Published on: September 19, 2009
If there is one word that describes the reaction of board members asked to allow “comfort” or “emotional support” animals in communities that otherwise prohibit pets, it is probably, “Grrrr!” This is not because association boards are unsympathetic to the needs of residents who have disabilities requiring the assistance comfort animals can provide; it is because it is often difficult to distinguish between the requests of owners who legitimately need pets, and those who simply want pets and will do almost anything – including claiming disabilities they don’t have – in order to keep them.
Owners whose requests are denied often sue boards for failing to provide the “reasonable accommodations” federal and state fair housing laws require for residents with physical or mental disabilities. Fear of that litigation and its attendant costs has led many boards to “just say yes” to most comfort animal requests, assuming that judges and hearing officers are more likely to favor owners claiming disabilities than associations denying them the pets they say they need. While those concerns are justified, there are signs that the legal winds have begun to shift.
Narrowing the Definition
Citing a need to address the “proliferation of animal types that have been used as service animals,” the Department of Justice last year proposed revisions in regulations under the Americans with Disabilities Act (ADA), dealing generally with the rights of the disabled to bring animals into public buildings where pets are otherwise prohibited. The DOJ was responding in part to Department of Transportation regulations broadly defining the “service animals” that would be allowed to travel in the passenger cabins of airplanes to include “animals that assist persons with disabilities by providing emotional support.”
That definition allowed one passenger to travel with a 300-pound pot-bellied pig – a “comfort animal” the passenger claimed she needed to deal with a heart-related stress condition. All went well until the end of the flight when, upset either by the bumpy landing or the lack of peanuts, the pig began racing up and down the aisles squealing loudly and (presumably) frightening the other passengers for about 15 minutes until it could be subdued.
With that experience, among others, in mind, the DOJ proposed to narrow the definition of “service animals” to include only “dogs or other common domestic animals.” The proposed definition would specifically exclude “wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, ponies, pigs and goats), ferrets, amphibians and rodents.” The DOJ also proposed to specify that support or comfort animals “whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being” would not qualify as service animals.
Two important points about these regulations: First, they have not been implemented. Although they received a presumably final ok at the end of last year, the Obama Administration delayed implementation pending a further review, which has not yet occurred and probably does not rank particularly high in the Administration’s current priority list. Second, although the ADA does not specifically govern housing accommodations, its definitions and treatment of comfort animals, even in proposed form, will likely inform the arguments of owners seeking comfort animal accommodations, associations seeking to deny those requests, and courts and hearing officers presiding over those battles.
So it is worth noting that while the DOJ proposal states on the one hand that comfort animals don’t qualify as service animals, it also states that “the exclusion of emotional support animals from ADA coverage does not mean that persons with psychiatric, cognitive or mental disabilities cannot use service animals.” The proposed regulations emphasize that point by defining service animals to include “individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities.”
The proposal also acknowledges that “particularly in the context of residential settings and employment,” which aren’t governed by the ADA, “there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.”
Pendulum Is Swinging
Clearly, the proposed ADA revisions don’t provide much ammunition for those who oppose the very concept of comfort animals in condominiums or anywhere else. But the narrower definition of service animals the DOJ has proposed and the suggestion that comfort animals must be “individually trained” indicate that the pendulum is beginning to swing from where it has been (“You must approve my comfort animal because I need it” and “This is a comfort animal because I say it gives me comfort”) to a more reasonable position that sets the bar a bit higher for owners demanding comfort animals, while strengthening the position of community associations considering those requests.
Owners requesting a comfort animal or an accommodation of any kind under the Fair Housing Act must first demonstrate that they have a disability. If the disability is apparent and the request is obviously related to the disability – a guide dog for someone who is blind, for example – the discussion must end there. The association’s governing board can’t demand any additional information and must approve the request. But if the disability is not apparent, as is the case for many if not most emotional disabilities, the board can require the owner to provide reasonable documentation (usually in the form of a letter from a physician or therapist) verifying the disability, explaining that the comfort animal requested is necessary, and confirming that the tasks the animal performs specifically address the disability claimed.
It is in this area (training) that the courts are becoming a bit more demanding. In a 2002 case, a California court ordered a community association to pay $12,500 in damages to owners who had been forced to relinquish a dog they said helped them deal with their depression. The court ruled that it was “the innate qualities of a dog, in particular a dog’s friendliness and ability to interact with humans, made it therapeutic….” But several other courts in different jurisdictions have concluded that it takes more than a nose, a tail and a friendly disposition to qualify a dog as a service or comfort animal.
The West Virginia Supreme court held in a 2001 case (In re Kenna) that, as is the case for conventional service animals, “certainly some type of training is necessary to transform a pet into a service animal” for individuals with emotional disabilities. A Hawaii court ruled similarly in a 2003 case (Prindable v. Association of Apartment Owners of 2987 Kalakawa) that an animal must be “particularly suited to ameliorate the unique problems of the mentally disabled.”
While the “innate qualities” of dogs doubtless provide comfort and support to their owners, this court acknowledged, accepting that standard makes every dog, by definition, a service animal and “every person with a handicap or illness that caused or brought about feelings of depression, anxiety, or low self-esteem would be entitled to the dog of their choice, without individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for those animals.”
Specific (but Undefined) Training Required
In a more recent case, the Washington Court of Appeals agreed that there must be “evidence of individual training that sets the animal apart from the ordinary pet.” What is required, this court said, is “something more than the unsupported averments of individual training” and ‘slight anecdotal evidence” the Prindable court accepted. “An affidavit detailing [the dog’s] training, a declaration from [the dog’s] veterinarian or a certificate from any licensed training school” should suffice, the court suggested.
In formulating the revised ADA regulations, the Department of Justice declined to define the training service animals must receive to meet the requirement that they be “individually trained.”
“Because of the variety of individual training that a service animal can receive – from formal licensing at an academy to individual training on how to respond to the onset of medical conditions….the Department is not inclined to establish a standard that all service animals must meet,” the DOJ explained.
But the idea that comfort animals, like service animals, must have some sort of relevant training seems fairly well-established as a precept boards can use in their review of accommodation requests.
How Many and How Large?
Owners with disabilities have the right to demand comfort or service animals, but condominium boards have the right – and the responsibility – to require proof of the disability owners are claiming and to ask reasonable questions about the pets they are demanding. Precisely what does little Frou-Frou do to help cope with panic attacks and how has she been trained to do it? While boards can’t reject legitimate, documented requests for comfort animals, they can attach reasonable conditions to the waiver of pet restrictions. An owner may need a comfort animal to cope with depression and anxiety, but does that owner need two dogs, a cat and a bird? Wouldn’t one of those animals suffice? Similarly, the board can ask the owner insisting on a Pit Bull or a German Shepherd to explain why a smaller dog, with a less troubling reputation, couldn’t provide the comfort the owner needs.
We posed that question when the resident of a high-rise apartment insisted that her German Shepherd helped her control a seizure disorder. In this case, the tenant’s Legal Services attorneys got very creative and explained that because the tenant had grown up with Shepherds, she was particularly fond of them and, as a result, they had a uniquely calming effect that helped control her seizures in ways other breeds could not duplicate. The attorneys also provided evidence that the dog had been specially trained to detect the onset of seizures and to interact effectively with the tenant during these episodes.
Although the owner was allowed to keep the dog, we imposed several conditions to protect other residents, among them: The dog had to wear a bright, orange vest when in the apartment common areas or on building grounds; it could not share the elevator with or come within five feet of other residents; and the tenant had to walk the dog off-site.
We undertook similar negotiations on behalf of a community association ordered to waive its no-pet rules for an owner who needed a dog to manage her depression. The agreement we reached addressed the board’s concern that owners who had relied on the community’s no-pet policy in purchasing their units – because they didn’t like animals or were allergic to them – might sue the association for failing to enforce that policy. The owner and the board agreed that if such a challenge is raised in the future, they will let a court decide whether the rights of the disabled owner or the rights of other owners should prevail. In this case, we did as much as we could to allow the disabled owner to keep her dog, while protecting the rights of owners who thought they were moving into a pet-free community.
What is significant about these examples for other community associations is the way in which the boards handled the accommodation requests. In both cases, the boards entered into an open and constructive dialogue with the owners seeking accommodations, kept that dialogue open throughout the review process, and attempted to negotiate agreements that recognized the rights of disabled owners while protecting the interests of the association and other residents of the community.
An open and continuing dialogue is crucial. Even if the board rejects an accommodation request initially, it should invite the owner to submit additional information that might support the owner’s claim.
To make sure they handle accommodation requests appropriately, associations should have a formal policy in place, they should follow that policy precisely, and they should document every step in their review process. If the owner seeking the accommodation currently has a pet, in violation of the association’s rules, it is usually best to allow the pet to remain pending a final decision by a court or a hearing officer. Otherwise, if the owner prevails, the association risks liability for emotional distress or other damages the owner might claim he/she suffered because of the separation from their pet. The board should also suspend any fines during the review and negotiation process.
Many boards prefer to avoid these fights altogether. Why go through the effort, angst and expense of challenging comfort animal requests, they ask, when it is easier and less costly to simply approve them? There are two reasons: First, even if the disabled owner prevails and keeps the pet at issue, the board may be able to impose reasonable restrictions on the breed and size of the animal and its presence in the community. Equally important, requiring owners to make their case for waiving the community’s pet restrictions will convey an important message both to owners who want pets, and might otherwise be tempted to ignore the association’s rules, and to owners who support the pet restrictions, who will have little basis for complaining that the board is failing to enforce them.