David Valentine needs his goats. He has two, Blessing and D.J. The trouble is, the zoning in Batavia, Ohio, prohibits them inside the city limits. So after he got the goats, Batavia bureaucrats said “no way.” Dogs, cats, birds, mice, gerbils, ferrets, hamsters, minks, guinea pigs, fish, turtles, lizards, iguanas, snakes (as long as they are less than six feet long) and pot-bellied pigs are perfectly okay. After the township took legal action against 13-year-old David’s parents, Mr. and Mrs. Valentine sued.
You see, David Valentine has an attention deficit hyperactivity disorder, reported the Cincinnati Enquirer. David’s parents claimed that the goats should be allowed as a “reasonable accommodation” for David’s handicap.
Federal and state Fair Housing Laws define “handicap” as “A physical or mental impairment” that “substantially limits one or more of his or her major life activities such as seeing, hearing, walking, speaking, learning, breathing, eating or performing manual tasks.” In 2004 the US Department of Housing and Urban Development (HUD) and the Justice Department “explained that physical or mental impairments include, but are not limited to, such diseases as . . . emotional illness. . . .,” wrote Gary Poliakoff and JoAnn Nesta Burnett in their article “Prescription Pets.”
Poliakoff and Burnett further explain that “many of these conditions are not visible to the average person, but may nonetheless require a service or emotional-support animal.” That’s what David Valentine’s goats are—emotional-support animals.
Since Blessing and D.J., David’s goats, are service animals, the Batavia, Ohio, township was required under the Fair Housing Act to make reasonable accommodation for David’s handicap and ignore their zoning codes, said the lawsuit. Clermont County Judge Williams Walker agreed and approved a settlement that would allow David to keep his goats “until he is 18, graduates from high school or no longer needs the goats for his medical therapy.” (Cincinnati Enquirer)
As landlords we are rarely called upon to allow a tenant to keep goats on our rental property, but we are called upon to allow other critters that are considered “assistance” or “companion” animals. HUD says “Assistance animals—often referred to as ‘service animals,’ ‘assistance animals,’ ‘support animals,’ or ‘therapy animals’—perform many disability-related functions, including but not limited to guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing minimal protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.”
Which species?
Any species of animal can be used as a service or assistance animal. That includes, as listed above, dogs, cats, birds, mice, gerbils, ferrets, hamsters, minks, guinea pigs, fish, turtles, lizards, iguanas, snakes, and pot-bellied pigs. But that isn’t all. Monkeys and miniature horses are also used by the disabled. Most landlords realize that they have to accept seeing-eye and hearing animals. Monkeys and goats are an entirely different situation, though. As we have seen, goats can provide “emotional support.” But Monkeys? They can be used by quadriplegics to fetch and retrieve things. “Typically capuchins, they perform simple tasks, such as getting something to eat or drink, retrieving dropped or out of reach items, assisting with audio cassettes, video cassettes, CDs, and books, and operating lights,” explains “A Brief Information Resource on Assistance Animals for the Disabled,” published by the National Agricultural Library.
We know the damage undisciplined dogs can do. We can imagine the damage goats could do to a yard. But try to imagine monkeys! Monkeys can open doors, cupboards, closets and all manner of other things. “Monkeys are very agile, smart, and have very nimble fingers,” explains essortment.com. “Escaping out of a cage is a piece of cake for them. Make sure the cage is constructed of strong materials. Don’t underestimate the strength or the intelligence of a monkey.”
Monkeymaddness.com warns “The relatively docile youngster eventually turns from play-aggression to the serious aggression of an adult. Proper management techniques go a long ways in coping. The larger the monkey, generally speaking, the bigger the problem. Yet it is hard to prepare someone for the onslaught of mature aggression in a monkey.”
They further warn, “Most monkeys remain mischievous, and are not trainable as dogs, birds or other animals. At their worst, when capuchin-sized or larger monkeys are loose in the house, they often seek out coveted personal items. The most meaningful objects to a monkey are often forbidden ones. At their worst, growing monkeys may pull down drapes, shred cloth, chew wood, spill drinks, steal food, take possession of articles and refuse to return them, damage house plants, torment other household pets, soil or stain furniture, tip chairs, break knickknacks, ink pens [sic] or dishes, tear books and papers, get into cleaning fluids or baking ingredients, open drawers, cabinets, unlock or open inside and outside house doors, open refrigerators and windows, remove window screens, open baby proof latches and lids, break glass, push large pieces of furniture over, urinate into television sets or other electronic equipment, etc.”
And you know what? If your tenant requests a monkey as an assistance animal, you may have to allow the monkey in your rental property. It’s not quite that simple, but almost.
As Section 504 of the Rehabilitation Act and the Fair Housing Act provide and Nan McKay and Associates report “A person with a disability is not automatically entitled to have an assistance animal. Reasonable accommodation requires that there is a relationship between the person’s disability and his or her need for the animal.” So if your pot-smoking tenant decides to stop being a pot-smoking tenant and says he needs an assistance animal to help him cope, that doesn’t mean he can have a monkey. A dog, maybe, but only if your tenant gets a note from his doctor—maybe even from two doctors.
As Poliakoff and Burnett report in “Prescription Pets,” “…a West Virginia district court in 2001 went so far as to say that it is reasonable, in situations where the disability is not apparent, to insist upon a second concurring opinion from a qualified physician selected by the housing provider to confirm the need for a service animal.”
“A person with a disability is not automatically entitled to have an assistance animal. Reasonable accommodation requires that there is a relationship between the person’s disability and his or her need for the animal.”
Incidentally, Section 504 of the Rehabilitation Act applies only to housing that is in some way “federally subsidized.” That includes, of course, local housing authority housing, but it also includes privately owned Section 8 housing.
You do not have to tolerate a misbehaving animal no matter what, though. You can refuse to allow the animal or require the tenant to get rid of the animal under any one of four situations:
1. The animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by a reasonable accommodation. That means that Dog-Fighting Joe, who needs the pit bull so he can relieve stress by entering his “service animal” in dog fights can be both denied the right to have the animal in the rental housing and required to get rid of it after the issue becomes apparent.
2. The animal would cause substantial physical damage to the property of others. So if Susie’s assistance monkey got out of the apartment, went into Jennifer’s apartment, tore up the drapes, urinated on the TV set, took Jennifer’s daughter’s doll and refused to give it back, and went out on balcony and began throwing things at passersby, you could make Susie get rid of the monkey.
3. The presence of the assistance animal would pose an undue financial and administrative burden to the housing provider. This one is the most difficult to prove. Only if the animal met one of the two previous conditions could an “undue financial burden” be proved.
4. The presence of the assistance animal would fundamentally alter the nature of the provider’s services. Obviously barking dogs and misbehaving monkeys are not going to be appropriate in an assisted-living home with fulltime nursing care.
The problem is, we may not require an additional deposit for a service animal. Collecting for the damage comes after the damage is done. If the tenant does not pay, we have the option of evicting the tenant. Still, considering the tenant is disabled, and possibly living on some kind of public assistance, good luck collecting anything.
The important thing to remember is, you can screen disabled applicants the same way you screen non-disabled ones. You can ask previous landlords if the applicant’s service animal was ever a problem. You can ask if the applicant’s unit was left damaged or otherwise uninhabitable. You can ask if the applicant paid the rent on time and was a good neighbor. Just because a tenant is disabled does not absolve him or her of the responsibility of being a good citizen.
What to do if a tenant asks for an assistance animal
If the need is obvious, such as your applicant or tenant is blind, a seeing-eye dog is appropriate and you would probably not need to require any kind of doctor’s approval for the dog. Just have the tenant, or someone who can see to write, fill out the service-animal agreement.
If the need is not obvious, require your tenant or applicant to submit evidence that the service (assistance, companion) animal is required to alleviate “one or more of the symptoms or effects of that person’s disability.” (Fair Housing Act) Once you are satisfied that the need for the animal is defensible, have your tenant fill out the service animal agreement.
An assistance animal may have to be trained, but how? The Fair Housing Act says an assistance animal is “any animal that is individually trained to do work or perform tasks for the benefit of a person with a disability.” Here is the problem. There is no objective measure for training. Some animals are professionally trained. Guide dogs are one example. Without professional training, chances are a guide dog would not be of sufficient help to a blind person. But none of the training needs to be done by a third-party professional. If the animal’s owner does it him or herself, that is considered sufficient. In some special cases, no training is required at all. After all, if Muffy is just there as a companion animal to make Julie feel all better, all Muffy has to do is be there and make Julie feel all better.
Regardless of the situation, ask what kind of training the animal has. It is perfectly appropriate to ask. Chances are your applicant or tenant will tell you.
The service-animal agreement is important. If you have the signed agreement, your tenant cannot, after the animal bites another tenant or trashes the unit, say “I didn’t know!”
While virtually all of us have empathy for people with an obvious need for a service animal, we cannot forget our other tenants’ right to quietly enjoy their homes and our right to maintain our properties in good condition. Under no circumstances allow a service animal to be disruptive to or do damage to your rental property and screen disabled applicants as thoroughly as you do non-disabled applicants.
