Which Controls – the ADA or FHAA?
The ADA prohibits discrimination by private entities such as hotels, motels, inns, and other “places of public accommodation.” Discrimination under the ADA includes the failure to remove architectural and communication barriers that are structural in nature in existing facilities where such removal is readily achievable. Title III of the ADA also requires a public accommodation to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. Condominium buildings may be deemed places of public accommodation if they operate as “places of lodging” or are open to the general public.
The Federal Fair Housing Amendments Act (FHAA) says a housing provider (including a community association) cannot discriminate in the sale, rental or terms of housing because of a handicap of a buyer or renter. Discrimination on the basis of a handicap includes a refusal to make a “reasonable accommodation” in rules, policies and practices or services when such may be necessary to afford the disabled person equal opportunity to use and enjoy the dwelling. An increasing number of condominium residents are seeking exemptions from “no pet” policies, based on a need for (often on advice of their doctors) a companion animal as a means of combating a variety of illnesses, including depression, anxiety, arthritis, and heart disease. The association may, therefore, have to allow a resident to keep an animal on the property despite the published rules.
Is the accommodation only for service animals as defined by the ADA?
Recently the Department of Justice modified the rules defining the term “service animal.” The Department’s final rule defines the term “service animal” as
“any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition….”
This may cause you to say “wait, if the Department of Justice limits service animals to dogs, why would the association even have to consider a request for permission to maintain a cat, bird or other animal on the property?” or “if the Department of Justice says that service animals must be trained then shouldn’t the disabled person have to show what training the animal completed?” Sounds perfectly reasonable, right?
The Department of Justice explained an important distinction between a service animal for ADA purposes and a support animal for FHAA purposes. The new rules limit service animals to dogs, but that doesn’t mean that housing providers can prohibit the use of other animals as a reasonable accommodation for a disability pursuant to the FHAA.
In the final rule, the Department excluded emotional support animals from the definition of “service animal.” The ADA definition says that emotional support, well-being, comfort, or companionship will not qualify as “work” or “tasks” for the purposes of determining whether an animal is a service animal. Therefore, emotional support animals are not necessarily service animals (although a dog can qualify as both at the same time). The U.S. Department of Housing and Urban Development confirmed exactly that in a memorandum directed to fair housing enforcement officers and regional counsel.
What does this all mean for community associations?
The Association cannot dictate the type of animal it will approve as an accommodation. The Board of Directors must permit the accommodation as long as the resident qualifies for that accommodation. I suggest that you consult with counsel to evaluate the criteria in each case, based upon the specific facts and circumstances presented.
What about training?
The training issue is still debatable and debated. There are some cases that say the innate qualities of the animal are enough to ameliorate the limitations arising from the disability. There are others that say the person requesting the accommodation must demonstrate some training. I know the fair housing investigators in both Broward and Palm Beach Counties will issue a finding of probable cause if the association rejects an accommodation request solely as a result of lack of evidence the animal is trained.
What does it mean for persons with accommodation animals?
It means that even though your dog, cat, ferret or parrot is an accommodation/emotional support animal, you may not be entitled to bring it to restaurants, the mall, the supermarket or other places of public accommodation.
This is a “hot-button” issue in many communities across the country. Community association boards should consider whether it is appropriate or advisable to adopt policies and procedures for handling accommodation requests.