Delta’s recent announcement that it was banning “pit bull type” dogs from its flights* has focused public attention on a long-standing problem in disability law; the inherent conflict between the need for easy to apply policies concerning service and emotional support animals and the prohibition in the law against basing decisions on stereotypes. You can ban any particular pit bull if there is good reason to believe it is dangerous, but you can’t ban all pit bulls just because it is a dangerous breed. More
FHA Emotional Support Animals
By Richard Hunt in Accessibility Litigation Trends, ADA, ADA - drive-by litigation, ADA - serial litigation, ADA Internet, ADA Internet Web, ADA Web Access, FHA, FHA Emotional Support Animals, FHA Reasonable Accommodation, Internet, Internet Accessibility, Reasonable accommodation, Rehabilitation Act Tags: ADA defense, ADA drive-by litigation, ADA Mootness, ADA website accessibility, FHA Defense, World Cup
Those of you who are not binge watching the World Cup matches will be interested in what has been going on in the world of disability rights during the last few weeks. Here is our roundup of recent ADA and FHA decisions, some of which are notable.
Indemnity and contribution for Fair Housing Act claims.
Shaw v. Cherokee Meadows, L.P. 2018 WL 2967708 (N.D.Okla. June 12, 2018) is another in a series of cases concerning indemnity for design/build defects under the FHA that gets it completely wrong and winds up with an absurd result. The decision has little in the way of discussion because it relies on the analysis from an earlier case, Equal Rights Center v. Niles Bolton Associates, 602 F.3d 597 (4th Cir. 2010). We’ve blogged on this issue before* but the arguments are worth repeating. Equal Rights Center based its analysis on earlier cases concerning race and similar kinds of intentional discrimination found that public policy precluded indemnity and contribution for FHA discrimination claims. In cases of intentional discrimination or respondeat superior it makes sense to forbid indemnity because you want to discourage bad intent and encourage proper supervision of employees. It doesn’t make any sense at all in design/build cases under Section 3104(f)(3)(C) because this is a “no fault” provision that can be violated without any intent to discriminate. Moreover, the owner of an apartment complex has no choice but to rely on 3rd party experts – architects and contractors – to properly design and build the apartments. When architects and contractors know that they are immune from liability for their failures they have no incentive to design and build according to FHA standards, and as a practical matter they are always immune because the first target in any lawsuit will be the owner. The Ninth Circuit has rejected Equal Rights Center for good reason, and if Shaw v. Cherokee Meadows is appealed the Tenth Circuit should reject it as well. More
A recent news* story about a veteran with PTSD and his dog is a good reminder that service dogs and emotional support dogs are not the same, and that the subject is still confusing to many people. This is especially important now because many states are moving to criminalize misrepresenting the status of a dog, meaning that some with disabilities may become criminals because of their ignorance.** More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, Animals, FHA definition of handicap, FHA Emotional Support Animals, FHA Guidance, Landlord-tenant Tags: Emotional Support Animal, Fair Housing Act, FHA Guidance, FHA medical verification
This week’s news is a year old, but very important for apartment owners and managers confronted by the increasing flood of fake emotional support animal requests.* In March of 2017 the Virginia Fair Housing Board, which carries out Virginia’s mandate for disability rights in housing, issued a formal guidance on what constitutes reliable evidence of a disability and a disability related need for an emotional support animal. You can download the guidance here, but here are the highlights. They are based on the Board’s position that reliable evidence of a disability can only come from someone who has a therapeutic relationship with the tenant. More
The last ADA / FHA headline that reached my email in 2017 was about a woman in Florida who complained that her “service dog” was not allowed at the pool by her condominium association. It was not an unusual story, but it summed up the way the ADA and FHA, both individually and together have caused confusion for the disabled and businesses that leads to distrust and litigation. To start the New Year I’m presenting a very short primer on the rights these statutes protect and how they relate to each other.
The ADA and FHA protect the rights of the disabled in different places. Title III of the ADA* is designed to make sure that disabled individuals have access to the goods and services sold by every kind of business that is open to the public** except residential sales and rentals. The FHA, on the other hand, is intended to make sure disabled individuals have equal access to housing. When the woman in the story I mentioned above says that the ADA gave her the right to have her dog at the pool she was confusing the ADA and FHA. A condominium swimming pool that is not open to the public is not governed by the ADA because it is not a public accommodation. It is governed by the FHA because it is associated with housing. Both the FHA and ADA have rules about service dogs, but they aren’t the same because they apply in different places.
Speaking of service dogs, this is another area in which confusion reigns. The ADA generally requires businesses to admit “service dogs” and “service miniature horses.” In either case the animal must have special training to help with the disability of the individual. Guide dogs for the blind are an example. Admission is required despite the fact that animals can be disruptive in public places because a disabled person generally cannot function without his or her service dog or miniature horse, and because the training of these animals includes socialization and correct behavior in public. The FHA, on the other hand, creates rights for the disabled not only for service dogs and miniature horses, but also for “comfort” or “therapy” animals of every kind. These need not have special training as long as they are needed for the disabled individual to use and enjoy their housing. For example, a person with anxiety disorder may not be able to sleep without a comfort animal nearby. The FHA is less restrictive because the untrained animal is only needed in the apartment or house and is not exposed to the public. This becomes tricky when the resident claims the animal is needed to allow access to a related facility, like a pool. Can a disabled resident enjoy the pool if his or her therapy animal is left behind in the apartment? That depends on the nature of the disability and the reason the animal is needed in the first place.†
How about service animals in training? Here again the prospects for confusion are considerable. The ADA does not require that service animals in training be allowed in public accommodations precisely because until they are trained they are not useful to or required by the disabled person. On the other hand, if the training involves living with the disabled handler then the FHA requires the animal be permitted even if, at present, it is not really doing anything useful at all.
This housing v. public accommodation difference isn’t always perfectly obvious. Hotels are public accommodations even though people live in them for some period of time. Student housing is always temporary, but some courts say dormitories are subject to the FHA. Housing, temporary or not, is a frequent source of confusion for builders. The ADA requires that in larger hotels or inns 5% of the rooms be completely accessible – meaning that they must have grab bars and even roll in showers for example. The rest of the rooms generally need not have this level of accessibility. The FHA, on the other hand, requires that every apartment be somewhat accessible, but does not require things like grab bars or roll-in showers. I have had any number of apartment developers assure me they complied with the law because five percent of the units were “ADA” units even though the other 95% did not meet the standards in the Fair Housing Act. Apartments must comply with the FHA, hotels must comply with the ADA and some kinds of housing must apply with both. Knowing which law applies makes a difference.
Knowing which law applies also matters when it comes to existing conditions that violate the statutory standards. The ADA requires that any business owner or operator correct conditions that are barriers to access for the disabled as long as it is not unreasonably expensive or difficult. That obligation applies to every public accommodation, no matter how old it may be and to every owner and operator, even if they just took over last week. The FHA, on the other hand, does not require that any owner except the original owner fix accessibility problems, and applies in any case only to buildings constructed after its effective date. We regularly get calls about individuals who want their landlord to fix an accessibility problem that would need correction in a public accommodation, but for which the current owner and management company for an apartment complex have no obligation to fix unless the tenant will pay for it.
Sometimes, of course, both laws apply. The leasing office of an apartment complex offers services to the residents. That makes it an FHA facility. The leasing office is also open to the public. That makes it an ADA public accommodation. The rules for accessibility in such areas are slightly different, with the ADA rules being a little more restrictive. That architect who designed the “ADA” apartments should have put his knowledge of the ADA construction standards to use in the leasing office.
A related problem concerns model homes. The FHA design standards apply only to multi-family buildings‡ but when a single family residence is used as a model home open to the public it can become an ADA public accommodation. Single family homes and duplexes are rarely designed with accessibility in mind, and this can create real problems.
What about the pool? A condominium or apartment pool is not generally open to the public, and the standards for pool accessibility under the FHA are much easier to meet than the ADA standards for a public pool. However, if the apartment or condominium allows the pool to be rented by non-residents it becomes, at least while it is rented, a public accommodation. That means, among other things, it must have a built-in pool lift. This can be a problem in single family developments where a pool facility owned by the homeowners association is rented to non-residents.
Finally, even the language of the ADA and FHA can be confusing. The FHA requires that apartment owners or managers be willing to do two things, make reasonable accommodations in policies and procedures and make reasonable modifications to the physical premises. That’s “accommodation” v. “modification.” The ADA, on the other hand, talks about “modification” of policies and procedures. When someone asks about a “reasonable modification” in the ADA context it means something completely different than in the FHA context.
None of this confusion is really necessary, but unfortunately the FHA is administered by the Department of Housing and Urban Development, Title III of the ADA is administered by the Department of Justice, and many businesses of all kinds rely on architects, contractors or (horror of horrors) the internet to determine just what their obligations might be. With two different administrative agencies, two statutes and thousands of pages of regulatory material this is one of those areas in which, unfortunately, you really need a lawyer familiar with the statutes and regulations.
NOTE: that last sentence means this may be an advertisement or means of self promotion. But you already knew that, didn’t you?
* I’m only going to discuss Title III of the ADA, which is the part that applies to public accommodations – that is, businesses open to the public. Titles I, II and IV cover disability rights in other contexts.
** Whether this includes internet businesses is still an open question, but it certainly includes every business with a physical location open to the public.
† An additional layer of confusion is created by the Air Carrier Access Act, which has its own rules about service and other animals, as well as by Title I of the ADA, which asks different questions about the animal in an employment context.
‡ Basically, four or more units under one roof.
Thanks to Mark du Toit for the cartoon. His website is www.marktoon.co.uk