Defendants lose fight to dismiss Aspen service dog suit
April 1, 2017
The defendants in a lawsuit that accuses them of violating federal laws regarding service animals and housing have lost their bid to have the complaint dismissed.
Senior Judge Wiley Y. Daniel's order issued Wednesday determined allegations against Jack Smith and Heather Vicenzi, who were members of the Aspen View Condominium Association when it fined a condo-owner for allowing a service dog on the premises that prohibits canines, are sufficient enough to proceed. Daniel made a similar ruling regarding property management firm First Choice Properties & Management LLC, whose parent company also sought to have the suit dismissed.
Daniel's order comes after months of dueling motions by both sides in the lawsuit dating back to May 18, 2015, when Alvaro J. Arnal filed the complaint against the condo association, three of its board members and First Choice Properties & Management in the U.S. District Court of Denver.
The suit by Arnal, the joint owner of a unit at Aspen View Condominiums on Midland Avenue, accuses the defendants of not making accommodations for a tenant of his who was seizure-prone and had a service dog when she signed the lease in November 2013.
After the suit was filed, board president Cliff Mohwinkel, who was a defendant, died in August 2015, leaving Smith and Vicenzi as the remaining HOA defendants.
The two sought to have the complaint dismissed because, their attorneys argued in a motion, "they acted strictly in their capacities as members of the board of managers" for Aspen View and could not be held individually liable.
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Daniel, however, opted not to dismiss the suit, citing case law in his order and ruling that the evidence is "plausible" enough to show that Smith and Vicenzi's involvement in the dispute meets the legal standards for them to remain defendants.
Arnal's suit claims the association fined him $50 a day starting Jan. 31, 2014, for allowing his tenant to have a service dog in the unit.
Also, on June 5, 2014, the board hit Arnal with a $1,450 fine and a $4,234 bill for its attorneys fees that accumulated during the dog dispute. On July 9, the board placed a $5,684 lien on Arnal's unit, says the suit, which was filed by Denver-based Law & Mediation Office of Phyllis A. Roestenberg.
Under the Fair Housing Act, both service and therapy animals are permitted to live in properties that ban pets, provided their owners provide documentation about their disability and their need for an assistance animal.
Arnal's suit alleges that the association and the complex's property-management firm made it difficult for Arnal to lease the unit to tenant Natasha MacArthur by demanding extensive documentation about her ailment and the dog.
First Choice Property & Management, meanwhile, was acquired by Aspen Snowmass LLC after the litigation ensued. Aspen Snowmass asked that it be dismissed as defendants because it was not involved in the dispute at the time it occurred. Daniel, however, determined that Aspen Snowmass can be held "vicariously liable" and the allegations are "sufficient" enough to not dismiss the suit.
MacArthur, who moved out of the unit in March 2014 after living there less than five months, also sued Aspen View Condominium Association and First Choice Properties & Management in Denver federal court in July 2015.
MacArthur's suit accused the plaintiffs of employing delay tactics and launching a campaign of harassment against her in 2013 and 2014 because she had a service dog and was subleasing a unit at Aspen View Condominiums.
MacArthur's history of seizures dates back to 2000, resulting in blackouts, memory loss, disorientation and hospitalization, her suit said. Her service dog, a golden retriever named Stevie Nicks, could not prevent her epileptic seizures but it could detect them in advance, her suit said.
That suit settled in November on confidential terms.
In both suits, the defendants maintained they operated in a fair manner, the plaintiffs were uncooperative, and MacArthur "had no apparent disability" and was able to regularly snowboard and hold down two jobs.