29 Jun “Dog is man’s best friend, but not if it is a service animal”
Dogs as Service Animals – The new ADA Requirement
I had a client contact me regarding a Complaint of Discrimination based on his property manager’s treatment of “service animals” for tenants in his apartment community. This owner has owned apartments and rented them to tenants for over 20 years. Never has the company been sued for complaints regarding the authorization of service animals.
The case was initiated by a phone call to a community, which he owned, by a group named “Fair Housing Advocates, Inc. (FHA). FHA is a non-profit housing advocacy group that assists any person in the exercise of fair housing opportunities. The caller asked two simple questions to the apartment manager. First, do you require a security deposit for “service dogs?” Second, do you allow service dogs to be at your pool common areas? If the manager answered “no” to any of these questions they would potentially run afoul of the Fair Housing Act.
In 2010 the U.S. Department of Justice, Civil Rights Division, Disability Rights Section provided a revised requirement and provided guidance on the term “service animals.” Only dogs would be recognized as service animals under Title II and Title III of the Americans with Disabilities Act (ADA). The dog had to be trained to do work or perform services for a person with a disability. Generally speaking, the government provided that service dogs could accompany people in areas generally accessible to the public. Therefore, these dogs could not be prohibited from accompanying a person with disability to restaurants, hospitals and yes, pool areas, commonly open to the public. The dog must be on a leash, harnessed or tethered, unless these restraints would hinder the dog’s ability to provide services to the disabled person. You cannot ask about the person’s disability, require medical documentation of the same, training documentation for the dog, or even ask that the person demonstrate the dog’s ability to perform duties. The dog cannot be asked to be removed unless the dog is out of the control of the handler or if the dog is not house-trained. People with disabilities who use service animals cannot be isolated from other patrons or treated less favorably. In addition, if there is a deposit or fee required for certain situations that involved animals by other patrons, this fee must be waived for persons with disabilities. Even if local or state ordinances prohibit service animals in public areas in accordance with local or state health codes, these establishment must allow service dogs.
My client had to allow service animals to reside with any person that uses a service animal because of their disability. The apartment complex could not segregate these persons in a certain area of the apartment community. They had to allow the service animals in the common area of the pool facility (note: however, the animals can be prohibited from swimming in the actual pool, per local ordinance). They also could not charge a pet deposit for any person with disabilities that has a service animal that assists them, even though they could charge other tenants a “pet” deposit.
These rules can be complicated and confusing to property managers and owners of multifamily units, however, since the implementation of these new rules there have been a lot of cases that can give your client guidance on how to approach these types of matters. Most important is to make sure that anyone that is going to be leasing apartment units or taking calls regarding the leasing of units know these rules and do not answer questions that they are not sure of the correct answer, because it could lead to a lawsuit based on your answer to the questions.
This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.
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