Fair Housing, Persons with Disabilities, and Service and Assistance Animals

1. Fair Housing, Persons with Disabilities, andService and Assistance Animals A Presentation for: FAHRO August 2, 2017

2. With thanks to: Michael Allen Relman, Dane & Colfax PLLC 1225 19th Street, NW, Suite 600 Washington, DC 20036 Tel: 202-728-1888 FAX: 202-728-0848 E-mail: mallen@relmanlaw.com Website: www.relmanlaw.com & Jean Zachariasiewicz Brown, Goldstein & Levy LLP 120 E. Baltimore Street, Suite 1700 Baltimore, MD 21202 Tel: 410-962-1030 FAX:  410-385-0869 E-mail: jmz@browngold.com Website: www.browngold.com

3. Introduction • Background on the Fair Housing Act (FHA) as it relates to disability • Focus on issues that arise related to service animals • The Fair Housing Amendments Act of 1988 • Title II of the Americans with Disabilities Act (ADA) • Section 504 of the Rehabilitation Act of 1973

4. The Fair Housing Act • Passed in 1968, one week after the assassination of Martin Luther King, Jr. • Title VIII of the Civil Rights Act of 1968 • “It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” • Intended to provide for equal housing opportunities, regardless of race, national origin, religion, or gender • Familial status and disability were added as protected classes with the Fair Housing Amendments Act of 1988

5. Purpose of Fair Housing Amendments Act of 1988

6. FAIR HOUSING PRINCIPLES • Equality • Integration • Choice • Individuality

7. Definition of “Disability” • Different from Social Security or other definitions… • Under the Fair Housing Act, you are protected if you: • Have a mental or physical impairment…. which substantially limits one or more major life activities, or • Have a history of such an impairment, or • Are regarded as having such an impairment

8. Exceptions You are not considered disabled if your impairment(s) result from or cause: • Current use of illegal, controlled substances • Conviction for illegal manufacture or distribution of a controlled substance • Direct threat to the health or safety of others

9. The Reasonable Accommodation Mandate It is illegal for a landlord to “refus[e] to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.”

10. What is an Accommodation? Reasonable accommodations are changes in rules, policies, practices or services so that a person with a disability can participate as fully in activities related to housing as a person without a disability could.

11. Accommodations Must be Requested • In order to get a change in a rule, policy, practice, or service, the tenant must request it. • An accommodation may be requested at any time, including the initial application process, during the tenancy, or even when the landlord seeks to evict. • The decision to request an accommodation is entirely that of the tenant. A landlord may not impose an accommodation on an unwilling tenant.

12. More on Accommodations • A tenant is entitled to an accommodation that is effective in affording an equal opportunity to use and enjoy a dwelling, even if it is not the one most favored by the tenant. • A landlord who fails or refuses to provide a reasonable accommodation is subject to the same penalties under the Fair Housing Act as a landlord who intentionally discriminates on the basis of disability.

13. The Test: When Accommodations Must be Provided • A landlord must provide a requested accommodation unless the landlord can demonstrate that doing so would: • Impose an “undue burden” • Constitute a “fundamental alteration” in the service provided by the landlord • These are narrow, focused exceptions

14. Accommodations Must be “Reasonable” • The “Undue Burden” Test: A landlord is not required to provide an accommodation if the landlord can show that doing so would create an “undue” financial or administrative burden in this specific case. • The “Fundamental Alteration” Test: The Fair Housing Act does not require a landlord to go beyond what is normally offered as part of the housing program or services to accommodate the special needs of tenants with disabilities.

15. Verification • Housing provider may request reliable disability-related information that: • Is necessary to verify that the person has a qualified disability; • Describes the needed accommodation; and • Shows the relationship between the disability and the need for the RA.

16. Verification • If a person’s disability is obvious or known, and the need for the requested accommodation is known, then the housing provider should not ask for any more information. • If the disability is known or obvious, but the need is not, then the housing provider should ask only for information necessary to verify the need for the accommodation. • If neither the disability nor the need for the accommodation is readily apparent, the housing provider should ask for verification of both the disability and the need for the accommodation.

17. Verification Medical records or detailed information about nature of disability usually not required or permitted • Laflamme v. New Horizons • HUD/DOJ, Joint Statement on Reasonable Accommodation, available at: http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

18. Proof Who can provide this information? • The disabled person (e.g. proof that under 65 & receives SSI or SSDI private disability insurance benefits); • Doctor or other medical professional; • Peer support group, non-medical service agency, or a reliable third party in a position to know about disability.

19. Interactive Process • If the initial request is denied, provider must engage in an interactive process. • Propose alternative accommodations that are acceptable to the tenant. • If no resolution, will be treated as a denial of the original reasonable accommodation request.

20. What does this boil down to? You need to have a conversation, even if it’s uncomfortable. • It should not be an adversarial conversation (interactiveprocess) • It should not be an overly prying conversation • You should approach the conversation with an open mind

21. The “Tennis Game”

22. Examples of Reasonable Accommodations • Reading the rental application to a prospective tenant with a visual impairment or a learning disability • Helping a tenant with cognitive disabilities in filling out an application • Changing a “no pets” rule to allow an assistance dog for someone with a physical or psychiatric disability • Keeping laundry room door closed so that fumes do not make someone ill who has multiple chemical sensitivity • Allowing tenants with psychiatric or other disabilities to have companion animals for therapeutic reasons, with no increase in security deposit

23. Service and Emotional Support Animals • The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Titles II and III of the Americans with Disabilities Act have different protections regarding the rights of people with disabilities to keep service and emotional support animals, even when a landlord’s policy explicitly prohibits “pets.” • It is the housing provider’s responsibility to know the applicable law(s) and comply

24. Service and Support Animals are not “Pets” Because emotional support and other service animals are not “pets,” but rather are considered to be more like assistive aids such as wheelchairs, the law will generally require the landlord to make an exception to its “no pet” policy so that a tenant with a disability can fully use and enjoy his or her dwelling.

25. The Fair Housing Act • Covers all housing • Assistance animals must be accommodated • Assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability (ESAs).” • Assistance animals/ESAs do not need to be individually trained or certified • Assistance animal/ESA does not have to be a dog

26. FHA cont’d • If person making request for accommodation of assistance animal (1) has a disability, and (2) has a disability-related need for an assistance animal, then housing provider must modify or provide exception to “no pets” rule • Housing provider may ask for documentation of disability and/or need for assistance animal only if not readily apparent

27. FHA cont’d • Breed, size, and weight limitations may not be applied to assistance animals • May not require pet deposits for assistance animals • Must allow assistance animal in all areas where persons normally allowed to go, unless would cause an undue financial and administrative burden or would fundamentally alter nature of housing provider's services • Very narrow exceptions • No “slippery slope” arguments • HUD has said that allowing an assistance animal does not constitute an “undue burden”

28. FHA cont’d • Housing provider may deny request only if: • The specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or • The specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation • Housing provider may require that tenant pay costs for actual damage caused by assistance animal, if it is provider’s practice to charge tenants for such damage

29. FHA cont’d • Remember, focus is on providing persons with disabilities “equal opportunity to use and enjoy a dwelling” • Opportunity would not be equal if, for e.g., had to pay a deposit to enjoy dwelling in same manner as persons without disabilities, or could not use common area because animals not permitted there

30. Section 504 of the Rehabilitation Act • Regulations apply to recipients of financial assistance from HUD (usually public or subsidized housing, though not to a landlord who accepts Section 8 vouchers) • Same prohibitions and requirements as FHA

31. ADA • Title II applies to state and local government programs, services, activities, and facilities, and Title III applies to public accommodations, such as leasing offices, social service center establishments, universities, and other places of education • DOJ ADA regulations define “service animal” as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability • Can be physical, sensory, psychiatric, intellectual, or other mental disability • “Service animals” do not include emotional support animals • Service animal must be permitted to accompany person with disability in all areas of facility where members of the public normally go

32. ADA cont’d • Unlike FHA and Section 504, use of a service animal in an ADA-covered facility should not be treated as a reasonable accommodation • Instead, as long as animal meets the definition of “service animal,” it must be allowed into a covered facility • Only 2 inquiries covered entity may make • Is this a service animal that is required because of a disability? • What work or tasks has the animal been trained to perform? • Cannot ask these questions if readily apparent the animal is trained to serve a person with a disability • Cannot ask about nature of person’s disability, or for proof of animal’s training

33. ADA cont’d • Service animal may not be denied access to covered facility unless: • The animal is out of control • The animal is not housebroken • The animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices, and procedures • For #3, as with the FHA and Section 504, this determination must be based on an individualized assessment of the specific service animal

34. Which law applies??? • Some entities – public housing agencies, rental offices, university dorms, assisted living facilities, shelters – must fulfill both the FHA/Section 504 reasonable accommodation requirements and the ADA service animal requirements • Following one law does not ensure compliance with the other, and vice versa • In a case where both FHA/Section 504 and ADA apply, do ADA service animal test first • If animal meets test, must be permitted in all areas of facility where people/public can go • If not, then evaluate under reasonable accommodation process

35. Leading Cases—Federal Court • Warren v. Delvista Towers, --- F.Supp.2d ---, 2014 WL 3908057 (S.D. Fla. July 29, 2014) • Sabal Palm Condos. of Pine Island Ridge Ass’n, Inc. v. Fischer,6 F.Supp.3d 1272 (S.D. Fla. 2014) • Overlook Mutual Homes v. Spencer, 666 F.Supp.2d 850 (S.D. Ohio July 16, 2009) • Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Cal. 2000) • Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D. Or. 1998) • Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) • Majors v. Housing Authority of the County of DeKalb, 652 F.2d 454 (5th Cir. 1981)

36. Leading Cases—State Court • Whittier Terrace Associates v. Hampshire, 532 N.E.2d 712 (Mass. App. Ct. 1989) • Crossroads Apts. Assoc. v. LeBoo, 578 N.Y.S.2d 1004 (N.Y. City Ct. 1991) • Auburn Woods I Homeowners Ass'n v. Fair Employment & Hous. Comm’n,121 Cal. App. 4th 1596 (Cal. App. 3 Dist. 2004). • Oras v. Hous. Auth.of the City of Bayonne, 861 A.2d 194 (N.J. Super. Ct. App. Div. 2004)

37. Resources • Bazelon Center, “What Fair Housing Means for People with Disabilities,” available at www.bazelon.org (included in materials). • “Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs,” HUD FHEO Notice No. 2013-01 (April 25, 2013), available at https://portal.hud.gov/hudportal/documents/ huddoc?id=servanimals_ntcfheo2013-01.pdf (included in materials). • HUD/DOJ, Joint Statement on Reasonable Accommodation, available at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (included in materials). • Doris Day Animal League, “Best Friends for Life: Your Right to Animals in ‘No Pet’ Housing,” book available from www.ddal.org.

38. If we all follow the law, it’ll be a smooth ride. Paul Valenti, Director Pinellas County Office of Human Rights 400 S. Fort Harrison Avenue, 5th Floor Clearwater, FL 33756 (727) 464-4880 pvalenti@co.Pinellas.fl.us