Special Issue: Answering Your Questions on Assistance Animals
In this Special Issue, the Coach follows up on our recent series on assistance animals by answering reader questions with updates on recent developments in the law.
In case you missed it, the Coach just wrapped up a two-part series on how to handle reasonable accommodation requests by individuals with disabilities to keep and use assistance animals at the community. In the October lesson, Part 1 covered the general rules on who qualifies as an individual with a disability and when you must make an exception to your pet policies to allow assistance animals as a reasonable accommodation. And in the November lesson, Part 2 discussed what to do about requests for animals often excluded because of restrictions on size, breed, or number of pets allowed and whether you can apply common conditions, such as payment of pet deposits, to cover potential damage caused by an assistance animal.
It’s a good time to review those lessons, along with the updates in this Special Issue, so you’ll be up to speed on handling requests for assistance animals.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) bans housing discrimination against individuals with disabilities, including the refusal to make reasonable accommodations in rules, policies, practices, or services when they’re necessary to provide individuals with disabilities an equal opportunity to use and enjoy their home at the community. Whatever your policy on pets, fair housing law requires you to consider a request for an exception to the policy as a reasonable accommodation to allow an individual with a disability to keep and use an assistance animal at the community.
Now, more than ever, communities face close scrutiny on how they handle requests for assistance animals. More than half of all formal fair housing complaints are based on disability, many involving requests for assistance animals. Complaints may come from an applicant or resident who’s unhappy with what you’ve said or done about his request to live with an assistance animal—or from private advocacy groups based on the results of fair housing testing.
Community owners, property managers, and individual employees all may be held liable for fair housing violations stemming from reasonable accommodation requests for assistance animals. The law holds each accountable for his own discriminatory conduct: owners for adopting and enforcing discriminatory policies, and employees for their discriminatory statements or actions. But owners face a second level of liability: Since they’re ultimately responsible for ensuring fair housing compliance, they may have to pay for the discriminatory conduct of their employees or agents.
The potential exposure in a fair housing claim is steep—even if you win. Whatever the outcome, the community has to pay legal expenses, which can mount quickly when disputes escalate into formal fair housing complaints. If you lose—and are found liable for a fair housing violation—you could be ordered to pay damages, civil penalties, attorney’s fees, and court costs.
Damage awards in cases involving assistance animals can get very expensive. Depending on the circumstances, you may have to pay compensatory damages to cover financial losses, such as increased housing costs faced by an applicant or resident who was denied housing or forced to move because of his assistance animal. And if a private advocacy group is involved, you could be required to pay its damages—for time and expense in pursuing this claim. In addition, you could be required to pay damages for emotional distress, which can be substantial, particularly in cases involving emotional support animals.
Example: In August 2015, a court ruled that a Florida condominium community may be liable to pay damages for the emotional distress of the widow of a resident who committed suicide after being ordered to remove his dog from the unit. According to the family, the dog was an emotional support animal and, when faced with the loss of the dog, the resident took his own life.
The family alleged that the community failed to document that it previously granted his reasonable accommodation request to keep the animal as an exception to its no-pet policy, and when the board members changed, they ordered the dog’s removal. The resident filed a fair housing complaint, but a neighbor sued to get a court order for the dog’s removal. According to the family, the board’s president participated in the proceedings by attesting that the dog wasn’t allowed at the community and that, as a result, the court issued a temporary order for the dog’s removal. The local fair housing agency found reasonable grounds to believe the community discriminated against the resident. The neighbor asked the court to hold the resident in contempt for failure to remove the dog, but the resident took his own life a few days later.
The family sued the community and the board president for for wrongful death and fair housing violations. The court dismissed the wrongful death claim, ruling that the family could not recover for emotional distress suffered by the resident, but refused to dismiss the fair housing claim, ruling that the defendants could be liable for emotional distress suffered by his widow [Peklun v. Tierra Del Mar Condominium Association, August 2015].
On top of damages and civil penalties, fair housing law also allows the prevailing party to recover reasonable attorney’s fees and costs. That means that if you’re found liable for a fair housing violation, you’ll have to pay legal expenses, not only for your own lawyer, but also for the lawyer—or more likely, lawyers—who filed the claim against you. Even if you settle, you may have to agree to pay the resident’s legal costs to resolve the dispute. Either way, what you’ll have to pay in damages or settlements often pales in comparison to what you may have to pay in attorney’s fees for the other side.
Example: In June 2015, a New York City cooperative community was ordered to pay nearly $125,000 in attorney’s fees and costs—on top of a $50,000 settlement to resolve a fair housing dispute over assistance animals. The residents, a mother and daughter, filed the lawsuit for disability discrimination, accusing the community of restricting them from using their assistance animals in the passenger elevator, among other things. After protracted litigation, the parties reached a settlement in which the community agreed to allow the animals in the elevator and to pay $50,000, along with reasonable attorney’s fees and costs. When the residents’ attorney submitted his bill for more than $295,000, the community balked, arguing the bill was unreasonable. The court agreed, handing the community a victory of sorts by cutting the bill by more than half [Hines v. 1025 Fifth Avenue Inc., May 2015].
And, if you’re the subject of fair housing testing, you could face a claim from a private advocacy group for discriminatory statements made to testers—people pretending to be prospects, but who aren’t actually disabled and interested in living at your community with an assistance animal. Based on the test results, you could be liable for damages—and attorney’s fees—even if you never actually denied anyone the opportunity to live at the community because of their assistance animal.
Example: In September 2015, a court ordered the owners of an Oregon apartment community to pay nearly $170,000 in attorney’s fees and costs, on top of a $9,000 civil penalty previously awarded, for fair housing violations related to requests for assistance animals.
The lawsuit was based on fair housing testing by a local advocacy group. When the testers called, the phone was answered by a friend of the owner, who was covering the front desk in exchange for being allowed to live there. In response to questions about “therapy animals” or “assistance animals,” he initially said that that he’d have to check with the owner, but in later calls he responded that the owner wouldn’t allow pets.
State officials and the advocacy group sued the owner and various corporate entities associated with him. During pretrial proceedings, the friend said that the owner told him that no animals, whether service animals or not, were allowed at the community, which he passed along when prospects called him. The owner denied that he ever told anyone, including the friend, that disabled residents couldn’t keep service animals.
In January 2015, the court ruled that the owner was liable for the acquaintance’s fair housing violations. It didn’t matter whether the owner told the friend that service animals weren’t allowed. By allowing him to man the front desk, answer the phone, and show units to prospects, the owner put the friend in a positon so that it reasonably appeared that he was acting on his behalf. The court later ordered the defendants to pay a $9,000 civil penalty.
As the prevailing parties, both the state fair housing agency and the advocacy group requested reasonable attorney’s fees and costs. Together, their bills were nearly $170,000. The defendants objected, arguing that it would drive them into bankruptcy.
They asked the court to hold off awarding attorney’s fees pending an appeal, but the court refused, ruling that the defendants clearly violated fair housing laws. Even if the owner never learned that anyone requested a service animal, his gross negligence—allowing the friend, with no training or experience, to man the front desk, answer the phone, show apartments, and generally field questions about rental—virtually guaranteed violations of fair housing laws.
The attorneys’ rates and hours were reasonable. The court said that the defendants were wholly to blame for the increased hours; their ignorance of the law resulted in nearly all of the hours in this case, which almost certainly should have been resolved much earlier [Avakina v. Chandler Apartments LLC, September 2015].
Q & A ON ASSISTANCE ANIMALS
Q: We think that a resident is trying to pass off his pet as an assistance animal. He’s provided us with paperwork to document his claim, but it appears to be something he’s gotten online, not from his own healthcare provider. What should we do?
A: The problem of so-called “fake” service and assistance animals has been gathering attention. There have been news reports of people bringing all sorts of animals with them in public, insisting that they’re service animals under the ADA. Many have paperwork and assorted paraphernalia from online sources purporting to verify that they have a disability and their animal qualifies as a service or assistance animal. Lawmakers are taking notice, leading many states, most recently Florida, to make it a criminal offense to fraudulently represent that a person has the right to be accompanied by a service animal. Many in the multifamily industry hope these laws will gain traction to prevent abuse under fair housing law.
In the meantime, it’s important to take all requests for assistance animals seriously and comply with HUD guidelines—regardless of your suspicions about the merits of the claim. If the resident doesn’t have an apparent disability, you may ask for reliable disability-related information that’s necessary to verify that he has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. And, unless it’s obvious, you may ask for documentation that he has a disability-related need for an assistance animal—that is, whether the animal performs work or does tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.
Q: Can we restrict assistance animals from common areas?
A: No, according to HUD, which says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services. That means that you can’t require residents with assistance animals to use a back entrance or service elevator instead of the main entrance or passenger elevators that other residents are allowed to use.
Nevertheless, you don’t have to tolerate bad behavior by people—or their assistance animals—when they’re in common areas. You may expect residents with disabilities have their assistance animals under their control, for example, by requiring them to be leashed unless doing so would interfere with the animal’s ability to perform disability-related tasks. You may establish rules to require residents with assistance animals to pick up and dispose of the animal’s waste and to hold them accountable if the animal becomes disruptive or acts aggressively toward other residents.
Some wonder whether they must allow assistance animals in pools or fitness centers for health and safety reasons. Based on HUD’s general rule allowing access to all areas of the premises where people are normally allowed to go, you might be on shaky ground if you prohibit residents with disabilities from bringing their assistance animals into the fitness center.
But it may be a different story with the pool. At least the Justice Department thinks so when it addressed the issue in responses to frequently asked questions about service animals under the the Americans with Disabilities Act (ADA) in July 2015. When questioned about whether gyms, hotels, or municipalities must allow a service animal in the pool with its handler, the Justice Department said no: “The ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where the public is allowed to go.”
Q: A resident has requested a reasonable accommodation to keep a pit bull as an assistance animal, despite our pet policy prohibiting pit bulls and other dangerous dog breeds. As a condition of granting permission to keep the dog, can we require her to get extra insurance coverage to cover us in case the dog bites someone?
A: You could face a fair housing claim by requiring a resident to get extra insurance as a condition of letting her keep her assistance animal, regardless of its breed. Under the FHA, it’s unlawful to impose additional terms and conditions on applicants or resident who request reasonable accommodations. For example, federal guidelines state that communities can’t require residents with mobility disorders to obtain additional insurance as a condition to being allowed to use motorized wheelchairs.
By the same token, it’s unlawful to require residents with disabilities to obtain additional insurance as a condition of permitting them to keep an assistance animal, according to HUD. And, since breed restrictions don’t apply to assistance animals, you could be accused of violating fair housing law by applying extra terms and conditions to allow a resident to have an assistance animal, just because of the animal’s breed.
Example: In May 2015, the Justice Department sued the owners and managers of a Minnesota community for disability discrimination by placing undue conditions on a woman’s request to keep her pit bull as an assistance animal. The complaint alleged that the community first denied her request and tried to evict her, but eventually allowed her to stay as long as she met certain conditions, such as getting additional insurance and signing paperwork to protect the community from liability from any damage caused by the dog. According to the complaint, the resident complied with the conditions, but a few months later, the community allegedly retaliated against her by refusing to renew her lease [U.S. v. Brooklyn Park 73rd Leased Housing Assoc., LLC, May 2015].
Coach’s Tip: Be careful about applying other standard conditions in your pet policies to assistance animals. For example, there may be language in your pet policy granting the resident conditional approval to keep a pet, which may be rescinded in the community’s sole discretion if the animal disturbs neighbors or damages the property in any way. You don’t have to tolerate excessive noise or serious property damage by an assistance animal, but such broad language could be troublesome since it could apply to only minor transgressions.
Q: If there’s a local ordinance banning pit bulls and certain other dog breeds, what should we do if a resident asks to keep a prohibited breed as an assistance animal?
A: HUD hasn’t specifically addressed the issue, but its general rule is that breed restrictions don’t apply to assistance animals. Under HUD guidelines, you don’t have to allow a reasonable accommodation request for an assistance animal when that specific animal poses a direct threat to the safety or property of others. To make that determination, HUD says that you must conduct an individual assessment of the threat posed by that animal based on its behavior—not fear or speculation about the harm that it may cause or evidence about what harm other animals have caused.
Often, community policies against certain dog breeds reflect what’s known as breed-specific legislation—local laws banning pit bulls and other dog breeds. In some areas, ASPCA reports that regulated breeds include not just American Pit Bull terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, English Bull Terriers, and Rottweilers, but also a variety of other dogs, including American Bulldogs, Mastiffs, Dalmatians, Chow Chows, German Shepherds, Doberman Pinschers, or any mix of these breeds—and dogs that simply resemble these breeds. Some question the effectiveness of these laws, prompting many states to prohibit local governments from adopting breed-specific legislation.
When it comes to fair housing law, however, it’s a good idea to get legal advice before denying a request to keep a pit bull or other dog as an assistance animal, even if there’s a local ordinance prohibiting that breed. You could argue that it’s unreasonable to grant an accommodation request that violates the local ban on that breed, but at least one court has ruled that a community could still face a fair housing claim for refusing to allow a resident to keep an assistance animal, even if its breed is banned under local law.
Example: In July 2014, a court refused to dismiss claims against a Florida community for refusing to allow a resident to keep his dog as an emotional support animal, even though the community said the dog was a pit bull, a prohibited breed under local law.
The community argued that the request was unreasonable, but the court ruled that the ordinance banning pit bulls did not, by itself, make the resident’s request unreasonable. If the county ordinance were enforced, it would violate federal fair housing law by permitting a discriminatory practice. Failure to allow him to live with his assistance animal because of the dog’s alleged breed would deprive him of an equal opportunity to use and enjoy his dwelling [Warren v. Delvista Towers Condominium Assn., Inc., July 2014].
Coach’s Tip: In its July 2015 response to frequently asked questions about service animals under the ADA, the Justice Department weighed in on the issue, stating that municipal ordinances banning certain dog breeds don’t apply to service animals. “Municipalities that prohibit specific breeds of dogs must make an exception for a service animal of a prohibited breed, unless the dog poses a direct threat to the health or safety of others. Under the ‘direct threat’ provisions of the ADA, local jurisdictions need to determine, on a case–by–case basis, whether a particular service animal can be excluded based on that particular animal’s actual behavior or history, but they may not exclude a service animal because of fears or generalizations about how an animal or breed might behave.” Though the ADA and the FHA have different rules governing use of animals by individuals with disabilities, HUD may take a similar position in a dispute over a request for an assistance animal whose breed is banned under local law.
Q: What happens if a resident makes a disability-related request for another type of animal that’s banned under local law?
A: Though most requests for assistance animals involve dogs, fair housing experts say that many other types of animals could qualify as assistance animals. Just as you may get a request for a breed of dog banned under local law, you could face a request for another type of animal that’s banned under state or local law.
There are many state and local laws that ban or restrict wild or exotic species—or farm animals—from residential or rental housing. For example, monkeys have been trained to perform disability-related services for individuals with paraplegia and quadriplegia, but some states ban them altogether, while others allow only limited exceptions.
Get legal advice if a resident with a disability asks for a reasonable accommodation to keep an assistance animal of a type that’s prohibited under state or local law. The law is far from settled—certainly with respect to rental housing—but courts have recently refused to dismiss fair housing claims against local officials for refusing requests for reasonable accommodations exception to local laws banning certain types of animals from residential property.
Example: In August 2015, a federal appeals court issued the latest ruling in ongoing litigation over whether a resident of Blue Ash, Ohio, could keep a miniature horse as a service animal for her disabled daughter. According to the mother’s complaint, the girl had several disabilities affecting her ability to walk and balance independently, and the horse enabled her to play and get exercise in her backyard without assistance. The dispute dates back to 2010, when she first got the horse. In 2013, the city banned horses from residential property and then criminally prosecuted the resident for violating the law. The resident claimed that the horse was a service animal under the ADA and the FHA, but the county court found her guilty of the criminal offense.
The resident sued the city for violating fair housing law, but lost the first round because of the criminal conviction against her. On appeal, the court reversed, ruling that the criminal convictions didn’t prevent her from suing the city for disability discrimination. Although there was no evidence that the city’s actions were motivated by discriminatory intent against the resident’s daughter, further proceedings were needed to determine whether the ADA or FHA require the city to let her keep the miniature horse at her home [Anderson v. City of Blue Ash, August 2015].
Example: In July 2015, a court refused to dismiss a disability discrimination case filed by a resident of Miami-Dade County, Fla., after she was cited for violating zoning laws by having a sheep on her residential property. Claiming that it was a comfort animal to alleviate the symptoms of depression, the resident argued that the county was liable for failure to let her keep the sheep as a reasonable accommodation for her disability.
The county argued that she never asked for a variance to obtain an exception to the zoning rules, but the court ruled that she could pursue claims that the county failed to grant her a reasonable accommodation from the usual zoning process. She argued that the usual process required her to pay a fee, publically disclose her disability, and then wait four to six months for an answer. Though the county argued that the sheep didn’t meet the definition of service animal under the ADA, the court said she wasn’t claiming that her sheep was a service animal, but that it was an assistance animal or emotional support animal under fair housing law [Sherrer v. Miami-Dade County, July 2015].
Q: Are student housing providers required to allow assistance animals?
A: Yes, the FHA’s rules on assistance animals apply to all types of housing—even student housing, according to HUD. In recent years, there have been several fair housing cases against colleges and universities for denying requests by students with disabilities to keep assistance animals in student housing facilities.
Most of these cases involve a dispute over whether colleges and universities must allow students to keep an emotional support animal in their rooms. In general, the schools have acknowledged that they’re subject to the ADA, which requires them to allow students with disabilities to use service animals, but argued they’re not bound by FHA requirements to allow assistance animals, including emotional support animals, in student housing. Most cases have settled, but several courts have ruled that the FHA applies to student housing, including on-campus housing facilities.
Example: In September 2015, a court refused to dismiss a fair housing case against Kent State University for refusing to consider reasonable accommodation requests by students with psychological or emotional disabilities seeking to live with assistance animals in university housing. In its complaint, the Justice Department alleged that two students, a couple, were denied the right to keep their assistance animal in their university apartment under fair housing law.
The university asked the court to dismiss the case, arguing that the law was not clearly established that the FHA applied to student housing. The court rejected the argument, ruling that the FHA makes it applicable to all dwellings except those specifically exempted, and there is nothing in the law to suggest that student housing is somehow exempted. The plain language of the FHA makes it applicable to student housing [U.S. v. Kent State University, September 2015].
· Fair Housing Act: 42 USC §3601 et seq.
Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; firstname.lastname@example.org.