Wednesday, April 17, 2013

Dog Acquired as a Pet Becomes an Assistance Animal Entitled to Reasonable Accommodation

Tina Book was diagnosed with breast cancer in 2006 and suffers from anxiety, depression, fibromyalgia, and related conditions.  According to the federal district court of Oregon:

“She lives with and is generally accompanied by an emotional assistance dog, named Athena. Although Athena was originally Ms. Book's pet, Book has considered Athena a service animal for several years. She has doctors' notes dating back to 2010 identifying Athena as an emotional companion animal that assists her with the functional limitations relating to ‘a medical condition that substantially limits one or more of her major life activities.’”

In 2011, Book began to look for a new place to live and applied to live in an apartment building owned by Hunter Crest Properties in Klamath Falls, Oregon.  Judy and Randall Hunter approved her application subject to verification of her income.  After showing some financial information, Judy Hunter wrote on the application that Book’s income had been verified. 

What happened next is described by the federal district court as follows:

“Ms. Book testified that it was after these arrangements were made that she handed Ms. Hunter the note from her doctor identifying Ms. Book's need for a companion animal to assist her. Book testified that Ms. Hunter was upset by this, and told her that they ‘do not allow pets.’ Mrs. Hunter asked the name of her doctor, and then Ms. Book saw Ms. Hunter write on Book's rental application, 'Denial Due to Pet and Svc Dog—Dr. Miller.’”

Book subsequently received a notice of denial of her rental application which stated that Book had supplied “inaccurate or false information” and had failed to disclose an “unpermitted pet.” Book testified that she did not disclose information about Athena because she did not believe the dog was a pet but rather a service animal.  (Service animals have been recognized as distinct from pets in a number of contexts; see, e.g., 73 Fed. Reg. 27658 (May 13, 2008).)

Judy Hunter confirmed that Book’s rental application had been preliminarily approved subject to income verification, which Hunter subsequently did verify.  She also stated that Book did not mention the dog until she handed Hunter the note from her doctor.  Both Judy and Randall Hunter “testified that the dog was at least one reason for the denial of Ms. Book’s rental application.” Judy Hunter acknowledged that she had written “Denial Due to Svc Dog—Dr. Miller” on Book’s rental application. 

Fair Housing Act Analysis

The court went through the basic law regarding discrimination under the Fair Housing Act, describing that discrimination, under 42 U.S.C. 3604(f)(3)(B), includes a refusal to make “reasonable accommodations in rules, policies practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” The court cited the joint statement of the Department of Justice and the Department of Housing and Urban Development, noting its example of a hearing dog as a reasonable accommodation (discussed in Service and Therapy Dogs in American Society, pp. 160-1). 

The court concluded:

“Based on the testimony and the evidence at trial, the court finds that the defendants violated the FHA by failing to reasonably accommodate the plaintiff's disability. The plaintiff handed Ms. Hunter a doctor's note authorizing the use of a companion animal to assist with a medical condition that substantially limits one or more of her major life activities. Thus she has shown that she informed the defendants of her claimed handicap and her request for accommodation such that defendants were aware or should have been aware of her handicap and her request. Ms. Hunter demonstrated that she was aware of the handicap and the request for accommodation when she wrote ‘Denial Due to Svc Dog—Dr. Miller’ at the top of the plaintiff's rental application and when she checked the box identifying “undisclosed or unpermitted pet” on the application denial form.

“The defendants may have believed that the plaintiff was not truly disabled or that her request for accommodation was unreasonable. However, under the FHA they were required to engage in an interactive process to determine whether or not that was the case. Instead, they immediately denied her application to rent, and effectively denied her request for reasonable accommodation. While they may have preferred that the plaintiff make her request on the rental application, the FHA does not allow housing providers to deny requests for that reason.”

Court Awards $12,000 to Plaintiff

The court described the latitude of the relief it could grant under 42 U.S.C. 3613, and noted the hardships that the denial of the rental unit had caused Book:

“The plaintiff requests that the court grant relief in the sum of $12,000 based on her pain and suffering, which includes severe emotional distress. At trial, the plaintiff testified that she suffers from severe anxiety on a normal day, and that the experience with the Hunters exacerbated this anxiety to an extreme degree. It made her feel ‘like a failure, worthless, like she doesn't matter.’ The stress of being denied housing due to her companion animal, which was the one thing that could help calm her down, affected all aspects of her life, including her school work. Her daily function was ‘down to pretty much nothing.’ In addition, the neighborhood in which she had been living had a high incidence of drugs and violence, and the plaintiff did not feel safe there. It took her at least two months to find suitable alternative housing.”

The court concluded that Book had established by a preponderance of the evidence that the Hunters had violated the Fair Housing Act and awarded her $12,000 in damages, the amount she had asked for, along with attorney’s fees and costs. 


The decision is correct and the award of damages is appropriate, though it seems that Book may have undervalued the amount.  The case does not break new ground as to FHA law but the fact that the dog began as a pet and became either “an emotional assistance dog” or a “service animal” is interesting and deserved more discussion. (For a recent discussion of the terminology preferred by federal agencies, see Ensminger and Thomas, Writing Letters to Help Patients with Service and Support AnimalsJournal of Forensic Psychology Practice, 13, 92-115.)  Such transformations occur more often than is recognized in the case law. The defendants do not seem to have felt that an attack on the animal’s status was likely to be effective.  Emotional support animals, as noted in a prior blog, can qualify for a reasonable accommodation despite not being trained to provide any specific disability-related function, so it s not clear how the transformation in the dog's status happened here.   

Unfortunately, there are sections of the U.S. government, such as the Army and the VA, that have essentially rejected the possibility of a pet transforming into a support or service animal, but the federal district court in Oregon clearly understood that animals can qualify as assistance or service animals through a variety of paths. 

Book v. Hunter, 2013 WL 1193865 (D.Or. 2013)

Thanks to Fran Breitkopf, Leigh Anne Novak, and Dailyah Rudek for comments and corrections.   

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