Issue link: https://read.dmtmag.com/i/708576
AUGUST 2016 24 THE JOURNAL COMMUNITY LAW BY ROBERT G. WILLIAMSON, JR. Pets, Service and Comfort Animals — They're Different Under the Americans with Disability Act and Fair Housing Amendment Act? "Pets" are not service or comfort animals under the American with Disabilities Act (ADA) or the Fair Housing Amendments Act (FHAA). Com- munity residents or prospective residents claiming a disability and desiring to keep a certain "pet" in contravention of a community's "no pet" or "pet restrictive" policy or rules will generally assert, however, that under either or both ADA or FHAA the community must alter its policy or rule to allow a pet as a reasonable accommodation. Evaluating whether an animal is truly a pet or qualifies as a service or support animal requiring a rea- sonable accommodation can be complex and con- fusing and should be undertaken seriously, methodically and objectively with the commu- nity's counsel. A wrong guess could be costly. Thus, in all cases where either ADA or FHAA may apply, to avoid possible ADA violations the ADA service animal test 1 should be applied first. This is because if the animal qualifies under ADA as a service animal it must be permitted to accom- pany the disabled resident in all areas where per- sons are normally allowed to go. If the animal does not meet the ADA service animal test, commu- nity management must then evaluate a reasonable accommodation request under FHAA statutes and regulations. ADA Under revised ADA regulations, a "service an- imal" is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychi- atric, intellectual, or other mental disability. The work or task performed by the service animal has to be directly related to the handler's disability. 2 The service animal fulfills what the regulations refer to as "recognition and response" tasks and is distinguish from animals that provide emotional support, well-being, comfort, or companionship. The key under ADA is that the animal must be specifically trained to "recognize and respond" a disabled person's certain mental or physical con- dition, e.g., a diabetic's dog may be trained to notice when the person's blood sugar reaches crit- ical levels and alert the person. 3 The ADA service animal test makes no refer- ence to a dog's breed, size or weight, any required professional training or certification or registration or required wearing of a vest, patch or special har- ness. (Same under FHAA) The DOJ suggests that these are not factors in determining ADA compliance. A so called service animal certifica- tion or registration documents that can be obtained online confer no rights under ADA and are not recognized by the DOJ as proof that a dog is a "ser- vice animal." 4 On the other hand, DOJ notes that a service animal may be required under local law to be licensed and vaccinated. 5 In determining whether an animal meets the ADA service animal test community management may make only two inquires of the disabled per- son: (1) Is this a service animal that is required because of a disability? and (2) What work or tasks has the animal been trained to perform? Management may not require documentation proving the animal has been "certified," trained or licensed as a service animal. Further, these in- quiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (for example, an individual is using a dog to assist with vision, or the dog is pulling a person's wheel chair or is pro- viding stability or balance for a person with an ob- servable mobility disability). A "no" answer to no. 1 renders ADA inapplicable, likewise if the task described is unrelated to a disability or is a "non-re- sponse" type task. In such cases the answers may drift into areas which must then be assessed under FHAA regulations pertaining to reasonable ac- commodations for support or comfort animals, discussed below. Can management ask a disabled person to re- move an ADA qualified service animal from the community? No… unless, the animal is out of control to the extent the handler is unable to con- trol it or the animal is not house broken or based on an individualized assessment of animal's actual conduct the animal poses a direct threat to the health and safety of other residents that cannot be mitigated by other means. 6 (Same under FHAA) Community rules or guidelines governing "pet" conduct therefore, should be written to apply to "animals" not simply "pets" which make it clear the community may enforce its rules or guidelines to remove a problematic service animal according to ADA standards. Finally, ADA applies to places of public accom- modation. Manufactured home communities and mobile home parks experiencing a HUD or DOJ ADA violation charge have contended that as pri- vate property not open to the public ADA is in- applicable. However, it's well established under the regulations and case law that an area within a mobile home community (usually office or club- house), apartment complex or condominiums where sales and leasing activities are conducted with members of the general public and areas such as parking lots or spaces that serve these areas are within the definition of a public accommodation subject to ADA. Does this mean the entire com- munity is then a public accommodation? No. How- ever, U.S. District Courts in Arizona and California have held that allegations of a mobile home park hosting and conducting Bingo in the park clubhouse where the public was invited or where estate, garage or rummage sales were con- ducted in the community where the public was in- vited could state a claim under ADA that the community was a place of public accommodation. The take away…do not allow the general public to be invited to attend events conducted in your community or risk becoming "a place of public ac- commodation." FHAA FHAA prohibits discrimination in housing and housing related mattes based on a person's dis- ability defined as: (1) a physical or mental impair- ment which substantially limits one or more of such person's major life activities, or (2) a record of having such impairment . . . . 7 The FHAA's definition of prohibited discrimination encom- passes "a refusal to make reasonable accommoda- tions in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 8 This applies to assistance an- imals that may not satisfy the ADA definition of a "service animal" but nevertheless provide emo-