Katherine C. Tower, JD, MBA, RPLU
Rinat B. Klier Erlich
There are about 9 million Americans with significant physical and sensory impairments, but there are only 10,000-12,000 assistance dogs, of which 7,000 are guide dogs. According to medical professionals, there are profound benefits that animals can provide for persons with physical or mental impairments. Prescription of comfort animals is a growing trend for the care and treatment of numerous medical conditions in the United States, specifically mental illnesses such as, post traumatic stress disorder, traumatic brain injury or emotional disorder, when other remedies have failed. Allowing a service animal and emotional support animal into a no pet building has thus become a hot topic and one, in which, the condominium and homeowner’s associations (“Associations”) can expose themselves to significant liability, as well as compensatory damages, injunctive relief and civil penalties if unfamiliar with the federal, state and city laws which prohibit housing discrimination on the basis of mental disability.
I. The Fair Housing Act
The Fair Housing Amendments Act of 1988 (“Act”“FHAct” FFHA” “FHA”) extended the protections of Title VIII of the Civil Rights Act of 1968. The FHA prohibits discrimination
“against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap . . . .” 42 U.S.C. §3604(f)(2). Such discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Id. § 3604(f)(3)(B).
To prove that a housing provider or Association failed to reasonably accommodate a disability, a plaintiff must prove that: (1) he/she suffers from a disability within the meaning of FHA; (2) the defendant knew or reasonably should have known of the disability; (3) the requested accommodation may be necessary to afford “an equal opportunity to use and enjoy the dwelling;” (4) the accommodation is reasonable; and (5) the defendant refused to make the accommodation. Dubois v. Ass’n. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005); U.S. v. California Mobile Home Park Management Co., 107 F.3d 1374, 1380 (9th Cir. 1997).
The Act applies to most forms of housing, including most rental housing and most condominiums. There are however, a few exceptions. Dwelling is defined in the Act as any
building, structure, or part thereof which is intended for occupancy as a residence by one or more families. The terms “dwelling” and “dwelling units” have been broadly interpreted. They include: nursing homes, group homes for recovering addicts and alcoholics, seasonal facilities (i.e. for migrant workers), residential facilities, mobile homes and trailer parks. Exceptions to this law include, buildings with four or fewer units where the landlord lives in one of the units, and private owners who do not own more than three single family houses, do not use real estate brokers or agents, and do not use discriminatory advertisements. Hotels and Motels are not considered dwellings under the FHA but are considered places of public accommodation under the Americans with Disabilities Act. Also, private clubs are not included under the Act.
Under the FHA a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of an impairment, or is regarded as having an impairment (regardless of whether that perception is accurate). It is not necessary that the disability be an obvious one. Disability is defined broadly and has been found to include such conditions as, alcoholism and drug addiction but excludes individuals with current, illegal use of or addiction to a controlled substance. Other specific exemptions, such as transvestitism, are listed in the Act.
A. Accommodation Must be ‘Reasonable’ and ‘Necessary’
With respect to reasonable accommodation, courts have found that allowing a disabled tenant to own a pet is, in general, a reasonable accommodation. Only accommodations that are “reasonable” are required. “[S]ome accommodations may not be reasonable under the circumstances[.]” “The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.” [Also], the FFHA requires the accommodation to be “necessary.” “[T]he concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).
The necessity element “requires the demonstration of a direct linkage between the proposed accommodation and the ‘equal opportunity’ to be provided to the handicapped person. This requirement has attributes of a causation requirement.” Bryant Woods Inn v. Howard County, Maryland, 124 F.3d 597, 604 (4th Cir. 1997). Further, the equal opportunity requirement means that the FFHA “does not require accommodations that increase a benefit to a handicapped person above that provided to a non handicapped person with respect to matters unrelated to the handicap.” Id. Finally, “[t]he plaintiff bears the burden of proving each of these . . . elements by a preponderance of the evidence.” Id., 124 F.3d at 604.
In Majors v. Housing Authority of the County of Dekalb, 652 F.2d 454 (5th Cir. 1981) the tenant had a history of mental illness and kept a dog in her apartment despite a “no pets” policy. The housing authority refused to waive the “no pets” policy and brought an eviction proceeding. The tenant filed a complaint in federal district court alleging violation of Section 504 of the Rehabilitation Act for failure to waive the “no pets” policy as a reasonable accommodation for her disability. The district court granted the housing authority’s motion for summary judgment and the tenant appealed. The Court of Appeals held that the housing authority deprived the tenant of the benefits of the housing program by enforcing the no pets rule, reasoning that waiving the no pets rule would allow the tenant to fully enjoy the benefits of the program and would place no undue burdens on the housing authority.
In Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009) the Court dealt with whether a reasonable jury could find that landlord “refused” to make the accommodation requested. In analyzing the issue, the Court considered (1) the extent to which landlord delayed and obstructed the process of negotiation over the requested accommodation by filing the lawsuit; (2) the state of the law at the time the suit was filed regarding whether a companion animal needed special training to qualify as an accommodation; and (3) the fact that the claimants were not evicted, nor was Scooby [the pet] removed from their home. A housing provider is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation. Also, at the time, “the law was quite frankly favorable to Overlook,” and that Overlook “was well within [its] rights. . . to get a court ruling on whether a dog that is the subject of a reasonable accommodation can be any companion animal.” In concluding that the law “favored” Overlook, the district court cited Prindable v. Ass’n. of Apartment Owners of 2987 Kalakaua, which held that “evidence of individual training” is required to show that a “service animal” is a reasonable accommodation under the FHA. 304 F. Supp. 2d 1245, 1256-57 (D. Haw. 2003) [training means, trained for a specific service].
B. Proof of Disability
With respect to disability, some disability has to be proven. In the unpublished case of Housing Authority of the City of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (D. Conn. 1997) a mother renting housing alleged that her son was “mentally challenged” and required the companionship of a dog pursuant to Section 504 of the Rehabilitation Act. The Court rejected the tenant’s allegations that her son had a qualifying mental disability, reasoning that the son received high marks in school prior to the commencing of the eviction proceedings. The Court held that without evidence of a mental or physical disability, no reasonable accommodation was required. Also, the fact that the disabled person must be the one caring for the animal may not be an excuse.
Under the Act, disability does not have to be physical and can be mental. In Crossroads Apartments v. LeBoo, 152 Misc. 2d 830 (D. N.Y. 1991) the landlord brought an eviction proceeding against tenant with a history of mental illness for possession of a cat in his rental unit in violation of a no pets policy. Tenant alleged that he needed the cat to alleviate his “intense feelings of loneliness, anxiety, and depression, which are daily manifestations of his mental illness.” The Court held that in order to prove that the pet is necessary for the tenant to use and enjoy the dwelling, he must prove “that he has an emotional and psychological dependence on the cat which requires him to keep the cat in the apartment.” The Court denied the housing authority’s motion for summary judgment, stating that there was a triable issue of fact as to whether the cat was necessary for the tenant to use and enjoy the dwelling.
C. Types of Pets
With respect to the pets, it does not matter what the animals are called (service animals, companion animals, therapy animals, working animals) as long as the animal exists to serve the individual’s disability. That means no pet fees, pet deposits, or pet rent. This also means that housing providers (landlords, homeowners associations, home insurers) may not restrict such animals by breed or species in housing. The request must however be “reasonable” and the resident is responsible for their animal. That means that a service bird that shrieks at two in the morning, a companion cat that attacks other residents, or the seeing-eye dog that soils the carpet may not be reasonable. In general however, the request for a disability-related animal despite a no-pets policy is considered a common reasonable accommodation requests. The FHAct does not define “service animal” per se, and does not make a distinction among certified service animals, non-certified animals, animals that provide psychological support, and service animals in training that live with the people with disabilities for whom they will work. The Act does not have restrictions about who may train the animal. Housing providers cannot, for example, impose upon service animals the size or weight restrictions, or access restrictions to only a
particular door or elevator. The Act also does not specifically limit the number of service animals an individual with a disability may have. Requests for multiple service animals may be reviewed on a case-by-case basis.
There is however, a difference between service animals and social animals. Social animals are those used to address animal-assisted therapy goals, and are trained to be used in a wide variety of settings, including hospitals, nursing facilities, chools, and other institutions. Service animals perform services like, travel to a legally blind, alerts to a person with hearing loss or provide other services like, carrying, fetching, opening doors, ringing doorbells, activating elevator buttons, teadying a person while walking, helping a person up after a fall, assists a person with a seizure disorder. Emotional support animals can help alleviate ‘social’ symptoms such as anxiety, depression, stress and difficulties regarding social interactions, allowing tenants to live independently and fully use their living environment. At some point however, the distinction can become difficult, since a pet that provides social interaction may become a ‘service’ pet alleviating a mental disability.
There needs to be a relationship between the animal’s service and the disability. In Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), plaintiffs appealed decision of district court denying their claim that defendants violated the Federal Fair Housing Act for failing to allow a hearing dog in their rental unit as a reasonable accommodation for their hearing disability. The landlord denied the request, alleging that the dog was not a “hearing dog,” and that the tenants did not have a legitimate need for the dog because the dog lacked professional training. The Court of Appeals held that if the dog was not necessary as a hearing dog then the plaintiffs were not entitled to the dog as a reasonable accommodation under the FHA. Also, the court held that a disabled person must meet two standards in arguing that an accommodation be made: (1) the accommodation must facilitate the disabled person’s ability to function; and (2) the accommodation must survive a cost-benefit balancing that takes both parties’ needs into account. The Court however, vacated the decision of the lower court and ordered a new trial because of misleading jury instructions.
In Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D. Ore. 1998), the United States District Court for the District of Oregon granted summary judgment on behalf of a deaf plaintiff in his FFHA claim against his landlord for refusing to allow him to have a service dog. The dispute was whether plaintiff’s hearing assistance dog was, in fact, a hearing assistance dog or simply a household pet. The landlord argued that the dog was not an appropriate accommodation for the plaintiff’s disability because the plaintiff was unable to produce any “verification” that the dog was a “certified” hearing assistance trained animal. Green, 994 F.Supp. at 1255.
In Janush v. Charities Housing Development Corp., 169 F.Supp.2d 1133 (N.D.Cal. 2000), the plaintiff, who suffered from a severe mental health disability, was denied permission to have two birds and two cats. She brought suit under the FFHA and alleged that the animals lessened the effects of her disability by providing her with companionship and were necessary to her mental health. The court denied the defendant’s motions to dismiss and for summary judgment.
In Prindable v. Association of Apartment Owners of 2987 Kalakaua (D. Haw. 2003) a condominium resident filed a complaint alleging the housing authority violated the Federal Fair Housing Amendments Act by failing to waive the “no pets” as a reasonable accommodation for his handicap. The court held that where the primary handicap is mental or emotional in nature, an animal “must be peculiarly suited to ameliorate the unique problems of the mentally disabled,” and granted the housing authority’s motion for summary judgment on the issue of the housing authority’s failure to make a reasonable accommodation under the FHA.
In Assenberg v. Anacortes Housing Authority (W.D. Wash. 2006) plaintiffs owned snakes which they claimed assisted in their disability. The Court ruled against the plaintiffs. The Court found that despite plaintiffs’ assertion, the housing authority never required that the snakes be “professionally trained, and certified.” Rather, it requested information about the type of snakes and whether they were poisonous or otherwise posed a threat to the health and safety of others. Because a housing authority may deny a requested accommodation as unreasonable, the request for additional information to assess the potential safety risks was reasonable. Further, the housing authority allowed plaintiffs to keep the snakes if he provided additional information about them and kept them caged when around others. Plaintiffs have not shown that those requirements were unreasonable or that they conflicted with his medical needs. To the extent that plaintiffs claimed a right to maintain or carry the snakes throughout the premises without limitation, he has not shown that such an accommodation was necessary. Moreover, the housing authority allowed plaintiffs to keep the snakes until it learned that plaintiffs were using and possessing marijuana on the premises. The housing authority had no duty to accommodate an admitted illegal drug user. 42 U.S.C. § 3602(h) (definition of “handicap” under the FHA does not include current, illegal use of a controlled substance); 42 U.S.C. § 12210(a) (the term “‘individual with a disability” does not include an individual who is currently engaging in illegal use of drugs, when the covered entity acts on the basis of such use”); 29 U.S.C. § 705(20)(C)(I).
Finally, as partially discussed in the cases above, the dispute often involves a specific State statute that is based on the federal law. There are however, other applicable federal rules such as, HUD’s “Pets in Elderly Housing” regulation, often referred to as the “Pet Rule,” was enacted in 1986, revised in 1996 and again in 1999. This applies to federally assisted rental housing designated exclusively for residency by those 62 years of age or older or people with disabilities. It not only protects the rights of individuals with disabilities to have service animals, but also allows all residents of most federally funded housing to have pets (companion or nonservice animals). In analyzing the requirements for disability and accommodation, the litigants will have to review and analyze all the elements under the various rules applicable to the jurisdiction.
II. Americans with Disabilities
While the FHA deals specifically with housing, it has been compared to the Americans with Disabilities Act in addressing disability as a protected class and need for reasonable accommodations. Title II of the Americans with Disabilities Act of 1990 (“ADA”) applies to housing owned by state or local government, or its instrumentalities, regardless of federal financial assistance. This would include local housing agencies, such as a public housing authority and it also includes specialized housing such as temporary shelters. Protection under Title II requires that: (1) the tenant have a disability; (2) tenant was excluded from and denied participation in services, programs, and activities; (3) exclusion was because of disability; and (4) reasonable accommodation would not constitute an undue burden or fundamental alteration.
Under the ADA, emotional support animals are not generally considered a reasonable accommodation as they do not have specific training. See, 28 CFR 36.104 [Under the Americans with Disabilities Act, “Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability,
including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.”]
Under the ADA, service animals are allowed in all places of public accommodations. A service animal is defined as a dog that is specifically trained to perform tasks for an individual with a disability. (Of note, some state and local laws more broadly define a disability and service animals). As mentioned, comfort animals or emotional support animals do not qualify as “service animals” under the ADA. An emotional support animal provides a therapeutic benefit, such as love, safety and companionship to an individual with a mental disability. The mere presence of an animal may ease depression, anxiety and other fears. However, to meet the ADA’s criteria, the animal must be a psychiatric service animal, trained to perform specific tasks directly related to the psychiatric disability.