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Lions, Tigers & Bears, Oh My! The Difference Between Service Animals & Emotional Support Animals

Posted in Disability, Discrimination/Fair Housing, Reasonable Accommodations or Modifications, Service Animals/Emotional Support Animals

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.

  • http://www.mcgowanins.com Joel Meskin, Esq., CIRMS

    “Service” and “Comfort” animal issues are a trap for the unwary community associations. As with most issues brought to association boards, I believe the boards have the greatest of intentions and are generally trying to do the right thing. As a major writer of directors and officer liability insurance, this issue has made its way onto the “top ten” claim list over the past year or two. Those of us who work with associations on a daily basis know, many issues take on emotional elements that we may not find in more common business disputes. The service and comfort animal issue is even greater. What boards often do not realize is that their clear and unambiguous rules regarding pets may be irrelevant when it comes to these issues. Also, boards do not realize that courts more times than not have a very soft spot for service and comfort animals and regardless of the legal burden of proof, place the burden of reasonableness on the association. In this day and age it is imperative for associations to have a “policy” when it comes to service and comfort animals and it should be reviewed by an association attorney. The cost of putting a policy in place is probably cheaper than the deductible on a director and officer policy that will have to be paid in the event there is a loss. What boards must also be aware of is that most of these issues do not involve “monetary” claims and therefore if they do not have a directors and officers policy that provides defense for “non-monetary” claims, they will be footing the defense completely on their own. At the end of the day, a proper policy being put in place is the cost of doing business in a community association.

  • Marcella Stock

    Can a condominium BEGIN fining a unit owner for housing a pet, which right now does not have the necessary papers, even though the Rules and Regulations of the condo, which are being updated, have not been promulgated via a 14 day notice for the adoption and which will include the NEW fining ability? In other words the board has NOT announced at a properly noticed meeting of this new RULE/LAW of fining a unit owner.
    RESPONSE: Rules become enforceable when adopted. Condominium associations now have the authority to fine by statute, Section 718.303, but you cannot fine an owner for bringing a pet on to the property if there are no rules prohibiting pets in effect.

  • Susan Woliner

    These accomodations for service animals has the effect of invalidating all pet clauses. What happens to the rights of other tenents who choose a no pet location? The reasons are numerous such as alergies, fear of animals, or the mess that is created. People should be aware of the conditions before they choose to live in that community. I have a dog, but I would never impose him on others.

  • Dr Dan Mason

    Thusly, it would seem to me that, therefore, that under the HUD memorandum, any animal, cat, dog, ferret, snake, iquana, ferret, pig et al. would require the condo association with a no-pet rule to make a reasonable accomadation for a so called comfort animal as long as there was a doctors note and evidence that the animal had a trainer. The trainer could include the owner who trained the animal to comfort themselves just by the animal being present and cuddly.
    What about minature horses? That also was a part of the Justice Department definition of a service animal.
    RESPONSE: Yes, the new rule provides limited protection for miniature horses.

  • Janet Brewer

    What protection does an individual have that suffers severe allergic reaction when in close proximity to dogs. Person specifically bought some years ago in “no pet” section of MH park that has a 50-50 split of pet and no pet areas, but now is being invaded by pet lovers and allergies are coming back relentlessly. What protection does that person have—just stay indoors all day long and not enjoy FL sunshine while pets have the entire day opportunity for being walked. Isn’t this discriminatory? We need guidance. Thank you!
    RESPONSE: This is a good question that has been raised frequently by readers and clients. From your email it doesn’t appear that management granted an accommodation under the fair housing act, rather it seems like the constituency of the community is changing.
    However, I’ve often wondered to what extent fair housing officials will go with regard to cleaning and care for animals that pose a threat to neighboring residents.

  • judith dispenza

    I am confused. I have a doctor’s note that was sent to board of directors at my condo and it states that my cat is necessary for emotional support where evidence of depression exists. This was sent by my psychiatrist with a cover letter stating the information was not for public knowledge. I am confused by March 10 ruling. Is my letter sufficient to satisfy issue?
    RESPONSE: There is plenty of case law and administrative decisions addressing the criteria set forth in the Fair Housing Act. I cannot opine on your situation whatsoever.

  • http://www.bourguignonlaw.com George E. Bourguignon, Jr.

    The law is complicated, as this subject matter shows. Very interesting issue.

  • Terry Anderson

    I have two registered/trained service dogs. They are trained off lead to go for assistance because I have brain seizures from a brain stem compression caused from a vehicle accident and spinal problems. My service dogs are trained to work as a team and can perform many other duties. I am on Social Security Disability. After re-habilitating I moved into independent senior living with my dogs with special orders given to management in writing by my doctors before moving in of what my dogs did and that I was to be under no stress what so ever because of seizures. I believe it was all a game by management. Especially after I filed a complaint with Fair Housing. It was the most mizerable three years of my life of harassment, being screamed at, notes left on my door, and management not understanding service animals, let alone knowing ADA laws. I was put on the third floor, disabled, not being able to use the stairs,(because they said there was an elevator, that btw was broken frequently and especially when the fire alarms went off when it rained and for no reason) so we disabled on the third floor had no way to get egress except to wait. I heard the allergy excuse, I have heard it all. Home health care came to my apartment every week with no problems with my service animals. I requested reasonable accommodations and filed a fair housing complaint with HUD requesting my two service animals to be off lead outside incase I had a seizure they could go for assistance and was denied. I obtained letters from my doctors, from the county attorney, from anyone I could think of and I was still denied. Fair Housing never did an investigation, but said the manager said my dogs were vicious. That was news to me since she sent her 5 year old up to my apartment when he came over when she didn’t have a sitter and the residents loved my two little dogs because they are so well mannered. They have flown all over the US in open airlines and sat in restaurants without one complaint, but they were not allowed in the office or by the pool or at any of the gatherings at the apartments without complaint, so I stopped attending.
    I broke my leg and the doctor told me I really need to move. After getting out of the hospital, I gave the office my doctors statement to break my lease and get my deposit. Fair Housing finally called me after almost 2 years! Fair Housing wanted me to sign a legal document stating I would drop my complaint against the management company, the owners, the manager,,,,etc., and I would get my deposit back. The management would mail the deposit back to Fair Housing and they would mail it to me after I signed the legal documents the attorney from the Management company had drawn up and the release forms from Fair Housing. This was all sent to me in a form of an e-mail. Needless to say I didn’t sign anything but added this to my stack of papers of the original complaint started a few years ago. I emailed back to Fair Housing stating I felt like I was being bribed with my own money. I was never notified, but found out a few months later Fair Housing had dropped my case. Does Fair Housing work???? I don’t think so. I have now filed my case in Federal Court. I have no attorney as there are no Fair Housing attorneys in Pensacola area. Florida Bar Association couldn’t even help me. My service dogs are my life line. I moved back home because of my disabilities and to be close to family after being a victim in a vehicle accident. The lesson I learned was people have a misconception of what service animal do and what they can be trained for.
    Good luck to all the disabled and God Bless!

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