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Newsletter Date: 
Thursday, November 4, 2010

Last week I attended a law seminar hosted by a very prestigious university's law school. One of the areas of discussion was recent case law and arbitration cases with final orders. It was amazing to me to find that a large percentage of the cases had to do with pets, especially dogs, being retained by owners in direct violation of their covenants, as service animals or for "medical" reasons. After a bit of research on this, I thought it very interesting and informative to actually focus on the Act that provides the background for this claim. It also provides some very interesting information on other issues that we, as either board members or in the management profession need to be aware of when it comes to the Americans with Disabilities Act. It is now also referred to as the ADAAA (Americans with Disabilities Act Amendments Act).

I think we tend to see this Act used as an excuse sometimes, but it has very real implications if violated. The Americans with Disabilities Act Amendments Act is a civil rights Act originally passed by Congress in 1990. It protects individuals with disabilities from discrimination in the workplace, as well as other settings. The ADA was amended in 2008 and became effective January 2009. When originally passed, Congress had in mind something much broader than what's been interpreted by the courts in the past 20 years. The ADAAA applies to associations with any service or facility open to the general public, such as a pool or a clubhouse (that is open to persons other than just the owners). The ADAAA also closely relates to the Fair Housing Act, which applies to most community associations.

All that being said, the new regulation is specific when it comes to the question of a service animal, which is different than one that may be "medically required" or a therapeutic issue. The 2010 regulations narrow the definition of service animal specifically to dogs. "Other species of animals, whether wild or domestic, trained or untrained, are not service animals". The rule has one exception, the rule also permits the use of trained miniature horses - subject to certain limitations - as an alternative to dogs, although the Department of Justice did not include miniature horses in the definition of service animal in the final rule because it wanted to allow flexibility in situations where a horse would not be appropriate. The same rules and exceptions for service animals apply to miniature horses.

Training has become a key factor. Not only must dogs be trained, but the training must relate directly to the resident's disability. While this requirement was part of the original ADA; what's different now is that the dog's training takes precedence over the owner's disability.

The act makes clear that dogs who simply provide emotional support, comfort or companionship do not qualify as service animals. This doesn't mean that people with psychiatric or mental disabilities can't have service animals. The difference is training.

With the changes in the ADAAA and the forthcoming regulations, the key question has shifted from, "Is a person disabled?" to "Has discrimination occurred?" Associations may no longer ask about the nature or extent of a resident's disability. Instead, with service animals, for example, you can only ask two questions:

Is the animal required because of a disability? And

What disability-related task or service has the animal been trained to perform?

Further, the act advises that if the resident's disability and the animal's service are obvious, don't ask.

Service animals have always been exempt from association pet restrictions, but the act now specifies that service dogs are exempt from breed, size and weight restrictions. However, service dogs are not exempt from leash laws, unless the leash interferes with their work.

Legitimate activities for service dogs include: guiding the blind, alerting deaf owners to sounds, pulling wheelchairs, assisting a person during a seizure, alerting owners to allergens, retrieving medicine or phones, supporting people with mobility problems and impeding impulsive or destructive behavior.

It is legitimate for the Association to make inquiries of an owner if exceptions are requested to be made for a companion animal, which does not fit the requirements of a service animal under this act.