Three years ago we wrote an article for the American Bar Association, Service and Support Animals in Housing Law, in which we argued that the detailed rules that the Department of Housing and Urban Development had issued for HUD-assisted housing should apply generally to persons with disabilities seeking to live with assistance animals. Many courts have taken positions similar to ours, but a review of recent cases demonstrates that many landlords and condominium associations with no-pet policies continue to resist efforts of tenants to live with assistance animals, particularly dogs that are not trained and which provide only companionship or emotional support. Arguments that are being made in opposition to tenants seeking to live with such animals include:
1. Only service animals should be excepted from no-pets policies.
2. Untrained animals should be liable for pet security deposits because they are pets, even if they provide emotional support.
3. Assistance animals should comply with weight limits that apply to pets.
4. Animals that do not improve the tenant’s psychiatric condition, but only provide comfort, are merely pets for housing law purposes.
5. Occupants seeking to keep assistance animals can be required to answer all questions that the management group or condominium association deems relevant in determining whether an exception to a no-pet policy is to be granted.
Although the courts have generally been careful to recognize the rights of those who can demonstrate a need for an assistance animal, we continue to advise those with disabilities that they should attempt to be cooperative with the manager or condominium association responding to a request for a reasonable accommodation. Starting out with an adversarial position may not be necessary and may turn what should be a discussion into a shouting match, with significant legal costs to both sides.
The recent cases we discuss below suggest that lawyers and courts are in general becoming sophisticated in applying service and assistance animal law. Also, individuals trying to keep animals that are in danger of being evicted are often able to receive help and advice from state and local housing assistance and anti-discrimination organizations with professionals or counselors familiar with assistance animal law.
HUD Policy on HUD-Assisted Housing Extended to General Housing Case
In Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp.2d 850 (S.D. Ohio 2009), residents complained that the Spencers’ dog was barking in their dwelling. Overlook Mutual Homes, Inc., sent a written warning to the Spencers stating that they were violating the building’s no-pet policy. Initially the Spencers said that the dog had been removed, but then they visited the Miami Valley Fair Housing Center, whose president sent a letter to Overlook requesting a reasonable accommodation for Scooby, a neutered male Cockapoo. The letter stated that “Lynsey [the Spencer’s daughter] was currently receiving psychological counseling and that her psychologist had recommended that Lynsey have a companion/service dog to facilitate her treatment.”
This was confirmed by Lynsey’s treating psychologist, who provided a statement that, as a result of her assessment and counseling, she had recommended that Linsey “have a service dog to facilitate treatment.”
Counsel for Overlook requested additional information but agreed to refrain from eviction proceedings pending receipt of the information. The Spencers provided some information but Overlook’s attorney said it was inadequate. Counsel for the Spencers then stated his concern with the invasiveness of the inquiry into Linsey’s medical records. A conference call with Linsey’s treating psychologist was proposed but apparently never took place.
Overlook filed an action seeking to compel additional information from the Spencers, but also asking for a declaration that Scooby was not a service animal and did not qualify as a reasonable accommodation for purposes of waiving Overlook’s no-pet rule. The Spencers responded that Overlook was violating the Fair Housing Act and Ohio’s fair housing statute (Ohio Revised Code 4112.02(H)). Overlook moved for summary judgment.
To prevail on a claim of housing discrimination because of a handicap under 42 U.S.C. 3604, the plaintiff must prove five things: (1) a handicap, (2) the defendant knew or should reasonably be expected to know of the handicap, (3) accommodation may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling, (4) the accommodation is reasonable, and (5) the defendant refused to make the requested accommodation. In the Sixth Circuit, which includes Ohio where this case arose, the third requirement is not “may be” but “is”—the accommodation must be necessary. Howard v. City of Beavercreek, 276 F.3d 802 (6th Cir. 2002).
The federal district court concluded that pet policies of Overlook must comply with the Fair Housing Act. The court noted:
“[T]he Department of Housing and Urban Development (“HUD”) and the Department of Justice (“DOJ”) indicated in their Joint Statement on Reasonable Accommodations under the FHA [Fair Housing Act] that the provider of housing is entitled to obtain only that information necessary to determine whether the requested accommodation is necessary because of a disability. Construing the evidence most strongly in favor of the Spencers, the Court concludes that there is a genuine issue of material fact on the issue of whether the information sought by Overlook was necessary. Overlook initiated this litigation without taking advantage of the Spencers' offer to allow its counsel to participate in a conference call with their counsel and Hoefflin, Lynsey's treating psychologist. During that conference call, Overlook's counsel would have been permitted to question Hoefflin on Lynsey's disability and her need for Scooby. Consequently, there is a genuine issue of material fact as to whether Overlook was offered the opportunity to obtain the necessary information, an opportunity which it unilaterally chose to disregard.”
Therefore, the court rejected Overlook’s contention that it was entitled to summary judgment because it could set pet policies for its tenants and obtain the information it deemed necessary to evaluate the appropriateness of a tenant’s request for a waiver of the no-pet rule.
Overlook also asserted that an animal must have individual training to qualify as a service animal. Overlook was essentially arguing the Department of Justice regulations, rather than those issued by the Department of Housing and Urban Development, should apply in a housing situation. Scooby was not individually trained. The court stated:
“Simply stated, there is a difference between not requiring the owner of a movie theater to allow a customer to bring her emotional support dog, which is not a service animal, into the theater to watch a two-hour movie, an ADA-type issue, on one the hand, and permitting the provider of housing to refuse to allow a renter to keep such an animal in her apartment in order to provide emotional support to her and to assist her to cope with her depression, an FHA-type issue, on the other…. HUD has declined to limit its regulations on keeping animals to those that have been individually trained, unlike the regulations implementing the ADA.”
The court acknowledged that HUD’s perspective on emotional support animals applies only to HUD-assisted public housing, but said that “the rationale in support thereof is equally applicable to all types of housing regulated by the FHA.” The court therefore rejected Overlook’s assertion that it was entitled to summary judgment because Scooby was not individually trained.
Constructive Denial of Reasonable Accommodation Request
In Bhogaita v. Altamonte Heights Condominium Association, Inc., 2012 WL 10511 (M.D.Fla. 2012), Ajit Bhogaita, a veteran of the U.S. Air Force, suffered from post-traumatic stress disorder and lived in a condominium unit operated by the defendant Condominium Association, which had a 25 pound limit on pets. The Association sent Bhogaita a letter demanding that he remove Kane, his dog, as being in violation of that limit.
Bhogaita forwarded a note from his “treating medical professional,” Dr. Li, stating:
“Due to mental illness, [Bhogaita] has certain limitations regarding social interaction and coping with stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability to live independently and to fully use and enjoy the dwelling unit, I am prescribing an emotional support animal that will assist [Bhogaita] in coping with his disability.”
A second note, also written by Dr. Li, was sent to AHCA a few days later, stating:
“I am prescribing an emotional support animal that will assist [Bhogaita] in coping with his disability, specifically his dog, Kane. [Bhogaita] has therapeutic relationship with this specific dog, Kane. As an emotional support animal, Kane serves to ameliorate otherwise difficult to manage day to day psychiatric symptoms in [Bhogaita].”
The Association then requested the following information from Bhogaita:
1. What is the exact nature of your impairment? How does it substantially limit a major life activity?
2. How long have you been receiving treatment for this specific impairment?
3. How many sessions have you had with Dr. Li?
4. What specific training has your dog received?
5. Why does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy your dwelling?
Bhogaita sent a third note from Dr. Li, which stated:
“[Bhogaita] has certain limitations regarding social interaction and coping with stress and anxiety. This limits his ability to work directly with other people, a major life activity ... He is able to work with the assistance of his emotional support animal. Otherwise his social interactions would be so overwhelming that he would be unable to perform work of any kind.”
The Association responded by again asking for more information on Bhogaita’s disabilities. Bhogaita may have also sent a letter suggesting the dog provided physical support, which would require a large dog, but since the letter was not in materials filed with the court, it was not further discussed. The Association asked for information about any training Kane had successfully completed. It also asked for proof that a dog weighing more than 25 pounds was needed.
Bhogaita filed complaints with HUD and the Florida Commission on Human Relations, and both issued a finding of cause in January 2011. Bhogaita filed a lawsuit in federal court in October 2011. The complaint claimed failure to accommodate and discrimination under 42 U.S.C. 3604(f)(3)(B) and 3604(f)(2) respectively, as well as discrimination under Florida state law.
The Association filed a motion to dismiss. To withstand the motion, Bhogaita had to establish (1) disability under the FHA, (2) a request for reasonable accommodation, (3) the accommodation is necessary to afford him an opportunity to use and enjoy the dwelling, and (4) the requested accommodation was refused.
The district court determined that Bhogaita’s letters and Dr. Li’s notes established a disability, and that a reasonable accommodation was requested and necessary for Bhogaita to enjoy the dwelling. The court then stated: “By persisting in its intrusive quest for more—and largely irrelevant—information, AHCA constructively denied Bhogaita’s request.”
The court did, however, dismiss the second count of Bhogaita’s suit, having to do with discrimination, as “merely an attempt to characterize AHCA’s request for additional information as a separate cognizable injury under the FHA. There appears to be no basis in the statute for such a claim.” The action could proceed as to the failure to grant a reasonable accommodation. The court seems predisposed to believe that there was such a failure.
The better logic is that a weight limit for pets should not apply to a service animal, even if the animal’s function is not specifically correlated to its size, but it is not clear how—or if—this issue will be dealt with by the court.
Failure to Provide Supporting Evidence Loses Case for Condominium Owner
In Lucas v. Riverside Park Condominiums Unit Owners Association, 2009 N.D. 217, 776 N.W.2d 801 (2009), A. William Lucas owned a unit in Riverside Park Association’s Condominiums in Bismarck, North Dakota. A dog owned by Lucas’s former wife would visit him, for which the Association eventually sought an injunction.
After the dispute had gone on for some time, Lucas changed tactics and sought an accommodation so he could keep an “assistive therapeutic companion animal (dog)” in his unit. The request included a letter from a clinical psychologist stating Lucas needed “a therapeutic companion assistive animal.” A second letter from a physician referred to a prescription for a therapeutic pet “as a medically needed part of his treatment.” The Association denied the request.
Lucas made two more requests that were also denied and then filed a lawsuit seeking damages and injunctive relief. The Association moved to dismiss.
Lucas then sent a fourth request for an accommodation, to which the Association’s attorney responded with a letter stating in part:
“The information you have provided the Association is insufficient to support your request for an accommodation. The Association needs additional information from you before it can decide whether to grant or deny your request. Please provide the following additional information from your healthcare provider: 1) a description of the claimed disability; 2) the date that you were first diagnosed or treated for the disability; 3) whether the claimed disability was treated or diagnosed prior to November 10, 2003 and, if so, a description of how the disability has changed since November 10, 2003; 4) an explanation from your healthcare providers of the relationship between your disability and your need for a ‘therapeutic companion service animal;’ 5) an explanation from your healthcare providers as to why allowing you to keep a ‘therapeutic companion service animal’ is a reasonable accommodation for your disability; and 6) a description of the ‘therapeutic companion service animal’ you propose keeping at your unit, including any special training the dog has received.”
The significance of November 10, 2003, was not explained, but the dispute, and various legal developments, went on for at least six years.
Lucas responded by saying that he would provide additional information, but complaining that information previously supplied had not been kept confidential. Lucas sought assurances that the additional information he would provide would be kept confidential. Lucas had insisted, for instance, that he be provided with lists of all persons who had access to his information. He apparently believed that some information he had provided earlier had been leaked to tenants not involved in the matter. The Association returned the information supplied by Lucas in a sealed envelope, specifying that it would not agree to his terms for confidentiality.
On cross motions for summary judgment, the trial court granted the Association’s motion, determining that Lucas had failed to provide competent evidence that his disability status had changed in regard to his first three requests for accommodation or that the Association’s conduct had caused him emotional distress. The following costs were awarded by the trial court:
“The court awarded the Association $926.30 as a sanction for Lucas's failure to appear at a deposition; $5,834.94 in costs and attorney fees for its defense of his claim in his complaint and amended complaint based on the first three requests for accommodation; and $16,597.21 in costs and attorney fees for its defense of his claim in his second amended complaint based on the fourth request for accommodation.”
The court reviewed prior case law on whether training was required for an animal for which a reasonable accommodation was being sought. (See Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.) The court noted: “Whether the animal is trained, courts agree there must be a showing how the animal will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” The court added: “Courts also agree a defendant may request, and indeed may have a duty to request, additional information from the plaintiff reasonably necessary to make a meaningful review and an informed decision whether the animal is necessary to ameliorate the disability.”
The trial court granted summary judgment on Lucas’s first three requests, and the Supreme Court of North Dakota agreed that he had “failed to raise a genuine issue of material fact” regarding those claims. As to the fourth request, the Supreme Court stated:
“Here, Lucas's fourth request to the Association for an accommodation was submitted with forms containing identical statements from two physicians asking the Association ‘[t]o permit A. William to keep, maintain, and raise an assistive therapeutic companion service animal (dog). It is also my opinion that there has been a significant change in Mr. Lucas' health (disability status) since the last time he was examined by me.’ Under the case law on reasonable accommodations, these conclusory and ambiguous statements are insufficient to raise a genuine issue of material fact that an accommodation is necessary to afford Lucas an equal opportunity to enjoy his dwelling…. Because of the conclusory and ambiguous nature of Lucas's documents in support of his request, the Association was justified in seeking additional information to enable it to make a meaningful review of and an informed decision on his request. In response to the Association's request, Lucas submitted additional information but would not allow it to be reviewed unless the Association agreed to abide by several conditions.”
The Supreme Court agreed with the trial court that Lucas’s request that the Association keep a list of any person who had possession or viewed Lucas’s medical records was unreasonable. Therefore, the Supreme Court concluded that dismissal was proper, both as to the reasonable accommodation claim and the claim for intentional infliction of emotional distress.
As to the award of costs, the Supreme Court held that the award of $926.30 was appropriate because Lucas continually said that deposition dates were unacceptable and failed to give any alternative dates. The court also upheld the award of $5,834.94 for costs and attorney’s fees incurred by the Association based on the first three requests for accommodation, but declined to affirm the award of $16,597.21 based on the fourth claim. The Supreme Court found the fourth claim “not so lacking in fact or law that a judgment in his favor was beyond expectation by a reasonable person.” Thus, the Court reversed the trial court’s award of this amount.
The North Dakota Supreme Court’s opinion was not a substantive determination of whether Lucas’s dog could have qualified for a reasonable accommodation. Rather, it shows that failure to provide adequate information in support of an application for a reasonable accommodation can justify a landlord or condominium association in denying a reasonable accommodation request. Planting one’s feet in the ground and refusing to budge can be a bad trial tactic.
No Security Deposit for Assistance Animals
In Intermountain Fair Housing Council v. CVE Falls Park, LLC, 2011 WL 2945824 (D.Idaho 2011), a woman applied for an apartment at Falls Park Apartments. Intermountain helps people who believe they have been victims of housing discrimination based on “race, color, sex, religion, national origin, familial status, or disability.” One of Intermountain’s “testers” called up Falls Park Apartments (“CVE”) expressing interest in a vacant apartment and stating he had a service animal, a dog. The representative said there would be a $900 deposit for the dog. A second tester, giving a slightly different story about a “support animal” was also told there would be a $900 deposit.
Intermountain filed an administrative complaint against CVE with the U.S. Department of Housing and Urban Development (“HUD”), but withdrew the complaint after concluding going to court would be more effective. Intermountain then filed a complaint with the Idaho federal district court, alleging violations of the Fair Housing Act and negligence.
Even though Intermountain’s testers were not actually seeking to live in the vacant apartments, an organization that fights discrimination can sue if it can demonstrate a personal stake in the controversy by showing “(1) frustration of its organizational mission; and (2) diversion of its resources to combat the particular housing discrimination in question.” Smith v. Pacific Properties & Development Corporation, 358 F.3d 1097 (9th Cir. 2004). The district court stated that “CVE has not provided the Court with any reason to doubt Intermountain’s alleged injuries.”
As to discrimination involving a service animal, the district court summarized positions of HUD and the Department of Justice as follows:
“Illustrative of such [discrimination based on disability] would be an apartment manager ‘refus[ing] to permit [a blind] applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy the dwelling.’ 24 C.F.R. § 204(b), Example (1). HUD and the United States Department of Justice have further clarified that a ‘housing provider may not require the applicant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal.’ Joint Statement of the Dept. of Housing and Urban Dev. and the Dept. of Justice, ‘Reasonable Accommodations under the Fair Housing Act,’ at p. 9, ¶ 11, Example 2 (May 17, 2004). ‘However, if a tenant's assistance animal causes damage to the applicant's unit or the common areas of the dwelling, the housing provider may charge the tenant for the cost of repairing the damage ... if it is the provider's practice to assess tenants for any damage they cause to the premises.’”
Thus, a fee cannot be imposed for use of an assistance animal, though the owner is responsible for damages caused by the animal.
CVE contested the authoritative value of the HUD regulations and the Joint Statement, but the federal court said that “the definition of discrimination developed by HUD is authoritative” and the “regulations and illustrations require no lengthy inferential leaps.” The court concluded that a plain reading of the anti-discrimination law “suggests that imposing an additional security deposit for a service animal made necessary by a tenant’s handicap is discriminatory. Requiring such a deposit constitutes a failure to provide the reasonable accommodation of waiving a general pet deposit or no-pet policy.”
The transcripts of Intermountain’s testers conversations with CVE personnel were sufficient to show that CVE intended to impose a security deposit for a service or assistance animal:
“Absent controverting evidence from CVE, it would be easy to infer that CVE is unwilling to make reasonable accommodations for handicapped individuals with prescribed service animals or that CVE is seeking to discourage such individuals from applying for tenancy. For example, after Ms. House indicated that she had a ‘prescription’ for her service animal, Tina Smithson stated that there would be an additional ‘nine hundred dollar deposit on the dog.’ … Ms. House asked, ‘With the doctor's note, right?’ … Tina Smithson confirmed, ‘Right.’ … Similarly, when Ms. Mabbutt asked about their policy on ‘support animals,’ Tina Smithson responded, ‘Yeah. It's a nine hundred dollar pet deposit.’”
CVE claimed that its representative was only trying to communicate its general policy on animals, and that CVE does grant reasonable accommodations to individuals with disabilities. Since the court considered this argument possible, it did grant summary judgment. Although technically a victory for CVE, the victory was Pyrrhic and it can be safely assumed that CVE will not attempt to impose security deposits on service animals in the future.
Different Fees for Pets, Untrained Assistance Animals, and Service Animals
In Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.N.D. 2011), Goldmark Property Management imposed an application fee, non-refundable deposit, and monthly charge on tenants with disabilities who resided with a non-specially trained assistance animal, but waived the fee for tenants with disabilities who resided with trained assistance animals. Fair Housing of the Dakotas (“FHD”), the plaintiff, is a nonprofoit corporation that works to end housing discrimination.
For pet-friendly buildings managed by Goldmark, pet owners must pay a non-refundable fee and a monthly pet charge. The fee is waived for trained assistance animals in either pet-friendly or no-pet buildings. In 2008, Goldmark began charging a non-refundable fee and monthly pet charge for “non-specially trained” assistance animals, which it also called “companion pets.” The fee was lower than the pet fees imposed on pet owners without disability issues. Goldmark contented that the fee was necessary to cover “steam cleaning, carpet replacement, subfloor resealing, baseboard damage, sheet rock damage, vinyl damage, blind replacement, damage to grounds and shrubbery, common area cleaning, odor removal, and labor for feces pickup, and the ‘non-quantifiable aesthetic loss due to discolored snow and grounds by common sidewalks and exterior common areas.’”
A charge for yellow snow is certainly creative. The fees were as follows:
“For a dog, the non-refundable fee is $300 and the monthly charge is $30. For a cat, the non-refundable fee is $200 and the monthly charge is $20. For a non-specially trained assistance dog, the non-refundable fee is $200 and the monthly charge is $20. For a non-specially trained assistance cat, the non-refundable fee is $100 and the monthly charge is $10.”
Some tenants with non-specially trained dogs could not afford the monthly fee.
Someone wishing to live with an assistance animal had to submit an application and received a form to be completed and signed by a physician, psychiatrist, or psychologist. In 2009, a cover letter was added, informing the applicant that the form “needs to be completed by a qualified professional and at a minimum needs to be counter-signed by a treating physician or psychologist.” The owner of a service animal was to inform Goldmark if the assistance animal required special training, though “special training” was not defined. If the prospective tenant said the animal had training, this was accepted by Goldmark as true.
The Idaho federal district court disagreed with Goldmark’s position that the Fair Housing Act only applies to specially trained assistance animals. The court noted that other courts that had required specialized training before a pet constituted a reasonable accommodation under the Fair Housing Act had done so by incorporating concepts from the Americans with Disabilities Act. Courts not requiring specialized training largely relied on HUD regulations. (See discussion of case histories in Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.)
In the preamble to regulations issued in 2008, HUD stated that the “use of assistive animals, also referred to as ‘service animals,’ ‘support animals,’ ‘support animals,’ ‘assistance animals,’ or ‘therapy animals,’ is governed by reasonable accommodation law.” The North Dakota federal district court referenced this broad inclusion of assistance animals under reasonable accommodation law, and concluded:
“While HUD's interpretation applies only to HUD-assisted public housing, the Court finds the rationale applies equally to all types of housing regulated by the FHA. Imposing a requirement that only animals with specialized training can be deemed ‘a reasonable accommodation’ in the housing context has the effect of discriminating on the basis of disability. Under such an interpretation, landlords would be required to make a reasonable accommodation for individuals with physical disabilities, such as those that are blind or hearing impaired, but would not necessarily have to accommodate those with a mental disability-related need for support, such as depression or anxiety. A determination that animals need not have specialized training to fall within the purview of the FHA ensures the equal treatment of all persons with disabilities who need assistance animals in residential housing. Such an interpretation is consistent with the plain language of the statute, HUD's regulations, and the DOJ's position.”
Thus, the court held that “the FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.” The court also concluded that the “Joint Statement of HUD and the DOJ on reasonable accommodations under the FHA makes clear that housing providers cannot impose additional fees as a condition to granting an accommodation, including accommodations for assistance animals.”
Though the court was only dealing with motions for summary judgment, it may be presumed that Goldmark changed its policy on untrained assistance animals, which would include emotional support animals.
Dog Obtained Partially for Protection Could Require Reasonable Accommodation
In Iowa ex rel. Henderson v. Des Moines Municipal Housing Agency, 791 N.W.2d 710 (Ct. App. 2010), Carol Henderson leased a unit from the Des Moines Municipal Housing Agency with her daughter. Tenants were permitted to have pets, but needed to obtain a permit from the Agency. Pets could not weigh above 20 pounds, and only one pet was allowed per household. The two women obtained two dogs after some attempted break-ins, each weighing more than 90 pounds.
When a housing inspector became aware of the dogs, the tenants were given 15 days to comply with the no-pet policy of their rental agreement. Henderson requested that the dogs be considered service animals, describing her fears from the break-ins and the memories that the break-ins brought back of her abusive husband. Henderson obtained a letter from Dr. Ryan Coppola of Bradlawns Medical Center Emergency Services, stating: “Please allow patient to keep dogs for safety reasons & protections secondary to PTSD.”
The Agency sent Henderson a letter saying that it was in receipt of her request for a reasonable accommodation but that “these pets do not meet the qualifications for a service animal.” Henderson was given 10 days to remove the dogs. The Agency provided no information about what it considered to be the qualifications for a service animal. Henderson asked what qualifications were required. The Agency directed her to the Animal Rescue League, which in turn directed her to an employee of the Iowa Division of Persons with Disabilities, who wrote a letter on her behalf to the Agency.
Henderson obtained another letter from Dr. Jerilyn Lundberg, who stated:
“Carol Henderson has been diagnosed with post-traumatic stress disorder and has been assaulted several times. She has self trained a service dog to assist her with tasks around the home such as turning on the lights when she enters a room and retrieving her light instrument as well as acknowledging suspicious persons on the property. She has had one circumstance already in which her service dog has chased away a potential offender.”
This is one of the few cases in American law that refers to self-training of a service animal.
Henderson’s daughter and the daughter’s dog moved out, and Henderson filed a complaint with the Iowa Civil Rights Commission. Dr. Lundberg wrote another letter, stating:
“Carol Henderson is under my care. She is the victim of a violent crime and has psychiatric diagnoses related to that. She is presently also in the process of evaluation and treatment of these psychiatric disorders. She has a self-trained service companion that lives with her. This animal plays an important part in her recovery and in her psychological well being at this time. In my opinion, removal of the animal would impede the process of recovery.”
A psychotherapist working with Henderson also wrote a letter to the Civil Rights Commission, stating:
“As you may recall, Carol was diagnosed with Post Traumatic Stress Disorder—(309.81) by Dr. Lundberg. Carol underwent Psychiatric review with Dr. Margaret Shin/MD on April 7, 2005. Carol was diagnosed with Adjustment Disorder with Depressed Mood-309.00. Carol has completed some psychotherapy sessions with this clinician in the past few weeks and she will remain in services. Carol has essentially just begun treatment. She is prone to emotional outbursts and is often overwhelmed by the events at hand. She cannot fully care for herself, in terms of full-time employment, primarily due to her tendency to isolate and suffer with migraines. Her lack of self-care has led to a mental health commitment by family members as recent as 2003. Carol displays characteristics of one who has been traumatized. Her former husband beat her face against a pile of rocks/concrete causing a good deal of damage to the facial region. To this day, Carol has a lack of interest or desire to participate in important social activities. She remains apart from others and is estranged from her parents. Additionally, she is cautious and has not developed trust in others. Carol has been advised to apply for disability and is proceeding with that effort. It is my feeling that her depression will eventually be seen as more serious, as she continues with the treatment process. Dr. Lundberg has urged Carol to continue with a service animal and has advised that it is essential to Carol's emotional health. Please consider her status carefully in regards to future housing options.”
The numbers in the letter are taken from DSM-IV, Diagnostic and Statistical Manual of Mental Disorders.
In 2005, Iowa filed an action for declaratory judgment, permanent injunctive relief, and damages on behalf of Henderson in district court. An administrative law judge determined probable cause existed to support Henderson’s allegations of discrimination based on disability. Nevertheless, the district court granted the Agency’s motion for summary judgment.
The appellate court reversed, finding that “reasonable minds could differ as to whether Henderson’s requested accommodation of a service animal was reasonable in light of her claimed mental illness.” On remand, after a jury trial, the district court directed a verdict in favor of the defendants.
On a second appeal, the appellate court concluded that there was sufficient evidence of Henderson’s mental impairment as not to support the trial court’s issuance of a directed verdict. Enough evidence was presented that “a reasonable jury could find that the Agency knew or reasonably should have been expected to know of Henderson’s disability.”
As to the necessity of the accommodation for Henderson, the trial court ruled that the evidence was insufficient to show how the dog would address or alleviate the plaintiff’s disability. The appellate court determined, however, that the “plaintiff is not required to show the accommodation alleviates the disability itself; rather, the accommodation must “’affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.’” The court further stated:
“The State produced evidence that some of the effects of Henderson's posttraumatic stress disorder and depression include Henderson being very fearful and hyper vigilant, and being unable to sleep, all of which interfered with her use and enjoyment of the dwelling. Henderson testified she had trained Sam to turn on lights for her, to fetch her keys and phone, and to alert her when strangers come to the apartment. These tasks allowed Henderson to feel secure about her surroundings and ‘not be afraid.’ Koch testified Henderson ‘gained a sense of being protected, a sense of emotional strength from the animal being near her.’ Dr. Lundberg sent a letter stating the ‘animal plays an important part in her recovery and in her psychological well being at this time.’ Thus the State presented evidence from which a reasonable jury could find that the requested accommodation (Sam) was ‘necessary to afford [Henderson] equal opportunity to use and enjoy [her] dwelling.’ The trial court erred in directing a verdict in defendants' favor where a factual question existed.” The jury should have also been able to determine “whether the accommodation requested was reasonable.”
The case was remanded for a second trial.
Although some of the issues raised on appeal were not finally determined by the appellate court, it is clear that an animal that provides emotional support, including protection of someone who has been traumatized by beatings of a husband, can be the basis of a reasonable accommodation argument. The fact that the dog works partly as a guard dog does not detract from this argument whatsoever.
More housing disputes reach the courts than any other matters pertaining to specially trained dogs that provide medical and psychological benefits. The reason for this is easy to find. Taking a service animal into a restaurant may encounter some resistance, but the matter will usually be settled quickly and without a lawsuit. The same applies to taking a dog onto an airplane. With housing, on the other hand, the owner of a service or assistance animal may have no choice but to fight if a building that once had a pet-friendly policy begins to prohibit animals. Similarly, if a person with such a dog loses his job and must move back in with his parents, he may have to argue that the animal deserves to be excepted from a no-pets policy that has never been a problem for the parents.
Naturally buildings and landlords are skeptical when a dog that was never before called a service or assistance animal suddenly gets a label that precludes its easy eviction from a building. A treating psychologist may be asked to provide a letter in support of a patient keeping a dog, even though the dog was never part of the therapeutic regimen recommended by the psychologist. A separate issue arises when the psychologist’s letter is so tepid as to call into question how important the dog really is to a tenant’s well-being. On the other hand, medical and psychological professionals are increasingly aware that saying anything that cannot be supported may lead to a grueling cross-examination in a subsequent trial.
Not all jurisdictions have had cases considering the relationship of emotional support animals to reasonable accommodation standards, so anyone facing such an issue should take the time to find out what law may apply in the state where they live. Nevertheless, the courts are generally parsing the issues well, and it can be expected that this area of law will continue to refine itself as more fact situations are presented in a legal context.
This blog was written by John Ensminger and Frances Breitkopf. The authors thank Dr. Joan Esnayra and Dr. James Lawrence Thomas for helpful comments.
1. Bazenlon Center. Fair Housing Information Sheet # 6: Right to Emotional Support Animals in “No Pet” Housing.
2. Huss, R. (2004). No Pets Allowed: Housing Issues and Companion Animals. Animal Law, 11, 69.
3. Ligatti, C.C. (2010). No Training Required: the Availability of Emotional Support Animals as a Component of Equal Access for the Psychiatrically Disabled Under the Fair Housing Act. Marshall Law Review, 35, 139.