Assistive Animals

Emotional Support and Service Animals

By: Marissa C. Marxen

Scientific evidence has proven that living with human-animal interaction can decrease cholesterol, heart rates, cortisol levels, blood pressure, and stress/anxiety while increasing cardiovascular health, oxytocin levels, dopamine levels, overall survival rates, the functioning of the immune system, pain management, and happiness. (Beetz, A., Uvnäs-Moberg, K., Julius, H., & Kotrschal, K. (2012). Psychosocial and psychophysiological effects of human-animal interactions: the possible role of oxytocin. Frontiers in psychology, 3, 234, pp. 1, 3-6, 10-11. https://doi.org/10.3389/fpsyg.2012.00234.) Despite the many benefits of furry friends, many people who suffer from stress and anxiety live without assistive animals due to a landlord’s no pet policy. These individuals should take comfort in the fact that both federal law, through the Americans with Disabilities Act of 1990 (the “ADA”), and California law, through the Fair Employment and Housing Act (“FEHA”) and Unruh Civil Rights Act, protect the right of individuals with disabilities to have the companionship of assistive animals. (See 42 U.S.C. §§ 12101, et seq.; 42 U.S.C. §§ 3601-3631; Cal. Civ. Code, §§ 51, et seq.; Cal. Gov. Code, §§ 11290, 11291, 12955, et seq.)

Both the federal Fair Housing Act, (42 U.S.C. §§ 3601-3631), and the California FEHA, (Cal. Gov. Code, § 12955-12956.2), prohibit discrimination against individuals with disabilities. (See also Civ. Code, § 54.1, subd. (d) [providing that “[a] violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of” California’s Unruh Civil Rights Act].) These prohibitions extend to realtors, property managers, and/or landlords and require sch individuals to make “reasonable accommodations” for anyone with a disability. The term “reasonable accommodations” has been defined to mean changing or making exceptions to housing policies in order to allow a person with a disability (and an assistive animal) to enjoy the same access to housing as someone without a disability. An “assistive animal” is an animal “necessary as a reasonable accommodation for a person with a disability.” (Cal. Code Regs., tit. 2, § 11065, subd. (a).) Assistive animals include (1) support dogs, which provide “emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression” as well as (2) the following types of dogs, as defined in California Civil Code, section 54.1, (a) guide dogs, “trained to guide a blind or visually impaired person,” (b) signal dogs, “or other animal[s] trained to alert a deaf or hearing impaired person to sounds,” and/or (c) service dogs, “or other animal[s] individually trained to the requirements of a person with a disability.” (Cal. Code Regs., tit. 2, § 11065, subd. (a).)

For those with assistive animals, a “reasonable accommodation” could mean waiving (1) a “no-pet” policy; (2) pet deposits or pet rent; and/or (3) restrictions on the type of animal, breed, weight, and/or size of an animal. Landlords must also consider the applications of prospective tenants with assistive animals no differently from the applications of prospective tenants without them. In other words, landlords cannot favor prospective tenants who do not have assistive animals over those who do.

The below information sets forth answers to some common questions regarding assistive animals. If you have been discriminated against because of your disability, including but not limited to your need for an assistive animal, please contact Marxen Law at mmarxen@marxenlaw.com to complete our Client Intake Questionnaire prior to setting up a free, 30-minute consultation.

What qualifies as a disability?

Generally, a disability is anything that limits a person’s major life activities. More specifically, disability covers both mental and physical disabilities. “Mental disability” means “[h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” (Gov. Code, § 12926, subd. (j)(1); see also Gov. Code, § 12955.3 [defining “disability” as defined in section 12926]; Cal. Code Regs., tit. 2, § 11065, subd. (d)(1) [providing that “‘[m]ental disability,’ as defined at Government Code section 12926, includes, but is not limited to . . . autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder”], emphasis added.)

“Physical disability,” on the other hand, is defined as “[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that” (1) “[a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine” or (2) “[l]imits a major life activity.” (Gov. Code, § 12926, subd. (m).)

Many disabilities are not readily apparent and allowing business establishments to ask you about your disability may prove embarrassing. However, landlords are entitled to request a statement from a healthcare professional simply verifying that a prospective or current tenant suffers from a disability but cannot ask about the nature or extent of that disability. (Gov. Code, § 12955, subd. (b); 28 C.F.R. § 36.302(c)(7); Auburn Woods, supra, 121 Cal.App.4th at pp. 1496, 1585, 1598.)

What is the difference between a service animal and an emotional support animal?

The ADA distinguishes between psychiatric service animals, such as those that may be able to sense an anxiety attack is about to occur and take action to lessen or avoid its impact, and emotional support animals. It defines a “service animal” as any (1) “dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability,” (28 C.F.R. § 36.104), or (2) a miniature horse, (28 C.F.R. § 36.302(c)(9) [providing that “[a] public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability”].) “Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” (28 C.F.R. § 36.104.) “The work or tasks performed by a service animal must be directly related to the individual’s disability.” (Ibid.) The law provides a list of work or tasks frequently performed by service animals:

Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

(28 C.F.R. § 36.104.) Any crime deterrent effects or emotion support provided by an animal do not qualify as work or tasks for the purposes of the definition of a service animal. (Ibid.)

An emotional support animal, which is distinct from a service animal, is an animal “that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” (Cal. Code Regs., tit. 2, § 11065, subd. (a)(3); see Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [providing that although Section 11065 pertains to employment cases, “principles at issue in cases of employment discrimination are often applied in housing discrimination cases”].) Any animal may qualify as an emotional support animal, and an emotional support animal need not be trained.

Does my assistive animal need to do anything special?

Yes. While service animals are held to a higher standard than emotional support animals, generally, assistive animals must be housebroken and may not create a disturbance.

“Minimum standards for assistive animals include, but are not limited to,” requiring “that an assistive animal” (1) “is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces” and (2) “does not engage in behavior that endangers the health or safety of the individual with a disability or others.” (Cal. Code Regs., tit. 2, § 11065, subd. (a)(2).) Further, “[a] public accommodation may ask an individual with a disability to remove a service animal from the premises if” the animal is (1) “out of control and the animal’s handler does not take effective action to control it” and/or (2) “not housebroken.” (28 C.F.R. § 36.302(c)(2).)

Where can I take my service animal or an emotional support animal?

Service animals may accompany their owners anywhere, while emotional support animals may fly and live with their owners but may not enter business establishments unless allowed by the establishment. (See, e.g., Civ. Code, § 54.1, subd. (a)(1) [providing that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations . . . , hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons”].)

Can I fly with my service animal or an emotional support animal?

Yes.

“Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities . . . and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation.” (Civ. Code, § 54.1, subd. (a)(1), emphasis added.) Further, because “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public,” (Civ. Code, § 54.1), this means that an airline must treat you as if you had no disability, and therefore, were not accompanied by an assistive animal. Consequently, airlines may not charge you a fee to fly with an assistive animal. However, because Civil Code, section 54.1, subdivision (a) provides that individuals with disabilities shall have equal access to common carriers “and other places to which the general public is invited, subject only to the conditions and limitations . . . applicable alike to all persons,” this means that prohibitions that apply to individuals without animals (i.e., preventing individuals from taking more than one seat or blocking the aisle) apply to those with assistive animals. Thus, even though under the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705, airlines may not discriminate against individuals with disabilities so long as the individual has a record of having a disability, they my still set certain restrictions. Generally, the assistive animal must (1) be able to sit in your lap or at your feet; (2) not block the aisle; (3) not interfere with flight operations in any way; and/or (4) be checked and travel in a kennel if the (a) individual fails to validate his or her documentation at least 48 hours before his or her flight or (b) animal is too large or destructive. (See also 14 C.F.R. §§ 382.27, 382.117.) Further, airlines may require passengers to provide up to 48 hours’ advance notice before the check-in time to receive the accommodation of transportation of an emotional support, psychiatric service animal, or service animal. (14 C.F.R. § 382.27.)

The passenger seeking to travel with an assistive animal, must provide the airlines with current documentation (i.e., within the past year of the passenger’s scheduled/intended flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger's mental or emotional disability), which states the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders—Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued.

(14 C.F.R. § 382.117(e).)

If a building has a “no pets policy,” can I still live there with my service animal or an emotional support animal?

Yes.

Government Code, section 12955, subdivision (a), provides that “[i]t shall be unlawful . . . [f]or the owner of any housing accommodation to discriminate against or harass any person because of . . . disability.” “Numerous cases under state and federal law have held that depression, PTSD, anxiety, and related manifestations can meet the definition of disability under antidiscrimination laws. (E.g., Auburn Woods, supra, 121 Cal.App.4th at pp. 1592-1593 [citing, inter alia, Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 258–259].)

Government Code, section 12927, subdivision (c)(1) defines “discrimination” as, inter alia, the (1) “refusal to sell, rent, or lease housing accommodations”; (2) “refusal to negotiate for the sale, rental, or lease of housing accommodations”; (3) “representation that a housing accommodation is not available for inspection, sale, or rental when that housing accommodation is in fact so available”; (4) “provision of inferior terms, conditions, privileges, facilities, or services in connection with those housing accommodations” (e.g., offering inferior rental terms to tenants with disabilities vis a vis increasing the rent or requiring an additional deposit for an individual with a disability when one would not otherwise be required); and/or (5) “refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” Further, as previously stated, the Unruh Civil Rights Act provides that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” (Civ. Code, § 54.1, subd. (b)(1).) “‘Housing accommodations’ means any real property, or portion of real property, that is used or occupied, or is intended . . . to be used or occupied, as the home, residence, or sleeping place of one or more human beings.” (Civ. Code, § 54.1, subd. (b)(2).)

Thus, “[a] person renting, leasing, or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises.” (Civ. Code, § 54.1, subd. (b)(3)(B).) “[U]nder the right circumstances, allowing a pet despite a no-pets policy may constitute a reasonable accommodation.” (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1593.)

In sum, while the Unruh Civil Rights Act states, “Except as provided in paragraph (6), this part does not require a person renting, leasing, or providing for compensation real property, if that person refuses to accept tenants who have dogs, to accept as a tenant an individual with a disability who has a dog,” (Civ. Code, § 54.1, subd. (b)(5),) paragraph (6) prevents landlords from denying housing to an individual because the individual requires the assistance of an animal (see, e.g., Civ. Code, § 54.1, subd. (b)(6)(A) [providing that “[i]t shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for a person, firm, or corporation to refuse to lease or rent housing accommodations to an individual . . . with any . . . disability on the basis that the individual uses the services of a service dog”]).

Can my landlord charge me “pet rent” or a “pet deposit” for my service animal or an emotional support animal?

No.

“It shall be unlawful . . . [f]or the owner of any housing accommodation to, inter alia, (1) discriminate against or harass any person because of the disability . . . of that person,” (Gov. Code, § 12955, subd. (a)); (2) “make or to cause to be made any . . . inquiry concerning the . . . disability . . . of any person seeking to purchase, rent, or lease any housing accommodation,” (Gov. Code, § 12955, subd. (b)); and/or (3) “otherwise make unavailable or deny a dwelling based on discrimination because of . . . disability,” (subd. (k)). Additionally, “[a] public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets.” (28 C.F.R. § 36.302(c)(9).) These provisions mean that a landlord or property manager must treat you just like any other tenant without an assistive animal. In other words, if a landlord does not charge pet rent to tenants without assistive animals, then, the landlord cannot charge pet rent to individuals with assistive animals. That being said, if your assistive animal causes actual damage, then, just as a landlord could deduct from a tenant’s security deposit for damage caused by a tenant without an assistive animal, that landlord may also deduct for damage caused by a tenant with an assistive animal. (See, e.g., 28 C.F.R. § 36.302(c)(9) [providing that “[i]f a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal”].) However, a landlord may not require a security deposit that is greater than the security deposit required of tenants without assistive animals as that would qualify as discrimination.

What kind of proof do I need for my assistive animal?

There are no requirements that service animals or emotional support animals wear decals, carry certificates, or wear vests. (See, e.g., 28 C.F.R. § 36.302(c)(7) [providing that “[a] public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal”].) Thus, while credentialing, training, education, and experience are required for individuals who train service dogs, none of the aforementioned is required for the dogs themselves, and there is no training requiring for emotional support animals. (Compare Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214,227, 223 with Auburn Woods, supra, 121 Cal.App.4th at pp. 1496.)

Additionally, “[a] public accommodation shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal.” (28 C.F.R. § 36.302(c)(7).) “A public accommodation may ask [1] if the animal is required because of a disability and [2] what work or task the animal has been trained to perform.” (28 C.F.R. § 36.302(c)(7); see also Auburn Woods, supra, 121 Cal.App.4th at p. 1585, 1598 [noting that there is no requirement that a tenant must present a doctor’s note until a landlord requests it. (Auburn Woods, supra, 121 Cal.App.4th at p. 1585, 1598.) Moreover, “[g]enerally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).” (28 C.F.R. § 36.302(c)(7).)

What is the penalty for saying my animal is a service animal when it’s not?

California Penal Code, section 365.7 provides that “[a]ny person who knowingly and fraudulently represents himself or herself . . . to be the owner or trainer of any canine . . . qualified as . . . a guide, signal, or service dog, as defined in subdivisions (d), (e), and (f) of Section 365.5 and paragraph (6) of subdivision (b) of Section 54.1 of the Civil Code, shall be guilty of a misdemeanor punishable by . . . a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.”

What happens if someone discriminates against me because of my service animal or emotional support animal?

“Any person who, with no legal justification, intentionally interferes with the use of a guide, signal, or service dog . . . is guilty of a misdemeanor, punishable by . . . by a fine of not less than one thousand five hundred dollars ($1,500) nor more than two thousand five hundred dollars ($2,500), or both that fine and imprisonment.” (Pen. Code, § 365.6, subd. (a).) Additionally, the Unruh Civil Rights Act, (Civ. Code, § 51, et. seq.), provides that whoever discriminates against an individual with a disability in violation of its provisions, including Section 51, “is liable for each and every offense for the actual damages, and any amount that may be determined . . . up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto.” (Civ. Code, § 52, subd. (a).) In other words, if a business, common carrier, property manager, or property owner discriminates against you because of your disability by virtue of discriminating against your assistive animal, you can sue for your actual damages, but no less than four thousand dollars ($4,000.00), plus your attorneys’ fees and costs. (Ibid.)