A “service animal” is any dog or miniature horse that is trained to perform tasks for the benefit of an individual with a disability. This includes, but is not limited to, a physical, sensory, psychiatric, intellectual, or mental disability. Service animals may perform tasks like pulling a wheelchair, reminding an individual to take medication, or turning on a light switch.
Under Title II and III of the Americans with Disabilities Act (“ADA”), emotional support animals are not service animals. Support animals relieve loneliness, provide companionship, alleviate depression and anxiety, but do not have special training to assist people with disabilities. A note from the family doctor does not turn an animal into a therapy animal simply because the physician prescribed a dog for coping with depression. State specific legislation may further define therapy animals, but these animals are generally not covered by federal laws as “service animals”.
Service animals must behave appropriately, e.g., no uncontrolled barking or jumping on people, and a business has the right to deny access to a dog that disrupts their business. While public accommodations and businesses may refuse a service animal for unruly behavior causing a direct threat to the health or safety patrons, allergies and fear of dogs are not valid reasons for denying service animals.
If a person claims to have a service animal, only two questions may be asked:
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
If the animal’s service functions are obvious, e.g., the dog is visibly observed guiding an individual who is blind, these questions are not appropriate.
It is impermissible to ask for proof that the animal has been certified or trained be to a service animal. Local laws that prohibiting specific breeds of dogs do not apply to service animals or emotional support animals. Similarly, restrictions on size, weight, or “pet fees” for both service animals and emotional support animals are prohibited. Remember, they are not ‘pets.’
The Fair Housing Act (“FHA”) protects a person with a disability from discrimination in obtaining housing. Under the FHA, a landlord or homeowners’ association must provide a reasonable accommodation to a person with a disability so that they have an equal opportunity to use and enjoy the dwelling. If your association participates in FHA-type loans, then this law applies to you.
So what should you do as a landlord, homeowners’ association or property manager when confronted with a service or support animal request? Once a proposed occupant informs that their ‘pet’ is actually an emotional support (or service) animal, the landlord should be very cautious in how they proceed: refer to fair housing policies and guidelines and err on the side of caution by granting the person’s reasonable accommodation request to keep the animal. Or better yet, contact your attorney.
About the author: Kara Tanis, Esq. enjoys association law as her majority focus, and has several years of insurance litigation as well as landlord-tenant law experience. Ms. Tanis earned her Bachelor of Arts degree from Florida Atlantic University and her law degree from Nova Southeastern University. She is a member of the Florida Bar and the United States District Court, Southern District of Florida Bar. References: 28 C.F.R. 36.302; 42 U.S.C. § 3604 Hawn v. Shoreline Towers Phase 1 Condominium Association, Inc., 347 Fed. Appx. 464 (11th Cir. 2009).