Emotional Support and Service Animals

Below is an article that was recently published in the Dallas/ Ft. Worth Community Associations Institute Chapter magazine, Community Contact, Summer 2014, which discusses animals and fair housing issues:

Serengeti Safari – The Hunt for Emotional Support and Service Animals

By Julie E. Blend, Esq.

Chances are an African safari in the Serengeti Plain will include sightings of lions, serval cats, and maybe even a pack of the endangered species, Wild African Dog. Could you take one home with you if you live in a no pet, or restricted breed community? Your dog or cat would have to jump through several hoops to be legal, the first of which is that you would need to have a disability. The rest depends on whether there is a link between a disability-related need and the animal’s function, and whether the animal is a reasonable accommodation. Even if your safari friend could qualify as a reasonable accommodation under fair housing laws, statutes and city ordinances that prohibit wild animals will also apply. Your best bet is to leave Serengeti wildlife intact and head to South Africa for a famous South African – bred miniature horse instead.   The horse may qualify as a service animal, or if you become very attached to it, possibly an emotional support animal.

Service Versus Emotional Support Animals

Are service animals and emotional support animals (ESA’s) the same? No. A service animal can only be a dog, and in certain circumstances, a miniature horse. The Americans with Disabilities Act (ADA) governs service animals and not ESA’s. ADA regulations define service animal as: “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” The animal does not need to be certified as a service animal. The Texas Human Resources Code also limits service animals to dogs. The ADA affords a disabled person the right to take their service animal in public places. ESA’s are not governed by the ADA and therefore, a disabled person only has a right to be accompanied by a service animal, and not by an ESA, in places of public accommodation.

ESA’s provide emotional support to a person with a psychiatric disability. They are not trained to perform specific assistance, and they are not limited to dogs and miniature horses. ESA’s, as well as service animals, are allowed under fair housing laws if they qualify as a reasonable accommodation. Fair housing laws protect persons with a disability, whether the disability is physical or mental, that substantially limits a major life function. The Fair Housing Amendments Act prohibits discrimination against disabled persons, including “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

No Pet Policies

In April 2013, HUD issued a memo (Notice FHE0-2013-01) that specifically addresses service and assistance animals. The memo expressly states that an assistance animal is not a pet, and therefore, rules adopted by associations with pet prohibitions or restrictions may not apply. As with any accommodation request, when an association receives a request for an occupant to keep a service or assistance animal, two questions arise: 1. Does the person have a disability? 2. Does the animal address a need related to the disability? The HUD memo asks, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? If the answer to these two questions is yes, then the association must make an accommodation unless it is not reasonable to do so.

The third question becomes: 3. Is the accommodation reasonable? It is not reasonable if the animal would cause undue financial and administrative burden, or if it would fundamentally alter the nature of the association’s services. Furthermore, a request may be denied as unreasonable if the specific animal in question either poses a threat to the health or safety of others, or presents the potential for substantial property damage, that could not be significantly reduced by another reasonable accommodation. The HUD memo states that a denial of a request is only a denial of the specific animal itself, not its breed, size or weight. Breed, size and weight limitations may not be applied to an assistance animal. A finding of a threat of harm from an animal must be based upon: “objective evidence about the specific animal’s actual conduct – not on mere speculation or fear . . .and not on evidence about harm or damage that other animals have caused.” If the proposed animal is a breed known for attacks, such as a pit bull or Rottweiler, there cannot be an automatic disqualification based solely upon the breed.

As with any accommodation request, the memo explains that a housing provider is restricted as to what information can be requested. If the disability, or disability-related need for an assistance animal is readily apparent or known to the association, it may not ask the person for documentation (such as a blind person needing a guide dog). If the disability-related need is not apparent, then the association may request documentation from a physician or other mental health professional that the animal provides a service or assistance, such as emotional support, that alleviates an identified symptom of an existing disability. If the animal is allowed and the association charges a pet fee or deposit, the charge must be waived for the disabled person. If the animal causes damage, however, the owner will be responsible for repair expenses.

Breed Restrictions

What if the assistance animal is a pit bull? Some states prohibit breed specific legislation (BSL), including Texas. The same statute, Chapter 822 of the Texas Health & Safety Code, however, regulates dangerous dogs. Chapter 822 defines a dangerous dog as one that makes an unprovoked attack on a person, or commits an unprovoked act that causes a person to reasonably believe that they will be attacked. Upon receipt of a report of an unprovoked attack or acts, animal control authorities may investigate to determine whether the dog is dangerous. Owners of dangerous dogs are required to register the dog as dangerous, keep the dog leashed or in a secure enclosure, and to purchase liability insurance. It is important to check local animal control ordinances as well.

Although a pit bull could qualify as a service animal or ESA, do not forget question number 3: Is the accommodation reasonable? An association must consider the health and safety of others. If the specific pit bull in question has made an unprovoked attack on a person, or been determined by a court to be dangerous, then the specific pit bull should not be allowed. To avoid a fair housing violation, consult legal counsel upon receiving an accommodation request.

Beware of Fair Housing Requirements

A recent federal court ruling in Florida emphasizes the need for a proper response to an accommodation request. Sabal Palm Condominiums Association filed a declaratory judgment lawsuit against the Fischer’s asking the court to determine whether Mrs. Fischer could keep her service dog. The Fischer’s counterclaimed against Sabal Palm, its president and attorney. Mrs. Fischer has multiple sclerosis and as a result is wheelchair bound. She provided documentation to the association that her trained service dog was necessary to help her with daily tasks. The association was not satisfied and requested that Mrs. Fischer turn over all of her medical and service animal records. Instead of allowing the dog, the association waited four months and filed the lawsuit. The court held that Sabal Palm and its president committed fair housing violations, even though they allowed the dog to stay during the pendency of the lawsuit.

The court acknowledged the trend of fake assistance animals, but noted that Mrs. Fischer is clearly disabled. The association was not entitled to all of her documents, as a request for information “need not be highly intrusive” when an obvious physical disability and need are sufficiently documented. A disabled person is not required to submit an express statement from a healthcare provider that they need a service dog – only proof of “the relationship between the disability and the need for the accommodation.” The court noted that information connecting the animal’s training with the symptoms of the disability would suffice. Mrs. Fischer submitted evidence that her dog’s training was specifically designed to help her with daily activities she could not perform due to her disability.

The court noted that failure to grant an accommodation by delaying a decision is a constructive denial of the request. The president was found liable as well because he personally contributed to the violation by voting against granting the accommodation and in favor of bringing the lawsuit. In addition, the court noted that property managers are subject to liability for fair housing violations. As for the attorney, the court let him out off because bad advice does not amount to unlawful discrimination. The case is still pending on the question of how much money will be awarded for actual and punitive damages.