Uncertainty Regarding Assistive Animals Continues in the
A recent case in the Washington Court of Appeals involved
assistive animals. A resident in a “no pets allowed” mobile home park sought to
have his adult sister reside with him and his three children in their mobile
home after she had been the victim of a violent crime.
The sister experienced severe and debilitating migraine
headaches accompanied by symptoms such as nausea, vomiting, vision problems and
tenderness in her side. Upon the onset of a migraine, she needed assistance
getting her medication, ice packs, cold cloths and getting to the bathroom. The
resident’s sister acquired a Pomeranian puppy and over a period of months,
trained the dog to respond to commands such as to sit, stay, etc. The sister had
no training as an animal trainer, nor did the dog receive any professional
training. When the puppy was approximately nine months old, it began to respond
to the sister’s migraine headaches by running to a nearby person and barking,
scratching on the floor, jumping or pulling on the person’s leg in order to
alert them to the situation. Once the person began to render assistance, the dog
would stop and merely observe the situation.
The landlord eventually notified the tenant that he was in
violation of his lease due to the presence of his sister, an unauthorized guest,
and her dog. His sister applied for tenancy but was ostensibly rejected due to
credit problems. She subsequently applied again and requested a reasonable
accommodation to allow the presence of her dog. Her doctor also submitted a
letter stating that it was reasonable for her to have a dog serve as a service
animal to alert others when she was feeling ill.
The landlord rejected her request and indicated that it
would proceed with eviction proceedings. The State of Washington filed a lawsuit
against the landlord alleging discrimination and that the landlord should not
have denied her tenancy application based on her dog, which it considered to be
a service animal and, therefore, constituted a reasonable accommodation. The
trial court agreed with the State and concluded that the landlord had
discriminated against her. However, the Washington Court of Appeals disagreed
and reversed the decision of the trial court.
The Court of Appeals reasoned that the State of Washington
has a specific statute that defines a “service animal” as an animal “that was
trained for the purpose of assisting or accommodating a disabled person’s
sensory, mental, or physical disability.” The landlord asserted that the dog had
not been trained by a professional for the purpose of assisting the woman and,
therefore, did not meet the definition of a service dog under the law. Since the
dog would be considered a household pet, the presence of the dog could not be
considered a reasonable accommodation.
The Court of Appeals pointed out that most animals were not
able to perform tasks for persons suffering from disabilities and that there
needed to be evidence of some type of individual training to differentiate a
service animal from a mere pet. Further, the training had to be for the specific
purpose of assisting or accommodating a disabled person. Accordingly, since the
dog was not trained as a service animal, it could not be considered a service
animal and was deemed an ordinary pet. As an ordinary pet, the dog could not be
considered a reasonable accommodation and, therefore, the landlord did not
engage in an act of discrimination by refusing the woman’s request to keep the
dog at the premises.
In other jurisdictions it has been recognized that,
depending on the nature of a person’s disability or impairment, an animal need
not have a specific type of training in order to qualify as an “assistive”
animal. Thus, from jurisdiction to jurisdiction, there remains no bright line
for determining whether an animal is truly an assistive animal. As a
consequence, a request for reasonable accommodation for a purported assistive
animal continues to be an area of uncertainty.
Arizona has its own definition of a “service animal”, which
means “any guide dog, signal dog or other animal individually trained to do work
or perform tasks for the benefit of an individual with a disability, including
guiding individuals with impaired vision, alerting individuals with impaired
hearing to intruders or sounds, providing assistance in a medical crisis,
pulling a wheelchair or fetching dropped item.” However, Arizona law does not
specify whether a service animal must be professionally trained, whether any
formal training must take place, who can perform training, etc. Thus, much
When confronted with assistive animal situations, landlords
would be wise to seek legal counsel to aid in evaluating the circumstances on
the uncertain and ever-changing laws applicable to assistive animals. However,
it must be recognized that even attorneys cannot, in many circumstances, provide
a definitive opinion as to whether a particular animal, under particular
conditions, will legally constitute a legitimate assistive or service animal.
Thus, as a precaution, it is often advisable to err on the side of caution and
remain open minded to such requests.
This article was originally published in 2008.