Service Animals in a "No Pets" Apartment

By Martin S. Snitow

"I want to have a service animal [dog] [cat]," is a request that is growing more common. Landlords who have a "no pets" policy cannot refuse to allow a disabled person to have a service animal. 24 CFR § 100.204(b). This is an illustration of the federal law that a landlord must make a "reasonable accommodation" to allow a disabled tenant to use and enjoy a dwelling on an equal basis with tenants who are not disabled. 42 U.S.C. § 3604(f)(3)(B).

At first glance, it may seem strange to say that a disabled tenant who is permitted to have a dog is on an equal basis with other tenants who are not allowed any animal. But a service animal is legally very different from a "pet."

Under California law, a "service dog" is any dog individually trained to the requirements of the individual with a disability. California also recognizes guide dogs for the blind and signal dogs (which alert deaf or hearing impaired persons to intruders or sounds.) Civil Code § 54.1(b)(6)(C). California provides for issuance of a special tag to owners or trainers of assistance dogs, a term that includes guide dogs, signal dogs and service dogs. Food & Agriculture Law §§ 30850-30852. Landlords may not refuse to rent to disabled people with assistance dogs. Civil Code § 54.1(b)(6)(A).

Life would be simpler if a landlord could enforce a rule stating: "No animals except assistance dogs with an official tag." However the California law prohibiting discrimination against disabled people with assistance dogs does not say that every assistance dog must have the special tag. Federal law does not even require the assistance animal to be a dog, although in practice most are. A federal appeals court has ruled that a landlord cannot require that a service dog have a certificate from a state-licensed training school. Bronk v. Ineichen (7th Cir., 1995) 54 F.3d 425. By analogy, federal law also would not permit a landlord to demand that an assistance dog have an official tag.

In a recent case, an apartment manager asked a disabled applicant for a document showing that she needs her dog because of her disability. This applicant had trained her dog herself and had no documents from a training school. She also had not licensed her dog and thus did not have an assistance dog tag. The manager did not say what kind of document he wanted. This landlord already was renting to several other disabled tenants. He had accommodated them with a special stove bought for one and grab bars installed for others. The applicant took the demand for a document she did not have as a rejection, and sued.

Any landlord faced with a disabled applicant or tenant requesting an accommodation must tread carefully. A landlord cannot ask whether the person is disabled, what kind of disability he or she has or how severe the disability is. 24 CFR § 100.202 (c). California Government Code § 12955 (b). It is questionable whether a landlord may even dispute the tenant's decision that he or she needs a service dog. Fortunately, the manager in this case did none of these things. He simply asked the applicant to show a document that her dog was a service dog.

A landlord should obtain some evidence that an animal permitted as an exception to a "no pets" policy is a service animal. Other tenants may also want to have animals which are not assistance dogs or other service animals. If you permit one applicant to have a dog without some evidence that it is a service animal, others may feel discriminated against. The applicant in this case was white and childless. Families with children and persons of color who might want a dog could have reason to complain if this applicant was allowed a dog and they were not.

Several months after the applicant filed suit, a federal appeals court ruled in a different case: "If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue." Jankowski Lee & Associates v. Cisneros (7th Cir., 1996) 91 F.3d 891. Isn't this exactly what the manager did here? I certainly think so. Does the decision resolve all questions? No, it does not.

Even if you are "opening a dialogue" you still cannot ask about the disability. What can you say? When a tenant says he or she wants to have a dog or other animal you can ask for documents to show this is a reasonable accommodation for the tenant. You can ask the tenant to explain why having the animal is necessary for him or her to use or enjoy the dwelling. Let the tenant explain the situation and ask no questions about the disability.

This applicant sought damages for expenses such as apartment hunting and added commuting costs because the apartment she eventually found was further from her work. She asked for emotional distress damages and requested that all of these damages be multiplied by three under California's Unruh Civil Rights Act, Civil Code § 52. Then she asked that her damages be trebled again under a California statute concerning unfair business practices against the disabled or seniors. Civil Code § 3345. In addition, the applicant sought punitive damages and an award of attorney fees. While the manager did just what the federal appeals court suggested, the landlord faced an potentially unlimited judgment if he lost the trial. Although he had a good case, the landlord decided to settle.

How can you prevent this from happening to you? Unfortunately there is no law or regulation saying exactly what a landlord can or cannot do. A federal appeals court in a case from California ruled that whether a requested accommodation is reasonable is a question of fact, determined by a close examination of the circumstances. United States v. California Mobile Home Park Management Co. (9th Cir., 1994) 29 F.3d 1413. Essentially, only a court decision can say whether a landlord must allow a particular animal.

Is this the end of "no pets" rules? I think there is still something a landlord can do to prohibit pets while protecting him or herself. I suggest that a landlord in California can set the following rule:

"We normally allow no animals without an official assistance dog license or tag. If you have a guide dog, signal dog or service dog, please show us the license and tag. They are issued by the county animal control department or county clerk. If you need a service animal that does not have an assistance dog license or tag, please tell us in a letter or write on the back of your application why this is a reasonable accommodation for your disability."

Give a copy of this rule in writing to anyone who asks to have an animal, whether or not they appear disabled. Someone may be disabled without it being obvious to you. Let me repeat: you cannot ask applicants or tenants whether, in what way or how seriously they are disabled. If a tenant has a dog with an assistance dog license or tag, photocopy the license, copy the tag number and give permission right away. If there is no license or tag but the tenant claims the animal is a reasonable accommodation for a disability, you should immediately get advice from a lawyer who is familiar with fair housing laws.

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