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.
Therapy Animals
Medical and counseling centers use therapy animals to treat patients with various emotional or social problems. Therapy animals include cats, dogs, rabbits, and horses.
Emotional Support Animal
Under the ADA, an emotional support animal, comfort animal, or animal-assisted therapy animal is not a service animal. It does not assist a disabled person with daily living activities. Instead, 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 must make reasonable accommodations for assistance animals, including emotional support animals, even though they are not trained to work or perform tasks. (See January 28, 2020 HUD position letter.) An assistance animal can be a reasonable accommodation under California's Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission.).
|
Role |
Training |
HOA Rules |
Service Animal |
Performs specific tasks for a disabled person. |
Training is required, and certification is provided but not required. |
Exempt from pet restrictions but must follow most pet rules (leash, clean-up, barking, aggressiveness). |
Therapy Animal |
Generally used in hospitals, nursing homes, and rehab facilities. |
Often trained but not required. Certification is usually provided but not required. |
It is exempt from pet restrictions if used in a home setting but must follow most pet rules. |
Emotional Support |
Alleviates the owner's anxiety or depression. |
No training or certification is required. |
The animal is exempt from pet restrictions if the owner provides a statement from a healthcare provider that the animal is needed. However, it must follow most pet rules. |
Establishing Disability
Disability Defined. "Disability" is a physical or mental condition or impairment that is medically cognizable and diagnosable and 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 they cannot perform the activity or is significantly restricted as to how they can perform that activity 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.)
Documentation. 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 provider that confirms the disability or need for an animal when the provider has personal knowledge of the individual's conditions is acceptable. To overcome pet restrictions, a qualified individual must show two things:
- They have a legal disability.
- The animal helps alleviate the disability.
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 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 each animal's specific needs. The association may also 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
The following is an example of reasonable rules 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,
- It will always stay within 24" of its owner unless the nature of a trained task requires it to work at a greater distance.
Do service animals have to be on a leash? According to the 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 accompanying 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 the 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 because someone has provoked it, this does not mean it 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 can 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 properly trained service animals may enter the water to assist a disabled person in swimming. Even so, an association may impose reasonable restrictions protecting pool filters from animal fur and 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 clear the common areas before issuing the command. Alternatively, the owner can pick it up with a waste bag from a common area lawn. Blind people are amazingly capable of doing things, including cleaning up after their dogs. They know when their dog is doing its business and where it will land.
Damage to Common Areas. All animal owners, whether pets or assistance animals are liable for any damage done to the association's common areas. 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), which can be applied to associations.
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.
Aggressive Assistance Animals
If an assistance/therapy/emotional support animal threatens 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. The Fair Housing Act generally requires a homeowners’ association to allow a resident to have an assistance animal, despite any governing document provisions to the contrary, as a reasonable accommodation when there is an identifiable relationship, or nexus, between the need for the assistance animal and a qualified disability under the Act. An exception is for dangerous or aggressive animals.
- Specific Animals Only. An association can deny a request for reasonable accommodation if an assistance animal if (1) the 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.
- Individualized Assessment. 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.
- No Denial Based on Speculation or Fear. Denial may not be based on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage other animals have caused.
- No Denial for Breed, Size, or Weight. Breed, size, and weight limitations may not be applied to an assistance animal.
- No Fees or Deposits. Associations may not charge a fee or deposit to have assistance animals, even if the animal is believed to be dangerous.
Court Ruling. Applying the above standards, the Vermont Supreme Court upheld a trial court ruling that a landlord was justified in denying a reasonable accommodation request by a tenant for a specific dog because the evidence showed the dog posed a threat to others and would cause substantial physical damage to the property. The supporting testimony presented to the trial court was:
- When outside, the dog regularly rears up on her back legs, lunges, or bares her teeth at people and other dogs.
- The tenant told others the dog had been trained as a “guard dog” and was “people and dog aggressive.”
- The tenant asked another resident to walk their dogs at different times to avoid conflict with the tenant’s dog.
- Evidence that the tenant may not be able to control the dog.
- Attempts by the tenant to mitigate the threat (limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression, especially considering the tenant may be unable to control the dog when she was outdoors.
Gill Terrace Retirement Apts. vs. Johnson (Supreme Court Opinion); (Superior Court Findings of Fact, Conclusions of Law and Order)
Additional Information
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