Q&A: Defining a Service Animal

Q Do you have any information/documents that define the legal standards for a service animal? We have a pending request based on loosely-worded physician prescriptions and are concerned that approval of such may open the door for other such applications that could compromise out pet-restricted building?

—Concerned About Pets

A “There is not much information available regarding the issue of service animals,” says attorney Henry C. Walentowicz of the New Jersey firm Celentano, Stadtmauer & Walentowicz, LLP. “However, it is important to be careful in reacting to a request to permit a service animal since the association may be exposed to claims of discrimination under the Federal Fair Housing Act and the New Jersey Law against Discrimination. These laws protect handicapped and disabled persons. Community associations can exclude pets generally and board decisions will be upheld if in compliance with the business judgment rule. See Courts at Beachgate v. Bird, 226 N.J. Super. 631, 641 (Chan. Div. 1988).

“However, these restrictions must allow exceptions if authorized and in conformity with these discrimination laws. In Dubois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cit. 2006), plaintiffs sued, among others, a condominium association for refusing to allow plaintiffs to keep their dog. The claim was based upon the Fair Housing Act, 42 U.S.C. secs. 3601-3631. The condominium association allowed animals to “qualified individuals with disabilities.” The plaintiffs submitted medical letters from doctors to permit their English bulldog, Einstein, but gave little further explanation except a letter that the depressive plaintiff would benefit from animal-assisted therapy.

“The Court, in its analysis, held that the plaintiff must prove: 1. a handicap within the meaning of the law; 2. that the defendant knew or should have known of the handicap; 3. that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling; 4. that the accommodation is reasonable; and 5. that the defendant refused to make the requested accommodation. The Ninth Circuit upheld the dismissal of the claim because it found that the association had temporarily allowed the plaintiffs to keep the dog even though they subsequently vacated the premises. Thus, they never refused the accommodation.

“In an unreported decision, Hawn v. Shoreline Towers Phase 1 Condominium Association, Inc., 347 Fed. Appx. 464, 2009 WL 3004036 (C.A.11(Fla.) ), the association had a no pets policy. Plaintiff requested permission to keep a service animal and submitted numerous letters why his dog was medically necessary. Shoreline asked for additional information for expert evidence addressing specifics outlined in the law. Plaintiff did not respond to the letter but filed a claim with the Florida Commission on Human Relations. The court, in affirming the dismissal of the complaint by the lower court, held that defendants must have the ability to “conduct a meaningful review of the requested accommodation.”

“In light of the above, although the defendants prevailed, it is critical for condominium associations to have a policy and procedure in place addressing requests for service animals. These matters will be fact-specific and will require case-by-case determinations.

“Clearly, the burden is on the requestor to establish all of the elements set forth in the law. The association has the right to request documentation related to the provisions of the legislation but keeping in mind that there is litigation in the Township of Howell accusing the association of going beyond the requirements of the enactments.”

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