Fair Housing Enforcement Activities re Emotional Support Animals

http://www.hud.gov/offices/fheo/enforcement/2009hudcharges.cfm

1. Reasonable accommodation for a child that needed a support animal with
part of the complaint based on an “unreasonable pet license.” Cooperative
lost.

Schein v. Townsend House Corp (a cooperative, 09-29-08)

http://www.hud.gov/offices/fheo/enforcement/mostajo.pdf

2. Rosie was registered and listed as a service dog with the New York
Department of Mental Health & Hygiene, but the cooperative still objected
and began eviction proceedings (while still collecting maintenance fees).
The cooperative lost the case.

Gary Wynn v. 405 East 82nd Street Cooperative (01-22-09)

http://www.hud.gov/offices/fheo/enforcement/09_HUD_v_405East82ndStCoop.pdf

3. This is a failure to design for accessibility case. Equity Homes lost
the case and the condominium seems to have disappeared from the case.

Fair Housing of the Dakotas v. Equity Homes, Sertoma Condominium (03-10-09)

http://www.hud.gov/offices/fheo/enforcement/dakota-vs-eh-sertoma.pdf

To Your Pet Owner Empowerment!

Fair Housing Enforcement Cases re Emotional Support Animals originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on April 12, 2009.

UNITED STATES OF AMERICA
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF ADMINISTRATIVE LAW JUDGES
)
The Secretary, United States Department of ) Housing and Urban Development, ) on behalf of )
)
MARIA MOSTAJO and MARK SCHEIN ) on behalf of AARON SCHEIN, )
)
Charging Party, )
) FHEO No. 02-08-0768-8
v. ) THE TOWNSEND HOUSE CORP., )
)
Respondent. )
)
CHARGE OF DISCRIMINATION
JURISDICTION
1. On July 2, 2008, Complainants Maria Mostajo and Mark Schein filed a verified
complaint with the U.S. Department of Housing and Urban Development (“HUD”) on behalf of themselves and their minor child, Aaron Schein. Complainants allege that Respondent refused to grant them a reasonable accommodation in violation of the Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq. (“Act”). In particular, Complainants allege that Respondent unlawfully denied their request to permit their minor child to have a medicallyprescribed emotional support animal as a reasonable accommodation. 42 U.S.C. §§ 3604(0(2), (0(3)(B).
2. The Act authorizes the Secretary of HUD to issue a Charge of Discrimination
(“Charge”) on behalf of aggrieved persons following an investigation and determination that reasonable cause exists to believe that a discriminatory housing practice has occurred. 42 U.S.C. § 3610(g)(1)-(2). The Secretary has delegated to the General Counsel (54 Fed. Reg. 13121), who has re-delegated to the Regional Counsel (67 Fed. Reg. 44234), the authority to issue such a Charge, following a determination of reasonable cause.
3. The Director of the Office of Fair Housing and Equal Opportunity (“FHEO”) for the
New York/New Jersey Region, on behalf of the Assistant Secretary for FHEO, has authorized this Charge because he has determined after investigation that reasonable cause exists to believe that a discriminatory housing practice has occurred. HUD’s efforts to conciliate the complaint were unsuccessful. See 42 U.S.C. § 3610(b).
LEGAL AUTHORITY IN SUPPORT OF CHARGE
4. It is unlawful to discriminate against any person in the terms, conditions, or privileges
of the sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a disability of that person or a person residing in that dwelling after it is sold, rented or made available. 42 U.S.C. § 3604(0(2). Discrimination includes a refusal 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. 42 U.S.C. § 3604(f)(3)(B).
PARTIES:
5. Complainants Maria Mostajo and Mark Schein are tenant-shareholders of Apartment
3F at 176 E. 71st Street, New York, New York 10021. They are the parents of Aaron Schein, an 11-year old boy with disabilities who resides with Complainants (the “Child”). The Child has been diagnosed with Autistic Spectrum Disorder (Asperger’s Syndrome), a pervasive developmental disorder, and Central Auditory Processing Disorder. The Child’s Asperger’s Syndrome combined with his Central Auditory Processing Disorder significantly impair his day-to-day functioning, including his ability to learn, hear and care for himself
6. Respondent is The Townsend House Corp. (“Townsend House”), a private
cooperative development. Townsend House is a 20-story apartment building with 97 cooperative apartments and is located at 176 East 71st Street, New York, New York 10021.
FACTUAL ALLEGATIONS IN SUPPORT OF CHARGE
7. Respondent maintains a policy prohibiting dogs and other pets in the building, even
on a temporary basis. This policy is contained within Respondent’s —House Rules,” which constitute part of the shareholders’ Proprietary Lease Agreement.
8. In or about February 2007, Complainants wrote a letter to Respondent requesting a
reasonable accommodation for their son. Specifically, Complainants requested an exception to the no-pet policy to permit the Child to have a dog as a medicallyprescribed emotional support animal.
9. Complainants’ request informed Respondent of their son’s medical condition and was
accompanied by psychological reports to confirm the Child’s diagnoses and literature outlining the benefits of such a dog.
10. In response to Respondent’s concern that the documentation Complainants previously
provided did not clearly state that the Child suffered a disability that required an emotional support animal, in April 2007, Complainants provided Respondent with
two letters from the Child’s medical providers addressing his disability and recommending a dog as an emotional support animal.
11. On August 1, 2007, David Berkey, counsel for Respondent, informed Complainants
that Respondent asked to have an independent professional retained to confirm the Child’s medical condition, provided Complainants consented and agreed to cover the expense. Complainants objected to having their son subjected to additional evaluation. They suggested to Mr. Berkey that the independent physician speak to the Child’s doctors to obtain any information necessary to make his/her evaluation.
17. On December 5, 2007, Mr. Berkey informed Complainants that Respondent was
considering retaining Dr. Nancy Crown, Ph.D. to evaluate the Child’s medical condition.
13. On December 18, 2007, Mr. Berkey told Complainants that Respondent was ready to
proceed, but required clarification on some issues. Among other things, Respondent wanted to know if Complainants agreed to cover the entire cost of the evaluation, not simply to “share” the cost with Respondent, as well as any legal fees incurred by Respondent in connection with reviewing the request for a reasonable
accommodation.
14. In Dr. Crown’s January 28, 2008 report, she opined that the Child’s condition was a
disability under the ADA and agreed with the previous psychologist’s assessment of the Child’s developmental disability and reasonable recommendation for a dog.
15. In or about March 2008, Mr. Berkey informed Complainants that Respondent had
granted the request, but it was conditioned on Complainants’ agreement to comply with the terms contained in a Pet License Agreement.
16. On May 23, 2008, Mr. Berkey provided Complainants with a revised Pet License Agreement.
17. The Pet License Agreement at issue contained unreasonable restrictions. In pertinent
part, the Pet License Agreement provides:
2. …. The term of this Agreement shall be for so long as [the Child] resides in the Apartment and a therapy animal is helpful for treatment of his disability. Should [the child] leave the apartment for an extended period of time (e.g., to attend preparatory school or college) the dog may not continue to be kept in the Apartment.
3. It is specifically understood and agreed by and between LICENSOR and LICENSEES that this License Agreement and the privilege hereby granted is conditioned upon compliance by LICENSEES with the following terms and conditions:
(a) the dog is for the therapeutic treatment of [the Child] and he should be trained to and be capable of taking care of the dog;
(b) the dog must weigh less than 10 pounds fully grown;
(c) when transporting the dog in the building, the passenger elevator may not be used; the service elevator or the stairs shall be used to transport the dog between floors of the building;
(d) when transporting the dog in the service elevator or public spaces of the building, it must be kept in a carrier case (in such event a leash is not required) or hand carried and on a leash and the dog may not be released from the carrier case or placed on the ground until it is inside your apartment or beyond the doorway of the doctors’ offices located on either side of the building entryway;
(f) the tenace may not be used to exercise the dog or for playing ball or other similar games with the dog;
(g) the dog may not be left alone in the apartment for more than two (2) consecutive hours;
(i) should the dog be walked by professional dog walkers, they shall not tie up any animals on the building property or on the sidewalks in front of the building at any location inside area bounded by the doorways of the doctor’s offices located on either side of the building entryway;
(k) the dog may not be replaced by LICENSEE unless the prior written consent of LICENSOR is obtained pursuant to a new license agreement, which consent shall not be unreasonably withheld or delayed;
(i) LICENSEES must register the dog with the New York City Department of Health and Mental Hygiene (A Board of Health) or other such agency having jurisdiction thereof and provide LICENSOR with proof of such registration;
(n) LICENSEES shall provide LICENSOR with proof of the existence of a Homeowner’s Insurance policy providing liability coverage in the face amount of not less than $1,000,000.00 for bodily injury and property damage or in such other amounts as may be established by the board in its reasonable discretion from time to time.
(vi) LICENSOR, in its reasonable discretion, shall have the right to determine that the dog licensed by it shall be muzzled at such time as the dog is present in a building service elevator, public hallway, stairwell, lobby or other such areas of the property of LICENSOR as may be designated.
(xviii) Complainants objected to restrictions imposed by the Pet License Agreement and
provided alternate language for Respondent’s consideration.
19. On June 23, 2008, Complainant Schein met with Respondent’s Board of Directors to
discuss the terms of the Pet License Agreement, including Complainants’ objections.
20. On June 30, 2008, after consideration of Complainants’ objections and suggested
language, Respondent informed Complainants that it was only willing to adjust the weight limit to that of a fully grown dog up to 25 pounds. Respondent refused to modify or remove any other restriction.
21. The delay since February 2007, in providing Complainants with a timely response to
their reasonable request has prevented treatment for the Child. More specifically, the continued delay caused Complainants to lose opportunities to select an appropriate dog for the Child. It also caused Complainants to lose the opportunity for the Child and dog to attend a training program that was available during the Summer of 2007 and 2008, which would have allowed Complainants to avoid any interference with the Child’s regular school year.
27. Respondent has billed Complainants for the legal services it received in order to
review the request for a reasonable accommodation, as well as for the cost associated with Dr. Crown’s evaluation of the Child.
FAIR HOUSING ACT VIOLATIONS:
23. Respondent has violated the Act because the unreasonable restrictions placed on
Complainants, as well as the unreasonable delay in providing Complainants with a timely response to the request, constitute a discriminatory refusal to make a reasonable accommodation in their rules, policies, practices, or services, when such an accommodation was necessary to afford Complainants and the minor Child an equal opportunity to use and enjoy their dwelling. 42 U.S.C. §§ 3604(0(2), (0(3)(B);
see also 24 C.F.R. § 100.204(a).
CONCLUSION:
WHEREFORE, the Secretary of HUD, through the Office of General Counsel and pursuant to 42 U.S.C. § 3610(g) (2) (A), hereby charges Respondent with engaging in discriminatory housing practices in violation of 42 U.S.C. §§ 3604(0(2), (0(3)(B) and prays that an order be issued that:
1. Declares that the discriminatory housing practices of Respondent as set forth above
violate the Fair Housing Act, 42 U.S.C. §§3601-3619;
2. Enjoins Respondent, its agents, employees, and successors, and all other persons in
active concert or participation with it, from discriminating because of disability against any person in any aspect of the rental, sale, use or enjoyment of a dwelling pursuant to 42 U.S.C. § 3612 (g) (3);
3. Enjoins Respondent, its agents, employees, and successors, and all other persons in
active concert or participation with it, from implementing, applying or otherwise enforcing any policy or practice requiring aggrieved persons to bear costs associated
with making a request for a reasonable accommodation;
4. Awards such damages pursuant to 42 U.S.C. §3612(g) (3) as will fully compensate
Complainants for emotional distress, including embarrassment and humiliation, inconvenience, and economic loss caused by Respondent’s discriminatory conduct;
5. Awards a civil penalty against Respondent for violation of the Act, pursuant to 42
U.S.C. §3612(g) (3); and
6. Awards such additional relief as may be appropriate under 42 U.S.C. §3612(g) (3).
Respectfully submitted,
John J. C6h111
Regional Counsel for New York/New Jersey
Henrye,Schoenfeld
Associate Regional Counsel
for Program Enforcement and Litigation
A. I 41.e1 DeMoura Attorney Advisor
Office of Regional Counsel U.S. Department of Housing and Urban Development 26 Federal Plaza, Room 3500 New York, New York 10278-0068 (212) 542-7734
Date: September 29, 2008

Pets in Condos + Cooperatives: Legal Victory re Emotional Support Animal for Disabled Child originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on March 28, 2009.

The new HUD rules in “no pet” housing are as follows:

1. Specialized task training of ESAs is unnecessary – “emotional support animals do not need training to ameliorate the effects of a person’s mental and emotional disabilities. Emotional support animals by their very nature, and without training, may relieve depression and anxiety, and/or help reduce stress-induced pain in persons with certain medical conditions affected by stress.” (This includes emotional support emotional support dogs and emotional support cats.)

2. Documentation of the need for an ESA may come from a “physician, psychiatrist, social worker, or other mental health professional.” In Florida, “other mental health professionals” refers to the following health care professionals duly licensed by the Florida Department of Health:

* licensed mental health counselors
* licensed clinical psychologists
* licensed clinical social workers
* licensed marriage and family therapists.

Rights Radio Power Hour: How to Look after Your Pet in a Recession

Rights Radio Power Hour: The Houston SPCA (Cable TV’s Animal Planet – Animal Cops Houston)

Rights Radio Power Hour: Pet Food False Advertising Lawsuit – Content of Commercial Pet Foods

Rights Radio: HOA Pet Gate Case Gone Amuck

READ THE RULING HERE!

[Federal Register: October 27, 2008 (Volume 73, Number 208)]
[Rules and Regulations]
[Page 63833-63838]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc08-20]

[[Page 63833]]

———————————————————————–
Part IV

Department of Housing and Urban Development

———————————————————————–
24 CFR Part 5

Pet Ownership for the Elderly and Persons With Disabilities; Final Rule

[[Page 63834]]

———————————————————————–

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-5127-F-02]
RIN 2501-AD31

Pet Ownership for the Elderly and Persons With Disabilities

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

———————————————————————–

SUMMARY: This final rule amends HUD’s regulations governing the
requirements for pet ownership in HUD-assisted public housing and
multifamily housing projects for the elderly and persons with
disabilities. Specifically, this final rule conforms these pet
ownership requirements to the requirements for animals assisting
persons with disabilities in HUD’s public housing programs, other than
housing projects for the elderly or persons with disabilities. This
final rule follows publication of an October 15, 2007, proposed rule,
and takes into consideration the public comments received on the
proposed rule. In response to one comment, HUD has made a
nonsubstantive change to the proposed rule. Specifically, consistent
with the phrasing used in HUD’s public housing pet ownership
regulations, this final rule amends the assisted housing regulations to
refer to “animals that assist, support, or provide service to persons
with disabilities.”

DATES: Effective Date: November 26, 2008.

FOR FURTHER INFORMATION CONTACT: Bryan Greene, Deputy Assistant
Secretary for Enforcement and Programs, Department of Housing and Urban
Development, 451 Seventh Street, SW., Room 5204, Washington, DC 20410-
2000; telephone number 202-619-8046 (this is not a toll-free number).
Hearing- or speech-impaired persons may contact this number by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On October 15, 2007, at 72 FR 58448, HUD published for public
comment a proposed rule to revise HUD’s regulations that apply to pet
ownership in HUD-assisted housing for the elderly and persons with
disabilities.
Certain animals provide assistance or perform tasks for the benefit
of a person with a disability. Such animals, often referred to as
“assistance animals,” “service animals,” “support animals,” or
“therapy animals,” provide disability related functions including,
but not limited to, guiding visually impaired individuals, alerting
hearing-impaired persons to sounds and noises, providing protection or
rescue assistance, pulling a wheelchair, seeking and retrieving items,
alerting individuals to impending seizures, and providing emotional
support to persons who have a disability related need for such support.
The pet ownership requirements applicable to public housing and
multifamily housing projects for the elderly or persons with
disabilities are codified at 24 CFR part 5, subpart C (“Pet Ownership
for the Elderly or Persons With Disabilities”). Conversely, pet
ownership by residents in public housing, except housing projects for
the elderly or persons with disabilities and not including housing
assisted under section 8 of the United States Housing Act of 1937 (42
U.S.C. 1437f et seq.), is addressed at 24 CFR part 960, subpart G
(“Pet Ownership in Public Housing”).
The regulations codified at 24 CFR parts 5 and 960 contain minor
differences in how they describe animals that assist persons with
disabilities that qualify for exclusion from pet ownership rules. In 24
CFR 5.303, entitled, “Exclusion for animals that assist persons with
disabilities,” project owners and public housing agencies (PHAs) may
not apply or enforce any pet rules developed under part 5 against
individuals with animals that are used to assist persons with
disabilities. Part 5, however, provides that owners or PHAs may require
assistance animals to qualify for the exclusion. Project owners must
grant this exclusion if: (1) The tenant or prospective tenant
certifies, in writing, that the tenant or a member of his or her family
is a person with a disability; (2) the animal has been trained to
assist persons with that specific disability; and (3) the animal
actually assists the person with a disability.
In contrast, 24 CFR 960.705, entitled “Animals that assist,
support, or provide service to persons with disabilities,” states that
PHAs may not apply or enforce pet policies established under 24 CFR
part 960 against animals that are necessary as a reasonable
accommodation to assist, support, or provide service to persons with
disabilities. This exclusion applies to animals that reside in public
housing, other than housing developments for the elderly or persons
with disabilities, and to such animals that visit these developments.
The provisions in part 960 do not contain the tenant certification or
the animal training requirements found in Sec. 5.303. PHAs, however,
are authorized to verify that the animal qualifies as a reasonable
accommodation under section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) (Section 504) and the Fair Housing Act (Title VIII of the
Civil Rights Act of 1968, as amended (42 U.S.C. 3601-3631)). An animal
qualifies as a reasonable accommodation if: (1) An individual has a
disability, as defined in the Fair Housing Act or Section 504, (2) the
animal is needed to assist with the disability, and (3) the individual
who requests the reasonable accommodation demonstrates that there is a
relationship between the disability and the assistance that the animal
provides.
Although the differences between the exclusions contained in HUD’s
two pet ownership regulations are minor, the differing requirements
have sometimes been a source of confusion to housing providers and
program participants. The October 15, 2007, proposed rule addressed
this issue by proposing to revise the pet ownership regulations in 24
CFR part 5, subpart C to comport with 24 CFR part 960, subpart G. The
proposed regulatory amendments were designed to reduce confusion and
make it clear that the same exclusions for animals that assist persons
with disabilities apply to the pet ownership requirements for all of
HUD’s public and assisted housing programs. The amendments do not
change existing HUD policy, which applies Fair Housing Act and Section
504 reasonable accommodation principles. Interested readers should
refer to the preamble of the October 15, 2007, proposed rule for
details regarding the proposed regulatory amendments to 24 CFR part 5.

II. This Final Rule; Change Made to the October 15, 2007, Proposed Rule

This final rule follows publication of the October 15, 2007,
proposed rule and takes into consideration the public comments received
on the proposed rule. The public comment period on the proposed rule
closed on December 14, 2007, and HUD received 28 public comments.
Comments were received from PHAs, operators of HUD-assisted housing for
the elderly and persons with disabilities, a state human rights
commission, nonprofit and trade organizations engaged in affordable
housing and community development programs, and other interested
parties and stakeholders.
After careful consideration of the issues raised by the commenters,
HUD has made one change at the suggestion of public comment.
Specifically, HUD has taken the opportunity afforded by this final rule
to conform the phrasing used in 24 CFR part 5, subpart C, to

[[Page 63835]]

qualify assistance animals to the phrasing used in 24 CFR part 960,
subpart G. This change does not alter the substance of the part 5
requirements, but is designed to bring greater uniformity and clarity
to HUD’s pet ownership regulations.

III. Discussion of the Public Comments on the October 15, 2007,
Proposed Rule

This summary of comments presents the major issues and concerns
raised by the public commenters on the October 15, 2007, proposed rule,
and HUD’s responses to those issues.
Comment: Every elderly person should be allowed a pet. One
commenter expressed the view that every elderly person should be
allowed to have a pet, without restriction or certification.
HUD Response. The Department’s existing regulations that apply to
pet ownership in HUD-assisted housing for the elderly and persons with
disabilities in 24 CFR 5.315 already provide that residents may keep
common household pets in accordance with the prescribed mandatory and
discretionary pet rules in Sec. Sec. 5.350 and 5.318. The prescribed
pet rules place reasonable limitations on pet ownership to ensure the
health, safety, and well-being of all residents. The pet ownership
conditions in 24 CFR 960.707 for public housing excluding housing for
the elderly or persons with disabilities contain a similar provision
permitting common household pets, subject to the reasonable
requirements of the PHA.
Comment: The proposed definition of service animal is too broad,
and, therefore, ripe for abuse. Several commenters wrote that the
proposed revision to the definition of “service animal” in Sec.
5.303 would potentially include all animals as assistive or supportive,
without regard to whether the animal had been trained to assist persons
with a specific disability. The commenters wrote that, to date, the
term “service animal” has had a narrow definition relating to animals
with specialized training to assist persons with disabilities for
specific purposes. The commenters wrote that the proposed change would
create an ambiguity regarding what animals are permitted to reside in
HUD-assisted housing. The commenters suggest that the alleged vagueness
of the language will force property owners to make subjective decisions
that may, in turn, lead to increased litigation, resulting in
significant economic burden, especially for smaller PHAs. The
commenters objected that the proposed rule would deter property
managers from establishing policies to ensure that animals brought into
the property are needed as a reasonable accommodation, and would create
a situation in which a tenant can allege a right to keep any pet as a
service animal.
HUD Response. The Department does not agree that the revision
broadens the scope of service animals in housing. The Department does
not believe the final rule will create either ambiguity regarding which
animals are permitted or lead to a situation in which a tenant can
allege a right to keep any pet as a service animal. The Department’s
regulations do not provide a specific definition of the term “service
animal.” The use of assistive animals, also referred to as “service
animals,” “support animals,” “assistance animals,” or “therapy
animals,” is governed by reasonable accommodation law. The
Department’s revision is not altering existing law on reasonable
accommodation. Rather, by amending the language of the part 5 exclusion
to correspond to Sec. 960.705, the Department is conforming the part 5
regulation to statutory authority and to a longstanding HUD position on
reasonable accommodation. Under both the Fair Housing Act and Section
504, in order for a requested accommodation to qualify as a reasonable
accommodation, the requester must have a disability, and the
accommodation must be necessary to afford a person with a disability an
equal opportunity to use and enjoy a dwelling. To show that a requested
accommodation may be necessary, there must be an identifiable
relationship, or nexus, between the requested accommodation and the
person’s disability. Thus, in the case of assistance/service animals,
an individual with a disability must demonstrate a nexus between his or
her disability and the function the service animal provides. The
Department’s position has been that animals necessary as a reasonable
accommodation do not necessarily need to have specialized training.
Some animals perform tasks that require training, and others provide
assistance that does not require training. This position is also
articulated in the Public Housing Occupancy Guidebook and the
Multifamily Occupancy Handbook.
Housing providers are entitled to verify the existence of the
disability, and the need for the accommodation–if either is not
readily apparent. Accordingly, persons who are seeking a reasonable
accommodation for an emotional support animal may be required to
provide documentation from a physician, psychiatrist, social worker, or
other mental health professional that the animal provides support that
alleviates at least one of the identified symptoms or effects of the
existing disability.
In addition, housing providers are not required to provide any
reasonable accommodation that would pose a direct threat to the health
or safety of others. Thus, if the particular animal requested by the
individual with a disability has a history of dangerous behavior, the
housing provider does not have to accept the animal into the housing.
Moreover, a housing provider is not required to make a reasonable
accommodation if the presence of the assistance animal would (1) result
in substantial physical damage to the property of others unless the
threat can be eliminated or significantly reduced by a reasonable
accommodation; (2) pose an undue financial and administrative burden;
or (3) fundamentally alter the nature of the provider’s operations.
For an extensive discussion of reasonable accommodation principles,
see the “Joint Statement of the Department of Housing and Urban
Development and the Department of Justice: Reasonable Accommodations
Under the Fair Housing Act” (HUD/DOJ Joint Statement), available at:

http://www.hud.gov/offices/fheo/disabilities/index.cfm.

Comment: The proposed elimination of the animal training
requirement may result in further confusion and lead to abuse. Several
commenters, raising concerns similar to those raised by the comments on
the definition of a service animal, objected to the elimination of the
training and certification requirements. The commenters wrote that the
proposed rule would open the door to abuse by allowing a tenant to
obtain an animal without any verification of need. To expand the
definition of animals exempt from the pet rules, while at the same time
prohibiting property managers from confirming the need for the animal,
might lead to litigation and other costly expenditures. The commenters
wrote that the operative effect of the proposed amendment would be to
exclude from any regulation at all, under either part 5 or part 960,
not only animals that meet the traditional criteria for assistive or
service animals, but also animals that have come to be known as
“comfort pets.”
HUD Response. The Department believes removing the animal training
and certification requirements and conforming the language of the part
5 exclusion to Sec. 960.705 will actually result in less confusion by
improving uniformity in its regulations and by

[[Page 63836]]

conforming the regulations to HUD policy and existing case law. The
Department does not believe that the elimination of the training
requirement will in effect exclude all animals from the regulatory
requirements. Under amended Sec. 5.303, the animal must be “necessary
as a reasonable accommodation to assist, support, or provide service to
persons with disabilities” in order to qualify under the exclusion
from pet ownership policies. Persons with disabilities who cannot
establish that they need the animal as a reasonable accommodation are
not covered by the exclusion, and, therefore, must comply with the
housing provider’s pet rules if they wish to keep the animal.
Both the Fair Housing Act and Section 504 require that in order to
qualify as a reasonable accommodation, the requester must have a
disability, and there must be a relationship between the requested
accommodation and that person’s disability. For example, the person
with a disability who is requesting the assistance animal must
demonstrate a disability-related need for the animal, such as service,
or assistance, performing tasks for the benefit of a person with a
disability, or providing emotional support that alleviates one or more
identified symptoms or effects of a person’s disability. Examples of
disability-related functions, include, but are not limited to, guiding
individuals who are blind or have low vision, alerting individuals who
are deaf or hard of hearing to sounds, providing rescue assistance,
pulling a wheelchair, fetching items, alerting persons to impending
seizures, or providing emotional support to persons with disabilities
who have a disability-related need for such support.
Finally, the Department believes that removing the animal training
requirement ensures equal treatment of persons with disabilities who
need animals in housing as a reasonable accommodation, for a wide
variety of purposes. While many animals are trained to perform certain
tasks for persons with disabilities, others do not need training to
provide the needed assistance. For example, there are animals that have
an innate ability to detect that a person with a seizure disorder is
about to have a seizure and can let the individual know ahead of time
so that the person can prepare. This ability is not the result of
training, and a person with a seizure disorder might need such an
animal as a reasonable accommodation to his/her disability. Moreover,
emotional support animals do not need training to ameliorate the
effects of a person’s mental and emotional disabilities. Emotional
support animals by their very nature, and without training, may relieve
depression and anxiety, and/or help reduce stress-induced pain in
persons with certain medical conditions affected by stress.
Comment: Proposed elimination of training component is inconsistent
with the regulations implementing the Americans with Disabilities Act.
Several commenters wrote that the applicable definition of the term
“service animal” is contained in the Department of Justice
regulations implementing the Americans with Disabilities Act (ADA) (42
U.S.C. 12101 et seq.). The commenters wrote that HUD regulations have
never specifically defined the term “service animal.” Under the ADA
regulations at 28 CFR 36.104, a service animal is defined as an animal
“individually trained” to do work or perform tasks for the benefit of
an individual with a disability. The commenters wrote that this
definition covers both ADA claims and claims under Section 504, which
HUD is responsible for enforcing. Also according to the commenters, by
eliminating the training requirement, the proposed rule contradicts the
ADA definition.
HUD Response. The Department does not agree that the definition of
the term “service animal” contained in the Department of Justice
regulations implementing the ADA should be applied to the Fair Housing
Act and Section 504. The ADA governs the use of animals by persons with
disabilities primarily in the public arena. There are many areas where
the ADA and the Fair Housing Act and Section 504 contain different
requirements. For example, accessibility is defined differently under
the ADA than under the Fair Housing Act and Section 504.
The Fair Housing Act and HUD’s Section 504 regulations govern the
use of animals needed as a reasonable accommodation in housing. HUD’s
regulations and policies pertaining to reasonable accommodation were
constructed specifically to address housing and, furthermore, were
enacted prior to the development and implementation of the ADA
regulations. Thus, the requirements for assistance/service animals must
be evaluated in the appropriate context of housing, and are independent
of the ADA regulations that were formulated to meet the needs of
persons with disabilities in a different context and were adopted
subsequent to HUD’s regulations.
There is a valid distinction between the functions animals provide
to persons with disabilities in the public arena, i.e., performing
tasks enabling individuals to use public services and public
accommodations, as compared to how an assistance animal might be used
in the home. For example, emotional support animals provide very
private functions for persons with mental and emotional disabilities.
Specifically, emotional support animals by their very nature, and
without training, may relieve depression and anxiety, and help reduce
stress-induced pain in persons with certain medical conditions affected
by stress. Conversely, persons with disabilities who use emotional
support animals may not need to take them into public spaces covered by
the ADA.
Comment: The regulations should clarify that reasonable rules may
be established to address health and safety concerns. Several
commenters wrote that the proposed regulatory changes might create an
unsafe living environment. These commenters wrote that the proposed
rule has the potential to increase the number and types of animals
living in assisted housing. The commenters suggested that the
regulatory language be revised to clarify that project owners are
permitted to establish reasonable rules to address legitimate concerns
for the safe and sanitary management of all animals who live on the
premises. These basic requirements include ensuring that animals are
properly inoculated; meet minimal sanitary standards; are properly
restrained; and are identified and registered with the project owner.
The commenters wrote that the rights of all tenants deserve respect,
and that reasonable regulations to ensure health, safety, and quiet
enjoyment should maintain that respect without denying residents the
right to have animals.
HUD Response. The rule will not interfere with the ability of
housing providers to address health and safety concerns that arise with
respect to assistance animals. The final rule at Sec. 5.303(b)(3)
states that nothing in subpart C “affects any authority that project
owners or PHAs may have to regulate animals that assist, support, or
provide service to persons with disabilities, under federal, state, or
local law.” Project owners and PHAs thus continue to retain their
authority to regulate animals that are exempt from the pet ownership
requirements in accordance with federal, state, or local law.
In addition, a person with a disability who uses an assistance
animal is responsible for the animal’s care and maintenance. For
example, a housing provider may establish reasonable rules in lease
provisions requiring a person

[[Page 63837]]

with a disability to pick up and dispose of his or her assistance
animal’s waste.
The existing law on reasonable accommodation also addresses health
and safety concerns. Under the Fair Housing Act, a housing provider
need not make a dwelling available to any person whose tenancy
constitutes a direct threat to the health or safety of other
individuals or whose tenancy would result in substantial physical
damage to the property of others. Consistent with that provision of the
Fair Housing Act, a housing provider may exclude an assistance animal
from a housing complex when that animal’s behavior poses a direct
threat and its owner takes no effective action to control the animal’s
behavior so that the threat is mitigated or eliminated.
The determination of whether an assistance animal poses a direct
threat must rely on an individualized assessment that is based on
objective evidence about the specific animal in question, such as the
animal’s current conduct or a recent history of overt acts. The
assessment must consider the nature, duration, and severity of the risk
of injury; the probability that the potential injury will actually
occur; and whether reasonable modifications of rules, policies,
practices, procedures, or services will reduce the risk. In evaluating
a recent history of overt acts, a provider must take into account
whether the assistance animal’s owner has taken any action that has
reduced or eliminated the risk. Examples would include obtaining
specific training, medication, or equipment for the animal.
This direct threat provision of the Fair Housing Act requires the
existence of a significant risk–not a remote or speculative risk.
Accordingly, the determination cannot be the result of fear or
speculation about the types of harm or damage an animal may cause, or
evidence about harm or damage caused by other animals (See HUD/DOJ
Joint Statement).
Comment: Need for further guidance. Two commenters wrote that the
issuance of formal legal guidance on the general requirement to provide
reasonable accommodation to allow “animals that assist, support, or
provide service to persons with disabilities” would be of great
assistance to all concerned in the field. Such guidance would provide
an invaluable sequel to the HUD/DOJ Joint Statement.
HUD Response. The Department appreciates the commenters’ interest
in obtaining additional legal guidance. The HUD/DOJ Joint Statement and
HUD’s policy manuals and handbooks, including the Public Housing
Occupancy Guidebook and the Multifamily Occupancy Handbook, currently
provide applicable guidance on reasonable accommodation law. This rule
does not alter existing law, which under both the Fair Housing Act and
Section 504 requires that in order to qualify as a reasonable
accommodation: (1) The requester must have a disability, and (2) there
must be a relationship between the requested accommodation and the
person’s disability. Once this final rule takes effect, the Department
will carefully consider, in light of the revisions in Sec. 5.303,
whether there is a need to issue further guidance on reasonable
accommodation.
Comment: Efforts to achieve uniformity in HUD’s pet regulations
should involve conforming 24 CFR part 960 to 24 CFR part 5, not the
other way around. Three commenters wrote that this action would more
accurately reflect the position of the Department of Justice and
federal judicial decisions. In seeking internal uniformity within its
own regulations, HUD may actually be creating disunity in the legal
principles applicable to service animals that are to be applied across
the federal government.
HUD Response. The Department does not agree that uniformity should
be achieved by conforming 24 CFR part 960 to 24 CFR part 5. The HUD
regulations addressing pet ownership in public housing do not include
training or certification requirements and exclude from coverage of the
regulation animals that “assist, support or provide service to persons
with disabilities” (24 CFR 960.705). It is the Department’s position
that animals that are necessary as a reasonable accommodation do not
necessarily need to be trained or meet certification requirements. This
position is consistent with HUD Administrative Law Judge decisions, and
with HUD handbooks and guidance used by the HUD Office of Housing and
Office of Public and Indian Housing.
In addition, the Department’s position is consistent with federal
case law that has recognized, in cases involving emotional support
animals in the housing context, that whether a particular accommodation
is reasonable is a fact-intensive, case-specific determination (Janush
v. Charities Hous. Dev. Corp., 159 F. Supp. 2d 1133 (N.D. Cal. 2000);
Majors v. Hous. Auth. of the County of DeKalb, Ga., 652 F.2d 454, 457-
58 (5th Cir. 1981) (remanding the case for trial on whether the
plaintiff’s disability required the companionship of a dog).
The Department recognizes that its regulations continue to provide
guidance on service animals that differs from the Department of
Justice’s regulations implementing the ADA–which define service
animals as “individually trained.” However, there are legitimate
reasons why the Fair Housing Act and housing covered under Section 504
must cover emotional support animals, as well as other animals that may
not need training to provide assistance to persons with other
disabilities and that are not included under the ADA. In particular,
assistance animals provide specific functions for persons with mental
and emotional disabilities in the private setting of the home and do
not require training. Generally, these animals are not needed in the
public spaces covered by the ADA.
Comment: The proposed language should be revised to make it fully
uniform with the language of 24 CFR 960.705. One commenter wrote that
uniformity among the regulations will not be achieved until all of the
phrasing used to qualify the type of animals exempt from project
owners’ pet rules is the same.
HUD Response. HUD agrees with the suggestion made by the commenter,
and has revised the rule accordingly. HUD has taken the opportunity
afforded by this final rule to conform the phrasing used in 24 CFR part
5 to qualify assistance animals to the phrasing used in the part 960
pet regulations. This change does not alter the substance of the part 5
requirements, but is designed to bring greater uniformity and clarity
to HUD’s pet ownership regulations. Specifically, and in accordance
with the part 960 language, this final rule amends Sec. 5.303 to
consistently refer to “animals that assist, support, or provide
service to persons with disabilities.” Section 5.303 currently refers
to “animals that assist persons with disabilities.”
Comment: HUD should assess federal best practices regarding service
animals. One commenter suggested that HUD should assess federal best
practices concerning service, assistance, and companion animals
implemented by other federal departments.
HUD Response. The Department appreciates this comment and
recognizes the value of evaluating federal best practices in order to
best meet the needs of persons with disabilities. Once the final rule
takes effect, the Department will consider whether further guidance is
needed to ensure consistent application. At that time, the Department
may elect to consider the policies of other federal departments.
However, the needs of persons with disabilities in the housing arena
are distinct from other settings,

[[Page 63838]]

such as in the public arena or in transportation. The Department must
rely on its expertise specifically in the realm of HUD-assisted housing
for the elderly and persons with disabilities and in public housing to
best assess the rights and obligations of persons with disabilities and
housing providers relating to the use of assistance animals.

IV. Findings and Certifications

Environmental Impact

This final rule involves a policy document that sets out
nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3),
this rule is categorically excluded from environmental review under the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements, unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. This final rule does
not change existing HUD policy, which applies Fair Housing Act and
Section 504 reasonable accommodation principles. Rather, the final rule
conforms the pet ownership and exclusion provisions for animals that
assist persons with disabilities contained in 24 CFR part 5, subpart C,
with the provisions for assistance animals and reasonable accommodation
for persons with disabilities contained in 24 CFR part 960, subpart G.
As discussed above in this preamble, most of the differences between
the two pet ownership regulations are minor and nonsubstantive. For
example, the regulations currently use different phrasing, which is
being conformed in this final rule. The most substantive change being
made by this final rule is the removal of the animal training and
tenant certification requirements currently codified at Sec. 5.303. To
the extent this final rule has any impact on small entities, it would
be to reduce the administrative and economic burdens associated with
the oversight of these animal training and certification requirements.
Accordingly, the undersigned certifies that this rule will not have
a significant economic impact on a substantial number of small
entities.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies
to assess the effects of their regulatory actions on state, local, and
tribal governments and the private sector. This rule does not impose
any federal mandate on state, local, or tribal government or the
private sector within the meaning of UMRA.

Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency
from publishing any rule that has federalism implications, if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule does not have federalism
implications and does not impose substantial direct compliance costs on
state and local governments nor preempt state law within the meaning of
the Executive Order.

List of Subjects in 24 CFR Part 5

Administrative practice and procedure, Aged, Claims, Crime,
Government contracts, Grant programs–housing and community
development, Individuals with disabilities, Intergovernmental
relations, Loan programs–housing and community development, Low and
moderate income housing, Mortgage insurance, Penalties, Pets, Public
housing, Rent subsidies, Reporting and recordkeeping requirements,
Social Security, Unemployment compensation, Wages.

0
Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR
part 5 to read as follows:

PART 5–GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS

0
1. The authority citation for part 5 continues to read as follows:

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437f, 1437n, 3535(d),
and Sec. 327, Pub. L. 109-115, 119 Stat. 2936.

0
2. Revise Sec. 5.303 to read as follows:

Sec. 5.303 Exclusion for animals that assist, support, or provide
service to persons with disabilities.

(a) This subpart C does not apply to animals that are used to
assist, support, or provide service to persons with disabilities.
Project owners and PHAs may not apply or enforce any policies
established under this subpart against animals that are necessary as a
reasonable accommodation to assist, support, or provide service to
persons with disabilities. This exclusion applies to animals that
reside in projects for the elderly or persons with disabilities, as
well as to animals that visit these projects.
(b) Nothing in this subpart C:
(1) Limits or impairs the rights of persons with disabilities;
(2) Authorizes project owners or PHAs to limit or impair the rights
of persons with disabilities; or
(3) Affects any authority that project owners or PHAs may have to
regulate animals that assist, support, or provide service to persons
with disabilities, under federal, state, or local law.

Dated: October 10, 2008.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E8-25474 Filed 10-24-08; 8:45 am]

BILLING CODE 4210-67-P

Pets in Condos: New HUD Rules re Training Emotional Support Animals originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on February 24, 2009.

Hi Joyce,

Thank you for your support. It was an unbelievable battle, and I still have many wounds. My ‘fight for justice’ has affected my personal and public life negatively. It all began when I had a serious fall out of my wheelchair on 1-27-08. As I was trying to open the door while holding my young Lhasa Apso dog back, so that he wouldn’t get out the door, I literally "fell on my face." I went to the emergency room at Blake Medical Center for emergency services, which included X Rays of my head and facial bones. The cost of that visit was $948.00 and I soon had a black eye and the right side of my face was swollen and bruised from my hairline to my chin.

Needless to say, my co-owner Jim was upset. I had previously injured myself in other similar instances. He decided to "fix the problem," and I told him that I was allowed to make my home accessible through ADA. Jim installed a dog gate in the patio area to keep the dogs safe and secured. They could easily access the patio by a doggy door in the living room.

Everyone knew that I did not personally do the work and install the gate, but I was given a "Violation" in my name only. I was ordered to take the gate down by an attorney who represents our management company and three Board of Directors members. I am treasurer of the board and knew nothing about the intention to issue me this violation; another director hadn’t been consulted either. I quickly learned that ADA covers public property only. HUD manages private property. I contacted the Florida Commission on Human Relations. I felt they were showing me blatant discrimination.

I was a coordinator of the Peer program at the Metropolitan Center for Independent Living, MCIL, before I moved to Florida in 2001. I was familiar with the rights of People with Disabilities, PWDs, through ADA, etc. Norm Coleman was the mayor of Saint Paul, MN when I was about to move. I was on the Mayors Advisory Committee for PWDs since 1994: he is now a MN Senator. As I was preparing to move, Mayor Norm Coleman proclaimed Feb 21, 2001 "Linda Lattin Day" for all my work and contributions that I gave to all people in the city. I was very honored: I thought you had to be dead to have a day dedicated to you!

In an unbelievable amount of emails from the board ordering me to take the gate down, the president said: "There is no way this is a case of discrimination. If anyone should feel harassed it is Ellen and I who keep getting the ADA thrown in our faces. All you had to do is consult the board. And if we let board members go ahead and do things without following procedure, what does that say to the rest of the community? Procedures still need to be followed, even by people with disabilities. You have gone ahead and had work done on your unit without getting approval (that probably would have been if all the facts and reasons had been given) and then cried discrimination. It is what gives people with disabilities a bad name."

On 6-25-08 the Respondents: three board of directors & the management company agreed to "ensure to the best of its ability, that its policies, performance and conduct shall continue to demonstrate a firm commitment to the Florida Civil Rights Act of 1992, as amended Sections 760.20-37, Florida Statutes, (2005) and the Civil Rights Act of the United States (42 U.S.C. 1981 and 1982 and 3601 et. seq.)

They "agreed that Board members, employees, agents and representatives shall continue to deal in an equal and impartial manner, without regard to race, color, religion, sex, national origin, handicap, or familial status, with all persons making inquiry for rental and/or purchase, and with any buyers, prospective buyers, tenants, prospective tenants, application for rental or purchase, and all persons enjoying, or seeking to enjoy residency and services and privileges afforded therewith."

"It is understood that this agreement does not constitute a judgment on the part of the Commission that did nor did not violate the Fair Housing Act of 1983, as amended, Section 760.20-37, Florida Statutes (2002). The Commission does not waive its rights to process any additional complaints against the Respondents, including a complaint filed by a member of the Commission."

"Respondent agrees to waive and release any and all claims against the Complainant with respect to any matters which were or might have been alleged in the complaint filed with the Commission or with the United States Secretary of Housing and Urban Development, and agree not to institute a lawsuit based on the issues alleged in these complaints under any applicable ordinance or statute in any court of law appropriate jurisdiction as to the date of this Agreement." and so on, and so on.

Their reason for giving me the violation was "because she didn’t ask."

The "Conciliation Agreement" includes "Complainant agrees to refrain from making false, defamatory, or disparaging comments, in any manner or medium, including the painting of messages on her vehicle, about the Condominium Association, Inc.; any member of it’s Board of Directors; Condominium Management Services, Inc.; or any employee of the Condominium Management Services, Inc. regarding the issues raised in her complaint, or the issues that could have been raised in her complaint."

I have quoted the "Conciliation Agreement; FCHR No.: 28-92497, HUD No. 04-08-0807-8 directly. I am not making false, defamatory, or disparaging comments.

Ultimately I wish I could afford to buy a home elsewhere and leave the respondents in my dust, but I live on my SSDI, which is below the poverty level, and I feel lucky to have a home!

Thank you for your kind words and thoughts.

Sunshine & Smiles,
Linda L. Lattin

HOA Pet Gate Case Gone Amuck originally appeared on Rights Radio™ with Dr. Joyce Starr - An Independent Voice on July 30, 2008.