Service Animals in Housing & Public Common Areas: An Overview of the Requirements under the ADA and FHA

August 10th, 2015 by JBWK

Submitted by Herbert V. Kelly, Jr.

Service animals are often essential to a disabled individual’s ability to function in society without constant human assistance. The benefits are well established and heavily enforced federal laws have been enacted to protect these disabled individuals’ rights to utilize service animals in public housing and places of public accommodation.

Specifically, the Fair Housing Act (FHA) sets the requirements regarding the admission of service and assistance animals in rental offices, property manager offices, public entities providing housing, privately owned housing, assisted living facilities, and housing provided by universities and other education centers. Title III of the Americans with Disabilities Act (ADA) sets the requirements regarding admission of service and assistance animals in the public common areas in and surrounding each of those places subject to the FHA.

This area of law can be quite simple and easy to apply in some circumstances and very confusing and quite difficult in others. It is commonly accepted, for example, that a dog assisting a blind individual is a service animal and that the blind individual is suffering from a disability. Accordingly, most establishments would not think twice before granting admission to the disabled individual with his or her service dog.

What about a service dog accompanying an otherwise fully functioning individual for the purposes of detecting and warning that individual of an impending seizure? After some explanation, most would make the correct decision and grant admission to a service animal of this sort.

What about a cat assisting an individual with anxiety? Some may try to draw the line here, arguing that a cat is not an appropriate service animal or that it is incapable of actually assisting an individual suffering from anxiety. This scenario is a bit tricky, however. Often times, barring such a cat from admission would be prohibited by the FHA but permissible under Title III of the ADA.

This article provides an overview of how the different requirements of the FHA and Title III of the ADA apply to private and public housing, establishments associated with housing, and places of public accommodation within those establishments. Consulting with an attorney prior to turning away a disabled individual with a service animal is advisable and highly recommended. However, when the practical time constraints associated with a request prevent such consultation, being familiar with the information provided below will be extremely helpful.

The FHA applies to virtually all types of privately owned and public housing. Notwithstanding any general rules concerning pets, all housing providers must consider disabled tenant and applicant service animal related requests for a reasonable accommodation. Under the FHA, an individual may keep any service animal in his or her dwelling as a reasonable accommodation if all of the following requirements are met:

  1. the person has a disability;
  2. the animal is necessary to afford the person with a disability an equal opportunity to use and enjoy the dwelling; and
  3. there is an identifiable relationship or nexus between the disability and the assistance the animal provides.

If these requirements are met, the housing provider must not only provide reasonable accommodation for the disabled individual, but must also waive any “no pets” policies and may not charge any fees as a condition of allowing the service animal to reside with the tenant.

The inquiry does not actually end there, however. There are also some exceptions. A request for a reasonable accommodation may still be denied if doing so would cause an undue financial and administrative burden on the provider or would fundamentally alter the nature of the services otherwise provided to all tenants.

Additionally, if the animal in question poses a direct threat to the health or safety of others or would cause substantial damage to the property of others and such threat or damage cannot be reduced by some other reasonable accommodation, the tenant or applicant request may be denied.

When evaluating a request for a reasonable accommodation and any potential exceptions, it is also important to be aware of strictly enforced FHA parameters. A housing provider may only request medical documentation evidencing an individual’s disability if the individual’s disability is not readily apparent.

Likewise, the provider may only request documentation to show that a disability necessitates the use of a service animal if the disabled individual’s need is not apparent. Finally, providers are strictly prohibited from requesting any documentation to illustrate that a service animal is certified or individually trained.

Title III of the ADA controls service animal admittance requirements for all places of public accommodation located within or around those establishments subject to the FHA test just previously discussed. The ADA requirements are a bit stricter than the FHA requirements. Under the FHA, for example, any animal can qualify as a service animal if it meets all of the other requirements however, trained dogs and, just recently, miniature horses are the only types of animals that may qualify as service animals under the ADA. The ADA also expressly precludes emotional support animals from protection.

The ADA requirements are certainly more rigid with respect to the types of animals that may qualify and with respect to the types of disabilities recognized as necessitating the assistance of a service animal. Nevertheless, it would be foolish to take any ADA type requests for a reasonable accommodation lightly.

Consider for a moment, for example, a reasonable accommodation request for a dog or miniature horse trained to detect and assist in avoiding or lessening the impact of an anxiety attack. Somewhat surprisingly, such a dog or horse is classified as a service animal under the ADA and must be admitted. Ensuring avoidance of any liability due to inappropriate prohibition of a service animal on an establishment’s premises requires a thorough evaluation of every request pursuant to the framework below.

It is most important to understand that under the ADA, there are instances in which a disabled individual and his or her service animal must be admitted into an establishment without any preliminary inquiry made by that establishment.

This will be the case whenever it is readily apparent that an individual is disabled and that the animal accompanying the disabled individual is trained to do work or perform tasks for the disabled individual. If it is not readily apparent that the individual has a disability or that the animal is trained to do work or perform tasks for the disabled individual, the requirement that covered establishments must admit service animals may be subject to an initial two part test:

  1. an inquiry into whether the animal is a service animal required by a disability and
  2. an inquiry into what work or tasks the animal has been trained to perform.

An establishment may offer voluntary registries for the convenience of disabled individuals and their service animals but it may not require an individual, as a part of the second inquiry, to provide documentation to prove that a service animal is adequately trained. In fact, individuals with disabilities are permitted to train their service animals themselves, making it quite possible, and permissible under the ADA, for no such documentation to exist.

There are also some exceptions to the requirement for a reasonable accommodation under Title III of the ADA. There are three scenarios in which an otherwise qualified service animal may be denied access under the ADA:

  1. the service animal is out of control and the owner is unable to take effective action to regain control
  2. the service animal is not housebroken, or
  3. the service animal poses a direct threat to the health or safety of other individuals utilizing the area and such threat cannot be reduced or eliminated by some reasonable modification to general rules and procedures.

Entities are also permitted to conduct an assessment of the following four factors when they are evaluating the appropriateness of admission of miniature horses:

  1. whether the horse is housebroken,
  2. whether the horse is under the owner’s control,
  3. whether the facility can accommodate the horse’s type, size, and weight, and
  4. whether the horse’s presence will compromise the requirements for safe operation of the facility.

Taking the position that an exception exists should be handled with care and, unless the animal is posing an immediate threat to another’s safety, should not be taken prior to consulting with an attorney or other individual with expertise in this area of law.

Many of the establishments mentioned in this article are subject to the requirements of both the FHA and the ADA. Compliance with one law does not guarantee compliance with the other and the ADA regulations expressly state that the ADA requirements may not be used as an avenue to reduce a housing provider’s or other covered establishment’s duty to accommodate service animals pursuant to the requirements established by the FHA.

Establishments covered by both the FHA and the ADA should first determine whether the service animal meets the qualifications for admittance under the FHA and then, only after arriving at a decision under the FHA framework, evaluate the request using the ADA framework.

Violations of either of these acts can subject housing providers and facilities to severe monetary penalties. It is the establishment’s responsibility to understand and apply the laws correctly and it is therefore, incumbent on them to seek legal counsel if they are ever unsure as to the validity of the result of their application of a test or exception to a disabled individual’s service animal.

To further avoid potential liability, it would also be wise to train employees, representatives, and agents on the scenarios they will encounter most frequently when disabled individuals seek to visit or reside on premises with their service animals and how to most effectively handle those matters within the constraints of the questions permitted by the ADA and the FHA.

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