Is That Cute Dog A Monster in Disguise?
In the past, many cooperative housing providers prohibited pets. This policy resonated with its members who were tired of living next door to other members with barking dogs or caterwauling cats. Yet, federal and state law now require cooperative housing providers allow assistance animals. Assistance animals are animals which a disabled member may keep in a cooperative housing situation, as long as a medical provider is persuaded that the member needs the animal in order to overcome a specific disability and that the animal will ameliorate that disability.
That is all well and good, but what about the member who doesn’t control his or her assistance animal? Let’s say the slobbering dog is barking all the time or running at large. Or perhaps that pesky cat is prowling the neighborhood at night and meowing right outside your bedroom window. Do members just have to sit back and take it? The answer is no.
Cooperative Boards have an obligation to adopt reasonable Rules and Regulations governing assistance animals. If they don’t, they are letting their members down by not protecting their privacy and their right to enjoy the cooperative without the nuisance created by animals who their owners do not control.What’s the Difference?
Let’s get some terms straight first. Members sometimes throw around terms but don’t really know what they mean in the law. For instance, a service animal is a dog or horse trained to perform a specific assistance task. The key point of a service animal is that it must be trained. An assistance animal on the other hand is an animal prescribed by a medical authority to assist a person to ameliorate a disability thereby permitting that person to enjoy housing on an equal basis with others. Sometimes people refer to assistance animals as comfort animals or emotional support animals. These all mean basically the same thing. Of course, a pet is an animal that a member simply wants to possess that does not meet either of the above requirements.Nice Dog, Bad Owner? Bad Dog, Nice Owner?
Let’s take an example. A cooperative member went on the Internet and downloaded a service animal packet. She received a card that said her dog was a service animal. She got a vest for the animal that identified the animal as such and let everyone know that her dog was a service animal and she could take that animal wherever she wanted in and out of the cooperative. The dog was also seen running loose throughout the cooperative. The dog was tied up outside when the member was not present. The dog barked at passersby without restraint. The dog would tip over garbage cans. The owner would fail to clean up after the animal on a routine basis. Is this a case of a nice dog but a negligent owner or a bad dog and a nice owner? As far as enforcement of the Cooperatives Rules and Regulations, it does not matter.
What is the cooperative to do? Other members were filing complaints with the cooperative board demanding all sorts of remedies. They demanded the dog be banned from the premises. They demanded the member be evicted from the premises. They demanded that the member be fined for each offense. The Board must do something or else its next board meeting will be a free-for-all disaster.The Board Takes Action, But Is It the Right Action?
Since the member claimed the animal was a service animal, the Cooperative Board swung into action. It asked the member for a list of tasks that the service animal performed. The member could not come up with anything substantive other than it assisted the member and provided some generic benefits. The Cooperative then concluded that since it wasn’t a true service animal then the cooperative might be able to force the member to remove the animal.
While this was going on the member went to her physician. Her physician gave her a note saying she suffered from a disability and that the dog provided comfort in helping the member to overcome her disability and should be accommodated by the housing provider under the Fair Housing Act as Amended. The member’s medical note stated she suffered from anxiety and depression and needed the animal. This note confused the cooperative because the member had previously claimed the animal was a service animal.
What to do? Can the member be fined or evicted, or the dog ordered removed because it’s not a service animal? Or does the medical note take precedence?
The Law to The Rescue.
In such situations, both federal and state law will block the cooperative from imposing fines and or initiating conviction on that basis, because the disabled member may retain the dog as an assistance animal without the need to demonstrate it was trained to performed any particular tasks. It does not matter what the member calls the dog-- a service dog or companion animal or even Fido--because the member's companion animal note from her physician trumps the service dog requirements.
Thus, the member may not be disciplined or evicted simply because she possessed a companion animal which she called a service animal. The law requires the Cooperative to accommodate both service animals and companion animals when sought by a medically verified disabled member.
Did Rules and Regulations Swing into Action?
But what about the barking and the running at large and all the noise and the commotion the dog is creating for the other members of the cooperative? Did the cooperative had already adopted reasonable rules and regulations governing pets? Did those Rules also apply to animals such as assistance animals or service animals? Did the member agreed to abide by the Pet Rules and Regulations governing all such animals as a condition of living in the cooperative?
Well drafted rules would clearly demonstrate the member was in violation. They could be used to show she failed to correct the errant behavior, as the dog continued to run loose without a leash, engage in destruction of property, and nuisance barking. The dog would also run loose in common areas without owner restraint. In such case the cooperative may consistent with its policies on prior warnings, act against the member as it deems warranted under the circumstances provided it has proper Rules and Regulations already in place. This is no time to start drafting such Rules!
The basis for any such action should solely refer to violation of the Rules and Regulations pertaining to pets/animals. The basis for such action should not mention or state anything about the animal not being a service animal or not meeting service animal criteria or being a companion animal.
Enforcement of objective Rules regarding legitimate expectations about how animals should behave in a cooperative setting brings needed balance to harmonic cooperative living where the law permits animals to be present as accommodations to persons with disability. Such Rules and Regulations are important and should be well drafted so they can be enforced when necessary. Boards should ensure their Rules and Regulations are properly adopted and legally sufficient for this purpose. Are they?
Attorney Kerry L Morgan has extensive experience in matters related to federal discrimination law and has worked zealously with cooperatives to resolve disputes. He previously served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C.