Whether Emotional Support Animal Alleviates Agoraphobia Requires Fact-Specific Analysis

Judge Leslie E. Kobayashi of the federal district court of Hawaii was faced with cross motions for summary judgment in a case involving a condo unit in Hawaii.  The tenant wanted to keep a dog, Nell, arguing that the condo association was obligated to allow this as an accommodation for his mental disability.  The association countered that the matter was resolved by a precedent of the district court, Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D.Hawaii 2003), which had held that reasonable accommodation did not require accepting a dog without specialized training. 

Judge Kobayashi now concludes that the law has evolved since Prindable was decided in 2003, and that it has become clear that an emotional support animal, as opposed to a service animal, can be the subject of a reasonable accommodation. That does not end the matter, however, since the dog must alleviate or ameliorate the symptoms or effects of the resident’s disability.  Although in some cases this might not require specialized training, in others Judge Kobayashi says that it might.  This is a fact-specific determination.  Therefore, the matter was not ripe for summary judgment and the dispute could proceed to trial.  Given the importance of the question and the court’s careful analysis, for the sake of the law in the area it must be hoped that there will be a trial and a further opinion from Judge Kobayashi. 

Hawaii Condo Dispute

Joel Lee Taylor purchased a condominium apartment in Liliuokalani Gardens at Waikiki in 2011, conditioned on his being able to keep his dog, Nell, as an accommodation for his mental disability.  Taylor characterized his need for the dog by saying that “she must be quartered with me so as to be on call when I am required to engage with the general public.”

The apartment owners association provided a questionnaire to be completed by a physician.  Alex E. Torres, MD, stated in the questionnaire that Taylor suffered from agoraphobia and “social phobia-permanent condition.”  Both times the court referenced Torres’ diagnosis, it noted that the spelling of the condition used by Torres was incorrect, “agarophobia [sic].” The doctor also referred to a brain chemistry imbalance and said, “‘Caring for oneself’ is possible with his service dog.” 

The condo association apparently accepted that Nell was important to Taylor when he was in public, saying that Nell was a pet whose mere presence allowed Taylor to “function in a calm collected manner in crowded environments such as airline travel and grocery stores.” This is a curious approach for the association since it seems to accept that for agoraphobia (an anxiety disorder in the 4^th edition of the Diagnostic and Statistical Manual), the dog’s emotional support function would at least relate to Taylor's ability to go out in public.  Nevertheless, the association was primarily relying on Prindable, i.e., on the requirement that a dog have specialized training to receive an accommodation. 

The association attacked Dr. Torres’ responses in the questionnaire, saying that he had “failed to indicate how the requested accommodation would alleviate or mitigate” Taylor’s disability or otherwise assist him in using and enjoying the dwelling.  The association also noted that Dr. Torres had not stated what training Nell had received.  Taylor dropped the attempt to purchase the unit, then bought a different unit in the same complex and renewed his request for an accommodation to permit him to keep his dog.  Dr. Torres had in the meantime moved to Puerto Rico. 

The association sued in federal court, arguing that Taylor did not have a handicap under the Fair Housing Act, and even if he was, it was not required to waive its no-pets policy for a dog that did not have any specialized training.   

Tenant’s Arguments

Taylor argued that Prindable erroneously applied requirements of the Americans with Disabilities Act applicable to service animals to a housing situation that should have been governed by the Fair Housing Act.  He noted that the FHA’s implementing regulations do not contain a requirement that a service animal be specially trained and argued that HUD has interpreted the FHA’s reasonable accommodation provision to require accommodations for non-trained emotional support animals.  He cited HUD v. Dutra, 1996 WL 657690 (JUDALJ 1996), where an administrative law judge found that a landlord had violated the FHA by refusing to grant a mentally disabled man a reasonable accommodation to allow to keep his emotional support cat in a no-pets apartment. 

Taylor also cited, and the court quoted, a memorandum issued by HUD in February 2011 which concerned the relationship between the regulations of the Department of Justice and the Fair Housing Act.  The memorandum, referring to the DOJ’s rules states:

“The DOJ’s new rules limit the definition of ‘service animal’ in the ADA to include only dogs. The new rules also define ‘service animal’ to exclude emotional support animals. This definition, however, does not apply to the FHAct or Section 504. Disabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under the FHAct or Section 504. In situations where both laws apply, housing providers must meet the broader FHAct/Section 504 standard in deciding whether to grant reasonable accommodation requests.”

In 2008, HUD issued final rules regarding pet ownership for the elderly and persons with disabilities, stating that “emotional support animals do not need training to ameliorate the effects of a person’s mental and emotional disabilities.” (73 Fed. Reg. 63834, 63836, October 27, 2008) 

Taylor described decisions that had not followed Prindable, including Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp2d 850 (S.D.Ohio 2009) and Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.N.D.2011), both discussed here in a prior blog.    

The Hawaii Civil Rights Commission generally supported Taylor’s arguments.  The Commission represented that it has an agreement with HUD under which the State’s reasonable accommodation provisions must be substantially equivalent to the FHA. 

Condo Association Arguments

The condo association argued that Prindable had correctly fathomed that for “a reasonable and necessary accommodation under the FHA, the animal needs to have something that sets it apart from the ordinary pet.”  It also argued that Prindable set a minimum standard necessary to demonstrate the link between the animal and the condition the animal purportedly ameliorates.  “[I]t is that individual training the animal received or that special skill the animal possesses that links the animal directly to the effects of the disability and makes the animal necessary for purposes of the FHA.” 

The condo association’s other major argument was that since nondisabled persons also get comfort from animals yet are not entitled to have them under the FHA, disabled persons should not be able to get a greater benefit than a nondisabled persons can get under the Act.  Therefore, emotional support, according to the association, should not be the basis of allowing an untrained animal despite a no-pets policy.

District of Hawaii Sidelines Prindable

Judge Kobayashi shows tremendous deference to her fellow Hawaii federal district court judge, Alan C. Kay, who decided Prindable nine years earlier. Nevertheless, Kobayashi concludes that Taylor and the Hawaii Civil Rights Commission “have presented persuasive arguments that the FHA has evolved to recognize ‘assistance animals,’ including ‘emotional support animals,’ as reasonable accommodations…. The Court agrees that both federal and state law, while not explicitly embracing ‘emotional support animals’ as unequivocal ‘reasonable accommodations,’ does not preclude them as such…. Accordingly, this Court acknowledges that the law has changed since Prindable was decided in 2003 by increasing acceptance of ‘assistance animals’ as possible ‘reasonable accommodations.’”

Also, in Prindable the resident claimed to have a service animal, not an assistance animal, and Judge Kay had considered whether the animal in question was a service animal.  In the present case, Judge Kobayashi was considering whether Nell was an assistance animal, “that, by her very presence, provides emotional support to ameliorate Taylor’s disability.”  Therefore, the judge found that “Prindable is distinguishable from the instant matter and CONCLUDES that its holding is inapplicable to the present case.” 

More Information Needed to Decide Reasonable Accommodation Question  

Judge Kobayashi said that she had to first examine Taylor’s claimed disability before she could determine whether Nell alleviates that disability and is a reasonable accommodation:

“Because the analysis must start with the disability, the Court cannot say, as a matter of law, that an untrained emotional support animal unequivocally is or is not a reasonable accommodation under the FHA. In some instances, a plaintiff may have a disability that requires an assistance animal with some type of training; in other instances, it may be possible that no training is necessary. This determination must be the result of a fact-specific inquiry and case-by-case determination….  The Court believes that this analysis ensures that only those with proper disabilities are afforded accommodations such as assistance animals; it will not … result in everyone who wants a pet being afforded an assistance animal, so long as they label it an emotional support animal. Rather, because the animal must alleviate the disability, only those with disabilities will be afforded this accommodation.” (emphasis added)

Thus, a reasonable accommodation request does not categorically require specialized training, nor does it categorically mean that specialized training will never be required.  Presumably for some mental or emotional disabilities, the dog will not alleviate or ameliorate the condition without specialized training, for others it will. If Nell allowed Taylor to function in public, in situations where the anxiety disorder of agoraphobia would come into play, presumably the requirement that the dog alleviate the condition would be satisfied.  Of course, a service animal could be trained to deal with situations where anxiety would be high for someone with agoraphobia, such as being in a line, by standing behind the master to give him some space from the next person in line.  Nevertheless, the law of accommodation does not require that the dog function optimally for the mental health condition, only that it ameliorate or alleviate that condition.   

The judge clearly felt the brief responses to a questionnaire by a doctor who was no longer in Hawaii or available for testimony, that Taylor had agoraphobia (“agarophobia [sic]”) and a brain chemistry imbalance, but could care for himself with his dog, were insufficient to require a reasonable accommodation. Such a statement says little because it could apparently mean as well that the resident could care for himself without a dog. Although the judge says that the case requires that she consider whether Nell, “by her very presence, provides emotional support to ameliorate Taylor’s disability,” it appears that she may require that the dog do more than provide comfort and companionship in order to find amelioration from its presence.  On the other hand, even temporary relief from the symptoms or effects of a mental condition should be adequate to establish that an animal ameliorates or alleviates the condition. 

Summary Judgment Motions Denied

The court denied both motions for partial summary judgment, meaning that the questions of whether Taylor has a disability or whether, if so, his condition is ameliorated by the dog, could proceed to trial.  For the future of service and support animal law, it must be hoped that there will be a further decision from Judge Kobayashi since she seems poised to consider what alleviation or amelioration should mean in this context. 

Association of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F.Supp.2d 1268 (D. Hawaii 2012).

Supplementary Note.  The court in Taylor noted that the resident argued that the analysis begins with the disabled individual, while the association argued that it begins with the accommodation.  The federal district court agreed with the resident, saying that it must first examine the claimed disability before it can determine whether the dog is a reasonable accommodation.  In commenting on a draft Technical Assistance Manual for airline carriers regarding passengers with disabilities, Dr. J. Lawrence Thomas and I questioned one of the requirements for a letter from a medical or mental health professional supporting a patient wishing to fly with a service or support animal.  The Department of Transportation says that the professional must state that the “passenger needs the service animal as an accommodation for air travel and/or activity at the passenger’s destination.”  It is not clear how a medical or mental health professional is supposed to understand what accommodations should be granted by airlines.  In commenting, we suggested that prior language used by the Department was more appropriate in requiring that a letter state that “having the animal accompany the passenger is necessary to the passenger’s mental health or treatment.”  Judge Kobayashi has correctly observed that need and accommodation are separate inquiries that should not be conflated into a single issue.