Service Animals/Assistance Animals: Can They Vacation In Your Community?
By: Chad J. Toms, Esq.
Many communities, especially those in the beach and resort areas, are noticing an increase in vest wearing dogs being brought on vacation despite rules that prohibit pets. Numerous internet companies advertise that with a “no questions asked” registration an owner can take their dog anywhere “legally” so long as it is wearing a service animal vest and has a certificate. Communities that see a large volume of vacation rentals are being inundated with vest wearing dogs on vacation that they believe are fake service dogs. As a result, communities should arm themselves with a working knowledge of the differences between the categories of these animals and know the questions an association may lawfully ask to validate a dog's status.
There is no registry requirement for service animals nor must they be wearing a vest. There are, however, specific differences between a service animal and an assistance animal. Generally, a service animal is a dog (occasionally a miniature horse) that under Titles II and III of the Americans with Disabilities Act (“ADA”) is specially trained and accompanies a person with a disability in all areas where members of the public are allowed. The most common tasks performed by a service animal include pulling a wheelchair, retrieving dropped items, alerting a person to a sound, or reminding a person to take medication. Whereas, an assistance animal, including those needed for emotional support or therapy, can be any animal that a health care provider has determined provides benefit for an individual with a disability under the Federal Fair Housing Amendments Act of 1988 (“FHAA”) or Section 504 of the Rehabilitation Act of 1973.
I. Service Animals Under the ADA
“Service Animal” is a phrase connected only with the ADA. Title II (State and local government services) and Title III (public accommodations and commercial facilities) of the ADA recognize specially trained dogs as service animals. The ADA regulations also allow miniature horses that have been individually trained to do work or perform tasks for people with disabilities.
The ADA applies only to persons who fall under the definition of having a disability. Disability is defined as a person who: (1) has a physical or mental impairment that substantially limits one or more major life activities such as walking, seeing and hearing; (2) has a record of such an impairment; (3) is regarded as having such an impairment.
When it is not obvious what service an animal provides, only limited inquiries are allowed under the ADA. An entity or staff member may ask two questions: (1) is the animal a service animal required because of a disability? (2) what work or task has the animal been trained to perform? You cannot ask about the person's disability, require medical documentation, require a special identification card or training documentation for the animal, or ask that the animal demonstrate its ability to perform the work or task.
The most important distinction for a community to know when being told a dog is a service animal is whether the ADA is even applicable to the community. That determination turns on whether the community is a place of public accommodation. While state statutes may differ on the precise definitions of a place of public accommodation, generally if a community has space that is open to the public it must comply with the ADA in that portion of the community. Some examples of this are hotels and motels operating in common with a condominium or a community that allow the public to access its restaurants, pools or other facilities. If no portion of your community is a place of public accommodation, the ADA is not applicable. However, if your community is bound by the ADA there are published guidelines that can be found at https://www.ada.gov/service_animals_2010.htm.
II. Assistance Animals Under Federal Fair Housing
The FHAA protects persons in a protected class, which includes those with a disability, from discrimination in obtaining housing. Under this law, a condominium or homeowner's association must provide reasonable accommodations to people with disabilities so that they have an equal opportunity to enjoy and use a dwelling. The United States Department of Housing and Urban Development (HUD) uses the term "assistance animal" to cover any animal (not just dogs) that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. Assistance animals, including those for emotional support, may qualify as reasonable accommodations under the FHAA. While not defined in federal statutes, the term “emotion support animal” is understood to be a companion animal (not a pet) that a medical professional has determined provides benefit for an individual with a disability, typically a mental or psychiatric disability. Communities should also be aware that their state and/or locality may also have additional requirements relating to assistance animals under their fair housing laws.
Whether requested by a full time resident, short term tenants on vacation, or guests of residents and tenants an association must provide a reasonable accommodation in its rules, policies, practices or services, when necessary to afford a disabled person with equal opportunity to use and enjoy a dwelling. But unlike the ADA and its limitation on inquiry, FHAA encourages a community association and a resident to engage in an interactive process to discuss and exchange information about the person's needs and the reasonableness of the requested accommodation/modification. Some questions to ask may include whether:
a) the resident, tenant, or guest is a person with a disability affecting a major life activity;
b) the animal is needed to assist the person with that specific disability; and
c) the animal actually assists the person with a disability.
Communities should consider adopting policies that create procedures for residents to request an accommodation or modification under FHAA and outline how the association will handle requests. Communities may want to consider rules related to those assistance animals allowed as reasonable accommodations, including noise rules, clean-up for such animals, and even appropriate entrances. It should be noted, however, that communities cannot charge a fee for assistance animals as they are not pets. If a community determines it is a place of public accommodation and subject to the ADA, it may also adopt policies for interacting with service animals and their owners. Please contact us should you have any questions about handling service animals or assistance animals in your community.