Don't Get Sued Over Pet Policies

Are you prepared when a resident claims their parakeet is an emotional support animal? Co-op and condo board members can't afford to mishandle service animal accommodation requests — one wrong move could trigger costly discrimination lawsuits and fines.  In this episode, Maria Boboris, a partner at Boyd Richards Parker Colonnelli, clarifies the crucial distinctions between service animals and emotional support animals in NYC. Learn exactly when you can request documentation and when you legally cannot. Habitat’s Paula Chin conducts the interview.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors, and my guest today is Maria Boboris, an associate at Braverman Greenspun. Most co-ops have rules about pet ownership, and it is within their authority to restrict ownership of pets.

However, that isn't the case when it comes to service and assistance animals. Many boards, however, aren't clear on the rules which can sometimes get them in trouble. Maria, can you set the background for us and tell us the basic rules? 

Maria Boboris: Sure. I'll start from the top, Paula, and first thank you for having me.

So under the Federal Housing Act, the FHA and both New York state and city human rights laws, it is unlawful for a housing provider to deny a reasonable request to a person with a disability who may need it in order to have an equal opportunity to enjoy a dwelling. And by dwelling I mean their apartment as well as the common areas of the building.

And one of the most common requests that co-op and condo boards are receiving are reasonable accommodations to these pet policies or no animal policies that many buildings in the city have so that they may be able to harbor an assistant animal. And as you said, I think it's very important for boards to understand how to navigate these requests in order to avoid being the subject of a discrimination lawsuit.

Just by way of background, Paula, I just wanna give you some statistics. About 60% or more of the FHA claims that are filed deal with the denial of a reasonable accommodation. And many of those now increasingly deal with the denial of a reasonable accommodation for these assistance animals.

And the bulk of those, where discrimination is found, it's the case where the person asking for the reasonable request has a disability, either mental or physical, that's not readily apparent. So HUD has put together some guidelines that help assist housing providers to navigate these requests and ascertain whether or not it's a legitimate request for an assistance animal that is needed, or whether it's a person without a disability who is looking to get around a pet ban or having to pay a pet fee.

Paula Chin: Maria, can I jump in here? Is there a difference between an assistance animal and an emotional support one? I imagine what's tricky for boards is, what constitutes a reasonable request and what documentation does somebody have to provide the board to ensure that in fact it's a legitimate request?

Maria Boboris: So Paula, that's a little bit of a loaded question, so I'm gonna have to walk through it kind of part by part. Assistance animal is an umbrella term that encompasses both service animals and emotional support animals.

So the first question to ask is what type of animal is the request being made for? If it's a service animal, can't ask for documentation. And if it's an emotional support animal, you can, but again, that's also a little bit nuanced, which is, something I kind of wanna get into what the guidelines suggest, so I'll start with service animals.

In New York, actually, federally, a service animal can only be a dog. And most recently they've added miniature ponies. So you could have a miniature pony as well 'cause they're trainable, in order to, provide a service to a person with a disability. 

Paula Chin: That's allowable in New York City? 

Maria Boboris: It's federally allowable.

The ADA added it as a assistant animal, on the list of service animals along with dogs. I have not seen it , any requests made for a pony. . I imagine in the city it might be more difficult, which we can get into later with the reasonableness of it, right? If your apartment or the elevator can't accommodate a pony, then you know, you might have grounds to possibly deny.

But again, these are all case by case basis. First you wanna establish whether or not it's a service animal or an emotional support animal 'cause that dictates what information you can ask of the person making the request. Let's go with service animals. The next question you wanna ask is whether or not the disability is readily observable. So for instance, if you have someone who's using a guide dog because they're visually impaired, you wouldn't ask them for anything, right? You can tell that the service animal is assisting them with their visual impairment.

And in that case, as long as the request is reasonable, you permit the service animal in the building. It gets trickier where the request is, coming from someone whose disability isn't readily apparent. In that instance, you can ask whether or not the animal is a service animal, whether the person has a disability, and if the animal is trained to perform a task that assists with that disability.

And what that task is. You cannot ask for documentation with respect to the disability. And you can't ask for, documents demonstrating that the animal is trained. 

Paula Chin: Maria, doesn't that leave the door wide open for anyone to claim something because they don't have to provide any documentation of either their disability or that the animal is in fact a service or a support animal? 

Maria Boboris: They'll have to answer the question of what task the animal is trained to do. That they have to give you the information, and then it's up to the board or the person receiving that information to ascertain the veracity of it. 

The reason that these guidelines exist is because there certainly are people who try to claim that their animal is a service animal or a emotional support animal to get around these. On the flip end, there's a lot of people who need these reasonable accommodations.

Maria Boboris: So it's important , to be careful. An example of a service animal for, a disability that's not readily apparent would be a diabetic alert dog. . So if someone tells you that their dog is required, 'cause it detects when their sugar levels are low.

I think in that instance a board, unless there's another reason to deny 'cause it's not reasonable, should permit that animal to be in the building. 

Paula Chin: And if this is the case in which they can ask for documentation that this animal is trained to do that. 

Maria Boboris: Unfortunately, you cannot ask for documentation. With the service animal, it's under the ADA. It's a little stricter with respect to what you can ask for. So you can ask, do you have a disability? And is the dog or pony trained to do a task that's necessary for your disability. With service animals, again, the ones that we think of normally are for readily apparent disabilities, someone in a wheelchair, someone who's visually impaired.

But again, there are also invisible disabilities that require service animals. So again, it's a very discretionary, there's no bright line rules. Boards have to use their their discretion in trying to ascertain whether the information they're receiving seems legitimate. 

Paula Chin: Now, can boards impose any sort of limitations at all?

When you say that service animals can only be dogs or miniature horses, can boards, limit it to certain kinds of breeds? Can they put certain conditions, for example, that the animal has to be on a leash or has to take a service elevator if there is one? Issues that come about when the rights of the other residents , could be impacted by the service animal.

Maria Boboris: Okay. I will answer this question, but I wanna talk about other animals could fall into the, emotional support animals. I'll start with the questions that you ask. So you cannot put any restrictions on the breed, the size, or the weight of a dog when it's a service animal.

So if, there are definitely some buildings who will limit the size of the dog. They only want dogs that are under 30 pounds. You would have to make a reasonable accommodation to that rule in the case of a service animal. With respect to, where you can limit, I recommend that boards not, limit where people can go with the dogs.

It really is case dependent. There was a case that where somebody wanted to take their dog into a play area where there were kids and they didn't have a child. So it was found that they didn't reasonably need to be in that play area to enjoy their dwelling. But I would argue that, they would need to be in the regular elevator to have the same access that everyone else does.

You don't want to have them going out the back door or using separate elevators. I think that doesn't give people equal access to their housing accommodation. So you wanna be wary about what limitations you put on where these assistant animals can be in the building. The same time, there are people that are allergic to dogs or who are afraid of dogs. It is tricky to navigate.

But again, that's living in New York, you're constantly having to navigate with your neighbors. There's common sense suggestions like wait for the person with the animal to get on the elevator and wait for the next one if you're allergic or afraid. Some boards do have designated washer dryers that are for non pets because people have allergies and don't want pet hair on them. But Paula, I wanna go back because I don't wanna give the impression that you can never ask for any information with respect to a disability. That's only the case with service animals. And I think service animals are a little easier to identify than an emotional support animal.

Let's go to emotional support animals. They can be any animal that is legal , in New York City. I'm sticking with New York City here. So domesticated cats and dogs. Oddly enough hens, you can have a hen, but you can't have a rooster. Guinea pigs, hamsters, parakeets rabbits, things like that are animals that you're permitted to house in New York City. Undomesticated dogs and cats are not. Roosters, like I said, you're not So if someone is looking to have a reasonable accommodation for a parakeet that, is their emotional support animal, you'd have to go through a similar analysis.

With the service animals, the first question is, is their disability readily ascertainable? If it is, then, I would suggest not asking any information about their disability. If it's not, then you can ask for documentation. That can come in the form of a letter from a medical professional or proof that they're receiving disability benefits.

Okay. But that's not the end of the inquiry, right? So first you establish that, the person is a person with a disability. 'cause in order to get a reasonable accommodation, you have to be a person with a disability within the definition of the statutes. So once you determine that they do have a disability, then the next step is to determine whether or not that animal serves a purpose of that disability.

And that one can be harder. That's something that medical professionals can opine on in their letter. But again it's up to the discretion of the board to take in the information that they're being provided and decide whether or not this is a legitimate request for reasonable accommodation, or, someone who wants to get around the pet ban in the building.

Paula Chin: I understand that they have to walk a very fine line and really respect the aspect of discretion. Where do you find boards most often misstep and make mistakes? 

Maria Boboris: I think boards most often misstep and make mistakes, one with not understanding what information they can request and when they shouldn't request information. And I think, oftentimes, on one end there's people who wanna get around these pet policies. And there's obviously people who have legitimate requests, but there's also boards that just don't like animals.

 I deal with a lot of boards and that's the reason that these pet bans generally exist is because, boards will implement them because they personally don't like animals. And so I think that bias is oftentimes reflected in the decision making process when they're, analyzing whether or not to accept this reasonable accommodation.

And I think that might be the biggest misstep that boards take is looking at the assistant animal like it's a pet when they're not actually pets, right? They're assistant animals. 

Paula Chin: And if a board does that and the person requesting the accommodation goes to the Department of Human Rights or makes whatever formal complaint, what is the worst possible outcome for a board, other than them having to accommodate the animal. Is there anything else that can happen? 

Maria Boboris: They can be fined as well. They can be subject to fines from the Human Rights Division. And of course you can also be subject to a civil lawsuit. Litigants can choose whether or not to file with the Human Rights Division or whether to initiate a lawsuit.

They have to pick one or the other, but they have the choice of doing so. And so there are fines that can come along with that. And there was a recent case that's been in the news with a board that tried to evict a tenant who had two parakeets that were emotional support animals, on the basis that they were a nuisance which plays into the reasonableness and we're circling back to that. In that instance the court found that it wasn't reasonable. It wasn't reasonable for the board to try to evict them on the basis of the nuisance. 'Cause there was no evidence that the two parakeets were actually creating a nuisance.

There are instances where it would be reasonable for a board to reject an animal request. If someone is, asking to bring an emotional support animal, and that animal is known to, bite people and has had instances where they've bitten tenants in the building.

Again I can't say certainly, but I think in that instance, the board would have grounds to possibly reject that request. 

Paula Chin: Meaning that if they were challenged by the person who had the animal, the board would prevail? 

Maria Boboris: I mean that , 

you're asking a lawyer. Lawyers will never tell you whether or not you would prevail.

You'd have a basis there to argue that the request wasn't reasonable. When courts are considering whether it's reasonable, they look at the hardship to the board and the building. And hardship can be defined in different ways, right? If it's a reasonable accommodation to put a ramp, for a wheelchair, they'll look at economic hardship.

But they can also look at whether it's disruptive to the building. I would argue that a dog that bites or is aggressive, would be disruptive to the building. That would be the argument that I'd make for denying a request. It doesn't usually come that way, this sequence of events. It's normally boards accept the request and then the assistant animal or animals plural come in. And then the problem ensues with the nuisance. Like I have a case where, somebody has eight emotional support animals and they never made a request for reasonable accommodation.

They brought them in and the animals were creating a nuisance. And we were getting complaints from neighboring buildings as well as neighbors in the building. And that case is still ongoing, but there is a temporary injunction against the owner of the pets to make sure that she gets the dogs trained so that they don't bark and that she soundproof the unit.

So there are, things that a board can do in these instances. I don't know if it's gonna ultimately lead to the removal of those animals, but certainly there's interventions that you can take to limit the nuisance that's being caused by any animal or pet in a building.

Paula Chin: Maria, what would be the ultimate takeaway here and your advice for boards? 

Maria Boboris: I highly recommend that boards and managing agents that are dealing with these types of requests, obviously in buildings that have no pet policies, where these requests are really going to be prevalent, is to really familiarize yourself with the HUD guidelines. Print them out, have them next to you when you get a request. And if you're unsure about whether or not a disability falls within the definition of the statutes or whether or not the documentation that you receive or whether you can ask for documentation at all, consults your lawyer. That's what we're here for.

I think first go to the HUD guidelines, and if you can't figure it out, then I think it's best to consult the board attorney. It's better to get it outta the way rather than to make a misstep and to face a discrimination claim. 

Paula Chin: Maria, I think this has been very informative for our listeners, and thank you so much for joining us today.

Maria Boboris: Thank you for having me, Paula.