The Elephant (or Should I say “Big Dog”) in the Room (HOA) – We Should Talk About It
I recently received an email request to comment on the following:
“Maybe in a future newsletter you could mention how to handle new or old owners about
being ADA and what the requirements are. Seems a lot of new owners young and old are bring in
large service dogs about 80lbs and say they are ADA. Our HOA only allow one 35lb pet. “
I went back through my forms file to see what might be worth bringing up. In California there was a case in 2002 that resulted in “the Pooky Principle”. The dog’s name was Pooky. The Association is a condo that prohibited dogs. The dog owners claimed the dog helped with depression. After some flip flop decisions between the Fair Housing Administrative hearing, a court writ, a court case and an appeal, the final decision which is binding in California is that depression is a condition warranting a “service” dog. The Article below mentions this case and that it lead to more leniency in allowing assistance dogs to accompany owners in public places. In California, not long after, the legislators passed a law that said homeowner associations had to allow owners to have one pet.
Reasonable rules are allowed under this law and size restrictions would generally be reasonable – but the catch is that the rules, including the size limitation can’t be applied to a “service” or “assistance” dog. I think the San Francisco Chronicle story below relating to distribution of tags for assistance dogs says it better than I could, and it is from way back in 2004. Now, this same mindset has spread throughout California. It doesn’t take much to establish that a dog is an “assistance dog” allowed in public places including restaurants, taxis and the like. But don’t be confused about one thing. The ADA does not apply to purely private homeowner associations. It applies to public places. However, the Fair Housing Amendments Act does apply and it serves as the basis for the stand on assistance pets. Here is the 2004 article in its entirety. It lays things out nicely. Way back then this was somewhat of a shock to HOAs in California. In this day and age, pretty much all that is left for the association is addressing any problems caused by the pet. In other words, if the dog is a nuisance barker or is aggressive or is to left running unleashed it the common area, fines or even seeking removal from the development might be acceptable but one has to tread lightly and get legal advice and assistance. Here is the story from 10 years ago.
‘Assistance dog’ designation opens doors for pooches
With state’s blessing, S.F. OKs hundreds of therapeutic pets
Rachel Gordon, Chronicle Staff Writer
Tuesday, October 19, 2004
In this dog-eat-dog world, Frank Jackson finally found solace in a sweet-faced cocker spaniel named Topper. Jackson, 55 and HIV-positive, had trouble with depression and was feeling isolated, not really wanting to leave home. But two months ago, he adopted Topper from a rescue agency. “It’s the best thing I’ve done in 20 years,” he said. “He needed love and affection as much as I did.”
One of the first things Jackson did was register Topper with the Animal Care & Control agency in San Francisco as an “assistance dog.”
The official designation gives Jackson the legal right to take his four- legged companion on the bus or in a taxi and into shops, restaurants and public buildings. And, perhaps most importantly, his landlord had to make an exception to the no-dogs policy for the apartment Jackson rents in the city’s Upper Market neighborhood.
Topper is not alone. By last week, San Francisco had issued 658 tags for assistance dogs — a number that reflects a big jump since a 2002 ruling by a state regulatory agency that gave people troubled by psychological and emotional problems the right to keep companion dogs and to exercise the legal benefits that go along with it.
Service dogs traditionally have been paired with the visually and hearing impaired, and people using wheelchairs. Now, however, more are helping people who are depressed or anxious and who rely on canine companionship to help them cope.
San Francisco began issuing assistance dog tags in 1998. In 1999, the first full year of the program, 60 tags were given out. The number issued last year ballooned to nearly 160, and the applications keep coming.
“The bottom line is that we’re seeing a lot of people come down here with notes from their doctors saying they need a companion dog to improve their quality of life,” said Carl Friedman, director of the city animal control agency. “Now we’re seeing a lot of people applying for the tags who have psychological issues.”
Just about all it takes to get an assistance tag in California is a note from a doctor and a signed statement from the owner that the dog has been specially trained. That training, however, can be done by the owner and can be as simple as teaching the dog to wag a tail and lick a face if that’s what it takes to make someone with a diagnosed depression feel better.
“Most dogs do that — lift your day,” Friedman said. “The difference between lifting someone’s day and helping them get through the day is a fine line.”
San Francisco trumps other jurisdictions in the Bay Area when it comes to the number of tags issued. For instance, county and humane society officials say 199 have been approved in Marin County, 48 in San Mateo County, 19 in Alameda County, 60 in Contra Costa County and only a handful by the Silicon Valley Animal Control agency, which includes Campbell, Monte Sereno and Santa Clara.
When asked why San Francisco — a city with a dog population estimated at 100,000, or about one for every 7.5 humans — is so different, Friedman sat back in his chair and laughed. “Boy,” he said, “I’d need about two hours to explain.”
One reason, he suggested, is that San Francisco started the program before other counties. But on top of that, the city has a large population of people with disabilities and a keen awareness of individual rights.
California law stipulates that county animal control agencies only have to process applications for assistance dogs — not the miniature horses, monkeys and other critters some disabled people have used to help them out.
“We had one person come in who wanted a tag for a pot-bellied pig, but we rejected the request,” Friedman said. “I didn’t want to get into that. What if a guy comes in asking about his hamster, and wanted to take his hamster to Macy’s? Because this is San Francisco, we had to draw the line somewhere.”
San Francisco business owners, building managers and public agencies are starting to get the hang of what’s required of them, said Sgt. Michael Sullivan, the Americans with Disabilities Act coordinator for the San Francisco Police Department. He helps mediate disputes between merchants and customers, trains officers on how to enforce the intricacies of access laws and tries to educate Muni drivers and others working with the public.
Patty Hontalas, manager of Louis’ restaurant, up the street from the Cliff House in San Francisco, said she had to be educated when a man came into the oceanfront dining spot with his small dog last year. At first she told him that dogs weren’t allowed — the health code generally bars animals from entering eating establishments — but the customer insisted otherwise, arguing his dog was an official companion animal. With the customer showing no noticeable disability, Hontalas wasn’t sure what to do and called the SPCA for a quick lesson on the law.
“Now I just ask if they have a tag for their dog,” said Hontalas, adding that she doesn’t have any problem with well-behaved dogs in the restaurant. “I am seeing a lot more people bringing their dogs into businesses.”
The spike in San Francisco started around the same time the California Department of Fair Employment and Housing issued a ruling in 2002 that sided with a Placer County couple. The husband and wife, both of whom suffered from depression, had been told by their condominium association that they had to abide by the no-dog policy and couldn’t keep their wire-haired terrier mix, Pooky, on the premises.
The state civil rights agency ruled that the condo association discriminated against the couple based on their doctor-diagnosed disabilities. This past August, the state Court of Appeal upheld the agency’s ruling, saying that the condo association failed to reasonably accommodate the couple.
“For the first time, the California courts have linked fair housing with the companion-animal question. The decision signifies that just as a service animal may assist a person with physical disabilities, the emotional support derived from a companion animal can help a person suffering from depression or other emotional illness,” the Department of Fair Employment and Housing said in a written statement.
Kristi Kissell has no doubt. She got the special tag from the city for her dog Rocky after she had a hard time renting an apartment in San Francisco. She told her new landlady after she signed the lease that her corgi-Chihuahua mix would be living with her. By that time, there was little the owner could do because of the legal protection afforded Kissell as long as she had the official stamp of approval.
“I’m HIV-positive, and a lot of times it’s just me and my dog. He’s always there for me and won’t leave my side, helps with my loneliness,” said Kissell, 41, who lives in the Sunset District. “He really is great support and had made a big difference in my life.”
Jackson — Topper’s human companion — said his life has profoundly improved after securing the special tag from the city’s animal control agency, allowing him to keep a dog at home. “The most tangible thing I can point to is I wake up in the morning with a smile on my face now,” he said. “I can’t remember the last time I did that.”
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