Issue link: https://read.dmtmag.com/i/469624
MARCH 2015 26 THE JOURNAL COMMUNITY LAW BY JOHN H. PENTECOST, Esq. Service Animals - Comfort Animals - Family Pets: Is There A Difference? Sorting through the legal framework on serv- ice animals can feel like a "dog chasing its tail." The lack of legal clarity puts disabled people in danger of discrimination and at the same time creates potentially substantial legal liability for an unwary manufactured housing community and its ownership. Inconsistent Community Rules and Regulations Can Trap The Unwary If your community rules and regulations do not currently address pet restrictions and pet conduct rules, they should be amended by your com- munity attorney. It is also important to enforce pet rules in a consistent, but nondiscriminatory manner. If your rules are vague, then you may open yourself up to potential issues and lawsuits. You should make it clear that all "animals" in the community are subject to the community's pet conduct rules, because "service animals" are not considered "pets" under current law. While a ten- ant may have a service an- imal that deviates from the community rules, service animals must still comply with the pet "conduct" rules like any other domesticated animal on your property. What is a Service Animal? The Federal Fair Housing Act, the Ameri- cans with Disabilities Act, and the Rehabilita- tion Act of 1973 all require that applicants and tenants with disabilities be provided with "rea- sonable accommodations" as needed in order for them to have an opportunity for full use and en- joyment of their housing. Allowing tenants and their guests who have disabilities to be accom- panied by their service animals is a reasonable accommodation to housing policies and prac- tices. These three regulations seem at first glance to be an imposition on the communities that may, for good reasons, have policies, which do not allow pets and animals or restrict the number, size and weight of animals allowed on the premises. However, the benefits of these rules should also be considered, when addressing an accommodation re- quest. There is a differ- ence between service animals and recog- nized social animals, which can include "emotional support" animals and "com- fort" animals. Social animals are those used to address ani- mal-assisted therapy goals, and are trained to be used in a wide variety of settings, including hospitals, nursing facilities, schools, and other institu- tions. There are several national organizations that provide structured training and certifica- tion programs for social animals, but most are not recognized as "service animals" under Fed- eral law. The most common service animals are dogs, but sometimes other species are used as well like a cat or bird. Service animals may be any breed, size or weight. Some, but not all, wear special collars and harnesses. However, there is no legal requirement for service animals to be visibly identified or to have documentation. The ADA defines a service animal as "any an- imal that is individually trained to do work or person tasks for the benefit of a person with a disability." The Fair Housing Act considers "companion" animals to be a type of service an- imal; however, they are not always trained to perform tasks. According to the Department of Justice, you may ask your tenant or applicant if the subject animal, typically a dog, has received any spe- cial training and, if so, a description of that special training. You may not ask about the person's disability. Furthermore, access laws in the United States, including the ADA, per- mit people who have service animals, e.g., guide dogs, to be accompanied by their service animals everywhere the general public is al- lowed-- basically all areas of public accommo- dation. Now What's The Difference Between A Service Animal and a Pet? Service animals are not considered to be pets. A person with a disability uses a service animal as an auxiliary aid, which is similar to a person using a cane, crutch or wheelchair. For these reasons, fair housing laws require that housing providers make modifications to "No Pets" or "Restrictions on Pets" policies to permit the use of a service animal by an individual with a disability. Additionally, pet fees cannot be charged for service animals (i.e., pet de- posits), because service animals are not con- sidered "pets." You can have general requirements of homeowner insurance, which is required for all tenants in the Community. Tenants will also be responsible for the conduct If your community rules and regulations do not currently address pet restrictions and pet conduct rules, they should be amended by your community attorney.