Emotional Support Animals in Housing
Here is some reading material on the distinction:
The Department of Justice in the 2008 proposal makes clear that animals “whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well–being are not service animals.” Curiously, however, the Department concedes that its position may not be appropriate in the housing context:
The question, then, is how broadly should HUD's pronouncements regarding emotional support animals in projects for the elderly and disabled apply to housing in general (other than short–term housing covered by Department of Justice rules). The authors believe that there should be such uniformity and that the better reasoned case law supports such an argument.
A case from the Northern District of California, Janush v. Charities Housing Development Corp. (169 F. Supp. 2d 1133 (ND Cal. 2000)), held that, where a tenant owned two birds and two cats, the landlord failed to establish that there was no duty to reasonably accommodate non–service animals. In Majors v. Housing Authority of the County of DeKalb, Georgia (652 F.2d 454 (5th Cir. 1981)), the Fifth Circuit dealt with a case where the tenant sought to avoid eviction for keeping a small poodle in her apartment in a federally subsidized project. Although the decision was largely based on the Rehabilitation Act of 1973, 24 U.S.C. 794, the court remanded to the trial court for consideration of whether a reasonable accommodation could be made, given that the tenant had a mental disability that required her to keep the dog in her apartment. Both Janush and Majors were cited by HUD in its 2008 rulemaking on housing for the elderly and disabled (73 Fed. Reg. 63837), noting that "the Department's position is consistent with federal case law that has recognized, in cases involving emotional support animals in the housing context, that whether a particular accommodation is reasonable is a fact–intensive, case–specific determination." Courts have also recognized that training of service dogs need not always be formal. In Bronk v. Ineichen (54 F.3d 425 (7th Cir. 1995)), the Seventh Circuit found a trial court’s jury instructions improper in implying that a hearing (or signal) dog needed training from a certified school.
There are, admittedly, cases that have not been as accepting of non–service animals. A Massachusetts state court case, Nason v. Stone Hill Realty Association (Mass. 1996), held that a tenant failed to show a clear nexus between her multiple sclerosis and her need to have a cat, despite her physician’s statement that she would suffer serious negative consequences if deprived of the cat. (The physician’s letter did not sufficiently correlate the tenant’s condition with the presence of the cat.) The court suggested that “chemical therapy” might work as well as a cat.
A question that has arisen occasionally concerns whether a landlord may reject a particular emotional support animal and still make a reasonable accommodation. In Oras v. Housing Authority of the City of Bayonne (373 NJ Super. 302, 861 A.2d 194 (2004)), the court held that a landlord could not impose a 20–pound limit that applied to pets in a public housing authority to prohibit a tenant from keeping a dog that provided emotional support but that happened to weigh more. In an unpublished order from 2002 ( Zatopa v. Lowe), however, the district court for the Northern District of California allowed a landlord to exclude a pit bull mix because of the reputation of pit bulls, despite the fact that testimony regarding the specific dog suggested strongly that it was a gentle animal. The landlord had been willing to accept a “safe and gentle breed,” such as a Cocker Spaniel.
