SERVICE, THERAPY & EMOTIONAL SUPPORT ANIMALS

1. Service Animal Defined. The ADA definition of a service animal was revised effective March 15, 2011 to mean the following:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler´s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal´s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

2. Therapy Animals. Therapy animals are used by medical and counseling centers to treat patients with various emotional or social problems. Therapy animals include cats, dogs, rabbits, horses, etc.

3. Emotional Support Animal. Under the ADA, an "emotional support animal" or "comfort animal" or "animal assisted therapy" (AAT) animal is not a service animal. It does not assist a disabled person with daily living activities. Rather it is prescribed in a treatment process to alleviate a person's depression or other psychiatric disabilities. However, under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including emotional support animals even though they are not trained to do work or perform tasks. (See January 28, 2020 HUD position letter.) Under California’s Fair Employment and Housing Act, an assistance animal can be a reasonable accommodation. (Auburn Woods HOA v. FEH Commission.).

Pet Restrictions. To overcome pet restrictions, a qualified individual must show two things:
1. They have a legal disability.
2. The animal helps alleviate the disability.

Proof of Disability. Under the federal Fair Housing Act, associations can ask for documentation when an individual has a disability that is not obvious or otherwise known. A note from a person’s healthcare professional that confirms the disability or need for an animal when the provider has personal knowledge of the individual’s conditions is acceptable.

Disability Defined. "Disability" is defined as a physical or mental condition or impairment that is medically cognizable, and diagnosable, and that substantially limits one or more of a person's major life activities. These limitations may include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, working, and learning. A person is substantially limited in major life activities if the individual is unable to perform the activity, or is significantly restricted as to the manner in which he or she can perform that activity when compared to the average person. Under California’s Fair Employment and Housing  Act, the physical or mental condition or impairment must limit one or more of a person’s major life activities. It is not required to be a “substantial” limitation. (See California Code of Regulations §12926.)

Reasonable Accommodation. Associations must reasonably accommodate persons with disabilities who use guide, signal, service dogs or assistance animals.. Associations may not apply breed and weight restrictions to restrict them from the community. (See April 25, 2013 HUD position letter.) As provided for in the California Department of Fair Employment and Housing guidelines:

Persons with disabilities have the right to use the services of a guide, signal or service dog or other such designated animal and to keep such animals in or around their dwellings. Landlords may reasonably regulate the presence of the animals on their premises but may not impose any extra charges or security deposits. Tenants, however, are liable for any damage caused by their animals when proof of such damage exists.

More Than One Animal. If a person requests more than one animal, he/she must provide information regarding the specific need for each animal. The association also may require proof that each animal is properly licensed and vaccinated.

Fraudulent Claims. Any person who knowingly and fraudulently represents himself or herself, through verbal or written notice, to be the owner or trainer of any canine licensed/qualified/identified as a guide, signal, or service dog shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding $1,000, or by both fine and imprisonment. (Cal. Penal Code § 365.7.)

ASSISTANCE ANIMAL RULES
Following is an example of reasonable rules that associations may adopt regarding service animals. Associations can adopt rules requiring service animals:

• be trained to perform tasks to mitigate the effects of its owner's disability,
• be clean and free of foul odor whenever in the common areas,
• not urinate or defecate in inappropriate locations,
• not create a nuisance by unnecessary barking or whining,
• not show aggression toward people or other animals,
• obey the commands of its owner,
• work calmly and quietly on a harness, leash or other tether,
• be able to lie quietly beside its owner without blocking aisles, and doorways,
• stay within 24" of its owner at all times unless the nature of a trained task requires it to be working at a greater distance.

Do service animals have to be on a leash?  According to U.S. Department of Justice, Civil Rights Division, Disability Rights Section, the ADA requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. The service animal must be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal’s work or the person’s disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a person who uses a wheelchair may use a long, retractable leash to allow her service animal to pick up or retrieve items. She may not allow the dog to wander away from her and must maintain control of the dog, even if it is retrieving an item at a distance from her. Or, a returning veteran who has PTSD and has great difficulty entering unfamiliar spaces may have a dog that is trained to enter a space, check to see that no threats are there, and come back and signal that it is safe to enter. The dog must be off leash to do its job, but may be leashed at other times. Under control also means that a service animal should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog is out of control.

In the Pool Area. If someone is blind and needs their guide dog to safely maneuver to a lounge chair, the association cannot prohibit the dog. An animal in the water is a different matter. According to the ADA's website, the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where the public is allowed to go. If someone legitimately needs the emotional support of a comfort animal to use the pool, the animal can be brought into the pool area but not the pool itself. Only service animals properly trained to assist a disabled person to swim can go into the water. Even so, there may be reasonable restrictions imposed regarding protection of pool filters from animal fur plus proper sanitation.

Dog Feces. Being disabled does not mean, service animals can relieve themselves in the common areas without cleaning up after them. 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 get clear ofthe common areas before issuing the command. In the alternative, the owner can pick it up from a common area lawn 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.

Damage to Common Areas. All animal owners, whether pets or assistance animals, are liable for any damage done to the association's common areas. 

Agressive Animals. If an assistance/therapy/emotional support animal poses a threat to the safety or health of others in the association, restrictions can be imposed, up to and including removing the animal from the development. Boards should seed legal counsel when an animal poses a threat to others.  

Care and Supervision. Associations are not responsible for the care and supervision of an assistance animal. That is the responsibility of the owner of the animal. Nor is it "reasonable accommodation" for an owner to assign those duties to an association.

Additional Information. See "Frequently Asked Questions about Service Animals and the ADA."

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.