By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
By Brian Rinker
By Rachel Swan
In June 2008, the Department of Justice issued a Notice of Proposed Rulemaking regarding potential changes to the Americans with Disabilities Act. The bulletin stated that many "have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA." This, the Department of Justice continued, was never the intention of the law — "Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not 'service animals.'"
And yet decades of legal rulings have soundly established the rights of the disabled to demand "reasonable accommodation" for animals that alleviate their hardships through the mere act of being animals. It could be argued that the creators of the ADA should have predicted the current situation would come to pass, as many of those cases were decided years before the law's creation in 1990. In 1979, for example, a mentally ill Georgia woman named Laura Majors sued the housing authority of DeKalb County for refusing to alter a no-pets policy to accommodate her toy poodle, Sparky, on whom she had "an emotional dependence." A Fifth Circuit Court judge ruled in 1982 that Majors had "a mental disorder requiring the companionship of the dog," and that the county housing authority had violated the federal Rehabilitation Act — the ADA's legal predecessor.
In 2004, the California Court of Appeal similarly found that an Auburn condominium association had "unlawfully discriminated" against a mentally ill couple in refusing to allow their dog, Pookie, on the premises. The ruling noted that "it was the innate qualities of a dog, in particular a dog's friendliness and ability to interact with humans, that made it therapeutic here."
(It warrants mentioning that no fewer than three federal agencies enforce rules regarding service animals: The Department of Housing and Urban Development, the aforementioned Department of Justice, and the Department of Transportation — meaning a disabled person with a service animal who leaves her apartment, takes a bus or cab to the airport, and gets on a plane has navigated through three different federal sets of rules and regulations.)
Following the "Pookie Case," San Francisco landlord attorneys reported a spike in the number of tenants demanding reasonable accommodation for a cornucopia of service animals — and statistics bear this out. Beth Rosen-Prinz, the deputy director of the state's Department of Fair Employment and Housing, affirmed the number of complaints regarding disability discrimination in housing has exploded over the past half a dozen years; it's now the number one complaint her office receives, outstripping even claims of racism. "I'd be reluctant to say there's increased [disability] discrimination," she said. "I think disability rights groups have been very diligent and successful in informing their constituency of their rights to demand reasonable modification."
Many of the city's top landlord attorneys — people who are all but burned in effigy by San Francisco's tenant activists — have a surprising strategy for their property-owning clients when confronted with service animal demands: acquiesce. In all but the most outlandish of cases, lawyer after lawyer told SF Weekly that it was neither legally nor financially worthwhile to fight tenants' demands. "It always starts out the same way. The landlord catches the tenant with a pet they're not supposed to have, words or writings are exchanged, and, before too long, the tenant ends up with a letter from a doctor," attorney Clifford Fried says. "At that point, it's game over." Cases involving dogs, cats, birds, or multiple combinations thereof — even a woman who produced a doctor's note stating her inability to conceive and express her maternal instinct necessitated her to breed hamsters — were all waved through.
Landlords can even be sued by people who are not their tenants. Lawyer Martin Snitow handled a case in which a woman in a wheelchair and her self-proclaimed service dog showed up at a local apartment to fill out an application. When the manager asked for a document proving the dog to be a service animal, the woman rolled out without even putting pen to paper — the dog was not registered, and she claimed to have trained it herself. She filed a discrimination complaint in San Francisco federal court; Snitow recalls the settlement was "in the low five digits."
While it would be hyperbole to claim San Francisco is inundated with service creatures, within certain communities the number of animals has grown to be significant. James Holland is the director of property management for the Tenderloin Housing Clinic, overseeing 16 SRO hotels with an average of 88 units apiece. He estimates fully one-quarter of his tenants have service animals, and the more folks get them, the more he says everyone wants one.
In fact, since service animals are not legally considered "pets," disabled would-be renters are legally entitled to claim they have no pets when filling out apartment applications, then lawfully move in with their service animals. "I always tell people that they have the right not to ask for [accommodation for service animals] until they're in the building," notes Sara Malan, a housing attorney at the AIDS Legal Referral Panel.