By Steve Scott, Attorney
Scott Law Firm PC

[Edited April 3, 2023 to add a final section
on the effect of a recent Missouri statute.]

In recent years landlords and property managers have experienced a surge of requests by tenants to keep “emotional support animals” even when animals are not usually permitted. In the law the correct legal term for such animals is “assistance animal.” There is another legal category called “service animal.” For both categories, the law prohibits charging a pet deposit or pet fee. This post explains the law on assistance and service animals and how to evaluate tenant requests to keep them.

HUD guidelines

The most recent guidelines issued by the U.S. Department of Housing and Urban Development (HUD) concerning “assistance animals” and “service animals” were published in April 2013. According to those guidelines, there are three federal laws that include provisions relating to “assistance animals” and “service animals,” which are different categories of animals. The three laws are:

1. Fair Housing Act (FHAct), which applies to virtually all types of housing.
2. Section 504 of the Rehabilitation Act (Section 504), which covers housing providers that receive federal financial assistance through HUD. This would include landlords who accept Section 8 tenants with respect to rental units occupied by those tenants.
3. Americans with Disabilities Act (ADA), which in the housing context applies to public housing agencies, public universities and colleges that provide housing, and public accommodations including rental offices.

No provisions of Missouri law impose requirements greater than these three laws. Therefore, the following summary of requirements is based on the above-mentioned HUD guidelines.

Assistance Animals – FHAct and Section 504

Both the FHAct and Section 504 require “reasonable accommodation” of persons with disabilities and must be taken into account when persons with disabilities use (or seek to use) assistance animals in housing where the provider ordinarily prohibits animals or imposes restrictions or conditions relating to animals.

Under these laws, an assistance animal is not deemed to be a pet. Rather, an assistance animal is one that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Neither of these laws require an assistance animal to be individually trained or certified. While dogs are the most common assistance animals, other species can also be assistance animals.

When a housing provider receives a request to use an assistance animal as a reasonable accommodation for disability, the provider must consider two issues:

1. Does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities?

2. Does the person making the request have a disability-related need for an assistance animal? I.e., does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms of a person’s existing disability?

● If the answer to either 1 or 2 is “no,” then the FHAct and Section 504 do not require the housing provider to modify a “no pets” policy or modify other restrictions on pets, and the reasonable accommodation request may be denied.

● If the answer to both 1 and 2 is “yes,” then the FHAct and Section 504 require the housing provider to modify or provide an exception to “no pets” rules or other pet restrictions and allow the person with a disability to live with and use an assistance animal in all areas of the premises where persons are normally allowed to go, unless:

a. Making the exception would impose an undue financial and administrative burden on the provider or would fundamentally alter the nature of the housing provider’s services; or

b. The specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; or

c. The specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Note: In making a determination under b. and c., breed, size and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to property must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual behavior – not on mere speculation or fear about the types of harm or damage an animal might cause and not on evidence about harm or damage that other animals have caused.

Assessing an Assistance Animal Request: A housing provider may not deny a request to have an assistance animal simply because the provider is not totally certain the applicant qualifies. Responses to assistance animal requests may not be unreasonably delayed. The following rules apply:

1. If the applicant has a readily apparent disability and need for an assistance animal, such as a blind or low-vision person using a guide dog, or if the disability and need is already known to the housing provider, the provider may not request documentation of disability and need and must allow the animal.

2. If the disability is readily apparent or known, but the disability-related need for an assistance animal is not readily apparent or known, the housing provider may ask the applicant to provide documentation of the disability-related need for the animal.

3. If no disability is readily apparent or known to the housing provider, the provider may ask an applicant to submit documentation of the disability and disability-related need for an assistance animal.

Notes: In situations 2 and 3, the housing provider may either require the applicant to have this form completed by a professional and submitted to the housing provider before a determination is made or require the applicant to provide essentially the same information in the form of a signed letter or note from the professional who examined the applicant. However, the housing provider is not entitled to request access to medical records or to request permission to interview healthcare professionals. We believe the housing provider may insist that the documentation of need be based on an in-person examination by a qualified professional because there is general agreement among the healing professions that an appropriate diagnosis cannot be made without such an examination; therefore, in our opinion, housing providers are not required to accept a “certificate” obtained by a tenant from a website where the tenant simply pays a fee and fills out an online questionnaire to obtain the certificate without being examined in person by the certificate issuer.

If it is determined that a person must be allowed to use and live with an assistance animal, a housing provider may not impose conditions and restrictions on the animal that it otherwise imposes on pets, including size and breed limitations. Also, a housing provider may not require a pet deposit or pet fee. Any pet agreement or pet clause in a lease must be modified to eliminate any pet deposit/fee requirement. However, the housing provider may require a tenant at the conclusion of a lease to pay the cost of repairs for damage an assistance animal caused to the tenant’s dwelling unit or common areas beyond ordinary wear and tear so long as it is the provider’s normal practice to charge all tenants for damage to the premises beyond ordinary wear and tear.

Service Animals – ADA

As mentioned above, the Americans with Disabilities Act (ADA) applies in the housing context to public housing agencies, public universities and schools that provide housing, and public accommodations including rental offices. Thus, private-sector landlords and property managers will most often need to keep this law in mind with regard to housing applicants who seek to enter a rental office open to the public while accompanied by a service dog.

Under ADA regulations promulgated by the U.S. Department of Justice, a “service animal” is defined narrowly as a 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. The regulations specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Thus, emotional support animals are expressly excluded from the definition of service animals under the ADA.

An individual’s use of a qualified service dog in a rental office or other ADA-covered facility must not be handled as a request for reasonable accommodation under the FHAct or Section 504. Rather, in ADA-covered facilities, the dog need only meet the definition of “service animal” to be allowed into the facility.

If it is readily apparent that the dog is trained to do work or perform tasks for a person with a disability (e.g., the dog is observed guiding a blind person), no inquiry is permitted.

If it is not readily apparent that the dog is trained to help a person with a disability, the facility may ask only these two questions:

1. Is this a service animal that is required because of a disability?

2. What work or tasks has the animal been trained to perform?

Note: No documentation may be required to support the responses to these questions.

If it is determined the dog is a qualified service animal, the dog must be allowed access to all areas of the facility where members of the public are normally allowed to go and may not be denied access unless:

1. The dog is out of control and its handler does not take effective action to control it; or

2. The dog is not housebroken, i.e., not trained to control urination and defecation; or

3. The dog poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to the facility’s policies, practices and procedures. This determination must be based on an individualized assessment of the dog’s actual behavior – not on fears, stereotypes or generalization.

If a person entering a rental office with a service dog submits an application to reside at rental premises with the dog, the application then must be evaluated under the FHAct and Section 504 guidelines set out in the preceding section. In almost all situations, a service dog will clearly qualify as an assistance animal that must be allowed.

Effect of Recent Missouri Statute

A new Missouri statute became effective on August 28, 2020, making it a misdemeanor criminal offense to misrepresent an animal as a service dog or assistance animal.

Service dogs

A person who misrepresents that a dog is a service dog can be found guilty of a class C misdemeanor for the first offense and a class B misdemeanor for a second offense. The person can also be held civilly liable for actual damages resulting from the misrepresentation. Misrepresentation includes but is not limited to:

• Knowingly creating documents that falsely represent that a dog is a service dog
• Knowingly providing to another person documents falsely stating that a dog is a service dog
• Knowingly fitting a dog, if the dog is not a service dog, with a harness, collar, vest, or sign of the type commonly used by a person with a disability to indicate a dog is a service dog; or
• Knowingly representing that a dog is a service dog if the dog has not completed training to perform disability-related tasks or do disability-related work for a person with a disability.

Assistance animals

A person who misrepresents that an animal is an assistance animal can be found guilty of a class C misdemeanor for the first offense and a class B misdemeanor for a second offense. The person can also be held civilly liable for actual damages resulting from the misrepresentation. Misrepresentation includes but is not limited to:

• Knowingly creating documents that falsely represent that an animal is an assistance animal;
• Knowingly providing to another person documents falsely stating that an animal is an assistance animal;
• Knowingly fitting an animal, if the animal is not an assistance animal, with a harness, collar, vest, or sign of the type commonly used by a person with a disability to indicate an animal is an assistance animal
• Knowingly and intentionally misrepresenting a material fact to a health care provider for the purpose of obtaining documentation from the health care provider necessary to designate an animal as an assistance animal. All documentation for an assistance animal must be from a qualified professional.

Penalties

Class C misdemeanor penalties are a fine up to $750 and imprisonment for up to 15 days.

Class B misdemeanor penalties are a fine up to $1,000 and imprisonment for up to 6 months.

Effect of statute

The number of inquiries received by Scott Law Firm from landlords and property managers concerning assistance/emotional support animals has decreased substantially since the statute became effective. We used to receive several inquiries each month. Currently we are receiving about one such inquiry per month.

Landlords and property managers can help increase the effectiveness of the statute by posting the following information:

The following Missouri statutory sections became effective on August 28, 2022:

Sec. 209.204. 1. Any person who knowingly impersonates a person with a disability for the purpose of receiving the accommodations regarding service dogs under the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., is guilty of a class C misdemeanor and shall also be civilly liable for the amount of any actual damages resulting from such impersonation. Any second or subsequent violation of this section is a class B misdemeanor.

Sec. 209.204.2. No person shall knowingly misrepresent a dog as a service dog for the purpose of receiving the accommodations regarding service dogs under the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq. For purposes of this section, “misrepresent a dog as a service dog” means a representation by word or action that a dog has been trained as a service dog as defined in section 16 209.200.

Sec. 209.204.3. No person shall knowingly misrepresent any animal as an assistance animal for the purpose of receiving the accommodations regarding assistance animals under the Fair Housing Act, 42 U.S.C. Section 3601, et seq., or the Rehabilitation Act, U.S.C. Section 701, et seq. For the purposes of this section an “assistance animal” is an animal that works, provides assistance, or performs tasks, or is being trained to work, provide assistance, or perform tasks, for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. While dogs are the most common type of assistance animal, other animals may also be assistance animals.

A first offense under these sections is a class C misdemeanor, punishable by a fine up to $750 and imprisonment for up to 15 days. A second offense is a class B misdemeanor, punishable by a fine up to $1,000 and imprisonment for up to 6 months.

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