We have previously published blogs about the increasing impacts to businesses and people from misrepresentations about service and emotion support dogs. See, e.g., New York Makes it Unlawful to Misrepresent Dogs as Service Animals. We are pleased to post several blogs from partner Scott M. Badami who advises companies, private institutions and individuals on compliance with various federal and state laws, including the Fair Housing Act, Americans with Disabilities Act. Scott is the founder and editor of the firm’s Fair Housing Defense Blog, which offers discussion and insight on fair housing compliance and other areas of interests to apartment owners and management companies as well as professional management employees.
By Scott M. Badami, originally posted on March 16, 2018
When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.
Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:
- that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;
- that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;
- that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;
- that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;
- that there was evidence in the record that the resident may not have been able to control the dog; and
- efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.
While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.
Just A Thought.