Letters of the Law

Issues Taken with Assistance Animal Article

This letter is in response to the Tennessee Bar Journal’s February 2014 cover story, “Pet or Pro?” by Samuel Gowin. While we appreciate Mr. Gowin’s and the TBA’s efforts to bring these issues to light, there are a few points of clarification we would like to make regarding assistance animals under the Fair Housing Act (FHA).

First, it should be noted that assistance animals under the FHA do not need any specialized training or certification. HUD made this clear in its April 25, 2013 memo entitled “Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs.”[1]

Second, assistance animals under the FHA do not need to be prescribed by a physician. In fact, if the tenant or applicant provides documentation supporting his/her need for an assistance animal, that documentation can come from a variety of sources, not just physicians or other health care professionals. As HUD has stated, “[A] peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability may also provide verification of a disability.”[2] Mr. Gowin’s assertion that “[d]ocumentation from the person’s health care provider can be requested” (emphasis added) is thus incorrect. Additionally, if the disability is readily apparent or known to the housing provider, the housing provider may not ask for documentation showing the disability or the disability-related need for the assistance animal. For example, a person who is blind and uses a guide dog should not be asked to provide documentation of their disability or their need for a guide dog.[3] 

Third, when Mr. Gowin states, “It is also proper to inquire as to the person’s disability,” it should be noted that a landlord may inquire as to whether the person has a disability but not the nature or the severity of that disability.[4]  Therefore, Mr. Gowin’s should not have advised that the person seeking a reasonable accommodation “[o]btain a letter from a doctor identifying the specific disability or affliction.”

Finally, Mr. Gowin’s statement that “[i]f the animal is obviously a pet and the person says that the animal has no special training but helps them cope with an ailment, it is probably safe in Tennessee to require a pet deposit or refuse to allow the pet in a rental unit” is false, both because assistance animals do not need special training, as discussed above, and also because if a tenant or applicant articulates a disability-related need for his/her animal, the housing provider has a duty to consider that a reasonable accommodation request, even if it is not requested on a special form or does not use the phrase “reasonable accommodation.”

Our organization is a private, non-profit organization whose mission is to eliminate housing discrimination and ensure equal opportunity for all people through leadership, education, outreach, public policy initiatives, advocacy, and enforcement, so we appreciate the opportunity to help clarify some of the points made by Mr. Gowin.

Notes

  1. Available at http://fairhousing.com/include/media/pdf/serviceanimals.pdf.
  2. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, answer to question 18 (available at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf).
  3. “Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs,” April 25, 2013 (available at http://fairhousing.com/include/media/ pdf/serviceanimals.pdf).
  4. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, answer to question 16 (available at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf).

— Meagan B. Dolleris, Staff Attorney
Tennessee Fair Housing Council, Nashville

Author’s Response

I am thankful that my article was relevant enough to receive such a thoughtful letter from the Tennessee Fair Housing Council (TFHC). That being said, I stand by my article and its accuracy. Although this area of law can be a little foreign to some practitioners, it is becoming more and more prevalent and I am aware of the passion it can evoke. Because of this, I was careful in the explication of the law and of practice tips that I proposed.

My article went through the history and the current status of the law in this area, showing significant differences in different jurisdictions. It then ended with practical advice on suggested principles to apply in various situations.

The TFHC brought up four points of criticism. The first is stated plainly in my article. The TFHC’s second and third points are described by the Joint Statement they cite:
[I]n response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.[1]

This is consistent with my article.

On the last point, I do not believe the TFHC’s interpretation is supported by Tennessee and Sixth Circuit law. This situation my article describes is one where a landlord has a “no pets” policy. The proposed tenant then says she has a pet that helps her cope with some condition. Upon a request for any support, the proposed tenant is silent. Even the Taylor decision, which was the most pro-tenant case I found did not go this far.[2]  Further, eastern Circuit Courts of Appeal have expected someone seeking an accommodation to make substantial showings as I described in the article.[3]

I am well aware that there are landlords, property owners and management associations that discriminate against those with disabilities and I am thankful for advocates like the TFHC. Nonetheless, I did my best to describe the law as it is and not as it ought to be.

As the Joint Statement mentions, working out these issues is an “interactive process” between the housing provider and resident in seeking to ease the burdens of both.[4]  Along these lines, I often advise clients to voluntarily go one extra step, or give a little ground, if it will avoid litigation and the consequent financial/time/emotional costs. I truly believe one can be an advocate for both fair housing and small business when the parties act in good faith.

Notes

  1. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, “Reasonable Accommodations Under the Fair Housing Act,” May 17, 2004, answer to question 18 (available at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf).
  2. Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor (D. Haw. 2012) (finding was based on resident having a doctor’s note concerning benefit of assistance animal).
  3. E.g. In re Kenna Homes Cooperative Corporation, 557 S.E.2d 787 (W.V. 2001) (holding property manager cold required proper training to be shown), Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) (finding showing of disability related need was proper), Hawn v. Shoreline Towers Phase 1 Condominium Association Inc. 2009 WL 691378 (ND Fla. 2009) (finding condo association could require more information than notes from chiropractor and psychologist and registration as service animal).
  4. Joint Statement, supra, answer to question 7.

— Samuel J. Gowin, Chattanooga
 

Mr. Smartt’s Collection Tactic

Letters to the Editor regarding the passing of John Smartt and praising his substantial impact on members of the bar, clients and indeed all those with whom he came in contact could not be more accurate. I have the honor of having practiced with John many years ago, and he was consistently gracious and attempted to be helpful to all. This extended even to his efforts on behalf of clients, some of whom were banks and other lenders on whose behalf John would attempt to collect on defaulted loans.

John’s approach to collections was nothing short of novel, indeed often unorthodox, and he routinely began the collection effort by sending the debtor a demand letter. This is generally the typical approach, but John’s form letter was both unusual and reflective of much of John’s approach to life.

The letter began with a salutation and then stated: “The other night my wife Harriet and I were having dinner, and I mentioned to her that I had been engaged by [lender] to collect from you the amounts you owe to [lender]. My wife then said, ‘Oh my, what would his mother say if she knew that he hadn’t paid. How sad.’”

John’s collection efforts were spectacularly successful, and perhaps we can all learn several lessons from that little but important story.

— Wynne James, Nashville