECAUSE I HAVE A DOG.
JUSTICE WAINER APTER: BUT WHAT IF THEY GIVE CONCRETE EXAMPLES LIKE I USED TO STAY IN THE
CLOSET FOR THREE HOURS AN NOW WITH THE DOG LICKING MY FACE I AM ABLE TO COME OUT OF THE
CLOSET IN TEN MEANT BERN BERN IF WE DO THAT AFTER WE ARE ABLE TO PROOU THAT THEY COMMITTED
PERJURY AND LIED AND OTHER THINGS, THEN NO. THE COURT: PERJURY IS A PRETTY
STRONG WORD, HAS THERE BEEN A FINDING MUCH A CRIMINAL PERJURY. DAVID J.
BYRNE: I AM USING HYPERBOLE, PROGRAMS I SHOULDN'T. THE JUDGE IN THE TRIAL ITSELF
MADE FINDINGS DURING THE COURSE OF THE -- SHE WOULD INTERRUPT WITNESSES AND SAY, I DON'T
-- THING LIKE I DON'T KNOW WHY YOU WON'T ANSWER THAT QUESTION OR OBVIOUSLY THAT'S NOT
TRUE SO THAT'S WHY I AM SAYING THOSE KINDS OF THINGS SO PERHAPS THE HYPERBOLE IS TOO
MUCH, BUT HOPEFULLY I HAVE MADE MY POINT. JUSTICE FASCIALE: I UNDERSTAND
YOUR POINT THAT SHE NEEDED AN EXPERT TO RENDER EXPERT OPINIONS ABOUT THE NEED FOR THE
DOG TO PROVE THAT THE ACCOMMODATION, QUOTE, MAY BE NECESSARY. WHAT DOES THAT
EXPERT NEED TO DO, RECOMMEND THE EMOTIONAL SUPPORT DOG, PRESCRIBE THE EMOTIONAL SUPPORT
DOG? WHAT SORT OF TESTIMONY WOULD YOU ANTICIPATE WOULD BE SUFFICIENT IN
THIS CASE? DAVID J. BYRNE: THAT IN A LOT OF WAYS FWOES TO WHAT YOUR HONOR
SAID EARLIER ABOUT THE BURDEN AND WHERE THAT SHOULD BE AN THAT'S A LEGITIMATE CONCERN
BECAUSE REGULAR FOLKS JUST DON'T GO OUT AN HIRE EXPERTS TO GET ACCOMMODATIONS. I MEAN,
I DON'T THINK THEY DO. AT LEAST THEY SHUPT HAVE TO, CERTAINLY, UN THE PURPOSES OF LD
LD THEY SHOULDN'T HAVE TO SO WHAT WOULD IT BE? IT WOULD BE A DOCTOR 'S NOTE
THAT HAS SOME KIND OF CONNECTION TO THE PERSON BUT IT WOULDN'T BE THIS, YOUR HONOR, OCTOBER
6TH, THE FIRST THING THAT THEY SENT TO THE CONDOMINIUM THE FIRST OFFICIAL, MEDICAL TYPE
THING, DUE TO MY CONCERN, I AM WRITING THIS LETTER FOR I AM GOING TO LEAVE HER NAME OUT
WHO HAS BEEN TREATING SINCE FEBRUARY 2018, BLANK SUFFERS FROM A MOOD AND ANXIETY DISORDER.
I FEEL WOULD BENEFIT BRIT KNEE -- U, I SAID HER NAME, I FEEL IT WOULD BENEFIT B.F. TO HAVE
AN EMOTIONAL SUPPORT ANIMAL. OKAY. IT WOULD BENEFIT; THAT'S NOT SHE NEEDS IT TO STAY
IN THE HOME OR NOT STICK IN THE CLOSET OR IT DOESN'T SAY SHE NEEDS IT TO HAVE EQUAL USE
AN ENJOYMENT OF THE DWELLING, RIGHT, IT US DOESN'T SAY THE 70 PLUS POUND DOG, IT SAYS
ANIMAL. THE NUANCE HERE THAT WE HAVEN'T TALKED ABOUT IS THAT THE CONDOMINIUM DOES ALLOW
DOGS, THEY JUST DON'T ALLOW DOGS THAT WEIGH MORE THAN 30 POUNDS SO WHEN K.P. COMES COMES
TO THEM EARLY ON AN MISREPRESENTS THE FACT THAT THE GIRLFRIEND IS MOVING IN TO THE APARTMENT,
WHEN THE CONDOMINIUM ALREADY KNOWS THAT SHE IS A PERMANENT RESIDENT, IT SETSDZ UP THE
DYNAMIC FOR THE FACT THAT HE SAYS WE ARE GOING TO ADOPT A DOG. ME AN MY GIRLFRIEND ARE
CONSIDERING, CONSIDERING, THIS IS AUGUST 2ND, WE ARE CONSIDERING ADOPTING AN EMOTIONAL
SUPPORT DOG SO THE KOND SAYS WAIT A MINUTE, YOU DON'T HAVE IT YET SO YOU DON'T NEED AN
EMOTIONAL SUPPORT DOG. WE DON'T NEED TO KNOW YOUR MEDICAL HISTORY, WE DON'T NEED TO KNOW
YOUR PRIVATE MATTERS OR ANY OF YOUR BUSINESS, YOU'RE ENTITLED TO PRIVACY JUST GET A DOG
THAT WEIGHS LESS THAN 30 POUNDS, THEY DIDN'T HAVE THE TAG ALREADY. JUSTICE WAINER
APTER: ARE YOU SAYING THE LAWS AGAINST DISCRIMINATION DOES NOT APPLY IF THE PERSON
DOESN'T HAVE THE DOG AT THE TIME THEY MOVE INTO THE KAND DOE. BIRN BR BIRN NO, THAT'S
NOT WHAT I SAID. DAVID J. BYRNE: NO, THAT IS EE NOT WHAT I SAID.
JUSTICE WAINER APTER: WHY DOES THE HOUSING ASSOCIATION SAY YOU DON'T HAVE A DOG YET BIN
BIRN BECAUSE THEY TOENT NEED AN ACCOMMODATION IF THE DOG IS LESS THAN 30 POUNDS, I DON'T
NEED TO KNOW YOUR MEDICAL RECORDS IF YOU GET A DOG THAT IS 25 POUNDS, THEY COULD HAVE
COME BACK AND SAID WE HAVE TO GET A DOG THAT IS REALLY BIG, THAT WOULD BE DIFFERENT, BUT
SHE DIDN'T. SHE COMES BACK AND SHE SAYS THAT YOU NEED AN ANIMAL. JUSTICE MICHAEL
NORIEGA: YOU FWRAE THAT IF IT'S AN EMOTIONAL SUPPORT ANIMAL YOUR PROVISION OF LESS THAN
30 POUNDS DOESN'T APPLY. BERN BIRN IF THEY HAD AN ANIMAL AND IT WEIGHED MORE THAN 30
POUNDS ALREADY AND IT WAS FOR THERAPY, THEN, YES THEN IT WOULD BE IRRELEVANT.
JUSTICE MICHAEL NORIEGA: WASN'T THAT THEIR POSITION, THEY BELIEVED THIS RULE DIDN'T
APPLY TO THEM BECAUSE THIS WAS AN EMOTIONAL SUPPORT ANIMAL BERN BIRN EK CREPT SHE WENT
TO THE SHELTER AND ADOPTED THE DOG BECAUSE IT DIDN'T BARK AN BECAUSE IT REMINDED HER OF
A DOG THAT SHE HAD HAS A CHILD. THIS MAY BE A CASE THAT SLIDES UNDERNEATH A BUNCH OF
DIFFERENT BARS, VIS-A-VIS L A D AND HOUSING PROVIDERS AN A, EMOTIONAL PROVIDERS, AS I
SAID EARLIER IN THE CASE. THE WAY THE SET UP IS AN THE PUNISHMENT THAT WILL BE
LAID UPON A HOUSING PROVIDER IF IT'S WRONG, FOR THE MOST PART THESE ARE GRANTED. IN THIS
CASE, THOUGH, THE FACTS ARE DIFFERENT THAN PERHAPS WHAT THE COURT MAY WANT TO SET AS AN
OVERALL KIND OF VIEW AND SO WHEN K.P. SAYS WE ARE CONSIDERING ADOPTING A DOG, WHAT DO WE
HAVE TO DO TO GET AN EMOTIONAL SUPPORT DOG. DAVID J. BYRNE: THE RESPONSE
IS YOU DON'T HAVE TO DO ANYTHING, JUST COMBET THE DOG THAT DOESN'T WEIGH 30 POUNDS.
JUSTICE WAINER APTER: THE ATTORNEY GENERAL'S BRIEF QUOTED FROM THE H U D GUIDANCE WHICH
MAKES EXCEPTIONALLY CLEAR THAT THE ACCOMMODATION HAS TO BE PROVIDED REGARDLESS OF WHETHER
THE -- DAVID J. BYRNE: I AGREE WITH THAT. WHAT I AM SAYING IS THEY DIDN'T
HAVE THE DOG YET. IF THEY HAD THE ANIMAL WHO WAS 60 POUNDS THEN WE WOULDN'T BE HAVING
THIS DEBATE. JUSTICE MICHAEL NORIEGA: BUT THERE SAFE NEIGHBORHOOD A STORE
THAT YOU CAN JUST GO TO GET AN EMOTIONAL SUPPORT ANIMAL. IT'S SOMETHING THAT THE INDIVIDUAL
BONDS WITH IN A WAY IN ORDER TO FIGURE OUT IF IT'S SOMETHING THAT CAN HELP THEM AMELIORATE
THE SYMPTOMS. THERE IS NOT TRAINING. THERE IS NOT NECESSARILY SPECIFIC GUIDELINES FOR
EMOTIONAL SUPPORT ANIMALS AS THERE ARE FOR SEEING EYE DOGGINGS. THE FACT THAT SHE LIKED
THE DOG BECAUSE IT DIDN'T BARK OR REMINDED HER OF ANOTHER DOG, I DON'T KNOW HOW RELEVANT
THAT IS HAD WHEN IT IS UP TO THE INDIVIDUAL TO FIND SOME SORT OF CONNECTION TO WOULD HELP
AN MAKE THEM FEEL BETTER, BEN BERN IT'S RELEVANT IF YOU WANT A STANDARD THAT SAYS YOU
GET TO HAVE A DOG IF IT MAKES YOU FEEL BETTER. JUSTICE MICHAEL NORIEGA:
THE SECOND PIECE IS THAT IT DOESN'T EFFECT THE ENJOYMENT OF OTHERS AT THE CONDO ASSOCIATION.
DAVID J. BYRNE: WE THINK THAT'S THE REASONABLE ACCOMMODATION PIECE WHICH
COMES AFTER THE FACT AND WE HAVE NO EVIDENCE. WE DIDN'T THEN AN WE CERTAINLY -- EVEN
IF I HAD IT I COULDN'T PRESENT IT NOW, NO EVIDENCE TO SUGGEST THE DOG IS A NUISANCE OR
ANYTHING LIKE THAT. JUSTICE WAINER APTER: YOU'RE NOT ARGUING THAT THE DOG
WAS AN UNDUE BURDEN OR A FUNDAMENTAL ALTERATION IN THE OPERATIONS OR THINGS LIKE THAT.
DAVID J. BYRNE: THE OBJECTIVE EVIDENCE HERE WAS THAT THE DOG -- LET'S PUT
IT THIS WAY, MY CLEENT TESTIFIED, MY BOARD PRESIDENT AN HE TESTIFIED, AT MY OWN
INSTANCE, IT WAS CLEAR THAT THE DOG DIDN'T. THE REASONABLE ACCOMMODATION PIECE, THE DOG
WOULD SIMPLY HAVE TO COMPLY WITH THE OTHER RULES, ASSUMING THE RULES WERE NOT TASH DASH
THEY WOULD HAVE TO COMPLY WITH THE OTHER RULES ASSUMING THEY DON'T INTERFERE WITH THE
ACCOMMODATION, WHERE THEY FWOE TO THE BATHROOM, BARK AN THINGS LIKE THAT. L WE'RE NOT
ARGUING THAT THAT'S THE QUESTION. THE COURT: I'M LOOKING AT THE CLOCK, MR.
BYRNE. DAVID J. BYRNE: IF YOU SAY I'M DONE I'M DONE. THE COURT:
I WANT TO KNOW IF YOU HAVE ANY ADDITIONAL POENTS YOU WANT TO COVER, BERN BIRN NO, YOUR
HONOR, I DON'T KNOW WHAT ELSE TO SAY YOUR QUESTIONS MADE ME WALK THROUGH EVERYTHING I
WANTED TO COVER. THE COURT: I WILL HAVE YOU BACK FOR REBUTTAL,