Reasonable Accommodation or Nuisance? Service Animals for the Disabled
How far you go in life depends on your being tender with the young, compassionate with the aged, sympathetic with the striving, and tolerant of the weak and strong. Because someday in your life, you will have been all of these.” With these words, George Washington Carver stressed the importance of benevolence toward the less powerful members of society. Such a lenient attitude toward others is also reflected in the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. (“the ADA”) and the Fair Housing Amendments Act of 1988, 42 U.S.C. §§3601 et seq. (“the act”). With these laws, Congress prohibited the discrimination of the disabled in public accommodations and housing.1 Both statutes require housing providers to make reasonable accommodations for the disabled. A simple example is the addition of a ramp to a walkway enabling someone who uses a wheelchair to access their house or apartment. This article discusses whether the ADA and the act require housing providers to make exceptions to no-pets policies to allow the disabled to live with service animals, such as dogs and cats. It goes beyond the use of seeing-eye and hearing-ear dogs to the more controversial service animals, such as those that comfort persons with depression or other emotional difficulties. Are these pets nuisances, as claimed by landlords and condominium and homeowner associations, or reasonable accommodations required by federal law?
While most people are familiar with the use of seeing-eye dogs for the sight impaired and do not question their necessity, the public is less aware that federal discrimination laws do not differentiate between physical and mental disabilities when it comes to service animals.2 The act and the ADA approach disability similarly. Both laws protect a person when a physical or mental impairment “substantially limits” one or more major life activities, such as the ability to work, walk, talk, see, or hear. 42 U.S.C. §§3602(h), 12102(2). Both measures also protect those with histories of disability and those regarded as disabled. Id. The extent to which a person’s major life activity must be limited and whether a medication-controlled impairment constitutes a disability, however, are hotly contested issues.3
The purpose of the ADA is to eliminate discrimination against individuals with disabilities. 42 U.S.C. §12101. The ADA prohibits discrimination in various aspects of life, including employment, and the use of public services, public transportation, and public accommodations. A public accommodation is defined to include a “place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of the proprietor.” 42 U.S.C. §12181(7)(A). Under the ADA, no disabled person shall be discriminated against “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. §12182(a).
In addition, the ADA prohibits the discrimination of the disabled as to public services, such as bond financing, and programs, such as housing. 42 U.S.C. §12132. Therefore, denying someone the benefit of that service (the funding and provision of low income housing) by preventing them from living in the low income housing because of his or her disability is also illegal. Independent Housing Services of San Francisco v. Fillmore Center Assoc., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993). To prove a public program violates the ADA, a plaintiff must show that: 1) he or she is a qualified individual with a disability; 2) he or she was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by a public entity; and 3) such exclusion, denial of benefits, or discrimination was by reason of the disability. Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253, 1255 (D. Or. 1998) (citing Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F. 3d 976, 978 (9th Cir. 1997), cert. denied 522 U.S. 971 (1997)).
With the act, Congress sought to eliminate discrimination specifically with regard to various housing practices such as sales, rental, and the provision of brokerage services. 42 U.S.C. §§3601, 3604, 3606. The act prohibits discrimination against an individual not only on the basis of disability but also because of familial status, race, color, religion, sex, or national origin.
The ADA and the act require housing providers such as condominiums, homeowner associations, and cooperative apartments to provide disabled persons with reasonable accommodations. Under the act, housing providers must provide reasonable accommodations that “may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B). Under the ADA, “reasonable modifications in policies, practices, or procedures [must be made] when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. §12182(b)(2)(A)(ii). Thus, reasonable accommodations must be made for people with physical or mental disabilities who need an animal to aid in their care. Disabilities may include neurological disorders, panic disorder, depression, and bipolar disorder, among others. Even though some disabilities are not evident, the ADA and the act require housing providers to permit service animals to aid in the care of persons suffering from these infirmities even where a no-pets policy exists.
Service animals are not considered pets under these laws. The Justice Department, which Congress directed to issue regulations to carry out the ADA, issued a regulation stating, “Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” 28 C.F.R. 36.302(c)(1). In its interpretive commentary, the Justice Department stated as follows:
Section 36.302(c)(1) of the final rule. . . reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals. It is intended that the broadest feasible access be provided to service animals in all places of public accommodation,. . . .
28 C.F.R. pt. 36 app. B, at 623 (citations omitted, emphasis added).
The ADA and the act also prohibit retaliation, meaning the unfavorable treatment of any person who seeks or helps with the enforcement of these laws. 42 U.S.C. §§3617, 12203. For example, terminating a lease as a way to strike back against a disabled renter for requesting a service animal is illegal. Likewise, refusing to repair the dwelling of a nondisabled person who has helped a disabled person file a charge under these laws is prohibited.
While the purposes are similar, enforcement of the two laws differs. The ADA fails to mention that a disabled person must exhaust those remedies available through an administrative agency. No circuit court has ruled on the issue and district courts have split as to whether exhaustion of administrative remedies is required. Proffer v. Tower, 1999 U.S. Dist. LEXIS 16676 (S.D. Cal. 1999) (citing split of cases among district courts and holding that the ADA does not require agency action). At trial, the plaintiff has the ultimate burden of proving that a reasonable modification was requested. Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F. 3d 1052, 1059 (5th Cir. 1997). The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases. Id. If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant can prove that the requested modification would fundamentally alter the nature of the public accommodation. The type of evidence that satisfies this burden focuses on the defendant’s circumstances and not on the nature of the accommodation. Id. at 1059-60.
Under the act, cases go to the U.S. Department of Housing and Urban Development (HUD). HUD investigates claims and then turns them over to an administrative law judge for a decision. An aggrieved person may also commence a civil action in federal court whether or not a complaint has been filed with HUD. 42 U.S.C. §3613.
The relief available to a disabled person also differs depending on the legal basis of the claim. Under the ADA, equitable relief, such as a court order allowing the animal to stay, is available. 42 U.S.C. §12188. The court or administrative agency also has the discretion to award the prevailing party a reasonable attorneys’ fee, including litigation expenses and costs. 42 U.S.C. §12205. Under the act, compensatory damages can be awarded to the complainant for pain and humiliation and for out-of-pocket expenses, such as attorneys’ fees and costs. 42 U.S.C. §3613(c). Punitive damages can be awarded if the discrimination appears deliberate. Id.
More Often Than You Would Think
Considering the broad definitions of “disability” and “service animal,” the number of recent cases in which parties are using these laws to avoid eviction should not be surprising. James Lockwood has a Pekinese dog to help him.4 Lockwood, a prostate cancer survivor, followed his doctor’s orders and acquired the small dog after being hospitalized for two weeks for depression. Although he explained to his condominium community’s board of directors that the dog was part of his treatment plan, the board adhered to the no-pets policy. In response, Lockwood filed a complaint with the local fair housing authority. That office determined that the board discriminated against Lockwood by refusing to allow him to keep his dog.
Likewise, James D. Lemon suffers from anxiety and depression disorders, severe chronic asthma, emphysema, and bronchitis.5 His condo association took him to court for keeping a Chihuahua, in violation of their no-pets policy. After a two-year battle, the case settled and Lemon kept the dog.
Jess Jessup is disabled with juvenile rheumatoid arthritis and suffering from depression.6 His wife, Bernice, suffers from heart trouble and diabetes. When one of their two Yorkshire terriers died, they went before the board that runs the 400-resident apartment complex to ask for a replacement. They explained to them that the dogs were needed for health reasons and provided supporting medical documents. When no answer came, they adopted another Yorkshire. Two and a half years later, the board replied with a 30-day pet eviction notice. Instead of trying to evict the Jessups when they refused to give up their dog, the board filed a lawsuit in federal court to determine whether the housing laws require them to accommodate service animals other than seeing-eye or hearing-ear dogs.
Because the laws require only a “reasonable” accommodation, housing providers that restrict pets to those under a certain weight (such as 25 pounds) would probably not be violating the ADA or the act. A small pet would allow the disabled person to satisfy medical need with minimal disturbance to others. However, the reasonableness determination depends on the case. For example, James Barash, a quadriplegic, used an American Staffordshire terrier to push his wheelchair.7 Because the condo association permitted pets under 25 pounds, Barash sought an exception for his dog. American Staffordshire terriers can weigh over 40 pounds. When the condo refused, Barash filed a lawsuit in federal court.
Other decisions show that disabled persons seek service animals to help with various infirmities.8 According to a news article, a California woman suffering from panic disorder won $100,000 and the right to keep her companion dog. The same article states that an administrative law judge awarded a woman victim of fibromyalgia $5,000 and the right to keep her cat. In Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), the Seventh Circuit held that a deaf tenant could be entitled to keep his dog if he could show that the animal was necessary as a service animal. The court specifically ruled that a deaf individual’s need for the accommodation afforded by a hearing dog is per se reasonable within the meaning of the Fair Housing Amendments Act. Id. at 429.
Requirements Under Laws
Under the ADA and the act, service animals must be permitted despite no pets policies if various facts are shown. Specifically, the animal must be trained and must work for the benefit of a disabled person. In addition, the disabled person should be able to demonstrate a medical need for the animal and the accommodation must be reasonable.
There is some debate as to the amount of proof of medical need that a tenant must demonstrate in order to keep the animal. Generally, housing providers have the right to ask a tenant making a reasonable accommodation request to furnish documentation about the need for it. This is because when there is no need for the accommodation, the discrimination laws do not apply. See Bryant Woods Inn, Inc. v. Howard County, MD, 124 F. 3d 597, 604 (4th Cir. 1997) (“If the proposed accommodation provides no direct amelioration of a disability’s effect, it cannot be said to be ‘necessary.’”).
On the other hand, at least one district court has ruled that requiring proof of professional training, in itself, is discriminatory. In Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253 (D. Ore. 1998), the district court granted summary judgment in favor of a deaf tenant who wanted to keep a hearing-ear dog. The housing authority argued that he could not prove the medical necessity for the dog. The court ruled that the housing authority violated federal statutes by requiring proof that the animal had received professional hearing assistance training. Id. After analyzing federal and state law on the subject, the court held that,
The only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of a disabled individual. There is no requirement as to the amount or type of training a service animal must undergo. Further, there is no requirement as to the amount or type of work a service animal must provide for the benefit of the disabled person.”
Id. at 1256 (citing 28 C.F.R. §36.104).
Because evidence showed that the dog barked when visitors knocked, the court held that the dog was a “service animal” under federal law. The court cited Bronk for the holding that there is no need for a service animal to be professionally trained.
Although it may be difficult in some cases, the wise course of action would be to obtain a physician’s note indicating that the animal will improve the patient’s health or enhance the patient’s quality of life. Studies report pet owners have lower blood pressure and lower triglyceride and cholesterol levels than non-pet owners do and generally live longer following coronary heart disease.9 Evidence has existed for years that animals help the disabled cope with mental maladies.10 Furthermore, these same studies suggest that medication costs drop dramatically.
Housing providers can also require that the request be reasonable. For example, the animals cannot be a nuisance. Service animals are required not to disrupt the peace. An occasional bark may not count but continuous noise that disrupts neighbors makes the request unreasonable. Likewise, the size and type of the service animal should accommodate not only the disability of the tenant but also the general ambiance of the housing environment.
Although the interpretation of these laws to provide for service animals in a no-pets housing environment may seem a novel idea, attorneys knowledgeable about discrimination laws can help both tenants and housing providers comply. If the laws and medicine do not discriminate between a seeing-eye dog and an emotional-support cat, however, it is doubtful if anyone should.
1 As further described infra, this article assumes that the definition of “public accommodation” in the ADA applies to private lodging such as condominiums and homeowners associations. This issue is debated.
2 The Florida law on service animals prohibits housing discrimination as to the physically, but not the mentally, disabled. Fla. Stat. §413.08(4) (1998).
3 This article assumes that the emotional impairment constitutes a disability under the respective federal law. See discussion of various levels of impairment in Steven S. Locke, Incredible Shrinking Protected Class: Redefining the Scope of Disability, 68 U. Colo. L. Rev. 107 (1997); Michael J. Puma, Respecting the Plain Language of the ADA: A Textualist Argument Rejecting the EEOC’s Analysis of Controlled Disabilities, 67 Geo. Wash. L. Rev. 123 (1998); and Who is a Qualified Individual With a Disability Under the Americans With Disabilities Act?, 64 U. Cin. L. Rev. 189 (1995).
4 Biting Back. Condo owners ferret out new ways to keep banned pets from being evicted, Miami Daily Business Review, July 11, 2000, at A1.
5 Biting Back,supra note 5, at A10.
6 Dog Fight. Apartment Board Disputes Contention That Couple’s Pets Are Medically Helpful, Charleston Gazette, Feb. 24, 2000; 2000 WL 2594445.
7 Lawsuit Charges Condo Association with Housing Discrimination, Clearwater Times, Dec. 18, 1998; 1998 WL 18309372.
8 Two Laws Make Lives of Some Easier, Albuquerque Journal, Oct. 20, 1997; 1997 WL 18400610.
9 Anderson, W.P. et al., The Health Benefits of Pets, National Institutes of Health Technology Assess Statement Online Sep. 10-11, 1987; Is Pet Ownership Good For Your Heart? The Results of a Survey of Risk Factors for Cardiovascular Disease in Melbourne, Australia, Baker Medical Research Institute, 1992.
10 “[T]he earliest extensive use of companion animals in the United States occurred from 1944 to 1945 at an Army Air Corps Convalescent Hospital. . . . Patients recovering from war experiences were encouraged to work at the hospital’s farm. . . . ” Quoted from the Overview of The Health Benefits of Pets.
Elizabeth Blandon is an associate at the Miami office of Shutts & Bowen LLP, practicing commercial litigation and employment law, including disability claims. She graduated from the University of Pennsylvania, The Law School, and received bachelor’s degrees in French and journalism from Boston University. Her community service includes coordinating fundraising events on behalf of the Humane Society of Broward County.