To my displeasure, I have found that more and more frequently, a common “counterclaim” to an Association’s enforcement actions (regardless of what the Association is enforcing) is an allegation that the Board has violated the Fair Housing Act (“FHA”). This blog entry deals with Assistance and Service Animals and recent meetings I have had personally with the Utah Anti-Discrimination and Labor Division on the topic (the “UALD”).
Please remember, that each case is fact specific and this blog entry is for general information only and should only serve as to alert you as to issues to consider.
People with disabilities are afforded certain federal and state housing privileges to help them cope and deal with their disabilities. I think we all can agree that this is a fair, moral and good legal concept. One of the accommodations that MUST be made is a reasonable accommodation for a service or companion animals, but only if strict conditions and requirements are met. Owners do not have a unfettered right to have an assistance or service animal.
First and foremost, “service animals” will not be the topic of the Article. I do not think anyone would disagree that a visually or hearing impaired individual should not have access to a service animal to help them overcome and live better with their challenges.
However, the issue becomes much more complicated when a request from an owner is made for an “assistance animal” based on a medical condition that may not be as apparent. This issues often arises in ‘no pet’ communities.
If you take anything from this Article it should be that a properly permitted assistance animal is NOT deemed a pet in the eyes of the law. A rough analogy would be such an animal is just as crucial as a wheelchair. Thus, your pet policies do not apply.
I am sure you are wondering what entitles someone to have an “assistance animal” in the first place. First, they must have a disability which limits a major life function. This can, and in some cases should, be question. But be careful as to how you go about finding this out. As described below, it is a health care provider’s job to make this determination – not the Board’s. Second, a licensed health care provider must provide a “link” between the disability and the animal that is being requested as an assistance animal.
Most Associations require their members to have their doctor fill out a form that evidences both a disability and certifies that the animal will be of a therapeutic and helpful nature. To be very concise, if the health care provider certifies this to be true, then the Association really does not have grounds to question the certification.
If the Association is presented with the doctor’s note; a prescription form; etc; you do have the right to follow up with the issuing health care provider to make sure it came from them and is legitimate but that is about as far as you are allowed to inquire.
You have no right to inquire about the nature of the disability and your forms and/or questions should not go down that path.
You are likely asking yourself “what does John mean by a health care provider?” A physician’s assistant and nurse, etc., will likely qualify as such. I have tried to argue in the past that the doctor or health care provider must have some training with respect to whatever type of a disability is being alleged.
For example, I have personally not agreed with an “ear, nose and throat” doctor giving a prescription for an assistance animal for an emotional condition. However, I have been told (and we will update this blog as more information develops) that it is the doctor or health care provider who puts their name on the line if they certify something that they cannot diagnose properly.
Therefore, you are allowed verify that the “note” came from a certain person and that this person is a trained health care professional. But, in most instances, your scrutiny will stop there. (There will always be exceptions and issues on this topic – but for now – please use this information as your default mindset. Another question arises – can a chiropractor prescribe an assistance animal? More to come).
If you make a request upon your owners for a health care provider’s certification, and you do not get it back within a reasonable time, you do not need to make the accommodation until such note is received.
If someone wants or has “2” cats, the health care provider must prove a need for 2 cats.
Further, just because an owner had approval for a prior pet, does not mean that that approval extends to the “next pet.” For example, if a pet dies or is lost, the owner must make a request again. Remember, this analysis is all about the current pet being the appropriate pet for the particular challenge of the owner.
You can ask for a medical opinion about the breed or type of animal and whether or not it truly provides a medical benefit over other breeds or types of animals. However, be careful. If someone has a “scary dog” that simply does not mean it cannot be an assistance animal. The key consideration is not the breed, but whether it (1) stays under control; (2) stays on a leash; (3) does not physically attack or threaten other owners; (4) does not unreasonably bark or make noise or (5) cause damage to the common areas, etc., that you cannot reasonably remedy.
Unless a City Ordinance disallows a certain type of breed of dog or other animal you probably cannot challenge the breed unless it shows violent tendencies or is inherently dangerous. In such cases, I believe the Anti-Discrimination Division will defer to the City and PERHAPS allow you to ban that particular type of animal.
Questions arise about exotic pets – snakes, etc. This will be discussed in a follow up entry.
Remember, the accommodation that you must give is not unlimited – the owner must be given a reasonable accommodation. Not all requests will be reasonable.
If you start on a path of enforcing a pet policy, make sure that it is uniform and consistent amongst all owners with the above considerations for assistance animals. You should accept both verbal and written complaints from other owners who complain about pets in the community and then do your due diligence to make sure the pet is properly in the community pursuant to the law discussed above and your policies. Please keep a file on each approved assistance animal.
This topic is a complicated one and this blog entry cannot do it full justice. Please contact us before engaging in any pet enforcement program or if you simply have assistance and service animal related questions. As stated above, more to come on pets AND Fair Housing Rules related to swimming pools; weight rooms; etc.
Best regards, John Richards
Utah HOA Law Blog 