QUESTION: We have homeowners who want to collect DNA from dogs in our association so that poop that is not picked up can be analyzed and the owner appropriately fined for not picking it up. Is this legal?
RESPONSE: Yes, it's legal. There are no invasion of privacy issues since the dog's feces are left in public for anyone to step in. There are several labs around the country that specialize in this testing.
DNA Swab. Before implementing the program, an association should adopt a requirement that all dogs in the development be swabbed for DNA, which is then put on file with the company. Then, when a pet owner fails to clean up after his/her dog, a sample can be sent to the company for identification. Once the culprit is identified, fines can be levied against the owner to cover the cost of DNA testing.
Service Animals. What about disabled owners with service animals? Do they have to clean up after their dogs? Yes, they must clean up after their animals. Dog feces in common area hallways or lawns present a health hazard. No one wants to step in it and track it into their cars or units. Guide dogs for the blind can be taught to go on command. That way, the owner can clear the common areas before issuing the command. In the alternative, the owner can pick it up with a waste bag. The blind are amazingly capable at doing things, including cleaning up after their dogs. They know when their dog is doing its business and have a good idea of where it will land.
Statutes. Under the California Disabled Persons Act, an owner of a housing accommodation can establish terms in a lease or rental agreement that reasonably regulate the presence of guide dogs, signal dogs, or service dogs on the premises of a housing accommodation. (Civ. Code, §54.1(b)(6)(B).) It also states that a tenant is responsible for damage caused by their animal. California’s Fair Employment and Housing Act incorporates Civil Code §54.1 into the Act. (Gov. Code, §12948.) This can be applied to associations.
Case Law. In Prindable v. Association of Apartment Owners (2003) 304 F.Supp.2d 1245, a homeowners association had a "no pet" policy. An owner submitted a request for accommodation to have an emotional support dog named Einstein. The association granted temporary approval while it made a determination, provided that Prindable agreed:
(1) to take full responsibility for Einstein; (2) not to permit Einstein to defecate or urinate at the complex; (3) not to permit Einstein to disrupt the quiet enjoyment of other tenants; (4) not to wash Einstein in the shower provided for residents; (5) not to permit Einstein to go into the laundry room or to stand on the common area furniture; (6) to keep Einstein within unit 102 or within the limited common yard area of the unit at all times; (7) to use the shortest possible route when taking Einstein to and from the unit, that is, through the pedestrian entrance and exit of the garage; and (8) not to walk Einstein on the project grounds or common areas, except when taking him to and from the unit.
Prindable filed a housing discrimination complaint against the association alleging it had failed to make a reasonable accommodation. The court noted that nothing in the FHA precludes the imposition of appropriate rules and regulations designed to lessen the impact of housing a pet in a no pet building. The court ruled for the association.
Recommendation: Legal counsel should review an association's rules to make sure they are reasonable. If a disabled or emotionally challenged person claims they can't clean up after their animal and want reasonable accommodation, legal counsel should be contacted.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.