Archived Webinars

All archived webinars are merely for educational and viewing purposes ONLY. NO CLE CREDIT will be given for watching the archived webinar.

Fantastic Beasts and Where to Find Them: Dealing with Fake Emotional Support and Service Animals

TASA ID: 4334

On May 12, 2020 at 2:00 p.m. (ET), The TASA Group, in conjunction with Board Certified Civil Trial Lawyer Richard Hunt. Esq., presented a free, one-hour interactive webinar presentation, Fantastic Beasts and Where to Find Them: Dealing with Fake Emotional Support and Service Animals, for all legal professionals. 

During this presentation, Richard discussed:

 Basic Concepts and Vocabulary
   o “Disability” and “Handicap”
   o “Accommodation” and “Modification”
   o Two different laws, many different animals.
 More about animals and the ADA
 FHA rules and issues.
 A quick look at state law issues

Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.

About The Presenter:

Richard Hunt is a board-certified civil trial lawyer with more than 30 years of experience covering the entire spectrum of business related litigation. He has served as an adjunct professor of trial advocacy at Texas Wesleyan School of Law, serves on the Examination Committee for Civil Trial Certification for the Texas Board of Legal Specialization, and writes and speaks on matters of interest concerning business litigation and procedure. Richard has represented his clients both in state and federal district courts and courts of appeal, in arbitration proceedings and in state and federal administrative proceedings.  


Moderator: Good afternoon, and welcome to today's presentation, "Fantastic Beasts and Where to Find Them - Dealing with Fake Emotional Support and Service Animals." The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes, and should not be used in a court of law.

In today's webinar, Richard Hunt will discuss basic concepts and vocabulary, including disability and handicap, accommodation and modification, two different laws, and many different animals, also more about animals and the ADA, FHA rules and issues, a quick look at state law issues. To give you a little background about our presenter, Richard Hunt is a board-certified civil trial lawyer with more than 30 years of experience covering the entire spectrum of business-related litigation. He has served as an adjunct professor of trial advocacy at Texas Wesleyan School of Law, serves on the Examination Committee for Civil Trial Certification for the Texas Board of Legal Specialization, and writes and speaks on matters of interest concerning business litigation and procedure. Richard has presented his clients both in state and federal district courts and courts of appeal, in arbitration proceedings, and in state and federal administrative proceedings.

Attendees who require a passcode, the word for the day is 'BEASTS.' During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the left of your screen. Please remember that if you are applying for CLE credit, you must log on to your computer as yourself and stay for the full 60 minutes. You are also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer.

Tomorrow morning, I will send out an email with a link to the archived recording of the webinar. The slides can be downloaded from the resource list at the widget at the bottom of your screen. Thank you all for attending today. Richard, the presentation is now turned over to you.

Richard: Thank you very much. I'm very happy to get to talk to this group about emotional support animals, fake ones. In fact, I noticed that before we even started, there was the question from the audience, how do we prevent fake emotional support animals? And the answer to that question will be listen to the rest of this presentation and I'll tell you. So, pay attention. I'm going to answer that very question to the best of my ability. However, first, I want you to think about this answer to questions from your clients or from others, "It's a little more complicated than that." I say it's a little more complicated than that because we're going to talk about two different laws with some confusing vocabulary that cover different kinds of animals under different circumstances and with frequently completely different rules. So when someone says, "How do you stop a fake emotional support animal?" the answer is going to start with, "Well, where is the animal?" and it will go from there. So, when you're talking about this, just remember, it's a little more complicated than it might appear.

To get to some of that complication, we'll talk about vocabulary. And that's going to be important as we go along because vocabulary does make a difference here. First, we're going to talk about the difference between a disability and a handicap. Disability is a word that is used in Title III of the Americans with Disabilities Act. Handicap is the word that is used in the Fair Housing Act. We'll see that at one time they meant the same thing and now they don't. I will warn everyone that's listening today, I'm going to tend to use the word disability interchangeably with handicap because disability is the preferred term, not in a legal sense, but the preferred term among the community of disabled individuals. So if I use disability when talking about the Fair Housing Act, remember, I'm really talking about handicap. We're going to talk about the difference between accommodation and modification, or rather the lack of difference between accommodation and modification in the two laws. And we're going to talk about the different laws that cover different animals. The ADA and the FHA, as we will see, has completely different approaches to what kind of animals should be permitted.

That'll finish our vocabulary section. Then we're going to cover the ADA and its approach to animals in-depth, followed by an in-depth look at the Fair Housing Act and in particular, at a new HUD guidance concerning emotional support animals that just came out early this year. And then we will briefly look at state law issues if there's time to do it. I don't know every state that everybody here is from, so the preview of the state law issues is every state has its own equivalent of ADA and its own equivalent of the Fair Housing Act. And those sometimes bump into the federal law. Sometimes there are efforts by state legislators to effect federal law. But if you're practicing in this area, you should at least try to get a basic familiarity with the law of your state.

Having said that, let's talk about disability and handicap, or what I'm calling a tale of two laws. The ADA Title III defines disability as a physical or mental impairment that substantially limits one or more major life activities. That's the basic definition. If you look on the right, you'll see that handicap basically means the same thing, a physical or mental impairment which substantially limits one or more of such person's major life activities. The Fair Housing Act's disabilities provisions were passed first. The ADA came along a few years later, just later enough that Congress was aware of the preference for the term disability. But until 2008, the two laws were interpreted identically, a handicap was a disability, a disability was a handicap.

In 2008, as a result of some restrictive Supreme Court decisions, Congress amended the Americans with Disabilities Act to greatly expand the definition of disability. So now under the ADA, a disability consists of quite a bit more than it does than a handicap is under the FHA. This does lead to confusion every once in a while. HUD, which is charged with the enforcement of the Fair Housing Act, will suggest that it believes that the two laws mean the same thing, but the courts are pretty clear. The word handicap does not mean the same thing as the word disability since 2008.

Another source of confusion, although kind of a minor one, just has to do with language. The Fair Housing Act, on the right, requires that a housing provider accommodate disability by waiving rules, policies, practices, and procedures. But it's called an accommodation under the Fair Housing Act. The Americans with Disabilities Act requires exactly the same thing, but it calls it a modification of a policy practice or procedure. So, in this case, the FHA and the ADA are talking about exactly the same thing, which is some kind of change or waiver of a rule, but they use different language. And that can create a little bit of confusion because the Fair Housing Act has a special provision concerning physical changes required by disabilities and those physical changes are referred to as modifications. So an ADA modification is the same thing as an FHA accommodation, and an FHA modification has no equivalent in the ADA. Is that confusing enough?

Well, we'll get on to animals, because this is where I find most businesses are confused. You can see, we have the question, "Am I a service donkey or just a jackass?" We're going to answer that question. We'll start with the Americans with Disabilities Act, just a brief look at it. The Americans with Disabilities Act, Title III, which is what we'll focus on, covers what are called public accommodations. There's a list of public accommodations in the statute. There is a vigorous debate going on right now about whether it includes websites. But animals very rarely use the internet. So for our purposes, all you need to know is that a public accommodation is any place that the public is welcome. It can be a store. It can be a shopping mall. It can be the leasing office of an apartment complex. It can be the sales office for a single-family housing development. It can be a law office. Any place where the public can walk in the front door is going to be a public accommodation covered by Title III of the Americans with Disabilities Act.

In the entire body of case law, I have found one case where a retail-type business was found not to be a public accommodation. That was a diamond merchant in New York that saw individuals only by appointment. And in order to get in to see the diamond merchant, you had to go through like two locked doors and past a security guard. The court was willing to concede that that place was not open to the public. But a lot of appointment-only businesses are open to the public. The most exclusive nail salon in the world may be appointment only, but if anybody can walk in the front door and get kicked out, it's a public accommodation because anybody can walk in the front door.

What does the ADA Title III cover? It covers two kinds of animals, and I should say it protects two kinds of animals. It protects service animals, which, despite the word animal, is always a dog that has been specially trained to perform a specific task related to the disability of its owner. Just consider that again. It has to be a dog. It has to be trained to perform a specific task that is related to the disability of its owner. And the classic example, and we have a picture of here, is a guide dog for the blind. There are other kinds of service dogs, however. There are hearing assistance dogs, and there are dogs that are specially trained to help owners who suffer from epilepsy not hurt themselves if they're having a seizure, and dogs to help diabetics by alerting them when their blood sugar levels fall.

The other kind of animal protected by the ADA is miniature horses that have been specially trained to carry out a task that's related to the disability of their owner. As far as I know, in the miniature horse world, we're talking pretty much exclusively about guide horses for individuals who are blind. Miniature horses, oddly enough, are not service animals. They are their own thing under the regulations because the regulations for horses came along later, but they are protected by the ADA. So when we talk about the ADA, we're talking about dogs and miniature horses. No other animal of any kind is protected by the ADA, and no animal that does not have special training related to the disability of its owner is protected by the ADA.

The Fair Housing Act, on the other hand, is wide open. There's nothing in the Fair Housing Act itself that mentions animals, and there is nothing in the HUD regulations themselves that mentions animals. There is a mention of guide dogs for the blind as an example of an accommodation that might be required for a no-pets policy. It's in the commentary, however, it's not in the regulation itself. But it's taken the position that any animal might be permissible in an apartment as an exception to a no-pets rule or no-animals rule, and it doesn't matter what the animal is, whether it's a dog, a cat, a rabbit, a snake, a ferret. Any animal might be an exception to a no-pets rule in an apartment complex. Now, the coverage is housing, almost always multifamily housing, although these same rules apply to single-family rental properties or duplexes as well. But if it is a dwelling covered by the Fair Housing Act, then the obligation to accommodate any animal, at least, is theoretically possible, unlike the ADA.

If this sounds a little crazy, there is a rationale for it, and that's the difference between public places and private places, In public places, which are covered by the ADA, the interaction between an animal and the public is likely to be relatively brief. And there's relatively little opportunity to discover whether the animal is legitimate or not. So it makes sense to be pretty restrictive about what kind of animals are allowed in public places. Resting behind the ADA regulations is the knowledge that service animals and service horses are not just trained, but they're highly trained. And among the basic training for a service animal is training about behavior in public. So a guide dog for the blind is very unlikely to create any trouble in public. So the ADA restricts the animals because of the possible threat to the public.

The Fair Housing Act, on the other hand, is essentially, "Well, if it's in your apartment, or in your house, why shouldn't you have anything you want, as long as you suffer from a disability and the animal is somehow related to your disability." So in private places, the HUD believed it could be much more flexible about what's allowed. One consequence of that has been that the Fair Housing Act has been abused more by fake animals, although the ADA is abused as well.

So with that kind of basic background, let's plunge into a little more detail about animals and the ADA. For those who are interested, I've got down the statutory site. This is the obligation to make reasonable modifications and policies or procedures, if necessary, to accommodate a person with a disability. And we're talking in particular about modifying a policy that says no animals or no pets in a public place, so that someone who has an animal protected by the ADA can go there. I told you the criteria a minute ago, but let's repeat them. What makes a dog or horse a service animal, or a miniature horse a service miniature horse? It has to be individually trained to do work or perform tasks for the benefit of an individual with a disability. There are two separate regulatory sections, one for dogs, one for miniature horses. They both basically have the same definition.

However, as you look at this picture, you might ask yourself, "How do I know if this is a service animal?" And the answer is you don't. You cannot tell by looking at an animal if it is a service animal or not because you can't tell by looking at it if it's been individually trained to work or perform tasks for the benefit of an individual with a disability. This is the great problem faced by businesses that are public accommodations, is that you can't tell by looking and the Department of Justice is very restrictive in what questions you can ask. You can ask two questions if you have a question about an animal. One is, is this animal specially trained, and the second question is what does it do?

Now, that will weed out a lot of people because they don't know the answer. But there are a lot of people who have purchased one of what I call accessories to fraud. If you go on the internet, you won't look very long before you find a large array of vests, sometimes special collars. You can buy certificates that are glossy and can be framed. You can buy badges that you can sew on your animal's vest or your own best if you want to. You can buy a plastic card that says your animal is an official service animal. You can even buy an app that shows a picture of a plastic card showing that the animal is a service animal. You only need to know one thing about all of these items. No matter what form they appear in, they are not meaningful. I would say they are a fraud. But at the very least, they are not meaningful. There is no organization that has the right to officially certify service animals for ADA purposes. A lot of the people selling this stuff on the internet have official-sounding names, something like the American Registry of Officially Certified State Service Dogs or something of that sort. But it doesn't matter what the name is, it's not official. There is no organization that is authorized by law, at least, to certify that an animal is a service animal. And the certificates that they sell, and the badges, and the cards, and all those things are completely meaningless. If someone brings their dog into your restaurant or your shopping mall and they whip out a certificate that says, "Look, I'm registered with such and such, and my animal is an official service animal," the response is, "We don't care. We want to know if it's really a service animal, and the papers, and the vest, everything else means nothing."

So what do you do? Well, first, you play the odds. A guy who's blind and has a dog probably has a guide dog for the blind. It's theoretically possible that this is just a pet that he's outfitted with a special harness, but it's not likely. So if you have an obvious disability...and we can say the same thing about the young woman in the wheelchair. She's clearly disabled. She has a dog. It's not perfectly obvious what...I'm sorry, it's not perfectly obvious what the dog is doing for her disability. It could be pulling her. It could be a dog that picks things up for her. There are dogs trained to do that. But in any case, there's no percentage in questioning these people about whether they have a service dog, or a service animal if they have a miniature horse. There's just no point. They're disabled. They almost certainly have a legitimate need for the animal that's with them. There's no point in asking.

But what if it's not obvious? And I think we can all agree that this is very much younger Paris Hilton did not have an obvious need for her teacup Pomeranian. Well, what the Department of Justice says is that you may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. According to the Department of Justice, you cannot ask any other questions. But you'll find that those two questions are most often enough. The reason they are most often enough is because one result of having two different laws, the Fair Housing Act and the ADA that cover different kinds of animals including, particularly the FHA covering emotional support animals...and, by the way, a third law, the Air Carrier Access Act, which until recently also covered a wide variety of animals as emotional support animals, but the result of the confusing legal situation is that people are confused about when they can bring their dog in or can't bring their dog in.

And so frequently, if asked, a person who's bringing in their emotional support dog, which is not allowed in public accommodation, they'll say, "Well, it's my emotional support dog." And as soon as they say that, you know that you don't have to allow it because it is not a service animal that has been specially trained. The other thing to think about, however, if you're in public accommodation context, is why do you care. The reason public accommodations don't allow animals is because animals are dirty, and that creates a public health risk, or they are dangerous, and that creates a public health risk. So if you're a shopping center, or a restaurant, or whatever, your real concern is not that you be the disability police trying to make sure that nobody cheats on the ADA, but rather that your customers are safe. And the ADA regulations specifically deal with the possibility of animals that are dangerous, whether it is a service animal or not. Even if it's a completely legitimate guide dog for the blind, if it is not under the control of its handler, it can be excluded from a public accommodation.

So the real question to ask for public accommodations is, "Does this animal appear to create a problem for public health and safety? Because if it does, I can probably exclude it no matter how legitimate it is, and I, therefore, don't have to worry about how illegitimate it is." The suggestion that I make, and which I found has generally been agreed with by security officials for public accommodations, is what I call interviewing the dog, that is an employee or a security guard in case of a mall walks up within a few feet of the owner to ask the question, "Do you have a disability-related need for the dog and what is it trained to do?" If the dog sits calmly and does not react at all, then the dog probably isn't a threat to anybody. On the other hand, if the dog strains at the leash, or snaps, or barks, then the dog looks like it likely is going to be a danger and you can exclude it. You'll find that 90% of the time, maybe 99% of the time, a dog that does anything like misbehaving isn't a real service animal anyway.

There are a couple of other things I want to say about why you should care. The other thing that you can exclude from a public accommodation is an animal that is not housebroken. There's a regulation, Section 36.302(c)(2)(ii) in the Code of Federal Regulations that covers housebroken animals. The only problem with determining that an animal is housebroken or not is that you don't find out that it's a problem until it's really too late. But if you have evidence that the animal is not housebroken, you can exclude it. And then, one other subtlety, although as far as I know this almost never comes up, the Department of Justice recognized in its miniature horse regulations that the idea of a miniature horse was not as well defined as the difference between a dog and any other kind of animal and that in particular, a miniature horse might actually...or something called a miniature horse might actually get to be pretty big. So DOJ has explicitly allowed public accommodations to exclude miniature horses if there is some problem with their size and weight, or their presence compromises legitimate safety concerns. It isn't clear what presence compromises legitimate safety concerns means, but at the very least, with miniature horses, the owner of a public accommodation has a little more flexibility in dealing with them.

So to summarize, before we get to the first question and answer session, under the Americans with Disabilities Act, the only animals that are protected are dogs and miniature horses that have been specially trained to perform a service related to their owner's disability. You should not question those who have obvious disabilities about whether their animal is in fact a service animal. There is no percentage in it. But you can always exclude a dog or miniature horse that is not under control, that snaps, that lunges, that otherwise behaves in a way that would indicate it's going to be a danger to people around it. And you can always exclude a dog or a miniature horse if it is not housebroken, although as I said, you won't find that out until it's too late. With that discussion of the ADA, let's take some questions.

Moderator: If all the attendees could type in the passcode, which is 'BEASTS,' into the Q&A, that'd be perfect along with your questions. The very first question we have, because you answered the other one, is have airlines come up with uniform rules and regulations as to what constitutes an emotional support animal for purposes of bringing them onto a plane?

Richard: The answer to that is, not yet. The existing regulation from the Department of Transportation is wide open like the Fair Housing Act and would allow emotional support animals. After some highly publicized incidents of stupidity like pigs on a plane and also dangers, several people who were mauled and suffered severe injuries from not-trained animals, the Department of Transportation, just a month ago, issued a notice of public rulemaking for new regulations. The new regulations, if they come into effect, are actually more restrictive than the ADA. They don't permit miniature horses. They will only permit dogs. They will only permit dogs of a smaller size. So they'll be quite restrictive, but they're not in effect yet.

What has happened instead is that the airlines who, after all, can end up with a liability for harm caused by these animals, the airline basically issued their own rules for what they'll allow on a plane and what kind of evidence they require before an animal can get on a plane. Those rules are not consistent with the existing regulations. But it looks like the Department of Transportation, possibly embarrassed by the idiocy of its earlier regulations, has just decided not to enforce it, leaving the airlines essentially free to do what they want to do. So you can't look at a regulation, but if you're interested in what kind of animal can get on an American Airlines flight or a Delta flight, you can go to their website and see what their particular rules are.

Moderator: The next question, if an emotional support animal should become aggressive on an airplane and injures another passenger, who is responsible? And the second part of that question is does the owner need proof of liability insurance and a record of the animal shots before they board the flight?

Richard: So the answer to the first question is that the owner is certainly liable for any harm caused by the animal. I don't know whether the airline would be held responsible or not, given the fact that the regulations would seem to require that the airlines let these animals on the plane. The new airline base rules, though they're private rules, typically will require evidence that the animal is under control and not a danger and also has all its shots. The new DOT regulations, when they come into effect, are going to require the same thing, including, by the way, a requirement that on flights of longer than eight hours, the animal can control its bowels so that they won't have to relieve itself during the flight.

Moderator: And get to the next one, what can an employer do if a coworker is allergic to or fears dogs and the workplace is small and has no alternative space to move coworkers?

Richard: The employment questions, which are covered by Title I of the ADA, are frequently more difficult because of the kind of circumstances that you've just described. The key is always that an accommodation for an employee has to be reasonable. And an accommodation may be unreasonable if it affects the health and safety of other employees, and obviously, that's particularly true in a closed work environment where you may have individuals with allergies. I'd say that's going to be a case-by-case basis. The general thing I can tell you though is that allergies have not been treated by the courts as an especially serious problem. We know that some childhood allergies like peanut allergies and allergies to bee stings can in fact be very dangerous. But your kind of animal/hay-fever-type allergies, the courts tend to look at it as something that can be easily treated with over-the-counter drugs and therefore not serious. So I think it's likely that in that situation, the person with the allergies is going to lose and the person with the animal is going to win.

Moderator: I'll give you this last one before you continue on, isn't it easier to just not stop suspect emotional support animals rather than risking a lawsuit?

Richard: It's easier, yes. It is certainly easier to not stop them. That's why I suggest the 'interviewing the dog' theory because that tells you if you have a good reason to stop the animal. For a business, the concern is always the health and safety of all the customers. And if an animal that's out of control comes in, the risk that it's going to hurt somebody is probably greater than the risk that its owner is going to file a lawsuit. On the other hand, you're right, if an animal that's perfectly behaved comes in on a leash and you don't want to have a fight about whether it's a real service animal or not, then you might as well let it in because it isn't the job of business to enforce the ADA, it's the job of businesses to take care of their customers.

Moderator: Can you continue on with the presentation, Richard?

Richard: Yes, I will. Thank you. So now we are gonna talk about the Fair Housing Act and assistance animals. That's a little bit of vocabulary. Assistance animal is the term that HUD uses to cover all animals, service animals, and every other kind of animal, whatever it may be. So when we talk about the Fair Housing Act, we're going to talk about assistance animals as the global categorization. And let's take a quick look at why, all of a sudden or at least in the last five years or so, we have a serious problem with animals. What you've just seen...I'll go back to the last slide, sorry. We like to watch those again. What you're seeing here is items I took off the internet from people who are in the business of selling disability letters and certificates and things of the sort. These organizations basically sell the idea that you're disabled, which they will do with something like a registered family therapist or, you know, typically someone who has a master's degree and no scruples. And based on a questionnaire or maybe a Skype interview, they will certify that you're suffering from typically depression or generalized anxiety disorder, something of the sort, and say you need to have an emotional support animal. They'll give you a certificate and a letter. And you can, as they hope at least, as these ads suggest, never pay another pet deposit, avoid no-pets rules in the apartments, and last but not least, fly for free with your pet on an airline with no fees. This is a big business, and it's one that has only been growing until recently. And it's caused a huge amount of trouble for the airlines first, but we've seen how that's being handled, and more important, for apartment complexes because a no-pets complex that has a lot of animals running around is going to have problems with tenants who got into a no-pets complex because they are allergic to animals, so they don't like animals, or they don't like the noise.

So this is where the problem came from. The slide you see is the accommodation process, and it's the process by which you're going to deal, if you're an apartment owner or a rental housing owner, with requests for emotional support animals and any other kind of animal for that matter.

But before I talk about that slide, I'm going to take a brief diversion into recent events. Until early this year, HUD's only guidance on emotional support animals came from a 2013 letter to regional directors explaining that emotional support animals were not service animals, but that the Fair Housing Act covered them anyway. That guidance and some material on the HUD website that suggested that you couldn't ask any real important questions about people who had claimed or claimed to have emotional support animals led to a pretty substantial flood of fake emotional support animal requests coming into apartment complexes. There was some pushback from apartment owners. HUD, in its very deliberate way, finally recognized last November that there might conceivably be a problem.

So in November, HUD issued a press release and a letter to the Fair Trade Commission in which they suggested that disabled individuals were victims of these online purveyors of emotional support animal letters, certificates, and so forth. They also kind of casually recognized that the victims of the fraud who were the apartment owners and housing providers might also be victims. And then crawling into action, after seven years of inaction, HUD issued a new letter to regional directors, it's FHEO202001, called "Assessing a Person's Request to Have an Animal as a Reasonable Accommodation Under The Fair Housing Act." And this guidance purports to lay out a series of procedures by which any housing provider can determine whether an animal should or should not be allowed. I am not going to cover those procedures in detail because they're basically mostly wrong. HUD adopted a three-tiered approach to animal accommodations. They divided all animals, all assistance animals, into service animals, that's the ADA definition, specially trained dogs or regular support animals, support animals or non-dogs that are specially trained, and assistance animals, which is all the other animals in the world. But support animals and assistance animals were divided into two groups. One is what you might call common household pets and the other is what HUD calls unique animals. So a cat is a common household pet, a kangaroo is a unique animal.

HUD suggests that you can treat unique animals differently than you treat common household pets. That is one of the mistakes that HUD has made, clearly a mistake from a legal standpoint because there's nothing in the law that suggests unique animals are different than household pets. And in fact, the division between unique animals and household pets is a little bit arbitrary. Rodents are excluded from the concept of household pets. But some common household pets like ferrets are called unique. Others are not called unique. It's a random division that doesn't have any real effect. The other place that HUD went wrong was HUD said that if it is a service animal like a service dog, you're stuck with the ADA limited questions about it. As we saw, one of the differences between the coverage of the Fair Housing Act and the ADA is that in the ADA we're dealing with transitory interactions between the disabled person's animal and the public. There's neither time to check into the disability of the person, nor is there a time to look into the animal. On the other hand, in the context of leasing a house or an apartment, there's plenty of time, or at least there is days. And so there's no reason why when you're confronted with a request for accommodation related to an animal you shouldn't follow the same procedure for everybody. Now, we'll talk about what that procedure means, but there's no reason to divide animals into three different types or to distinguish one from another, at least in terms of your general approach to whether they should be accommodated.

A couple of other things HUD gets wrong, HUD says that the definition of handicap under the Fair Housing Act is exactly equivalent to the definition of disability under the Americans with Disabilities Act. So far in the world, there has been one federal district judge that agrees with that and probably a dozen including some circuit courts that disagree. It's clearly wrong. Those of you who are lawyers will recognize immediately that a basic rule of statutory construction is that if Congress amends one statute and doesn't amend another statute, it doesn't intend to change the meaning of the unamended statute. So HUD is launching from a wrong definition of handicap. But fortunately, at the very end of this document, and at the beginning as well, HUD rights as a guidance document, this document does not expand or alter the housing provider's obligations under the Fair Housing Act or under HUD's implementing regulations. The current administration does not like non-regulatory guidances. And so, this particular guidance comes plastered with warnings that essentially say, "This kind of tells you what HUD thinks, but it's meaningless." And it's a good thing it's meaningless because it's not particularly accurate, and it's not actually very helpful.

So putting aside the guidance, let's talk about how you deal with an animal request. The accommodation process is straightforward. You get a request, you analyze the request. If the request does not have adequate information about the disability of the person who's making the request or about their need for the animal, then you ask for more information. You get more information, you look at that. If it's sufficient, you make a decision. If it's not sufficient, you go back and you keep asking. The 'keep asking' part is important because HUD does believe in and the courts believe in something called the interactive process by which a landlord and a prospective tenant or existing tenant who's making a new request, that they kind of work together to see if it's a legitimate request. Now, there are limits. You should not ask for detailed medical records, and landlords who drag the process out too long will find that they have constructively denied the accommodation and they can get sued. But a landlord that is reasonable about requesting information should be able to go through this process and turn down a request that's fake with reasonable confidence that it is fake, and with reasonable confidence, if it's real, that it's real.

We're gonna try to get past these. Here we go. One more time. Oh, boy. We seem to be stuck in an endless loop at the accommodation process. There we go. In the accommodation process... I'm going to pause here just briefly to ask Marja [SP] if she can do anything about that loop.

Moderator: Which slide are you trying to... 36?

Richard: Thirty-six, yeah.

Moderator: That's what I thought.

Richard: I'd like to push it.

Moderator: I'd pushed it.

Richard: Okay. It's up now.

Moderator: Do you see it? You got it?

Richard: Good. Got it. Yeah. I was just seeing the same other slide. So what a landlord is entitled to, you're entitled, as a landlord, to reliable evidence of the disability if it is not obvious. Not obvious disabilities are typically mental health disabilities. And in the context of fake emotional support animals, it's almost always generalized anxiety disorder or some form of depression. Occasionally, it's post-traumatic stress disorder. But these are not obvious disabilities in most cases because you can't look inside somebody's mind. Reliable evidence of a mental disability of this kind is going to come from a mental health professional. It will not come from a social worker, in most cases, or a disability rights organization, or anything of the sort. You are entitled to see the credentials of the person who's saying that the individual has a mental impairment. And you're entitled to some evidence that it's a legitimate diagnosis. Now, that last one is key. If you get a typical letter of the kind that they sell on the internet, and Google the doctor who issued it, you'll often find out that they're associated with an Internet letter seller. And HUD's guidance, most recent guidance, does acknowledge that there is no reason why you'd have to accept a letter that's sold on the internet.

Other things that would be evidence that the diagnosis is not legitimate are simply that the person making the diagnosis is a long ways away from the tenant. They're in California, say, and the tenant is in Connecticut. That would suggest that there's not a real therapeutic relationship, that this was a diagnosis made over the phone. But you are entitled to do a little bit of investigation. Next, you are entitled to know the name of the mental or physical impairment. It isn't enough that the letter says, "I've diagnosed this person as having an impairment." You're entitled to know the name of it and you're entitled to know the major life activities that is limited by the mental or physical impairment. And finally, you're entitled to know what the disability-related need for the animal is. So, until recently, HUD had on its website a form letter that a physician might sign that provided none of this information. And HUD itself has suggested that you don't need any of this information if you're a landlord. However, HUD's disagreement here is not necessarily with me or with you, HUDs disagreement is with the courts and the language of the statute. Courts, as far as I can tell, universally agree that a landlord is entitled to the items that are shown on this slide. You're not entitled to detailed medical records, but you're entitled to the items that are shown on this slide because for a person to prove that they're entitled to an accommodation in court, they are going to have to provide this information anyway. So you are entitled to ask for these things, and you should ask for these things because you'll frequently find out that the person has no legitimate right to have their emotional support animal.

I want to say one more thing here about the difference between a mental impairment and disability or a handicap, they are not the same thing. Remember, a mental impairment, generalized anxiety disorder, is only a handicap that is protected by the Fair Housing Act if it substantially limits a major life activity. There is a case in which a woman who suffered from a form of schizophrenia that literally involves having multiple personalities was found by the court not to be handicapped under the Fair Housing Act because notwithstanding the fact that she was very seriously mentally ill, she was able to get up, take care of herself, work at a job with relatively little problems, get home, and basically she could do all of the things that most people do. And the court said no matter how sick she is mentally, if she can do those things, she's not handicapped.

So what do you do to be a little more concrete? Well, you've seen this slide before. If the accommodation need is obvious and the disability is obvious, you don't ask any questions at all. You just say, "Yes, we are waiving our no-pet policy." There's no percentage in asking the woman on the right if she really needs that dog or not. If the disability is obvious, a physical disability like this, you accommodate them. You do reject the letter that's been purchased on the internet. You ignore the fake accessories and the fake certificates. You push back gently on an unreliable local diagnosis. A lot of people will go to their family physician because they want an emotional support dog, and most general practice doctors and, in fact, most therapists of all kinds, whether or not they have a legitimate therapeutic relationship, or even if they do, will cheerfully sign a letter saying that this person should have an emotional support animal because after all, the job of the doctor is, once again, not to enforce the Fair Housing Act or to make strictly legal determinations of who is handicapped and who is not, the job of the doctor or the therapist is to take care of their patients. And if they legitimately believe that their patient needs an emotional support animal, they will completely ignore the law and write a letter that says they should get an emotional support animal.

The problem of a landlord or other housing provider is that you're not in a good position to argue about whether a general practitioner is in fact qualified to diagnose a mental impairment so severe that it constitutes a handicap. There are a lot of mental health professionals who would say that a general practitioner is not actually qualified to do that, and there's a growing body of opinion that for treating therapists, that is therapists to have a treatment relationship instead of a forensic relationship, it is unethical to make a disability diagnosis or a handicap diagnosis. However, you don't want to be part of that debate because you don't want to be the subject of a HUD complaint, so you just push back gently, insist on the name of the condition, insist on some information about how it substantially limits a major life activity and why the animal is necessary. My clients have found that if we do this, and if we do this carefully, it sometimes takes two or three rounds of discussion, the tenant either drops the request, or if they won't drop the request and they file a HUD complaint, eventually the HUD complaint gets dismissed. But you gently push back if it's a local position because it's clearly not necessarily fake. Even more important in the apartment complex case is you have to interview the animal and set boundaries. One of HUD's mistaken positions is that if you have to waive your no-pets policy, you have to waive every policy that might relate to animal safety in an apartment complex or other housing development. That's not the law. You only have to make an accommodation that is necessary and reasonable for the person with the disability.

So for example, if a person has an emotional support dog but you're not confident that the dog is going to be able to behave itself around others, you can certainly insist that the dog always be on a leash, as local law probably will require anyway. You can certainly designate areas where the dog is supposed to defecate and urinate. You can certainly have a rule that the dog is not allowed in the pool area or club room. You can have rules against excessive barking, and you can insist that the animal meet local animal control requirements. These are all things that you can ask for because they are reasonable, and it is unreasonable for a tenant to demand an accommodation in these kind of rules unless they really need it. There are, for example, a guide dog for the blind has to be allowed in the club room and pool area. The blind person cannot do without the dog. An emotional support animal, that's far from being true. So you can set boundaries and you can check the animal's temperament out by interviewing it so that you make rules that will protect the health and safety of your other tenants.

With a few minutes left, I am going to just briefly editorialize, the elephant in the room. The elephant in the room with respect to the HUD Fair Housing Act Regulations as they concern emotional support animals is that there's almost no scientific evidence that individuals with handicaps derive any substantial benefit from having an emotional support animal that isn't the same as the benefit that everybody gets from holding a puppy in their lap. In general, having a pet makes everybody feel better. And as I said, the science does not seem to indicate that having a pet does anything special for people with disabilities. There are a host of studies, and if you look at the Bazelon website, you can find them. There are a host of studies that say that in a therapy session or in a therapeutic situation, a group therapy session, for example, or even an individual one, that having an animal present is beneficial. It helps the patient remain calm. It may help them be more open. So there's a lot of evidence that in this specific situation animals are helpful. But there is almost no evidence that taking an animal home is of special benefit to a person suffering from depression or anxiety.

It's interesting in fact that, as of today, the Veterans Administration will not pay to train emotional support dogs for veterans who are suffering from post-traumatic stress disorder. And the reason the VA won't pay for a dog for a veteran with post-traumatic stress disorder is that the VA has concluded that there is no scientific evidence that such animals provide a special medical benefit. So the elephant in the room in this discussion is the Fair Housing Act, as interpreted by HUD, is allowing something that's probably not necessary for any disability in terms of emotional support animals. However, the courts have bought off on emotional support animals, this is my opinion, but you don't want to rely on it unless you're ready to be the first person to take a case like this to the Supreme Court.

What are the takeaways for today? Well, the ADA and FHA share an idea that disability should be accommodated, but they differ in their definition of what is a disability versus a handicap. The extent of the accommodation depends on which law applies. The ADA is quite restrictive, service dogs and miniature horses that have been specially trained to perform a specific task or function related to the disability of their handler. The FHA has no theoretical restrictions at all, but it's starting to recognize that some animals are much less likely to have any legitimate use than others. But in theory, there's no restriction under the Fair Housing Act. But both laws, or laws as I should probably say, require that the animal be housebroken, well-behaved, and under control at all times. Neither under the FHA nor under the ADA are you required to accommodate an animal that presents any danger to persons or property.

That's all I've got, except for this last slide that tells you how to get in touch with me if you want to know more. And you'll be getting some written materials later that will have the same information. I love to talk about these things. I generally charge for it. But here's how you can find me. And now, more questions.

Moderator: If everyone can type in the passcode, which is 'BEASTS,' and along with your questions into the Q&A, that'd be perfect. We have time for a few questions, and I hope that's okay. The first one, I'll go with when can an emotional support animal be allowed in a restaurant?

Richard: Well, if the question's 'can,' that depends on the policy of the restaurant. If the answer is 'must,' the answer is never. Emotional support animals are not protected by the Americans with Disabilities Act, and therefore never have to be accommodated.

Moderator: Can you request a personal interview with a dog to determine if it is vicious and not under control as required?

Richard: I would say in the ADA context where the dog is simply going to be walking in the door, it's not so much a matter of requesting a personal interview as to as simply walking up and talking to the owner. After all, you are entitled, under the DOJ regulations, to ask the owner if they have a disability and what the animal is trained to do for that disability. So typically, if a dog is not able to control itself, merely walking within a few feet of the owner is going to expose the dog's personality. So in the ADA context, I don't think there's so much as request situation as there is as you're going to walk up and find out. In the Fair Housing Act context, I believe you can always request an interview with the animal because you're not required to allow animals that present a danger to persons or property and the only way you can know if they'll present a danger to persons or property is to look at the animal itself. The Fair Housing Act does not permit breed restrictions or stereotypes. So the fact that it's a pit bull, or a Rottweiler, or an Irish Wolfhound that weighs 140 pounds and is 6 feet tall, you can't exclude the dog for any of those reasons but if it individually misbehaves, then you can. So, yes, I'd say you can request a personal interview.

Moderator: I'm going to ask two more questions. So if you make an initial inquiry allowed under law and the person has no obvious disability but answers questions, then there is nothing more a business owner can do if it has doubts?

Richard: In the ADA context, there really isn't any more you can do. If they know, I don't suppose they have an emotional support dog, but they know that the answer has to be, "I have PTSD, and this dog is specially trained to alert when I'm about to have an anxiety attack and prevent me from harm." If they know how to answer the question, that's really all you can do is ask those two questions. I'm not sure that the Department of Justice regulations, with respect to the questions that can be asked, would always be respected by the courts. But the Supreme Court had an opportunity in the last term to limit the deference that was required to be given to regulatory interpretations of the statute. The Supreme Court declined to do that. So right now, the DOJ's two-question rule is going to be entitled to a great deal of deference by the courts. And I wouldn't want to be the one to challenge it.

Moderator: Last question, what if a tenant provides a generic letter from a clinic stating simply that they have a disability and the animal is an emotional support animal?

Richard: I would say that letter is not adequate to justify an accommodation. But instead of denying an accommodation, you should engage in the interactive process, which would be to go back and tell the tenant, "You know, thank you for your letter. We need a letter from the same doctor that says what mental impairment you're suffering from by giving a specific name of the impairment and an explanation of why this particular mental impairment substantially limits a major life activity by telling us what the major life activity is and why the limitation is substantial." And I always put, "By the way, we don't want detailed medical records, we just want narrative answers to these questions." You're clearly entitled to that under the law, and that's the best approach. And if they come back with half an answer, then tell them they've only answered half your questions, would they please answer the other one. And only if they either give you satisfactory answers or just refuse should you either grant or deny the request.

Moderator: Thank you, Richard. We do have questions that are left. And if it's okay, I would like to email those to you and you can, you know, answer those on your time?

Richard: Absolutely. I'd be happy to do that.

Moderator: Perfect. Okay. Please remember that if you are applying for CLE credit, you must have attended the full 60 minutes of this presentation. You're also required to complete the survey that is going to pop up on your screen at the end of this program. I want to take this opportunity to thank everyone for attending and most especially Richard Hunt for his time and effort in creating this presentation. If you would like to speak with Richard, or if you would like to speak with TASA, a TASA representative regarding an expert witness for a case that you were working on, please contact TASA at 1-800-523-2319. One of my colleagues will be following up with you regarding your feedback on today's presentation. This concludes our program for today. Thank you all for attending. Bye-bye.

Previous Article Workplace Violence in 2020
Next Article An Overview of Firearms Laws
Tasa ID4334

Documents to download

Theme picker

  • Let Us Find Your Expert

  • Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts