HOUSING
PETS, SERVICE ANIMALS & THERAPY ANIMALS
A “TAIL” OF TWO LAWS
Thomas E. Betz
Director of Student Legal Service
University of Illinois at Urbana-Champaign
J. D. 1981 Wayne State University
Winnie Zhang
UIUC – Student Legal Service Office Assistant
Formatted PowerPoint
University Student Legal Services Association
Western Region January 2015
New Orleans, Louisiana
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1. ANIMALS IN HOUSING ARE GOVERNED BY TWO FEDERAL
STATUTORY SCHEMES WHICH HAVE DIFFERENT RULES, DEFINITIONS,
ENFORCEMENT AGENCIES AND STRENGTHS. DO NOT OVERLOOK
YOUR STATE’S PROVISIONS AND COMMON LAW DOCTRINES.
AMERICANS WITH DISABILITIES ACT:(ADA) 42 U.S.C.A. SEC 12101 ET SEQ.
• GOVERNS “SERVICE ANIMALS”
• U.S. DEPARTMENT OF JUSTICE ENFORCES AND PROMULGATES RULES
FAIR HOUSING ACT (FHACT) & SEC 504 OF REHABILITATION ACT OF 1973
• GOVERNS “THERAPY/ASSISTANCE ANIMALS”
• U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PROMULGATES RULES
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QUESTION: CAN BOTH ACTS APPLY FOR THE SAME ANIMAL?
ANSWER: YES 1. WHERE IT IS A DOG, 2. WHERE IT IS “HOUSING”, 3. A “SERVICE” ANIMAL
CAN ALSO ACT AS A “THERAPY/ASSISTANCE” ANIMAL
NOTE: A CAT CAN BE A “THERAPY” ANIMAL BUT CANNOT BE A “SERVICE” ANIMAL
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2. SERVICE ANIMALS: ADA
WHAT IS A “SERVICE” ANIMAL?
• A DOG INDIVIDUALLY TRAINED TO DO WORK OR PERFORM TASKS
• IN EXTREMELY RARE INSTANCES TRAINED MINIATURE HORSES
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WHAT IS WORK?
• WORK IS NOT THE PROVISION OF EMOTIONAL SUPPORT, COMPANIONSHIP, COMFORT, WELLBEING. USE OF FH ACT RULES FOR “THERAPY/ASSISTANCE” ANIMALS IS MORE LIKELY TO BE
APPLICABLE TO THIS PURPOSE.
• WORK IS THE PERFORMANCE OF TASKS FOR ONE WITH A DISABILITY WHICH MAY BE
PHYSICAL, SENSORY, PSYCHIATRIC, AND INTELLECTUAL.
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WHERE ARE “SERVICE” ANIMALS ALLOWED TO GO?
• ANY PLACE OF PUBLIC ACCOMMODATION WHICH INCLUDES:
• PLACES OF PUBLIC EDUCATION, SCHOOLS, UNIVERSITIES
• RENTAL HOUSING, LEASING OFFICES
• INNS, HOTEL /MOTELS AND OTHER LODGINGS
• BUT….SERVICE ANIMALS CAN BE EXCLUDED FROM LODGINGS FOR HIRE WHERE FIVE OR LESS UNITS
AND OWNER OCCUPIED, SUCH UNITS ARE NOT RESIDENCES.
• ON AIRLINES WHICH IS GOVERNED BY THE AIR CARRIER ACCESS ACT OF 1986 (ACAA); AIRLINE CAN
REQUIRE DOCUMENT OF TRAINING AND NOTICE. NOTICE SHOULD BE GIVEN AFTER TICKET
PURCHASE TO AVOID “SUDDEN LACK OF SEATING”. ADA SERVICE ANIMALS AND FH ACT
“THERAPY/ASSISTANCE” ANIMALS ARE BOTH PROTECTED UNDER ACAA OF 1986. DOCUMENTATION
LESS THAN ONE YEAR OLD MUST BE PROVIDED FOR “THERAPY/ASSISTANCE” ANIMALS. SEE 14
C.F.R.SEC. 382.117
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PLACES THAT SERVICE ANIMALS ARE NOT ALLOWED
TO GO ON CAMPUS:
•
FOOD PREPARATION AREAS;
•
PLACES THAT PRESENT DANGER TO ANIMAL;
•
CLEAN ROOMS, I.E. LABS;
•
MACHINE ROOMS.
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WHAT IS A “DISABILITY” FOR PURPOSES OF “SERVICE”
DOGS?
• A DOCUMENTED PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE
MAJOR LIFE ACTIVITY, A RECORD OF SUCH AN IMPAIRMENT, OR BEING REGARDED AS HAVING
SUCH AN IMPAIRMENT.
• THE “SERVICE “DOG AS IT RELATES TO DISABILITY IS TRAINED AS A 1. GUIDE DOG…SMELL, VISON,
HEARING ETC. 2. SIGNAL DOG 3. SEIZURE-ALERT DOG 4. MOBILITY IMPAIRMENT DOG 5.
PSYCHIATRIC SERVICE DOG (TRAINED TO E.G. INTERRUPT SELF-MUTILATION, KEEP THOSE WITH
DISSOCIATIVE IDENTITY DISORDER GROUNDED IN TIME AND/OR PLACE, REMINDS OWNER TO TAKE
MEDICINES. THIS TYPE OF TRAINED DOG SOMETIMES OVERLAPS WITH “THERAPY/ASSISTANCE”
ANIMALS BEING USED FOR EMOTIONAL SUPPORT.
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POST TRAUMATIC STRESS SYNDROME IS RECOGNIZED BY DSM IV AND HAS
SOME FREQUENCY AMONG VETERAN STUDENTS ON COLLEGE CAMPUSES.
STUDENTS WHO ARE VICTIMS OF TRAUMATIC CRIMES OR OTHER SERIOUS
EVENTS MAY SUFFER FROM PTSS ALTHOUGH THE STEREOTYPE IS FOR
RETURNING VETERANS. “SERVICE” DOGS AND “THERAPY/ASSISTANCE”
ANIMAL RULES COULD EACH BE USED TO MAXIMIZE BENEFITS TO VETERAN AND
OTHER PTSS STUDENTS.
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THE KEY THING TO REMEMBER IS THE CONCEPT OF REASONABLE
ACCOMMODATION AS TO BOTH FEDERAL ACTS. THERE ARE FEW ABSOLUTE
RIGHTS. THE ACCOMMODATION IS CONSIDERED REASONABLE IF:
IT IS A CHANGE IN RULES, POLICIES, PRACTICES OR SERVICES SO THAT THE PERSON WITH THE
DISABILITY WILL HAVE AN EQUAL OPPORTUNITY TO ENJOY THE DWELLING. THE
ACCOMMODATION IS NOT REQUIRED IF IT WOULD CREATE AN UNUSUAL HARDSHIP SUCH AS
SIGNIFICANT STRUCTURAL CHANGE OR FINANCIAL IMPACT.
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QUESTION: CAN A LANDLORD CHARGE A “PET DEPOSIT” FOR AN ADA SERVICE DOG?
ANSWER: I WOULD ADVISE NO, BUT THERE IS SOME AMBIGUITY. I WOULD NOT GO
THERE AS A LANDLORD.
PRACTICE NOTE: ALWAYS TAKE A LOOK AT YOUR STATE’S HUMAN RIGHTS ACT, COUNTY OR LOCAL
MUNICIPAL HUMAN RIGHTS ORDINANCES FOR BROADER DEFINITIONS AND ENFORCEMENT ISSUES.
DENIAL OF ACCOMMODATION TO A PERSON WITH A “SERVICE” ANIMAL IS A STATE CRIMINAL
CHARGE IN ILLINOIS AND OTHER STATES. IT IS FAR MORE LIKELY IN SOME STATES TO GET
ENFORCEMENT AT THE LOCAL LEVEL APPLYING ITS OWN LAW. USUALLY THESE WILL NOT COVER
THERAPY/ASSISTANCE ANIMALS.
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3. THERAPY/ASSISTANCE ANIMALS : FH ACT SEC. 504
WHAT IS A “THERAPY/ASSISTANCE” ANIMAL?
FOR PURPOSES OF THIS PRESENTATION THE TERM “THERAPY/ASSISTANCE” ANIMAL IS USED TO
DISTINGUISH THESE ANIMALS FROM “SERVICE” ANIMALS COVERED BY ADA ALTHOUGH THE FAIR
HOUSING ACT AND REGULATIONS SOMETIMES USE THE TERM “ASSISTANCE ANIMAL” AND EVEN
“SERVICE ANIMAL” WHICH CAN COMPLICATE AND CONFUSE THE LAY PUBLIC VIEW OF THIS
ISSUE.
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A “THERAPY/ASSISTANCE ANIMAL IS AN ANIMAL:
• THAT DOES NOT HAVE TO BE SPECIALLY TRAINED TO ASSIST WITH
SPECIFIC DISABILITY
• THAT IS “NEEDED” TO ASSIST WITH THE DISABILITY
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WHERE ARE “THERAPY/ASSISTANCE” ANIMALS
PERMITTED TO GO?
• HOUSING; APARTMENTS, CONDOS, RESIDENTIAL PROPERTY
• THERE IS NOT AN AUTOMATIC/PROTECTED RIGHT FOR THERAPY/ASSISTANCE ANIMALS TO BE
PRESENT IN OTHER PLACES OF PUBLIC ACCOMMODATION SUCH AS RESTAURANTS, BARS,
CLASSROOMS (NOTE THAT SOME STATES SUCH AS ILLINOIS STATUTORILY PERMIT “SERVICE”
ANIMALS IN THE CLASSROOM, 105 ILCS 5/14.1.01 ET SEQ, WITH THE DECISION IN NICHELLE V.
VILLA GROVE, 403 ILL.APP.31062, 936 N.E.2D690 (2010), IMPLICATING THE NOTION THAT
“THERAPY/ASSISTANCE” ANIMALS ARE PERMITTED IN THE CASE OF AN ELEMENTARY STUDENT
SUFFERING FROM AUTISM. THE FACTS OF THE CASE STRONGLY CORRELATE TO
EMOTION/PERSONAL SECURITY ALTHOUGH THE DOG WAS TRAINED AS A SERVICE ANIMAL.
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WHAT IS A “DISABILITY” FOR PURPOSES OF
“THERAPY/ASSISTANCE” ANIMALS?
• A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE
ACTIVITIES.
• IF THE STUDENT TENANT HAS A “DISABILITY” AND IT CAN BE SHOWN THAT THE ANIMAL IS OF
ASSISTANCE TO THE PERSON WITH THE CONDITION OR PROVIDES EMOTIONAL SUPPORT THAT
ALLEVIATES ONE OR MORE OF THE SYMPTOMS OF THE DISABILITY THEN A REASONABLE
ACCOMMODATION OF THE ANIMAL IS LIKELY REQUIRED.
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WHAT WILL THE STUDENT TENANT NEED TO OBTAIN
HOUSING PROVIDER ACCOMMODATION OF THE
“THERAPY/ASSISTANCE” ANIMAL?
• UNLESS THE STUDENT CONDITION IS OBVIOUS OR KNOWN TO THE LANDLORD THE
LANDLORD CAN REQUIRE A LETTER FROM A LICENSED MEDICAL/PSYCHIATRIC PROFESSIONAL
OR EVEN LICENSED CLINICAL SOCIAL WORKER THAT STATES THAT “THERE IS A DISABILITY”
AND THAT THE “ANIMAL PROVIDES NECESSARY SUPPORT IN DEALING WITH THE SYMPTOMS
OF THE CONDITION”. THE LANDLORD IS NOT ENTITLED TO MEDICAL OR PSYCHIATRIC
RECORDS.
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QUESTION: CAN THE LANDLORD CHARGE A PET/SECURITY/DAMAGE DEPOSIT FOR A
“THERAPY/ASSISTANCE” ANIMAL?
ANSWER: NO!
PRACTICE NOTE: YOUR COUNSELING CENTER IS LIKELY TO HAVE STAFF MEMBERS WHO ARE
LICENSED, WHO IN APPROPRIATE CASES CAN WRITE SUCH LETTERS. IT MAY BE NECESSARY FOR THE
SLS ATTORNEY TO PROVIDE GUIDANCE THAT PROTECTS CLIENT MEDICAL PRIVACY I.E. DISCLOSING IN
THE LETTER THE ABSOLUTE MINIMUM TO OBTAIN ACCOMMODATION ELIGIBILITY. YOU MAY WISH TO
DRAFT A MODEL LETTER THAT YOU CAN E –MAIL TO THE THERAPIST/MEDICAL PROVIDER.
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WHEN IT IS NOT A SERVICE OR THERAPY/ASSISTANCE ANIMAL
4. PETS: LEASES AND REGULATIONS AND A BIT OF LAW
• THE GENERAL RULE IS THAT PRIVATE AND PUBLIC RESIDENTIAL LEASE AGREEMENTS CAN
PROHIBIT PETS REGARDLESS OF THE NATURE OF THE PET.
• THE GENERAL RULE IS THAT PRIVATE AND PUBLIC RESIDENTIAL AGREEMENTS CAN REGULATE
THE TYPE OF PET AND SIZE OF PET THAT WILL BE PERMITTED; “NO DOGS WEIGHING MORE
THAN 60 LBS. “ PUPPIES GROW UP AS SOME OF OUR STUDENTS HAVE LEARNED. “NO PIT
BULLS” “NO CATS” “NO SNAKES OR OTHER REPTILES”
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• THE GENERAL RULE IS THAT WHERE PETS ARE PERMITTED BY THE LEASE THAT THE
LANDLORD MAY SET REASONABLE TERMS FOR REMOVING THE PET FOR PET
VIOLATIONS SUCH AS: EXCESS BARKING/MEOWING, ESCAPING INTO HALLWAYS,
TENANT FAILURE TO CLEAN EXCREMENT, FAILURE TO KEEP PET LEASHED OUTSIDE OF
THE UNIT ETC. LEASES FREQUENTLY IMPOSE FINES/PENALTIES ON A DAILY BASIS FOR
VIOLATIONS.
• THE GENERAL RULE IS THAT WHERE PETS ARE PERMITTED THE LANDLORD CAN
CONTRACTUALLY IMPOSE A SUBSTANTIAL “PET DEPOSIT” THAT MAY EXCEED AND BE
IN ADDITION TO THE ROUTINE DAMAGE/SECURITY DEPOSIT.
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QUESTION: CAN A PET DEPOSIT BE MADE NON-REFUNDABLE?
ANSWER: MANY JURISDICTIONS REGARD PET DEPOSITS AS VALID
LIQUIDATED DAMAGES NOT SUBJECT TO STATE STATUTE OR LOCAL
ORDINANCE PROVISIONS THAT GOVERN NON-PET DEPOSITS. NO
REQUIREMENT TO TIMELY ACCOUNT FOR PET DAMAGE, NO INTEREST ON PET
DEPOSIT ETC. NON-REFUND ABILITY MUST BE DISCLOSED IN THE LEASE. IF
THE LANDLORD CHARGES FOR DAMAGE CAUSED BY THE PET BEYOND THE
DEPOSIT THEN ONE CAN ARGUE THAT THE DEPOSIT IS IN FACT NOT A
LIQUIDATED DAMAGES PROVISION SINCE DAMAGES CAN IN FACT BE
“ASCERTAINED”. A DIFFICULT ARGUMENT TO WIN.
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QUESTION: STUDENT TENANT VIOLATES “NO PETS” CLAUSE OF LEASE. LANDLORD SEEKS
REMOVAL OF PET AND/OR EVICTION. ARE THERE ANY COLORABLE TENANT DEFENSES?
ANSWER: THERE ARE AT LEAST TWO DEFENSES AND THEY ARE FAIRLY WEAK. IT CAN BE ARGUED THAT THE “NO
PETS” PROVISION IS UNCONSCIONABLE WHICH MIGHT ACTUALLY WORK IN CASES WHERE THE LANDLORD REFUSED
TO GIVE THE TENANT A ‘SIGNED” COPY OF THE LEASE OR WHERE THERE WAS AN EXTREME HOUSING SHORTAGE
THAT AMOUNTED TO SIGNING UNDER DURESS. THE OTHER COLORABLE BUT WEAK TENANT DEFENSE IS THAT THE
“NO PETS” PROVISION INHERENTLY INTERFERES WITH THE COMMON LAW RIGHT TO THE PEACEFUL ENJOYMENT OF
THE PROPERTY. THERE IS CASE LAW IN NEW YORK THAT HOLDS THAT WHERE A PET IS KNOWN TO THE LANDLORD IN
AN OPEN AND NOTORIOUS WAY(ADVERSE POSSESSION LANGUAGE) THAT AFTER THREE MONTHS OF NONENFORCEMENT OF THE NO PETS PROVISION THE LANDLORD IS ESTOPPED FROM SEEKING TERMINATION OF LEASE OR
REMOVAL. WHAT WILL THOSE “LIBERALS” THINK OF NEXT?
PRACTICE NOTE: SLS ATTORNEYS REGULARLY SEE STUDENTS WHO ARE IN TEARS BECAUSE THEY HAVE VIOLATED THE
“NO PETS” PROVISION AND ARE FACING DIRE CHOICES OF EVICTION, FINES, ANIMAL REMOVAL, POTENTIAL
EUTHANASIA OF A BELOVED PET. YET ANOTHER REASON FOR ALL OF US TO MILITANTLY ENCOURAGE STUDENTS TO
READ THEIR LEASES BEFORE SIGNING AS PART OF PREVENTIVE LEGAL EDUCATION. VIOLATIONS OF CONTRACTS
HAVE CONSEQUENCES WHICH CAN BE A LIFETIME LEARNING OUTCOME THAT IS BOTH PAINFUL AND VALUABLE.21
QUESTION: AN SLS ELIGIBLE STUDENT COMES INTO YOUR OFFICE COMPLAINING THAT HE HAS SEVERE
ALLERGIES TO CATS AND CAT DANDER. THAT HE RELIED ON THE ADVERTISEMENTS OF “NO PETS” AND THE
LEASE PROVISION FOR “NO PETS” WHEN HE SIGNED THE LEASE. HE HAS HAD TO VISIT THE DOCTOR SEVERAL
TIMES AND THE EMERGENCY ROOM ON ONE OCCASION AS THERE ARE TWO “THERAPY/ASSISTANCE” CATS
IN THE BUILDING.
1.
IS THIS GROUNDS FOR CONSTRUCTIVE EVICTION?
2.
CAN STUDENT DEMAND REMOVAL OF CATS?
3.
MUST THE LANDLORD NOW CREATE A REASONABLE ACCOMMODATION FOR STUDENT? THE
LANDLORD IS NOT REQUIRED TO ACCOMMODATE THE WISHES OF THOSE WHO DO NOT HAVE
DISABILITIES.
4.
IS SEVERE ALLERGY A “DISABILITY”?
5.
IF TENANT SUFFERED POTENTIALLY MENTALLY DEBILITATING IMPACT FROM CATS WHAT IMPACT
WOULD THIS HAVE ON ANALYSIS?
6.
WHO IS YOUR CLIENT? CAN YOU HAVE A CLIENT IN THIS SCENARIO? IS THIS LIKELY TO BE
STUDENT VS. STUDENT OR AT LEAST STUDENT “COMPETING “INTEREST VS. STUDENT “COMPETING”
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INTEREST?
QUESTION: LANDLORD SEEKS TO EVICT YOUR STUDENT TENANT
BECAUSE LANDLORD HAS LEARNED CLIENT “SERVICE” DOG LUNGED
AT A PASSERBY WHILE LEASHED ON A WALK WITH STUDENT TENANT.
1.
IS THIS SUFFICIENT GROUNDS FOR EVICTION?
2.
WOULD IT MAKE A DIFFERENCE IF THE DOG ACTUALLY BIT A PERSON?
3.
WOULD IT MAKE A DIFFERENCE IF THE DOG BIT ANOTHER TENANT?
4.
WOULD IT MAKE A DIFFERENCE IF THE DOG WAS A “THERAPY/ASSISTANCE” ANIMAL RATHER THAN
AND ADA CERTIFIED ANIMAL?
PRACTICE TIP: IF THERE IS GOING TO BE A PERMITTED PET, SERVICE DOG, OR THERAPY ANIMAL THE TENANT
SHOULD MAKE SURE THAT THEY HAVE RENTER’S INSURANCE THAT COVERS BITES OR INJURIES CAUSED BY
ANIMAL OR THAT PARENT’S HOMEOWNER’S POLICY HAS SUCH COVERAGE FOR STUDENT LIVING OUTSIDE
OF PARENTAL HOUSEHOLD. IN ALL CASES WHERE A STUDENT IS SEEKING ADVICE ABOUT ANIMALS ASK
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ABOUT INSURANCE COVERAGE. MOST STUDENTS DO NOT BUY RENTERS INSURANCE AND MANY POLICIES
ARE VERY LIMITED AND HAVE HIGH DEDUCTIBLES.