Service and Emotional Support Animals in Community Associations
Basics of the ADA and the FHA
The ADA (American with Disabilities Act) and the FHA (Florida Fair Housing Act) can preempt a community association’s pet policies when the pet in question is classified as a “service” or “emotional support” animal. The ADA is federal legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life. The FHA, which is based on a federal act of the same name, is designed to protect people from discrimination when they are renting, buying, or securing financing for any housing because of race, color, national origin, religion, sex, disability and the presence of children. While the general purposes of the ADA and FHA are similar, their applications for community associations have important distinctions, especially when it comes to “service animals” and “emotional support animals.”
Americans with Disabilities Act (ADA) – When does it apply?
Before we get into specifics about the ADA and its guidelines for allowing service animals, it’s important to understand who is actually subject to the ADA. The ADA applies to businesses that provide goods or services to the public. These places are called “public accommodations” or “public facilities.” The ADA defines 12 categories of public accommodations that include places like stores, restaurants, bars, hotels, etc. Generally, a public accommodation is a place the public is normally allowed to occupy.
This definition of public accommodation is rarely going to apply the entirety of any facility, as there is not an expectation that the public will have access to all places. For example, even for a hotel, the roof that’s closed to the public and only used for maintenance does not have to be ADA compliant. Conversely, a condominium may not be generally open to the public but if it has leasing office that is accessible to the public or there are tennis courts available for public use those areas must be ADA compliant. If a community has a private clubhouse but hosts a fundraiser or other party that is available to the general public, then the clubhouse must abide by the ADA for that event – even though the event is a onetime only occasion. Again though, facilities that are closed to the public generally do not have to comply with the ADA.
Since the ADA is built on the premise that the public (i.e. a disabled person) could at any time use that certain facility, it is a proactive law. In other words, the ADA requires that public facilities be ADA compliant regardless of whether they are currently being used by somebody with a disability and without the need for prior notice or demand.
ADA & “Service Animals”
The ADA provides that people with disabilities can use their “service animal” in a public accommodation regardless of that facility’s rules on pets. First, it is important to note that the ADA draws a distinction between “service animals” and “emotional support animals.” The Department of Justice (“DOJ”) strictly defines “service animal” as any dog or miniature horse that is individually trained to perform tasks for the physical, sensory, psychiatric, or intellectual benefit of an individual. The ADA does not provide for any other species of animal to be a “service animal.” Additionally, animals that offer emotional support, comfort, well-being, or companionship do not fall under the DOJ’s definition of “service animal.” In short, there are no regulations regarding “emotional support animals” under the ADA.
What happens when somebody walks into your public facility with a service animal? If the person has an obvious disability – like they are blind or an individual bound to a wheelchair – the animal must be allowed onto the premises regardless of the building’s policy on pets or animals and no additional questions may be asked. The business cannot ask for documentation as to the service animal’s capabilities or training. If a person that seems to be blind walks into a public accommodation and the seeing eye dog is behaving (see below for exceptions), then the business must let the dog use the public facility without any questioning or restriction.
What happens when somebody walks into a public facility with a service animal but the person’s disability is not readily apparent? For example, one task a service animal can be trained to do is alert a person of upcoming epileptic seizure. In this case, the business can only ask these two specific questions:
- Is this a service animal that is required because of a disability? and
- What tasks has the animal been trained to perform?
If the answer to question 1) is yes, and the answer to question 2) is any task covered by the ADA, then the analysis is over and no further questions may be asked. The business may not request proof of documentation, training, or licensing for the animal.
What happens when a person brings their service animal into a public facility but the animal is not behaving like a service animal? Service animals may only be denied access to an ADA covered facility if:
- The animal is not housebroken;
- The animal is aggressive or out of control and the handler does not take effective action to control it; and
- The animal directly affects the health or safety of other residents and reasonable accommodations cannot be made to control the threat.
Last year, a law came into effect that provides that knowingly and willfully misrepresenting oneself as being qualified to use a service animal or being a trainer of a service animal is a second-degree misdemeanor. This finally provides some meaningful disincentive to improper use of service animals.
Fair Housing Act (FHA) – when does it apply?
While only facilities available to the general public are subject to the ADA, every community association is subject to the FHA. As per above, the FHA makes it illegal for associations to discriminate based on handicap or disability (among the other categories provided above).
The FHA is triggered when an owner or tenant in a community makes a request for the association to alter some facility or policy based on their disability. The FHA states that association must provide “reasonable accommodations” for residents with disabilities if requested to do so. So, unlike the ADA, under the FHA the association only needs to take action a request/demand from an owner or tenant.
FHA & “Service Animals”/”Assistance Animals”
First, the FHA does not make a distinction between “service animal,” “emotional support animal,” or otherwise. Therefore, under this section, all animals in this category will be called “assistance animals.”
So, what happens when an association has a “no pets” policy and an owner makes request for a “reasonable accommodation” to allow their assistance animal under the FHA?
In this case, the association needs to ask two questions:
- Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
- Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answers to questions (1) and (2) are both “yes,” the FHA requires the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal in all areas of the premises where persons are normally allowed to go. The exception to this is if modifying the policy would impose an undue financial and administrative burden or would fundamentally alter the nature of the association’s services. When it comes to assistance animals under the FHA, this exception to the FHA will rarely apply.
If the answers to either question (1) or (2) is “no,” then the FHA does not require a modification to an association’s “no pets” policy. In that case the reasonable accommodation request may be denied.
The request may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. However, the breed, size, or weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
Unlike the ADA, if the requestor’s disability is not readily apparent, then the association may ask questions about the nature and extent of the disability. This is so that the association can understand the nature of the accommodation and hopefully reach a mutually agreeable solution. Associations may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal. If the disability is readily apparent or known but the disability-related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability- related need for an assistance animal.
For example, the association may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
Once the association has asked and determined the extent of a requestor’s disability, the next question is what actually constitutes a “reasonable request.” Unfortunately there is not one all-encompassing definition as to what a reasonable accommodation is – each situation is decided on a case by case basis. The only necessity in determining the whether or not a request is reasonable is that the request needs to linked directly to the disability that the assistance animal is trained to assist. If a request is denied, then the association must discuss alternate accommodations with the requestor.
Also, if a facility falls under the ADA and must make alterations to comply with the ADA, then the facility must cover the costs of the alterations. If a facility is presented with a reasonable request that falls under the FHA, then the individual requesting the alterations must cover costs.
Community associations should tread carefully when dealing with service and emotional support animal issues. Especially with the FHA, the guidance is not always clear and often involves a case-by-case analysis of the specific request. IIf your association gets a request for an accommodation, please immediately send the request to your attorney to review. Also, always make sure to keep a dialogue open with the owner making the request and make every effort to flush out what is reasonable and compromise as best as possible. Keep the owner engaged as much as possible until you can determine all the facts necessary to make a decision. Do not ignore the request or turn the request down until you can gather the facts.