Issue link: https://read.dmtmag.com/i/708576
AUGUST 2016 25 THE JOURNAL No. 14 on Get It Quick Page tional support, comfort, well-being or compan- ionship for a disabled person seeking an exception to a community's "no pet" or "restrictive pet" rules or guidelines. Generally, an "assistance or emotional support animal" is a "companion animal" that provides a therapeutic benefit by alleviating or mitigating some symptom caused by an individual's mental or psy- chiatric disability as confirmed by a professional health care provider. Unlike ADA, these animals require no specific "recognition and response" training and manage- ment may ask the person for documentation of a disability and disability related need for the assis- tance animal, but may not request access to med- ical records or medical providers or to provide detailed or extensive information or documenta- tion of the persons physical or mental impair- ments. These animals are not limited to dogs but may be any other animal within reason if the per- son requesting the accommodation has a con- firmed disability supported by a medical professional. 9 Thus, prohibited conduct under FHAA is re- fusing to make reasonable accommodations in rules, policies, practices, or services, when such ac- commodations may be necessary to afford a per- son with a disability an equal opportunity to use and enjoy a dwelling. A request for a reasonable accommodation may be denied only if providing the accommodation is unreasonable, defined as imposing an undue financial and administrative burden on the community or if it would funda- mentally alter the nature of the community's op- erations. This could include a denial based on increased liability insurance costs if an "aggressive dog breed" were allowed in the community thus potentially creating an undue financial burden. Requests for a reasonable accommodation re- garding assistance animals must be evaluated ob- jectively and thoroughly through an interactive process with the person requesting the accommo- dation. Each request should be evaluated on a "case by case basis" promptly and fairly, on its own facts. Naturally, if questions arise, consult the community's counsel, especially regarding state law that may parallel ADA and FHAA or be more expansive in coverage regarding definitions of service and assistance animals. The above is not intended as legal advice but offered as general infor- mation. Consult your legal counsel for specific questions or issues re- garding your particular communities. Robert G. Williamson, Jr. is partner with Hart King. He represents manufactured home community owners and managers with their various legal issues including FHA and ADA compliance issues. He may be reached at rwilliamson@hartkinglaw.com or at 714.432.8700 1 Set forth in HUD's Fair Housing and Equal Op- portunity Notice (FHEO-2013-01) issued April 25, 2013 ("HUD Notice"). 2 28 C.F.R. § 36.104 3 DOJ, Frequently Asked Questions about Service Animals and ADA, July 20, 2015, www.ADA.gov . 4 Ibid. 5 Ibid. 6 28 C.F.R. § 36.302(c); HUD Notice, supra., fn. 1. 7 42 U.S.C. § 3602(h) 8 Giebeler v. M&B Associates, 343 F.3d 1143, 1146- 47 (9th Cir. 2003); 42 U.S.C. § 3604(f)(3)(B). 9 HUD Notice. T J factured housing market, raises antitrust questions that should and will be ex- plored further. This targeting of smaller industry businesses, moreover, through needless, unnecessarily costly regulation and pseudo-reg- ulation, is also consistent with the now two-year-plus track record of the HUD manufactured housing program under its current career Administrator. It is therefore not surprising that while Congress directed DOE to "consult" with HUD on its energy rule and further empowered HUD to "seek counsel" from the Manufactured Housing Consensus Committee (MHCC) established by the Manufactured Housing Improvement Act of 2000, the MHCC was pro- vided no pre-publication opportunity to consider, debate and provide its com- ments on either the proposed rule or its cost-benefit calculations, and HUD itself has refused to publicly release any documents that may exist regarding any "consultation" it engaged-in with DOE regarding the proposed rule. MHARR, anticipating the publication of the proposed rule, and being aware of significant aspects of the closed-door collaboration between DOE, MHI and others, has continued to file and pursue FOIA disclosures from DOE. MHARR has appealed DOE's continuing effort to hide the 2011 pro- posed manufactured housing rule that, ironically, was selectively leaked to MHI and others, and has recently filed the latest in a series of FOIA requests seeking documents specifically showing DOE payments to MHI-connected en- tities and individuals under a series of lucrative "research" contracts. MHARR, will thoroughly analyze the proposed rule and submit opposition comments to DOE in advance of the August 16, 2016 comment deadline. In addition, MHARR, as has been its consistent position, will continue to ag- gressively oppose this corrupted, draconian proposed rule in all available fo- rums. Given the destructive nature of the proposed rule and the scandalous process leading to its advancement, if the final DOE rule is not substantially changed from its proposed form, the Association will explore and pursue avail- able legal remedies, including a request for injunctive relief and depositions of all those involved. The Manufactured Housing Association for Regulatory Reform is a Wash- ington, D.C.-based national trade association representing the views and in- terests of independent producers of federally-regulated manufactured housing. \ 23