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HOUSING PETS, SERVICE ANIMALS & THERAPY ANIMALS A “TAIL” OF TWO LAWS Thomas E. Betz Director of Student Legal Service University of Illinois at Urbana-Champaign.

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Presentation on theme: "HOUSING PETS, SERVICE ANIMALS & THERAPY ANIMALS A “TAIL” OF TWO LAWS Thomas E. Betz Director of Student Legal Service University of Illinois at Urbana-Champaign."— Presentation transcript:

1 HOUSING PETS, SERVICE ANIMALS & THERAPY ANIMALS A “TAIL” OF TWO LAWS Thomas E. Betz Director of Student Legal Service University of Illinois at Urbana-Champaign J. D Wayne State University Winnie Zhang UIUC – Student Legal Service Office Assistant Formatted PowerPoint University Student Legal Services Association Western Region January 2015 New Orleans, Louisiana 1

2 1. ANIMALS IN HOUSING ARE GOVERNED BY TWO FEDERAL STATUTORY SCHEMES WHICH HAVE DIFFERENT RULES, DEFINITIONS, ENFORCEMENT AGENCIES AND STRENGTHS. DO NOT OVERLOOK YOUR STATE’S PROVISIONS AND COMMON LAW DOCTRINES. AMERICANS WITH DISABILITIES ACT:(ADA) 42 U.S.C.A. SEC ET SEQ. GOVERNS “SERVICE ANIMALS” U.S. DEPARTMENT OF JUSTICE ENFORCES AND PROMULGATES RULES FAIR HOUSING ACT (FHACT) & SEC 504 OF REHABILITATION ACT OF 1973 GOVERNS “THERAPY/ASSISTANCE ANIMALS” U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT PROMULGATES RULES 2

3 QUESTION: CAN BOTH ACTS APPLY FOR THE SAME ANIMAL? ANSWER: YES 1. WHERE IT IS A DOG, 2. WHERE IT IS “HOUSING”, 3. A “SERVICE” ANIMAL CAN ALSO ACT AS A “THERAPY/ASSISTANCE” ANIMAL NOTE: A CAT CAN BE A “THERAPY” ANIMAL BUT CANNOT BE A “SERVICE” ANIMAL 3

4 2. SERVICE ANIMALS: ADA WHAT IS A “SERVICE” ANIMAL? A DOG INDIVIDUALLY TRAINED TO DO WORK OR PERFORM TASKS IN EXTREMELY RARE INSTANCES TRAINED MINIATURE HORSES 4

5 WHAT IS WORK? WORK IS NOT THE PROVISION OF EMOTIONAL SUPPORT, COMPANIONSHIP, COMFORT, WELL- BEING. USE OF FH ACT RULES FOR “THERAPY/ASSISTANCE” ANIMALS IS MORE LIKELY TO BE APPLICABLE TO THIS PURPOSE. WORK IS THE PERFORMANCE OF TASKS FOR ONE WITH A DISABILITY WHICH MAY BE PHYSICAL, SENSORY, PSYCHIATRIC, AND INTELLECTUAL. 5

6 WHERE ARE “SERVICE” ANIMALS ALLOWED TO GO? ANY PLACE OF PUBLIC ACCOMMODATION WHICH INCLUDES: PLACES OF PUBLIC EDUCATION, SCHOOLS, UNIVERSITIES RENTAL HOUSING, LEASING OFFICES INNS, HOTEL /MOTELS AND OTHER LODGINGS BUT….SERVICE ANIMALS CAN BE EXCLUDED FROM LODGINGS FOR HIRE WHERE FIVE OR LESS UNITS AND OWNER OCCUPIED, SUCH UNITS ARE NOT RESIDENCES. ON AIRLINES WHICH IS GOVERNED BY THE AIR CARRIER ACCESS ACT OF 1986 (ACAA); AIRLINE CAN REQUIRE DOCUMENT OF TRAINING AND NOTICE. NOTICE SHOULD BE GIVEN AFTER TICKET PURCHASE TO AVOID “SUDDEN LACK OF SEATING”. ADA SERVICE ANIMALS AND FH ACT “THERAPY/ASSISTANCE” ANIMALS ARE BOTH PROTECTED UNDER ACAA OF DOCUMENTATION LESS THAN ONE YEAR OLD MUST BE PROVIDED FOR “THERAPY/ASSISTANCE” ANIMALS. SEE 14 C.F.R.SEC

7 PLACES THAT SERVICE ANIMALS ARE NOT ALLOWED TO GO ON CAMPUS: FOOD PREPARATION AREAS; PLACES THAT PRESENT DANGER TO ANIMAL; CLEAN ROOMS, I.E. LABS; MACHINE ROOMS. 7

8 WHAT IS A “DISABILITY” FOR PURPOSES OF “SERVICE” DOGS? A DOCUMENTED PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE ACTIVITY, A RECORD OF SUCH AN IMPAIRMENT, OR BEING REGARDED AS HAVING SUCH AN IMPAIRMENT. THE “SERVICE “DOG AS IT RELATES TO DISABILITY IS TRAINED AS A 1. GUIDE DOG…SMELL, VISON, HEARING ETC. 2. SIGNAL DOG 3. SEIZURE-ALERT DOG 4. MOBILITY IMPAIRMENT DOG 5. PSYCHIATRIC SERVICE DOG (TRAINED TO E.G. INTERRUPT SELF-MUTILATION, KEEP THOSE WITH DISSOCIATIVE IDENTITY DISORDER GROUNDED IN TIME AND/OR PLACE, REMINDS OWNER TO TAKE MEDICINES. THIS TYPE OF TRAINED DOG SOMETIMES OVERLAPS WITH “THERAPY/ASSISTANCE” ANIMALS BEING USED FOR EMOTIONAL SUPPORT. 8

9 POST TRAUMATIC STRESS SYNDROME IS RECOGNIZED BY DSM IV AND HAS SOME FREQUENCY AMONG VETERAN STUDENTS ON COLLEGE CAMPUSES. STUDENTS WHO ARE VICTIMS OF TRAUMATIC CRIMES OR OTHER SERIOUS EVENTS MAY SUFFER FROM PTSS ALTHOUGH THE STEREOTYPE IS FOR RETURNING VETERANS. “SERVICE” DOGS AND “THERAPY/ASSISTANCE” ANIMAL RULES COULD EACH BE USED TO MAXIMIZE BENEFITS TO VETERAN AND OTHER PTSS STUDENTS. 9

10 THE KEY THING TO REMEMBER IS THE CONCEPT OF REASONABLE ACCOMMODATION AS TO BOTH FEDERAL ACTS. THERE ARE FEW ABSOLUTE RIGHTS. THE ACCOMMODATION IS CONSIDERED REASONABLE IF: IT IS A CHANGE IN RULES, POLICIES, PRACTICES OR SERVICES SO THAT THE PERSON WITH THE DISABILITY WILL HAVE AN EQUAL OPPORTUNITY TO ENJOY THE DWELLING. THE ACCOMMODATION IS NOT REQUIRED IF IT WOULD CREATE AN UNUSUAL HARDSHIP SUCH AS SIGNIFICANT STRUCTURAL CHANGE OR FINANCIAL IMPACT. 10

11 QUESTION: CAN A LANDLORD CHARGE A “PET DEPOSIT” FOR AN ADA SERVICE DOG? ANSWER: I WOULD ADVISE NO, BUT THERE IS SOME AMBIGUITY. I WOULD NOT GO THERE AS A LANDLORD. PRACTICE NOTE: ALWAYS TAKE A LOOK AT YOUR STATE’S HUMAN RIGHTS ACT, COUNTY OR LOCAL MUNICIPAL HUMAN RIGHTS ORDINANCES FOR BROADER DEFINITIONS AND ENFORCEMENT ISSUES. DENIAL OF ACCOMMODATION TO A PERSON WITH A “SERVICE” ANIMAL IS A STATE CRIMINAL CHARGE IN ILLINOIS AND OTHER STATES. IT IS FAR MORE LIKELY IN SOME STATES TO GET ENFORCEMENT AT THE LOCAL LEVEL APPLYING ITS OWN LAW. USUALLY THESE WILL NOT COVER THERAPY/ASSISTANCE ANIMALS. 11

12 3. THERAPY/ASSISTANCE ANIMALS : FH ACT SEC. 504 WHAT IS A “THERAPY/ASSISTANCE” ANIMAL? FOR PURPOSES OF THIS PRESENTATION THE TERM “THERAPY/ASSISTANCE” ANIMAL IS USED TO DISTINGUISH THESE ANIMALS FROM “SERVICE” ANIMALS COVERED BY ADA ALTHOUGH THE FAIR HOUSING ACT AND REGULATIONS SOMETIMES USE THE TERM “ASSISTANCE ANIMAL” AND EVEN “SERVICE ANIMAL” WHICH CAN COMPLICATE AND CONFUSE THE LAY PUBLIC VIEW OF THIS ISSUE. 12

13 A “THERAPY/ASSISTANCE ANIMAL IS AN ANIMAL: THAT DOES NOT HAVE TO BE SPECIALLY TRAINED TO ASSIST WITH SPECIFIC DISABILITY THAT IS “NEEDED” TO ASSIST WITH THE DISABILITY 13

14 WHERE ARE “THERAPY/ASSISTANCE” ANIMALS PERMITTED TO GO? HOUSING; APARTMENTS, CONDOS, RESIDENTIAL PROPERTY THERE IS NOT AN AUTOMATIC/PROTECTED RIGHT FOR THERAPY/ASSISTANCE ANIMALS TO BE PRESENT IN OTHER PLACES OF PUBLIC ACCOMMODATION SUCH AS RESTAURANTS, BARS, CLASSROOMS (NOTE THAT SOME STATES SUCH AS ILLINOIS STATUTORILY PERMIT “SERVICE” ANIMALS IN THE CLASSROOM, 105 ILCS 5/ ET SEQ, WITH THE DECISION IN NICHELLE V. VILLA GROVE, 403 ILL.APP.31062, 936 N.E.2D690 (2010), IMPLICATING THE NOTION THAT “THERAPY/ASSISTANCE” ANIMALS ARE PERMITTED IN THE CASE OF AN ELEMENTARY STUDENT SUFFERING FROM AUTISM. THE FACTS OF THE CASE STRONGLY CORRELATE TO EMOTION/PERSONAL SECURITY ALTHOUGH THE DOG WAS TRAINED AS A SERVICE ANIMAL. 14

15 WHAT IS A “DISABILITY” FOR PURPOSES OF “THERAPY/ASSISTANCE” ANIMALS? A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE ACTIVITIES. IF THE STUDENT TENANT HAS A “DISABILITY” AND IT CAN BE SHOWN THAT THE ANIMAL IS OF ASSISTANCE TO THE PERSON WITH THE CONDITION OR PROVIDES EMOTIONAL SUPPORT THAT ALLEVIATES ONE OR MORE OF THE SYMPTOMS OF THE DISABILITY THEN A REASONABLE ACCOMMODATION OF THE ANIMAL IS LIKELY REQUIRED. 15

16 WHAT WILL THE STUDENT TENANT NEED TO OBTAIN HOUSING PROVIDER ACCOMMODATION OF THE “THERAPY/ASSISTANCE” ANIMAL? UNLESS THE STUDENT CONDITION IS OBVIOUS OR KNOWN TO THE LANDLORD THE LANDLORD CAN REQUIRE A LETTER FROM A LICENSED MEDICAL/PSYCHIATRIC PROFESSIONAL OR EVEN LICENSED CLINICAL SOCIAL WORKER THAT STATES THAT “THERE IS A DISABILITY” AND THAT THE “ANIMAL PROVIDES NECESSARY SUPPORT IN DEALING WITH THE SYMPTOMS OF THE CONDITION”. THE LANDLORD IS NOT ENTITLED TO MEDICAL OR PSYCHIATRIC RECORDS. 16

17 QUESTION: CAN THE LANDLORD CHARGE A PET/SECURITY/DAMAGE DEPOSIT FOR A “THERAPY/ASSISTANCE” ANIMAL? ANSWER: NO! PRACTICE NOTE: YOUR COUNSELING CENTER IS LIKELY TO HAVE STAFF MEMBERS WHO ARE LICENSED, WHO IN APPROPRIATE CASES CAN WRITE SUCH LETTERS. IT MAY BE NECESSARY FOR THE SLS ATTORNEY TO PROVIDE GUIDANCE THAT PROTECTS CLIENT MEDICAL PRIVACY I.E. DISCLOSING IN THE LETTER THE ABSOLUTE MINIMUM TO OBTAIN ACCOMMODATION ELIGIBILITY. YOU MAY WISH TO DRAFT A MODEL LETTER THAT YOU CAN E –MAIL TO THE THERAPIST/MEDICAL PROVIDER. 17

18 WHEN IT IS NOT A SERVICE OR THERAPY/ASSISTANCE ANIMAL THE GENERAL RULE IS THAT PRIVATE AND PUBLIC RESIDENTIAL LEASE AGREEMENTS CAN PROHIBIT PETS REGARDLESS OF THE NATURE OF THE PET. THE GENERAL RULE IS THAT PRIVATE AND PUBLIC RESIDENTIAL AGREEMENTS CAN REGULATE THE TYPE OF PET AND SIZE OF PET THAT WILL BE PERMITTED; “NO DOGS WEIGHING MORE THAN 60 LBS. “ PUPPIES GROW UP AS SOME OF OUR STUDENTS HAVE LEARNED. “NO PIT BULLS” “NO CATS” “NO SNAKES OR OTHER REPTILES” 4. PETS: LEASES AND REGULATIONS AND A BIT OF LAW 18

19 THE GENERAL RULE IS THAT WHERE PETS ARE PERMITTED BY THE LEASE THAT THE LANDLORD MAY SET REASONABLE TERMS FOR REMOVING THE PET FOR PET VIOLATIONS SUCH AS: EXCESS BARKING/MEOWING, ESCAPING INTO HALLWAYS, TENANT FAILURE TO CLEAN EXCREMENT, FAILURE TO KEEP PET LEASHED OUTSIDE OF THE UNIT ETC. LEASES FREQUENTLY IMPOSE FINES/PENALTIES ON A DAILY BASIS FOR VIOLATIONS. THE GENERAL RULE IS THAT WHERE PETS ARE PERMITTED THE LANDLORD CAN CONTRACTUALLY IMPOSE A SUBSTANTIAL “PET DEPOSIT” THAT MAY EXCEED AND BE IN ADDITION TO THE ROUTINE DAMAGE/SECURITY DEPOSIT. 19

20 QUESTION: CAN A PET DEPOSIT BE MADE NON-REFUNDABLE? ANSWER: MANY JURISDICTIONS REGARD PET DEPOSITS AS VALID LIQUIDATED DAMAGES NOT SUBJECT TO STATE STATUTE OR LOCAL ORDINANCE PROVISIONS THAT GOVERN NON-PET DEPOSITS. NO REQUIREMENT TO TIMELY ACCOUNT FOR PET DAMAGE, NO INTEREST ON PET DEPOSIT ETC. NON-REFUND ABILITY MUST BE DISCLOSED IN THE LEASE. IF THE LANDLORD CHARGES FOR DAMAGE CAUSED BY THE PET BEYOND THE DEPOSIT THEN ONE CAN ARGUE THAT THE DEPOSIT IS IN FACT NOT A LIQUIDATED DAMAGES PROVISION SINCE DAMAGES CAN IN FACT BE “ASCERTAINED”. A DIFFICULT ARGUMENT TO WIN. 20

21 QUESTION: STUDENT TENANT VIOLATES “NO PETS” CLAUSE OF LEASE. LANDLORD SEEKS REMOVAL OF PET AND/OR EVICTION. ARE THERE ANY COLORABLE TENANT DEFENSES? ANSWER: THERE ARE AT LEAST TWO DEFENSES AND THEY ARE FAIRLY WEAK. IT CAN BE ARGUED THAT THE “NO PETS” PROVISION IS UNCONSCIONABLE WHICH MIGHT ACTUALLY WORK IN CASES WHERE THE LANDLORD REFUSED TO GIVE THE TENANT A ‘SIGNED” COPY OF THE LEASE OR WHERE THERE WAS AN EXTREME HOUSING SHORTAGE THAT AMOUNTED TO SIGNING UNDER DURESS. THE OTHER COLORABLE BUT WEAK TENANT DEFENSE IS THAT THE “NO PETS” PROVISION INHERENTLY INTERFERES WITH THE COMMON LAW RIGHT TO THE PEACEFUL ENJOYMENT OF THE PROPERTY. THERE IS CASE LAW IN NEW YORK THAT HOLDS THAT WHERE A PET IS KNOWN TO THE LANDLORD IN AN OPEN AND NOTORIOUS WAY(ADVERSE POSSESSION LANGUAGE) THAT AFTER THREE MONTHS OF NON- ENFORCEMENT OF THE NO PETS PROVISION THE LANDLORD IS ESTOPPED FROM SEEKING TERMINATION OF LEASE OR REMOVAL. WHAT WILL THOSE “LIBERALS” THINK OF NEXT? PRACTICE NOTE: SLS ATTORNEYS REGULARLY SEE STUDENTS WHO ARE IN TEARS BECAUSE THEY HAVE VIOLATED THE “NO PETS” PROVISION AND ARE FACING DIRE CHOICES OF EVICTION, FINES, ANIMAL REMOVAL, POTENTIAL EUTHANASIA OF A BELOVED PET. YET ANOTHER REASON FOR ALL OF US TO MILITANTLY ENCOURAGE STUDENTS TO READ THEIR LEASES BEFORE SIGNING AS PART OF PREVENTIVE LEGAL EDUCATION. VIOLATIONS OF CONTRACTS HAVE CONSEQUENCES WHICH CAN BE A LIFETIME LEARNING OUTCOME THAT IS BOTH PAINFUL AND VALUABLE. 21

22 QUESTION: AN SLS ELIGIBLE STUDENT COMES INTO YOUR OFFICE COMPLAINING THAT HE HAS SEVERE ALLERGIES TO CATS AND CAT DANDER. THAT HE RELIED ON THE ADVERTISEMENTS OF “NO PETS” AND THE LEASE PROVISION FOR “NO PETS” WHEN HE SIGNED THE LEASE. HE HAS HAD TO VISIT THE DOCTOR SEVERAL TIMES AND THE EMERGENCY ROOM ON ONE OCCASION AS THERE ARE TWO “THERAPY/ASSISTANCE” CATS IN THE BUILDING. 1. IS THIS GROUNDS FOR CONSTRUCTIVE EVICTION? 2.CAN STUDENT DEMAND REMOVAL OF CATS? 3.MUST THE LANDLORD NOW CREATE A REASONABLE ACCOMMODATION FOR STUDENT? THE LANDLORD IS NOT REQUIRED TO ACCOMMODATE THE WISHES OF THOSE WHO DO NOT HAVE DISABILITIES. 4.IS SEVERE ALLERGY A “DISABILITY”? 5.IF TENANT SUFFERED POTENTIALLY MENTALLY DEBILITATING IMPACT FROM CATS WHAT IMPACT WOULD THIS HAVE ON ANALYSIS? 6.WHO IS YOUR CLIENT? CAN YOU HAVE A CLIENT IN THIS SCENARIO? IS THIS LIKELY TO BE STUDENT VS. STUDENT OR AT LEAST STUDENT “COMPETING “INTEREST VS. STUDENT “COMPETING” INTEREST? 22

23 QUESTION: LANDLORD SEEKS TO EVICT YOUR STUDENT TENANT BECAUSE LANDLORD HAS LEARNED CLIENT “SERVICE” DOG LUNGED AT A PASSERBY WHILE LEASHED ON A WALK WITH STUDENT TENANT. 1. IS THIS SUFFICIENT GROUNDS FOR EVICTION? 2.WOULD IT MAKE A DIFFERENCE IF THE DOG ACTUALLY BIT A PERSON? 3.WOULD IT MAKE A DIFFERENCE IF THE DOG BIT ANOTHER TENANT? 4.WOULD IT MAKE A DIFFERENCE IF THE DOG WAS A “THERAPY/ASSISTANCE” ANIMAL RATHER THAN AND ADA CERTIFIED ANIMAL? PRACTICE TIP: IF THERE IS GOING TO BE A PERMITTED PET, SERVICE DOG, OR THERAPY ANIMAL THE TENANT SHOULD MAKE SURE THAT THEY HAVE RENTER’S INSURANCE THAT COVERS BITES OR INJURIES CAUSED BY ANIMAL OR THAT PARENT’S HOMEOWNER’S POLICY HAS SUCH COVERAGE FOR STUDENT LIVING OUTSIDE OF PARENTAL HOUSEHOLD. IN ALL CASES WHERE A STUDENT IS SEEKING ADVICE ABOUT ANIMALS ASK ABOUT INSURANCE COVERAGE. MOST STUDENTS DO NOT BUY RENTERS INSURANCE AND MANY POLICIES ARE VERY LIMITED AND HAVE HIGH DEDUCTIBLES. 23


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