J O H A N N C H R I S T I N E A L C A R A Z | J U L Y 2 9 , 2 0 1 6 | P L S 3 9 5
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Presentation Notes
To preface, I work for a real estate law firm. One of my very first research assignments is to see if landlords have any legal recourse against having to admit a tenant’s request for an emotional support animal in a “No Pets” community. Let’s just say that it was a very short-lived research assignment, and you’ll see why later. Nonetheless, it sparked my interest. I am a huge advocate for mental health, but I also seem to find animals lingering everywhere now– coffee shops, airports, workplaces, etc. But don’t get me wrong; there’s definitely a need for legal protections. It’s just that the line between those with a genuine need and posers taking advantage of the law is so blurry right now. And so, without further ado: I present to you “Emotional Support Animals”- Care & Controversy.
DISTINGUISHING DESIGNATIONS
• Service Animals • “…any dog that is individually trained to do work or perform specific tasks for the
benefit of an individual with a disability…” – ADA Definition (28 C.F.R. § 36.104)
• Emotional Support Animals (ESA) • Companions genuinely offering mental and emotional support (therapeutic
benefit) for owner’s wellbeing* • Not restricted to dogs (can be almost any animal)
*“Emotional distress” is not enough though
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Service Animals (Code of Federal Regulations) Dog: not “helper monkey” or cat, albeit miniature horses can be an exception Trained (registered) Specific - recognize/react to medical conditions /symptoms Disability – we’ll talk more on the next slide ESA Not confused with household pets GENUINELY key word because that’s where the controversy comes in This presentation focuses only on the specific designation of Emotional Support Animals
REQUIREMENTS TO GET ESA
• Psychological diagnosis as a disabled person from licensed mental health professional
• E X A M P L E S
• Compliance with Dept. of Housing and Urban Development standards • Demonstrative proof of the "nexus“, or connection, between the assistance animal and its
ability to reduce the effects of the person's disability
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PTSD Clinical Depression Panic/Anxiety Disorders, Phobias Personality Disorder Autism Obsessive Compulsive Disorder (OCD) Compliance: Obtaining an ESA letter requires more than just a psychological diagnosis; it also requires compliance with standards which includes demonstrating that the animal provides a service that supports the diagnosis. Note that this demonstration is still different from the service animal’s requirement to do specific tasks because the mere presence of an ESA may alleviate a condition. But, again, the steps are relatively simple. The web is now filled with all sorts of ads like this one (click) to conveniently and virtually request the ESA letter
- “limit” vs. “substantially limit” - Single, particular job vs.
broad range of jobs
DEFINITION OF HANDICAP/DISABILITY with respect to a person, as:
• (1) Physical or mental impairment which substantially limits one or more of such person’s major life activities;
• (2) A record of having such an impairment; OR
• (3) Being regarded as having such an impairment
California-Specific Federal
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In general, all substantive law related to assistive animals defines handicapped or disabled in a similar fashion�(read definition) HOWEVER- IN CALI California’s definition of disability is broader than the federal definition. �In California, a disability need only “limit” an individual’s ability to work in order to qualify for legal protections, whereas federal law requires that disability “substantially limit” the ability to work. Also, in California, an individual only needs to be limited in performing the requirements of a single, particular job. Unlike federal law, where an individual must be significantly restricted in the ability to perform either a broad range of jobs in various classes or a class of jobs.
HOUSING • ADA (Americans w Disabilities Act) (42 U.S.C. § 3604(f)(3)(B))
Explicitly DOES NOT apply to ESA (28 C.F.R. §§ 35.104, 36.104, 35.136(i) (2010))
• Section 504 – Rehabilitation Act of 1973 • Must receive federal financial assistance • Demonstrated relationship
rent, or fees (may recoup damages later, if applicable)
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Protection against housing discrimination ADA : applicable in all 50 states ~ ✓ governs service animal access to public spaces (42 U.S.C. § 3604(f)(3)(B)) Title 42 is Public Health and Welfare – generally states the “reasonable accommodations” rule for disabled tenants so that they can use and enjoy a rental property on an equal basis with tenants who are not disabled. But what DOES apply to ESAs Section 504 Broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal. However, it wasn’t until 1988 when the U.S. Department of Housing and Urban Development (HUD) created regulations Several courts have consistently held that a tenant requesting an ESA as a reasonable accommodation MUST DEMONSTRATE a relationship between his or her ability to function and the companionship of the animal. FHA - 24 C.F.R. § 100.204 (1996) Enacted as part of the Civil Rights Act of 1968 Focused on housing discrimination on the basis of race, color, national origin, or gender… FHAA of 1988 expanded the scope to include handicapped persons FHAA - Closed the legislative gap between public and private housing authorities. Like Section 504, FHAA requires landlords to make reasonable accommodations for tenants. Animal not required to wear ESA identification Property owners cannot question disability, ask for proof, or ask anything more than the required documentation Cannot charge advanced deposit, additional rent, or fees (may recoup damages later, if applicable) Cannot refuse housing
LANDLORD RECOURSE? • Burden of Proof is on Tenant
Housing Authority of New Lond v. Tarrant (1997) • Animal negligence or destructive behavior
Woodside Village v. Hertzmark (1993) • Can alternative accommodations can be made?
Nason v. Stone Hill Realty Association (1996)
ESA “No Pets” Waiver ~ The requested accommodation may not
• constitute an undue financial or administrative burden for the landlords, • or fundamentally alter the nature of the housing • Exemption: Single family dwelling
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Landlord Recourse Unfortunately, there is no law or regulation that provides specifics on what the landlord mayor may not do to prevent non-disabled persons from using this law to bring in an ordinary house pet. Housing Authority of New Lond v. Tarrant (Conn. Sup. Ct. Jan, 14, 1997) An example of a case in which the court rejected an ESA claim for lack of evidence of a disability: “defendant has failed in her burden of proving that reasonable accommodations must be made.” Woodside Village v. Hertzmark (Conn. Sup. Ct. 1993) The court found that a federally assisted housing complex did not violate FHA when they evicted a resident with mental illness for failure to walk his dog in designated areas and to use a pooper-scooper. Nason v. Stone Hill Realty Association (1996) Mass. trial court recognized that there were more reasonable accommodations to lessen the effects of a person’s disability, other than keeping an ESA, and therefore denied a tenant’s motion for a preliminary injunction. So, a court may not have to compel a landlord to make an ESA specific accommodation if they can provide another reasonable alternative. As mentioned before, emotional distress expected to occur if a person is forced to give up his/her ESA will not support a reasonable accommodation claim. FHAA The requested accommodation may not constitute an undue financial or administrative burden for the landlords, or fundamentally alter the nature of the housing Also, sale or rental of a single family dwelling by an owner is EXEMPT (but of course) Exceptions to Exemptions If private individual owner owns more than 3 single-family homes Use of a real estate agent or broker to rent out home EVICTION- A landlord may evict a person with disability if that person does not comply with legitimate tenancy rules that apply to all other tenants.
WORKPLACE – CALIFORNIA SPECIFIC
CA’s Fair Employment and Housing Act • California: 5+ employees
• Federal disability provisions apply to private employers of 15+ (and to state/local governments regardless of size)
• Reasonable accommodation for ESA required so long as no undue hardship
is free from offensive odors displays appropriate work environment habits does not engage in behavior that endangers
health or safety of others
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Thanks to CA’s Fair Employment and Housing Act, job applicants and employees are protected from discrimination in the workplace due to a physical or mental disorder that is (1) disabling (2) potentially disabling (3) perceived to be disabling or (4) perceived to be potentially disabling. Again, as mentioned before, California’s definition and regulation for those with disability is much more lax than federal standards. California’s law requiring reasonable accommodation for Emotional Support Animals in the workplace applies to employers who have 5 or more employees. In comparison, federal disability provisions apply to private employers only when they have 15 or more employees (and to state and local governments regardless of size). On the flip side, the owners of these ESAs have to comply to certain requirements… ESA Owner Workplace Requirements California law sanctions these workplace requirements Appropriate habits = ex: potty-trained
PUBLIC AREAS
Americans with Disabilities Act (ADA) ESAs are NOT protected
✓ SERVICE ANIMALS ONLY
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Public areas are governed by the Americans with Disabilities Act (ADA) - FEDERAL regulation enacted in 1990; allows people with disabilities to bring SERVICE ANIMALS to public places; This protection does NOT extend to Emotional Support Animals
A I R P L A N E S • Air Carrier Access Act (ACAA)
• Diagnosis & VERIFIED emotional benefit • Airline not legally allowed to question disability nor
restrict boarding the plane • Protects from additional fees • No cage requirement • Problem? Immediately request meeting with
Customer Resolution Official (CRO)
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However, there is one public space that is an exception for ESAs thanks to the Air Carrier Access Act. �It was passed in 1990 and works alongside the Dept. of Transportation Again, a diagnosis of a mental disability with a letter from a mental health professional verifying the emotional benefit of the animal is required. If the requirements are met, the airline is not legally allowed to ask questions about the disability and cannot restrict ESA owners and their animals from boarding the airplane. The ACAA also protects ESA owners from being charged a fee for having their ESA accompany them on the airplane. They don’t have to be in a cage either. &&& If the airline refuses to allow the ESA onboard, it is important for the owner to immediately request a meeting with a Customer Resolution Official (CRO). Airlines are legally required to employ CROs who are specifically trained in handling disability-related disputes and uncertainties. The requirements are virtually similar to those for ESAs in the workplace and ESAs in housing. _________ ***In order to be covered by the ACAA and comply with airline regulations, there are certain requirements that ESA owners must meet. These requirements include: Explanation of why the animal provides emotional support. Verification letter from a licensed mental health professional prescribing or endorsing the animal as an ESA offering benefits for a particular mental disability. The mental or emotional diagnosis must comply with the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).
***California Penal Code 365.7(a) Fraudulently misrepresenting service animals is a criminal misdemeanor punishable by a fine of up to $1,000 (and/or up to 6 months imprisonment)
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Presentation Notes
As with anything, people have taken advantage of this ESA designation. Vicky Nguyen from NBC Bay Area reported: “People are posing their pets as service animals to give them an all access pass to grocery stores, restaurants, and other places where pets are not allowed. Disabled people with real service dogs say this fraud adds to the discrimination they already face…” Actual service dogs are very submissive. If there’s another dog set on being confrontational that puts the service dog at risk, service dog is not going to fight back. Also, actual trained handlers would not let their dog distract another working dog. Wearing fake service vest Check leash… service dogs are almost never on retractable leases Landlords suggest that “no pet” waivers will cause a “flood gate” of persons claiming mental illness and the need for pets. They allege this will in turn lower the value of property by creating odors and noises that deter other tenants from renting. Remember, ESA is UNTRAINED Bark/bother other people
EMOTIONAL SUPPORT ANIMALS
CARE & CONTROVERSY
J O H A N N C H R I S T I N E A L C A R A Z | J U L Y 2 9 , 2 0 1 6 | P L S 3 9 5
