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LaverneB

Posts:0

02/17/2008 12:20 PM
Where we live we have a no pets allowed rule. Now, I am to understand if the person who wants a pet and the DR. medically says needs a pet, we have to allow it? Lots of mixed feeling on this one I bet.

DonnaS
(Tennessee)

Posts:2951

02/17/2008 12:41 PM
Laverne, Your Association will have to make allowances for service and support animals per the Federal ADA Act and Fair Housing Act. You might put restrictions on anyone applying to have such an animal such as a certificate from the dog provider and definitely a Doctors letter. Others might have other ideas but the Federal government says that you may not ban them. Service and Emotional Support Animals as Reasonable Accommodations Under the Fair Housing Act By Frank W. Young* Introduction Under the 1988 amendments to the Fair Housing Act, landlords, condominium associations, and other housing providers are prohibited “from discriminating against applicants or residents because of their disability or the disability of anyone associated with them and from treating persons with disabilities less favorably than others because of their disability.”1 The Act prohibits discrimination against individuals with disabilities by preventing housing providers from refusing “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”2 Significantly, housing providers must make reasonable accommodations in terms of “no pets” policies to let disabled individuals have service animals.3 *

JC3

Posts:290

02/17/2008 2:48 PM
Posted By DonnaS on 02/17/2008 12:41 PM Your Association will have to make allowances for service and support animals per the Federal ADA Act and Fair Housing Act. You might put restrictions on anyone applying to have such an animal such as a certificate from the dog provider and definitely a Doctors letter. Others might have other ideas but the Federal government says that you may not ban them. Your response is misleading. Federal law is... and you can't make it more stringent. Define what you mean by a) restrictions and b) dog provider. You need to be real sure that you are within the law as to your restrictions. Service animals are not restricted. As a business, you may ask if the person is disabled, if the animal is a service animal trained to mitigate the disability, and even what task(s) the animal does. You may not require visible ID, certification, cape, harness, tags, etc. Emotional support animals are NOT service animals, but are protected as to housing.

JC3

Posts:290

02/17/2008 2:52 PM
IF you have doubts, take them to court. There, they have to provide proof. Be aware, too, that the disabled person has the right, and many do, file complaints with DOJ, and are being awarded $$ and changes in behavior/training, etc.

DonnaS
(Tennessee)

Posts:2951

02/17/2008 2:59 PM
JC3, My neighbor has a service dog and the dog has paperwork from where he was trained, certifying that he is a Certified service dog. I fully understand that you cannot change any wording or restriction on a Federal Law but what you can monitor is people who come in with bogus requests for animals that are not considered as a service or emotional support animal. My definition of restrictions in this case is that any owner requesting an animal to live within the developement will need Dr's orders, or documentation as to being a service animal. People who have these animals are aware of this and should be more than willing to provide it upon request from the association. seeing eye dogs are certainy easy to spot but emotional support animals has been a discussion here several times as to who can claim that this is what they truely are.

JC3

Posts:290

02/17/2008 4:01 PM
Posted By DonnaS on 02/17/2008 2:59 PM My neighbor has a service dog and the dog has paperwork from where he was trained, certifying that he is a Certified service dog. I _use_ a service animal, and have for years. I am not required to certify her. UNDER FEDERAL LAW, CERTIFICATION IS NOT REQUIRED, and businesses are not permitted to require it for access. That having been said, schools and training facilities often, but not always, certify. AND, FYI, just because a facility trains, and may certify, does NOT guarantee the dog's present abilities or temperment for public access. "...you can monitor ... people who come in with bogus requests for animals that are not considered as a service or emotional support animal..." The request is not bogus, though perhaps the claim is. As I said in my previous post, you may ask 3 things. You CANNOT require proof of certification or medical need for access. http://www.usdoj.gov/crt/ada/svcanimb.htm You can file a complaint if you doubt their claim, and take them to court. Personally, I'm always grateful to be asked. That shows me the business is interested in keeping me and my animal safe, too. My definition of restrictions in this case is that any owner requesting an animal to live within the developement will need Dr's orders, or documentation as to being a service animal. See above: business brief: "Businesses may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person's disability." People who have these animals are aware of this and should be more than willing to provide it upon request from the association. I am not MORE THAN WILLING to provide proof to you or anyone else: I am not required to do so. I can, and will, if required by a court, and I will file every charge I can against you. And I will win. FWIW many people who use service animals feel the same. seeing eye dogs are certainy easy to spot but emotional support animals has been a discussion here several times as to who can claim that this is what they truely are. My disability(s) has been invisible until recently. I have been a part of some of those discussions. HUD does not define service dogs, so the expectation would be that the court would rely on the def of the ADA. ESAs are, pardon the pun, a different animal. They are NOT service animals, and may be denied access to the public areas of you association.

DonnaS
(Tennessee)

Posts:2951

02/17/2008 5:12 PM
JC3, Please do not read between my lines. I said My neighbor has a service dog and the dog has paperwork from where he was trained, certifying that he is a Certified service dog. I did not say that YOU must certify the dog. We are trying to figure out a reasonable way to rewrite information for a Board to put down on paper, their animal acceptance policy into an association where pets are not allowed. The general membership is going to want to know why there is a dog being allowed and the Board is going to need a written policy. This is not a discussion arguing about obvious service dogs but the ones that will come in as "ESA's and as you said, that's a different animal.

BrianB
(California)

Posts:1748

02/17/2008 7:00 PM
FYI, the ADA rarely applies to most HOA's. Unless you open your HOA facilities to the general public, you can pretty much ignore the ADA. As Donna points out, the Fair Housing act is a different kettle of beans.

JC3

Posts:290

02/17/2008 9:09 PM
Posted By DonnaS We are trying to figure out a reasonable way to rewrite information for a Board to put down on paper, their animal acceptance policy into an association where pets are not allowed. Oh. If you had said THAT first, instead of what you DID say: Posted By DonnaS on 02/17/2008 5:12 PM "...put restrictions on anyone applying to have such an animal such as a certificate from the dog provider and definitely a Doctors letter." Not all SDs or ESAs are certified. You said your neighbor has a certified service animal. I said mine is not certified. MOST SD's and ESAs are NOT certified. I have no intention of certifying her, federal law does not require it, businesses are not permitted to require it. HOAs are a business. By DonnaS The general membership is going to want to know why there is a dog being allowed and the Board is going to need a written policy. So what? You HAVE a written policy. It's Federal law. Medical conditions are private. THAT's what the "general public" is permitted to know. You are not pemitted anything else, the animal users are not required to give beyond a certain point. You have a no pets policy. enforce it. Service animals and ESAs do not fit that description. The general public wants to know many things they have no right to know. You have no right to say much more than it is not a pet, otherwise you violate that person's rights. (Add, "and we are following Fed law") An ESA does not have public access rights unless you grant them. (Remember a service animal does, and can go anyplace on your grounds, where an ESA cannot without board permission.) This is not a discussion arguing about obvious service dogs but the ones that will come in as "ESA's and as you said, that's a different animal. There are more and more unqualified people buying patches and capes and putting them on dogs that are not service dogs and taking them everyplace. If you remember it is NOT the animal that has access, it is the disabled person, your job may be easier. I also said that I have used an SD for years, and that until recently, my disability(s) were invisible. MANY people have invisible disabilities, and they do not want anyone to know about them. The law will let you know what your policy should be. Try calling HUD and or ADA and asking for their guidance in writing your policy. That's your best bet. Then you can be pretty sure you're compliant with the law. Boards need to be compliant, if you demand the owners be. And yes, I do know there are people who take advantage of the situation, which makes it more difficult for all of us. One, a former friend, is such an abuser. Which is why she is a former friend.

BrianB
(California)

Posts:1748

02/18/2008 8:04 AM
JC3: the law you cite in http://www.usdoj.gov/crt/ada/svcanimb.htm would not be applicable to most HOA's, as it stems from the ADA. In general, the ADA does not affect HOAs (mine, for example, is not covered by the ADA) Do you have another source that makes your point that an HOA cannot require proof of need? One that would apply to the HOA's not under the scope of the ADA?

BrianB
(California)

Posts:1748

02/18/2008 8:11 AM
JC3: Also, can you explain this statement: Federal law is... and you can't make it more stringent. In my studies, i have found that making a law more strict is the ONLY time Federal law can be trumped. For example, federal law states interstate highway speeds are 75 MPH. However, in California, Interstate Highway speeds are often only 65 MPH. States can make Federal laws more strict, cities can make state laws more stringent, and all is okay. No lesser governing body can broaden or make less strict a higher authority law, however.

JC3

Posts:290

02/18/2008 9:56 AM
Posted By BrianB on 02/18/2008 8:04 AM JC3: the law you cite in http://www.usdoj.gov/crt/ada/svcanimb.htm would not be applicable to most HOA's, as it stems from the ADA. In general, the ADA does not affect HOAs (mine, for example, is not covered by the ADA) Do you have another source that makes your point that an HOA cannot require proof of need? One that would apply to the HOA's not under the scope of the ADA? Here's a little more that might help with that policy you are trying to write: This was a result of a google search for gee, of all things, "fair housing act and emotional support animals" http://www.mhas-la.org/fhtip1.html#tip3 It says in part, Granting a resident's request for a reasonable accommodation isn't just "nice" -- it's the law. The law provides an established guideline to help housing providers determine when a requested accommodation is "reasonable" and must be granted. The first question a housing provider must ask when faced with a request for an accommodation is whether the person requesting the accommodation has a disability as defined in fair housing laws. The housing provider may ascertain this by requesting that the individual provide verification from a medical or social services provider that he meets the statutory definition of disability and needs the particular accommodation. If the disability is obvious, there is no need to request documentation. The provider must not, however, inquire into the nature, severity or other details of the person's disability. For example, if a resident requests permission to keep an emotional support animal with him in spite of a "no pets" rule, the housing provider may request documentation that the resident has a covered disability that is alleviated by the presence of the animal. The provider must not ask what the disability is, but she may ask why the presence of the animal would be helpful. This is a very fine line with which providers must be careful. So, "DISABILITY" is defined in fair housing law. AND, The housing provider may ascertain this by requesting that the individual provide verification from a medical or social services provider that he meets the statutory definition of disability and needs the particular accommodation. If the disability is obvious, there is no need to request documentation. The provider must not, however, inquire into the nature, severity or other details of the person's disability. (But I repeat myself.) This appears to closely fit what I said earlier regarding service animals: a business can ASK 3 questions: Are you disabled, is that a service animal, what task(s) is it trained to mitigate your disability? You cannot ask for medical documentation (I do, however, and it says simply, "service animal for ambulation". It does NOT give any indication of what my disability is, because the LAW does not require me to tell you my medical history. Department of Justice Technical Assistance Letters: Service Animals in Housing: Even though service animals are not specifically mentioned in the Fair Housing Act and its regulations, it is likely that the Act would at times require that service animals be allowed in a housing facility in order to afford a disabled individual fair use and enjoyment of the facility. You're also right that ADA would not generally be part of an HOA, but might be the law as to common areas. I am far from an expert on the law, I live in a sfh hoa, and attempts to deny me my civil rights even if you start with someone across the country upsets me. I also suggested that the OP (and Donna) check with ADA and the people at the FHA offices and ask them to guide them in writing their no pets policy.

JC3

Posts:290

02/18/2008 10:12 AM
Posted By BrianB on 02/18/2008 8:11 AM JC3: Also, can you explain this statement: Federal law is... and you can't make it more stringent. In my studies, i have found that making a law more strict is the ONLY time Federal law can be trumped. For example, federal law states interstate highway speeds are 75 MPH. However, in California, Interstate Highway speeds are often only 65 MPH. States can make Federal laws more strict, cities can make state laws more stringent, and all is okay. No lesser governing body can broaden or make less strict a higher authority law, however. In the same vein, Brian, CA was just refused the ability to make their vehicle exhaust laws more stringent. They still have to abide by the spewing fed law. Two examples of a personal nature: 1) My county used to require people with sas to get the animal certified by one or the other of two local training facilities in order to get the yearly license free. I tried working with the agency, explained the FED law, (as previously posted) spent months on it, and got the run-around. Finally contacted my local county county representative, explained the situation, and he went to bat for me. The law was changed to reflect the broader FEDeral law, which gives the most protection. and more recently and more to the point: Me and dog stopped at a drugstore that we have used a few times previously. The fellow took the rx then asked to see her special license. She doesn't have one, and he told me the next time to leave the dog in the car. So, I pulled out my copy of fed law and we had a short, quiet discussion. He never told me to put her out, never refused me service, just told me to not bring her in next time. when I got home, I called to see about filing a complaint, but couldn't because I was not refused service. Basically, I would have to be refused service or required to take her out before being served. It's not a store I use often, but it is close to my md's office, and I do use it, have had her in with me every time I've been there. (I'm in their computer system) No, I will not show them my rx, and I couldn't file a complaint and just get them written an informational letter. It is my understanding that the governing agency was required to reprimand them and maybe go further than that. After a quiet discussion

JC3

Posts:290

02/18/2008 10:17 AM
Here's just a little more: google "emotional support animals" http://www.guidehorse.org/news_emot_supt.htm The financial costs to those who violate the rights of ESA users can be substantial. In 2000, a Minnesota judge awarded a man Post Traumatic Stress Disorder (PTSD) $190,000 in damages after his condominium association refused to allow him to keep a ESA dog.

HaroldS
(Arizona)

Posts:904

02/18/2008 10:34 AM
$190,000! Wow. I imagine those owners were a little disturbed to be special assessed for that award plus whatever legal fees there were. Unlike many state laws with no teeth, it is not wise to monkey with Federal laws and we should be very, very careful delving into "no pets" regulations by boards alone making arbritary decision. Put the onus on the owners - who will be ultimately responsible if sued. Harold

JC3

Posts:290

02/18/2008 11:13 AM
I went back to look at http://www.mhas-la.org/fhtip1.html a little more closely. You all might be/should be interested in all the tips: Quick Links: Tip #1: Questioning Prospective Guests and Residents Tip #2: Dealing With a Negative Tenant History Tip #3: Requests for Reasonable Accommodations Tip #4: Emotional Support Animals Tip #5: Substance Abuse as a Disability Tip #6: Direct Threats From Residents Tip #7: Transitional Housing Program Participants are Residents Tip #8: Confidentiality Tip #9: Reasonable Accommodations in Chores and Other Program Requirements Tip #10: "Reasonable" is Determined on a Case-by-Case Basis Tip #11: Physical Accessibility Tip #12: Proper Care of Personal Property Left Behind

BrianB
(California)

Posts:1748

02/18/2008 1:24 PM
JC, the examples you cited as more stringent are actually in conflict with higher laws.. no law may be in conflict with a higher law, either stringent or looser. This violates the supremacy clause. In the example you used, the requirement for documents being shown isn't "more strict", technically, because it first violates the intent of the higher law. Thus, it never gets merited for an arguement on strictness, it is thrown out on supremacy and conflict. It's the same with voting laws; the INTENT of the federal law is to allow all voters to vote. Requiring a test in order to do so seems "more strict", but it first violates the intent of the federal law, and is tossed on that count. In the case of the US EPA v State of California, the INTENT of the federal law was to give automakers a consistent standard to aim for. WHen california tried to tighten those standards, it conflicts with the federal intent, and was struck down... not because it was more strict, but because it violated intent.

JC3

Posts:290

02/18/2008 1:49 PM
Posted By BrianB on 02/18/2008 1:24 PM JC, the examples you cited as more stringent are actually in conflict with higher laws.. no law may be in conflict with a higher law, either stringent or looser. This violates the supremacy clause. Yes. And that's why the county law was tossed, and why any reg the OP's hos sets up in violation of the HUD will be tossed, even if only after it costs them big bucks. In the case of the US EPA v State of California, the INTENT of the federal law was to give automakers a consistent standard to aim for. WHen california tried to tighten those standards, it conflicts with the federal intent, and was struck down... not because it was more strict, but because it violated intent. After CA had enjoyed, wasn't it two waivers? (and not awarded this time only because George didn't want to upset his buddies.)

MicheleD
(Kentucky)

Posts:1866

02/18/2008 8:59 PM
JC3 said: " In the same vein, Brian, CA was just refused the ability to make their vehicle exhaust laws more stringent. They still have to abide by the spewing fed law. " And it's my understanding they are appealing that and could win. Along with several other states who are also suing.

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