GPSOLO July/August 2009
Service and Support Animals in Housing Law
Determining the rights of a tenant or the purchaser of a condominium in the face of a no–pets policy requires a determination of what law applies to the specific situation. There are four federal regulatory regimes (two of them now virtually identical), as well as separate state statutory systems, some of which are specific to housing and real estate and some of which are mixed in with more general public accommodation access rules. There has been a general trend, most noticeably in the regulatory releases of the U.S. Department of Housing and Urban Development (HUD), to acknowledge that tenants should often be accommodated in their requests to be accompanied by animals that are not specifically trained as guide dogs or other service animals, and that these requests come from legitimate needs for emotional support. Even here, however, there is an acknowledgement that the health and comfort of the tenant must be balanced against the inconvenience to other residents and the costs to the housing facility.
There is also an increasing acknowledgment that, even where the standard for admission of an animal is its qualification as a service animal, such animals may not always have to be trained, at least beyond a basic obedience level. There is, for instance, increasing evidence that seizure–alert dogs are often not trained to react to oncoming seizures. This may also be true of hypoglycemia–alert dogs (a new category), or severe migraine–alert dogs (a skill documented several times). Many states specify that service animals must be trained, yet states such as Illinois and New Jersey also include seizure–alerting as a type of service that qualifies a dog as a service animal. Both federal and state legislatures and the courts must recognize that the number of tasks that dogs can perform is increasing, and the level and type of training needed to make dogs useful to disabled individuals vary considerably depending on the service provided. The boundary between pets and service animals is no longer as simple as it seemed when service dogs could be categorized as those that helped the blind, deaf, or mobility impaired.
Courts that have faced inconsistencies between federal and state law regarding the rights of the handicapped with respect to service and emotional support animals have favored the federal laws. (See, e.g., Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253, D. Oregon 1998, which found a state law that signal dogs must use orange leashes could not preempt federal law on what qualifies as a service animal.) State laws cannot be ignored, however. A number of states, for instance, put trainers of service animals on a par with the individuals who will ultimately use the animals once they have been trained. Thus, many states have statutes that provide a trainer of guide dogs can take such a dog into a restaurant. Some states give such blanket equality in this respect that a trainer would have a right to housing at the same level as the ultimate user of the animal. The authors have found no decision directly in point, but we suspect that this is because most trainers work with a number of dogs, not all of which are being trained as service animals, and would not particularly want to live in a building that was not friendly to animals.
Three sets of regulations have been issued regarding housing and pets or assistance animals by HUD, covering respectively (1) a handicapped person in almost any dwelling unit, (2) persons in projects for the elderly or persons with disabilities under federally administered and subsidized housing programs, and (3) persons with disabilities in public housing. Both the second and third sets of regulations implement legislation designed to recognize the importance of animals in the lives of the elderly, disabled, and individuals living in subsidized housing. Finally, regulations issued by the U.S. Department of Justice apply to places of public accommodation, which include inns, hotels, and other places of lodging, including single–room–occupancy hotels where renters may rent for a short term.
General HUD anti–discrimination rule. The first of the three HUD regulations implements the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601 et seq. Under the act, discrimination in the sale or rental of a dwelling to a buyer or renter because of a handicap is unlawful. Discrimination includes, under 42 U.S.C. 3604(f)(3)(B), “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.” An example in 24 CFR 100.204(b)(1) concerns a guide dog:
A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation of §100.204 for the owner or manager of the apartment complex to refuse to permit the applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling.
The principle is broader than just guide dogs and applies at least to all service dogs.
Rules regarding projects for the elderly and persons with disabilities. In October 2008, HUD amended regulations governing requirements for pet ownership in HUD–assisted public housing and multifamily housing projects for the elderly and persons with disabilities (72 Fed. Reg. 58448, October 27, 2008). Under 24 CFR 5.303, as amended, project owners and public housing agencies may not apply or enforce policies (such as no–pets policies) against animals “that are necessary as a reasonable accommodation to assist, support, or provide service to persons with disabilities.” The new rule applies to assistance animals that reside in projects for the elderly or persons with disabilities, as well as to animals that visit the projects. Animals that visit the projects to provide support could include therapy dogs and their handlers involved in visitation programs.
Prior to the amendments to 24 CFR Part 5, a tenant had to certify that he or a member of his family was a person with a disability, the animal had been trained to assist persons with that specific disability, and the animal actually assisted with that disability. HUD eliminated this requirement and now says, according to the preamble, that housing agencies are authorized to verify that the animal qualifies as a reasonable accommodation if:
(1) An individual has a disability, as defined in the Fair Housing Act or Section 504, (2) the animal is needed to assist with the disability, and (3) the individual who requests the reasonable accommodation demonstrates that there is a relationship between the disability and the assistance that the animal provides.
There must, therefore, be “an identifiable relationship, or nexus, between the requested accommodation and the person’s disability.” Further:
The Department’s position has been that animals necessary as a reasonable accommodation do not necessarily need to have specialized training. Some animals perform tasks that require training, and others provide assistance that does not require training.
Thus, the animal does not need to be a trained service animal, or even be a service animal, as long as the tenant needs the accommodation:
[P]ersons who are seeking a reasonable accommodation for an emotional support animal may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability.
This does not mean that any animal providing some benefit to a tenant must always be accepted. The mental health professional must connect the tenant’s possession of the animal with an alleviation of at least one symptom of the disability. This requires more than a mere statement that a dog or cat makes a tenant feel good. Alleviating depression (if depression is a symptom of the mental condition, or the condition itself) is a function of an emotional support animal and should satisfy the requirement.
An animal with a history of dangerous behavior need not be accepted:
[A] housing provider is not required to make a reasonable accommodation if the presence of the assistance animal would (1) result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by a reasonable accommodation; (2) pose an undue financial and administrative burden; or (3) fundamentally alter the nature of the provider’s operations.
A fundamental alteration would include an animal that is not kept in specified areas or defecates and urinates in public spaces other than those designated as dog walks. Just because a tenant has a need for an animal does not mean that he or she must not care for it.
Rules regarding public housing. A separate rule covers animals that assist, support, or provide service to persons with disabilities who live in public housing, other than housing developments for the elderly or persons with disabilities. This rule, in 24 CFR 960.705, reads in all substantive respects the same as that of 24 CFR 5.303, discussed above. Much of the analysis in the preamble to the 2008 revision of rules regarding housing for the elderly and disabled—the nexus requirement (between the disability and the requested accommodation), the fact that some assistance animals do not require training (e.g., seizure–alert dogs), and that emotional support is an acceptable assistance function—should apply to public housing situations and probably all rental accommodations.
Rules regarding public accommodations, including short–term lodging. In 28 CFR 36.104, the Department of Justice defines a service animal as a
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.
This is a narrower definition than that used in the HUD rules in that it requires that the animal be trained and “do work or perform tasks.” This excludes emotional support animals and may exclude seizure–alert dogs that have not been trained to perform other functions. However, many seizure–alert dogs are trained for other functions. One study found that 59 percent of dogs trained as seizure–response dogs (dogs trained to bring medication and help to the owner during a seizure) spontaneously developed seizure–alert capabilities once placed with families.
Service animals, under 28 CFR 36.302(c)(1), are to be admitted to places of public accommodation, which include an
inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor.
Appendix B to 28 CFR Part 36 (originally the preamble to the 1991 regulatory issuance) distinguishes places of lodging from a residence:
[I]n a large hotel that has a separate residential apartment wing, the residential wing would not be covered by the ADA [Americans with Disabilities Act, 28 CFR Part 36] because of the nature of the occupancy of that part of the facility. This residential wing would, however, be covered by the Fair Housing Act [for our purposes, 24 CFR 100.204]. The separate nonresidential accommodations in the rest of the hotel would be a place of lodging, and thus a public accommodation subject to the requirements of this final rule. If a hotel allows both residential and short–term stays, but does not allocate space for these different uses in separate, discrete units, both the ADA and the Fair Housing Act may apply to the facility.
Extensive revisions to 28 CFR Part 36 were proposed by the Department of Justice in 2008 (73 Fed. Reg. 34508, June 17, 2008), which, among other things, would alter the definition of “place of lodging” to include time–shares, condominium hotels, and mixed–use and corporate hotel facilities. The preamble to the proposal discusses places of lodging in detail, but as of this writing there are no indications when, or even if, the proposal will be finalized. (The proposal has encountered resistance from, among others, the fledgling guide horse industry, which provides miniature horses with guiding skills to the blind but which would not be considered service animals if the rules were finalized.)Despite the limited application of 28 CFR Part 36 in the context of rental housing, this part of the Code is sometimes relied on by courts analyzing more permanent housing situations. (See, e.g., Prindable v. Association of Apartment Owners of 2987 Kalakaua, 204 F. Supp. 2d 1245 (D. Hawaii 2003), which found no evidence that the dog was an individually trained service animal, so no accommodation
Emotional Support Animals in Housing
The Department of Justice in the 2008 proposal makes clear that animals “whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well–being are not service animals.” Curiously, however, the Department concedes that its position may not be appropriate in the housing context:
The Department recognizes, however, that there are situations . . . particularly in the context of residential settings and employment, where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability. Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals. (73 Fed. Reg. 34516)
The question, then, is how broadly should HUD’s pronouncements regarding emotional support animals in projects for the elderly and disabled apply to housing in general (other than short–term housing covered by Department of Justice rules). The authors believe that there should be such uniformity and that the better reasoned case law supports such an argument.
A case from the Northern District of California, Janush v. Charities Housing Development Corp. (169 F. Supp. 2d 1133 (ND Cal. 2000)), held that, where a tenant owned two birds and two cats, the landlord failed to establish that there was no duty to reasonably accommodate non–service animals. In Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981)), the Fifth Circuit dealt with a case where the tenant sought to avoid eviction for keeping a small poodle in her apartment in a federally subsidized project. Although the decision was largely based on the Rehabilitation Act of 1973, 24 U.S.C. 794, the court remanded to the trial court for consideration of whether a reasonable accommodation could be made, given that the tenant had a mental disability that required her to keep the dog in her apartment. Both Janush and Majors were cited by HUD in its 2008 rulemaking on housing for the elderly and disabled (73 Fed. Reg. 63837), noting that “the Department’s position is consistent with federal case law that has recognized, in cases involving emotional support animals in the housing context, that whether a particular accommodation is reasonable is a fact–intensive, case–specific determination.” Courts have also recognized that training of service dogs need not always be formal. In Bronk v. Ineichen (54 F.3d 425 (7th Cir. 1995)), the Seventh Circuit found a trial court’s jury instructions improper in implying that a hearing (or signal) dog needed training from a certified school.
There are, admittedly, cases that have not been as accepting of non–service animals. A Massachusetts state court case, Nason v. Stone Hill Realty Association (Mass. 1996), held that a tenant failed to show a clear nexus between her multiple sclerosis and her need to have a cat, despite her physician’s statement that she would suffer serious negative consequences if deprived of the cat. (The physician’s letter did not sufficiently correlate the tenant’s condition with the presence of the cat.) The court suggested that “chemical therapy” might work as well as a cat.
A question that has arisen occasionally concerns whether a landlord may reject a particular emotional support animal and still make a reasonable accommodation. In Oras v. Housing Authority of the City of Bayonne (373 NJ Super. 302, 861 A.2d 194 (2004)), the court held that a landlord could not impose a 20–pound limit that applied to pets in a public housing authority to prohibit a tenant from keeping a dog that provided emotional support but that happened to weigh more. In an unpublished order from 2002 ( Zatopa v. Lowe), however, the district court for the Northern District of California allowed a landlord to exclude a pit bull mix because of the reputation of pit bulls, despite the fact that testimony regarding the specific dog suggested strongly that it was a gentle animal. The landlord had been willing to accept a “safe and gentle breed,” such as a Cocker Spaniel. The order was unfortunate because an attachment had already formed between the dog, obtained from a pound, and its owner, a man suffering from AIDS and depression. If the dog turned out to be dangerous, or beyond the control of the tenant, the landlord would be able to remove the dog on that basis, but in the opinion of the authors, a dog should not be excluded based on the public perception of a breed.
Using dogs in therapeutic settings is undergoing phenomenal growth. The evidence for the benefits of animals is found in a substantial and well–researched medical and psychological literature, and the authors have collected more than 500 articles related to various aspects of this issue. Although restaurants have good arguments for excluding animals that have not been trained to a sufficient level, this approach is not valid for housing. This is an area where scientific advancements argue for flexibility in the law and tolerance from landlords in whose buildings disabled individuals wish to live.
John Ensminger is a tax lawyer and specialist in anti–money laundering programs for financial institutions and a former chair of the Banking and Savings Institutions Committee of the ABA Section of Taxation. He may be reached at firstname.lastname@example.org. Frances Breitkopf is the president of the Ulster Dog Training Club in Ulster County, New York, of which John Ensminger is also a member. She may be reached at email@example.com. Both authors own therapy dogs.