Under the Americans with Disabilities Act (“ADA”), service animals and other assistance animals (commonly referred to as “support animals”) are considered two different things. A service animal is defined as being a “dog that has been individually trained to do work or perform tasks for an individual with a disability[…].”[1] Those tasks that the dog performs must be specifically related to the disability that the person has. In contrast, support animals need not have been trained to perform work or tasks in order to be considered a support animal. Support animals may do work, perform tasks, provide assistance, and/or provide therapeutic emotional support with respect to an individual’s disability. They often provide therapy or comfort. In practice, this seems like just about every pet! However, the U.S. Department of Housing and Urban Development (“HUD”) assure us that “[a]ssistance animals are not pets.”[2]
Nonetheless, the difference between the two classifications matters tremendously for homeowner associations making a determination on whether to grant an accommodation under the Fair Housing Act (“FHA”). As the HUD has made clear, complaints regarding denial of reasonable accommodations and disability access constitute 60% of all FHA complaints and those complaints that involve reasonable accommodations for service animals are rising rapidly.[3] Federal and state law afford certain protections to service animals that do not extend to support animals.
South Carolina has looked to address the growing dispute arising from the common blur between the two classes of assistance animals.
In 2019, the South Carolina legislature passed a bill that made it unlawful to intentionally misrepresent an animal as a service animal.[4] As the bill outlined, a growing number of individuals had begun to misrepresent their pets as service animals by putting vests on them and attempting to take them into places they would otherwise not be allowed. The effect of such misrepresentations delegitimize service animals and cause distrust among business owners and other places of public accommodation or housing. Under the new law, misrepresenting a pet as a service animal constitutes a misdemeanor and could subject you to fines up to $250 for a first offense and up to $1,000 dollars for a third or subsequent offense. Big money, right?!
There is guidance available from both federal and state authorities to assist homeowner associations in handling requests to accommodate assistance animals.
Persons seeking an accommodation for a service animal where it is not readily apparent that the dog is trained to do work or perform tasks for the benefit of a person who has disability, may be asked two questions: (1) Is the dog required because of a disability; and (2) What work or task has the animal been trained to perform? If the answer to question (1) is yes and the requestor provides the information sought by question (2), the homeowner association should grant the accommodation, so long as it is reasonable. A homeowner association should not ask for details about the person’s disability or for documentation. That’s right, a service animal owner’s word is golden! The irony of this HUD guidance paired with our own state’s rampant service animal misrepresentations necessitating the passage of criminal laws is not lost on me.
In contrast, a homeowner association may make further inquiry into a request to accommodate a support animal. If a person seeking an accommodation for a support animal does not have an observable disability or the homeowner association does not have any information indicating the person has a disability, the homeowner association may ask for information, which may include documentation from a health care professional, that reasonably supports that the person has a disability. The homeowner association may also ask the person to provide information which reasonably supports that the animal provides some level of support with respect to the person’s disability. If the requestor is able to provide such information/documentation, the homeowner association should grant the accommodation, so long as it is reasonable. As more and more people look to obtain accommodations for their animals, homeowner associations should look to both federal and state guidelines as well as consult with their community association attorney.
Article written by Valerie Garcia Giovanoli
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[1] 28 C.F.R. §§ 35.104; 36.104.
[2] FHEO-2020-01. (emphasis in original).
[3] Id.
[4] S.C. Code Ann. § 47-3-980.