Service dogs in San Francisco are amazing. They have been extensively trained, live strict but loved lives, and take care of their owners like truly no one else can. The dogs’ abilities to detect seizures, pick up dropped items, and even warn owners of impending stroke or heart attack make these dogs literally life savers.
With all the amazing things these animals can do, it’s no wonder we have learned to accept them in places we usually wouldn’t, like a restaurant or the office. But there is a growing cynicism towards service and support animals in general, and mostly because of misunderstanding, and I’ll admit that I used to be one of these people.
I was not raised in a house with pets, and I never could understand the “emotional support animal“. I could understand a seeing eye dog or a dog that assists with the hearing impaired, but these are obvious needs that a dog could help with. When I would see articles about an emotional support pig or bunny, I would roll my eyes.
The Best Service dog laws in California
Sadly, some people are asking whether "service animal" laws are being abused by those who want to scam the system.
There have been news stories, articles, opinion pieces and other editorials where people rant and complain about people they believe to be abusing the system. You hear some complain that they had to sit near a dog at a restaurant that they don't believe is a "real" service dog, or others complain that their neighbors have a pet in a "no pet" building because they claimed the animal is an emotional support animal.
Some of the commentary has an indignant tone, and some people are downright angry.
How does this affect those who legitimately own and use a service animal to better their lives? In many ways.
For one, it can it more difficult to navigate bureaucracy of the world when your claim of a disability and your service or emotional support animal's status is questioned. If a landlord or business owner has heard negative stories claiming that some people are abusing the system, it can cause them to look suspiciously at all claimants.
But that percentage of abuse, which in the area of service animal laws is hopefully small, is arguably a very small price to pay when compared to the higher goal of promoting access and equality for all.
In the end, you cannot control any system to make it 100% abuse proof. So tolerating the few people who scam service animal laws is the price we gladly pay to ensure that the disabled in the great state of California have equal access under law.
How Should You Act Around a Service Dog?
How should you act around a service dog?
A person's natural instinct is to pet and play with dogs.
Unfortunately, we must all respect the vest or cape of the service dog and ignore the dog as much as possible. That means not petting it, touching it, distracting it, talking to it, teasing it, or especially feeding it.
So, how should you act? Really the best way and only recommended way is by totally ignoring the dog the same way you would politely ignore a wheelchair or cane.
A service dog that is not ignored may become "ruined" and unusable by its owner, and given that service dogs are both very hard to find for specific conditions and extremely expensive (typically averaging $15,000 each) this can be devastating for the dog's owner.
By violating this etiquette, you have also just helped contribute to the person's loss of freedom and possibly made it necessary for the owner to give up the dog, which would be heartbreaking, and for the person to require the use of a Personal Care Attendant (PCA)—another person shadowing them all the time—to provide some of the services that the dog used to perform.
Service Dog Basics for the Public
Do you have a hard time working around a service dog?
It's very hard for some people to be around service dogs and service dogs in-training because a person's natural instinct is to pet and play with dogs, especially the healthy well-kept dogs who work as service dogs.
Unfortunately, we must all respect the vest or cape of the service dog and ignore the dog as much as possible rather than petting it, touching it, distracting it, talking to it or teasing it, or even looking at it.
When the cape/vest is on, the dog is working
After all, whenever the cape is on, the dog is working hard, whether it looks like it to you or not.
Among other things, the dog is working very hard to ignore you and the tiny morsel of food on the floor over there that looks tasty.
The dog is also focused on its handler, remaining alert for any commands, scents, or hand signals for action.
It falls asleep all the time. How is that "working"?
Most service dogs are trained to catch a nap whenever possible during the day to give them the energy they need when their work is most actively needed.
Napping at strategic times, such as lunchtime and meetings, is a type of work essential for them to do their service dog work; the dog is not in any way "falling asleep on the job" in a negative sense.
So, how should you act?
Really the best way is by ignoring the dog the same way you would politely ignore a wheelchair or cane.
The service dog and its handler try to minimize the distraction the dog provides to the public, but the public needs to learn and obey manners with respect to the dog and the disabled person (or dog trainer) also.
Remember that it's not polite to stare, point, or talk about people.
One thing you should never do
It's very impolite to ask why someone uses a service dog because their disability is private health information.
Benefits of service dogs
Service dogs can be of great benefit to people with all sorts of disabilities, including invisible disabilities like diabetes, asthma, vertigo, and psychiatric disabilities.
Don't assume that a person who "looks good" and is with a service dog isn't disabled just because the disability isn't obvious to you.
Bonus: Service dogs are also a calming, friendly presence around the office or place or business.
Remember, if a service dog's vest is on they are working.
Service dogs are NOT pets, by law, and interfering with a service dog team is actually a crime in most states.
The same manners that apply to a wheelchair apply to a service dog: that's the easiest way to remember what's right or wrong most of the time.
There are certain responsibilities associated with owning a dog. Some of them are legal while others are merely customs. All dog owners should make sure that they know the responsibilities associated with owning a dog in their area. Knowing the customs and legal responsibilities of a dog owner in your area will not just make you a better dog owner but also help you avoid legal nightmares and lawsuits. This article will focus on the legal aspects of owning a dog.
There is no universal dog law. The laws vary from country to country, from state to state, from city to city and sometimes even from neighbourhood to neighbourhood. It is therefore important that you check the local law in the area where you live. Taking advice from a friend living a few miles away can be a big mistake as the rules can vary between his location and yours. It is also very important that you make sure to check dog rules in other areas before travelling with your dog as you can not assume that the same rules will apply in other areas. This in not only true if your travel abroad but also if you travel within your own country.
Dog law is a very complex matter due to its local nature and it is therefore very hard to give any general advice to dog owners besides to research local laws and contact a dog lawyer if any problem arises.
An emotional support animal (ESA) is a companion animal that a medical professional has determined provides benefit for an individual with a disability. This may include improving at least one symptom of the disability. Emotional support animals, typically dogs, but sometimes cats or other animals, may be used by people with a range of physical, psychiatric, or intellectual disabilities. In order to be prescribed an emotional support animal the person seeking such an animal must have a verifiable disability. To be afforded protection under United States federal law, a person must meet the federal definition of disability and must have a note from a physician or other medical professional stating that the person has that disability and that the emotional support animal provides a benefit for the individual with the disability. An animal does not need specific training to become an emotional support animal.
In the U.S., federal protection against housing discrimination is afforded to mentally disabled persons under two federal statutes: Section 504 of the Rehabilitation Act of 1973 and the Federal Fair Housing Amendments Act (FHAA) of 1988. These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against disabled persons in housing, and if a reasonable accommodation will enable a disabled person to equally enjoy and use the rental unit, the landlord must provide the accommodation. Persons with disabilities may request a reasonable accommodation, such as a waiver of a "no pets policy", for any assistance animal, including an emotional support animal, under both the FHAA and Section 504.
Section 504 of the Rehabilitation Act was enacted in 1973 and made broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal. However, it was not until 1988 when the U.S. Department of Housing and Urban Development (HUD) created regulations under the statute. Section 504 states:
No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
In the context of housing discrimination, this statute creates the rule that public housing authorities cannot deny housing to a disabled person solely because of his or her disability, and that if a reasonable accommodation can be made to make housing available to a disabled person, the landlord is required to make the accommodation. Even though the statute does not expressly use the phrase "reasonable accommodation", it has been read into the statute by case law and HUD regulations interpreting the statute.
To establish that a "no pets" waiver for an emotional support animal is a reasonable accommodation under Section 504, the tenant must: have a disability, be "otherwise qualified" to receive the benefit, be denied the benefit solely because of the disability, and the housing authority must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas.
The Majors and Whittier Terrace courts established the foundational principles that a tenant can be "otherwise qualified" under Section 504 despite an inability to comply with a "no pets" policy, and that a waiver of a "no pets" policy can be a reasonable accommodation under Section 504. However, several courts have consistently held that a tenant requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal.[note 1] This required nexus between the disability and the emotional support animal has been refined by several courts. For instance, in Janush v. Charities Housing Development Corp (N.D. Ca., 2000), the U.S. Northern District Court of California held the reasonable accommodation is a fact-based, and not species-based, issue. In Nason v. Stone Hill Realty Association (1996), a Massachusetts trial court recognized that there were more reasonable accommodations to lessen the effects of a person's disability, other than keeping an emotional support animal, and therefore denied the tenant's motion for preliminary injunction. Courts have held the emotional distress expected to occur if a person is forced to give up his or her emotional support animal will not support a reasonable accommodation claim.
Since a violation of Section 504 requires the housing authority to receive federal funding, this act did not cover private housing providers. This legislative gap existed until 1988 when Congress passed the Fair Housing Act Amendments.
Whereas only housing authorities receiving federal financial assistance are subject to Section 504, both public and private housing authorities are subject to the provisions of the Fair Housing Act. Enacted as part of the Civil Rights Act of 1968 legislation, the Fair Housing Act (FHA) focused on housing discrimination on the basis of race, color, national origin, or gender; in 1988, however, the Federal Fair Housing Act Amendments (FHAA) expanded this scope to include handicapped persons. The FHAA states that it is unlawful "to discriminate in the sale or rental...of a dwelling to any buyer or renter because of a handicap of that buyer or renter, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or any person associated with that buyer or renter." Further, it is discrimination for any person to: "refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas." Thus, like Section 504, the FHAA requires landlords to make reasonable accommodations for tenants. Additionally, the FHAA, in section 3602 (h), defines handicap, with respect to a person, as: (1) a 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. The term "major life activities" has been interpreted broadly to include those "activities that are of central importance to daily life," such as "seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, and reproducing." The United States Department of Housing and Urban Development (HUD) is responsible for administering the FHAA; the Attorney General or private persons have authority to enforce it.
To establish a prima facie case of housing discrimination under the FHAA: the tenant must have a qualifying disability, the landlord knew of the handicap or should reasonably be expected to know of it, accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the dwelling, and the landlord must deny the request, such as refusing to waive the "no pets" policy.
The second element, that the landlord knew of the handicap or should have known of it, places an affirmative burden on the tenant to request the reasonable accommodation, such as a waiver of a "no pets" policy for an emotional support animal. A tenant wishing to obtain a waiver of a "no pets" policy for an emotional support animal may meet this burden by providing a letter from his or her physician or mental health professional: stating that the tenant has a mental disability, explaining that the animal is needed to lessen the effects of the disability, and requesting that the animal be allowed in the rental unit as a reasonable accommodation for the mental disability. Landlords are entitled to ask for supporting materials which document the need for an emotional support animal. Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link, or a nexus, between the animal and the disability. The nexus between the animal and the disability is analyzed under the third element of an FHAA housing discrimination case, known as the necessity requirement, and requires that the accommodation will affirmatively enhance a disabled tenant's quality of life by ameliorating the effects of the disability. So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation.
Although The Fair Housing Act covers both multi- and single-family detached home, the sale or rental of a single family dwelling by an owner is exempt from the statute. There are two exceptions to this exemption, however. One is that the exception will not apply if the private individual owner owns more than three single-family homes. The other exception to this exemption is the use of a real estate agent or a broker to rent out the home.
A tenant may be awarded actual and punitive damages, injunctions, and attorney fees at the discretion of the court for a landlord's violation of the FHAA.
The Americans with Disabilities Act of 1990 (ADA) allows people with disabilities to bring their service animals in public places. However, the ADA only extends these protections to dogs that have been "individually trained" to "perform tasks for the benefit of an individual with a disability," which is the definition of service animals under 28 C.F.R. § 36.104. Since emotional support animals are typically not trained for an individual's specific disability and since emotional support animals might not be dogs, they do not receive the protections of the ADA. A public place can therefore deny an emotional support animal admission.
In situations where the ADA and the FHAA/Section 504 apply simultaneously (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), housing providers must meet their obligations under both the reasonable accommodation standard of the FHAct/Section 504 and the service animal provisions of the ADA.
Americans that suffer from emotional or mental disability can qualify for an Emotional Support Animal (ESA). To get the qualification, the individual involved must have an emotional or mental disability that is certified by a mental health professional such as a psychiatrist, or any other mental health expert. In some locations, landlords and property managers do accept confirmation filled out by a certified family doctor. However, the best approach is to locate an appropriate mental health expert who can draft such a letter.
Fair accommodations for mental or emotional disabilities can be hard to determine, and landlords are often reluctant to waive "no pets" policies. Landlords suggest that "no pet" waivers will cause a "flood gate" of persons claiming mental illnesses and the need for pets. They allege this will in turn lower the value of the property by creating odors and noises that deter other tenants from renting. Landlords also argue that exceptions to the "no pets" policies may confuse other tenants who may not understand why one person was allowed an animal while they were not. Yet, if an emotional support animal is a reasonable accommodation, the landlord may be compelled to waive the "no pets" policy.
However, if a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the statutes may not protect the tenant and the landlord does not have to allow the tenant in the housing or waive a "no pets" policy. Another legal issue may arise if the tenant becomes unable to properly care for his or her emotional support animal. If a tenant is neglecting his or her emotional support animal and it rises to a level where the animal is endangered, then it may become a criminal matter. If any animal is being neglected, local law enforcement or animal control can intervene. Moreover, a tenant would also be subject to all the other provisions of the lease, such as maintaining his or her residence in a sanitary manner.
Additionally, if the requested accommodation (i.e., the waiver of a "no pets" policy for an emotional support animal) constitutes an undue financial or administrative burden for the landlord, or fundamentally alters the nature of the housing, the landlord may not have to provide the reasonable accommodation. Generally, however, because the number of mentally disabled persons who can qualify for waiver of a "no pets" provision is small, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy because of extreme burdens. A landlord may also evict a person with a disability if that person does not comply with legitimate tenancy rules that apply to all tenants. Furthermore, if more reasonable alternatives exists to lessen the effects of the disability, other than an emotional support animal, a court may not compel a landlord to make an accommodation.
The U.S. Department of Housing and Urban Development and Department of Justice have held that "providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation." While a landlord may be able to recoup reasonable fees for damage done after the fact by the tenant and his or her emotional support animal, an initial security deposit may go against the purpose of the law. The Ninth Circuit, in U.S. v. California Mobile Home Management Company (9th Cir. 1994), for instance, rejected the claim that "any fee which is generally applicable to all residents of a housing community cannot be discriminatory." Specifically, the Ninth Circuit said that "fees that merit closer scrutiny are those with unequal impact, imposed in return for permission to engage in conduct that...a landlord is required to permit." This case was not about pet deposits, however, but, rather, considered whether a guest fee and guest parking fee was acting in a discriminatory manner towards a disabled person who required regular home visits by health care aides. In 1990, a HUD administrative judge enjoined owners of an apartment complex from charging a disabled person a pet deposit fee. The judge held that an auxiliary aid, like a service, guide, or signal dog, may be necessary to afford the individual an equal opportunity to use and enjoy the dwelling unit, including public and common areas.
On April 25, 2013, the U.S. Department of Housing and Urban Development sent notice to its regional offices that public universities are required to comply with the Fair Housing Act, which includes allowing emotional support animals into college dormitories and residence halls. As of 2015 colleges in the United States such as St. Mary's College of Maryland were trying to accommodate students with a documented need for emotional support animals.
The Air Carrier Access Act establishes a procedure for modifying pet policies on aircraft to permit a person with a disability to travel with a prescribed emotional support animal, so long as they have appropriate documentation and the animal is not a danger to others and does not interfere with others (through unwanted attention, barking, inappropriate toileting, etc.).
In regards to airline policies affecting persons flying with animals, most airlines charge fees and require the animal to be in a cage that can fit under the seat; if a caged animal cannot be placed under the seat, the animal flies with the luggage. With emotional assistance animals, on the other hand, they are not required to be caged, nor are people charged for flying with an emotional support animal.
With the exceptions provided to emotional support animals, many people who do not have a mental disability have tried to bring their animals on a plane and pass them off as emotional support animals. Airlines, like Southwest and JetBlue, however, typically have policies that passengers flying with emotional support animals must follow. While an airline is allowed to require a passenger traveling with an emotional support animal provide written documentation that the animal is an emotional support animal, the same is not true for a service animal.
While there do not seem to be any cases dealing with the issue of multiple emotional support animals, the basic requirements for this reasonable accommodation would still be the same. In other words, if a person were claiming the need for multiple emotional support animals, then he or she would need documentation supporting this need from his or her physician or medical professional. The practitioner would need to provide documentation that each support animal alleviated some symptom of the disability.
An emotional support animal may cause problems that a trained assistance dog may not. For instance, due to the lack of training, an emotional support animal may bark at and smell other people, whereas service dogs are trained not to do so. There have also been concerns about people abusing the system by acquiring an emotional support animal even though they do not need it.
The lack of training for emotional support animals has also led to controversy in the courts. Specifically, there is controversy over whether the ADA definition of service animal, with its requirement of training, applies to reasonable accommodation claims for animals under the FHAA. However, HUD administrative judges have ruled in favor of emotional support animals, despite their lack of training, as being reasonable accommodations.[note 2] Additionally, several courts have also ruled that untrained assistance animals are reasonable accommodations under the FHAA.[note 3] Yet, there are cases that have held an assistance animal, in order to be considered a reasonable accommodation under the FHAA, must be trained.[note 4]
- ^ a b c d e f g Wisch, Rebecca (2015). "FAQs on Emotional Support Animals". The Animal Legal & Historical Center. Michigan State University College of Law. Retrieved March 23, 2016.
- ^ a b c d e f g h i j k l m n o p q r s t u v Brewer, Kate A. (2005). "Emotional Support Animals Excepted From "No Pets" Lease Provisions Under Federal Law". The Animal Legal & Historical Center. Michigan State University College of Law. Retrieved February 28, 2014.
- ^ a b U.S. Department of Housing and Urban Development (2013). "Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs" (PDF). Retrieved March 21, 2014.
- ^ a b Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 (United States Court of Appeals for the Fifth Circuit 1981).
- ^ Whittier Terrace Associates v. Hampshire, 532 N.E.2d 712 (Appeals Court of Massachusetts January 20, 1989).
- ^ a b c d Judge David L. Bazelon Center for Mental Health Law. "Right to Emotional Support Animals in "No Pet" Housing: Fair Housing Information Sheet #6". Retrieved March 5, 2014.
- ^ Fair Housing Act, abbr 1988, c. 42, s. 3602((h)) (Fair Housing Act at linkloc)
- ^ a b Waterlander, Tara A. (2012). "Some Tenants Have Tails: When Housing Providers Must Permit Animals to Reside in "No-Pet" Properties". Animal Law Review. Lewis & Clark Law School. 18.
- ^ a b c d e f g h i j k Huss, Rebecca J. (2005). "No Pets Allowed: Housing Issues and Companion Animals" (PDF). Animal Law Review. Lewis & Clark Law School. 11. Retrieved March 6, 2014.
- ^ a b c d Duffly, Zachary. "Psychiatric Service Dogs & Emotional Support Animals: Access to Public Places & Other Settings". NOLO Law For All. NOLO. Retrieved March 2, 2014.
- ^ "The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) on September 15, 2010, in the Federal Register.". https://www.ada.gov/. U.S. Department of Justice. July 2011. Retrieved April 1, 2017. 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 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. External link in |website= (help)
- ^ "How To Get An Emotional Support Animal", esadoctors.com, May 4, 2017.
- ^ Hudak, Stephen (February 18, 2010). "Dog Prescribed by Doctor May Get Couple Evicted from Mobile Home". Orlando Sentinel. Retrieved March 15, 2014.
- ^ "Joint Statement of the Department of Housing and Urban Development and the Department of Justice – Reasonable Accommodations under the Fair Housing Act" (PDF). May 17, 2004. Retrieved October 29, 2014.
- ^ "Dorms Must Accept ‘Emotional Support’ Dogs, HUD Says". Law Blog. The Wall Street Journal. May 16, 2013.
- ^ Jan Hoffman (October 4, 2015). "Campuses Debate Rising Demands for ‘Comfort Animals’". The New York Times. Retrieved October 5, 2015.
- ^ "Emotional Support Animals". Service Dog Central. Retrieved December 27, 2007.
- ^ "Aviation Consumer Protection and Enforcement". US Department of Transportation. Retrieved December 27, 2007.
- ^ a b c d Witz, Billy (November 15, 2013). "Emotional Support, With Fur, Draws Complaints on Planes". The New York Times. Retrieved March 1, 2014.
- ^ Southwest Airlines. "Traveling with an Emotional Support Animal" (PDF). Retrieved March 2, 2014.
- ^ JetBlue Airlines. "Service and Emotional Support Animals on JetBlue Flights" (PDF). Retrieved March 2, 2014.
- ^ a b Ligatti, Christopher 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". T. Marshall L. Rev. Thurgood Marshall School of Law. 35. SSRN 2142597 .
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