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On a Short Leash

Common Ground Magazine May/June 2020

BY ADAM S. CHOTINER, ESQ.

Want to protect your community from legal challenges regarding service and assistance animals? Take a cue from dog training professionals: Rules, boundaries, and limitations.

​​​​​​​​​​​​​​​​©2020 Community Associations Institute

 

COMMUNITY ASSOCIATIONS need to be careful when they receive requests to accommodate service and assistance animals with good reason. The risks of lawsuits, investigations, and fines are too high.

In July 2019, the U.S. Department of Housing and Urban Development obtained a consent order and $30,000 against Hudson Harbour Condominium Association in Edgewater, N.J., when it refused to modify requirements that a 75-pound assistance animal be transported in a crate or carrier in common areas, and that its owners use a service door instead of the main entrance when out with the dog.

The Castillo Condominium Association in Puerto Rico was fined $16,000 in 2016 for discriminating against an owner and refusing to grant an exception to its no-pets rule for an emotional support animal. The owner was awarded $20,000 for emotional distress damages.

And the U.S. District Court for the Southern District of Florida in 2014 found sufficient evidence for a disability discrimination case to proceed to trial. The board of a no-pets association, Water’s Edge Association in Coral Gables, Fla., granted permission for an assistance animal but repeatedly notified the resident she was in violation and subsequently implemented assistance-animal restrictions that made it difficult to keep the animal.

These cases, and others, illustrate the risks of poorly managing animal requests, but associations don’t need to worry about a community being overrun with animals because everyone claims their pet is a service or assistance animal and can present a “certification” purchased on the internet. Not every application for an exemption is warranted. There are an increasing number of stories of people trying to claim unusual assistance animals, such as squirrels, peacocks, or pigs. Fortunately, community associations rarely see those kinds of cases.

Community associations do need to walk a fine line when accommodating residents with a genuine need for service and assistance animals—also known as care companions, emotional support animals, or therapy animals—while continuing to adhere to the association’s regulations.

Associations should follow the Americans with Disabilities Act (for service animals) and the federal Fair Housing Act (for assistance animals) and any applicable state and local laws to determine whether an animal qualifies for an exemption from association rules, and should uniformly enforce standards and procedures for request approvals.

The FHA, for example, prohibits housing providers from denying or limiting housing or from refusing to make reasonable accommodations in policies or practices for persons with disabilities “to have assistance animals that perform work or tasks, or that provide disability-related emotional support,” according to HUD.

Some states and counties have more stringent laws than the FHA, so an association should follow the applicable law in its jurisdiction. The board of directors also should consult with legal counsel when setting procedures for reviewing an application for an exemption from animal regulations.

The good news is that community associations don’t have to accept an application for an assistance animal at face value. A review committee can ask questions and request documentation that creates a uniform standard while not unduly invading the resident’s privacy.

The process is generally straightforward in applications for service animals, which are dogs or miniature horses specially and individually trained to serve people with a disability. Typically, it is readily apparent that the person is disabled and requires a service animal to do work or perform tasks, such as a guide dog for a visually impaired person. Service animals also can assist persons who are deaf or with partial hearing loss and individuals with limited mobility, and can even detect seizures before they occur. Notably, a service animal—as opposed to an assistance animal—must be a dog or a miniature horse.

If a person requiring a service animal has a readily apparent disability and need for the animal, then it will likely be unnecessary to ask confirming questions. Confirming questions for a service animal are limited to two questions: Is the animal required because of a disability? And, what work or task has the animal been trained to perform?

If the applicant answers “yes” and identifies work or tasks, then an association should grant the requested accommodation if otherwise reasonable. An association is not permitted to ask about the nature and extent of the person’s disability or for any documentation. Ultimately, accommodation requests for a service animal usually result in an uncontroversial and simple approval.

The process can be more involved and challenging for assistance animals, which do not require any special training and, by their nature, often involve mental disabilities, such as anxiety or depression, as opposed to physical disabilities.

On Jan. 28, HUD issued updated guidance for reasonable accommodation requests for assistance animals under the FHA. The new guidance helps clarify an association’s rights and obligations when confronted with a request for a reasonable accommodation regarding an animal.

Frequently, a resident will seek approval for an assistance animal with a certificate or “license” from the internet, where numerous websites sell documents that purport to “certify” or “register” an assistance animal. One of the highlights of the latest HUD guidance is confirmation that such documentation is not, by itself, sufficient to reliably establish that an individual has a nondiscernible disability or disability-related need for an assistance animal.

The updated HUD guidance helps clarify the types of information an association can reasonably require to evaluate an accommodation request relating to an assistance animal for a nondiscernible disability.

For an assistance animal, the association can request documentation from a licensed medical or mental health professional that includes:

  • The name of the resident for whom the animal at issue allegedly serves
  • Whether the healthcare professional has a professional relationship with that individual involving the provision of healthcare or disability-related services
  • The type of animal(s) for which the reasonable accommodation is sought
  • Whether the resident has a physical or mental impairment
  • Whether the resident’s impairment(s) substantially limit at least one major life activity or major bodily function
  • Whether the resident needs the animal(s) because it does work, provides assistance, or performs at least one task that benefits the resident because of his or her disability, or because it provides therapeutic emotional support to alleviate a symptom or effect of the resident’s disability, and not merely as a pet.

By requiring the documentation, the association can limit the approved use of assistance animals for those situations that are required under the law, namely when a resident has a qualifying disability.

An association must be consistent when addressing requests for accommodations from restrictions. All applicants should be required to provide the same information and documentation. By establishing and maintaining uniform policies and procedures, an association can protect itself from legal challenges.

Since homeowners association boards come and go, establishing clearly written procedures can help maintain consistency when new members join the board. The association’s attorney can be enlisted to educate new board members on applicable laws and the community’s policies on animal restrictions, especially if they sit on a committee that reviews applications for reasonable accommodations.

Ultimately, nothing may prevent a disappointed and probably angry homeowner from suing. If there is litigation, what is particularly important is how the application is handled. If the person claiming the accommodation completely ignored requests for information, then the association should be well-positioned to prevail.

On the other hand, if the association failed to follow its own policies, or if it appeared determined to keep the animal out regardless of how the resident responded to information requests, then the association could find itself on the losing end.

Community associations can reduce the risk of legal action by adhering to the law, establishing and maintaining consistent policies and procedures for accommodation requests, and not overreaching when requesting information and documentation about service and assistance animals.

Adam S. Chotiner is a shareholder with Shapiro, Blasi, Wasserman & Hermann in Boca Raton, Fla. achotiner@sbwh.law

 

DOGS AT WORK

SERVICE DOGS are trained to perform tasks on behalf of a person with a disability and are permitted in public places pursuant to the Americans with Disabilities Act.

Certificates, vests, badges, and ID cards are popular but not required for real service dogs. Unless a service animal is off duty in its own home, it’s working. An on-duty service dog is relaxed, well behaved, and focused on the job at hand. You can see this in its behavior. A real service dog:

  • Does not bark, growl, or whine
  • Does not engage with other animals or people other than the handler
  • Does not seek attention (petting or treats)
  • Does not leave the handler’s immediate vicinity
  • Does not show aggression to people or other animals
  • Does not sit in the handler’s lap or on furniture
  • Does not become distracted by external stimuli (other dogs, treats, squirrels)

DID YOU KNOW? Claiming an untrained dog as a service dog is a criminal offense in several states that may lead to fines, jail time, and the possibility of losing the dog for those convicted. Similarly, it’s illegal to interfere with a service dog while on duty.​

 

BASIC TERMINOLOGY

OWNERS AND RESIDENTS who make requests for reasonable accommodations often use the wrong terms and concepts. A request doesn’t need to include specific words like “fair housing.” Any one of the following terms should alert the community:

ADA. The Americans with Disabilities Act is a federal law that is enforced by the Department of Justice.

SERVICE ANIMAL. Only a dog or a miniature horse that has been trained to perform specific tasks on behalf of a disabled person can be a service animal. They are permitted in places of public accommodation, such as golf courses, swimming pools, and restaurants, pursuant to the ADA.

FHA. The federal Fair Housing Act and the Fair Housing Amendments Act of 1988 are enforced by the Department of Housing and Urban Development.

ASSISTANCE ANIMAL. Any species that provides emotional or physical benefits to an individual can be an assistance animal. There is no training requirement. The terms “comfort pet” and “emotional support animal” usually refer back to assistance animals. Reasonable accommodations are required pursuant to the FHA.

ANIMAL ASSISTANCE

For the full guidance from HUD and additional CAI resources related to assistance animals, visit www.caionline.org/assistanceanimals.​