[nagdu] What does it take to get a dog into a no-pet building?

[Ginger Kutsch]

What does it take to get a dog into a no-pet building? 

A Tussle Over Service Dogs

New York Times

http://www.nytimes.com/2013/09/29/realestate/getting-a-dog-into-a-no-pet-bui
lding.html?pagewanted=all&_r=0

 

The question is becoming a hot topic in New York City. Because depending on
whom you ask, the answer is A) a legitimate disability or B) a dubious note
from a doctor or therapist. 

 

Most people know that federal, state and city laws require building owners
and landlords to accommodate tenants who have disabilities - for instance,
by waiving a no-pet rule for a blind resident's guide dog. But word
apparently is spreading about how broadly these laws define a disability,
allowing people with a wide range of physical and mental conditions to seek
waivers for their dogs. 

 

Serious depression, chronic pain, AIDS, autism, dementia, cancer and heart
disease are just some of the illnesses lawyers say can qualify as
disabilities. And as New Yorkers trade advice about this topic in dog parks,
elevators and online pet forums, the number of people applying for waivers
is increasing "enormously," said Darryl Vernon, a partner in the law firm
Vernon & Ginsburg. 

 

Mr. Vernon, who specializes in pet and housing law, cautioned that making
your case to a landlord or co-op board takes more than just copying a
doctor's note someone posted online. 

 

"You need to show two things," he said. "One, that you really have a
disability within the meaning of the law, not just seasonal depression or
the economy is bad. And two, that there's a connection between the dog and
your disability, that the dog is medically helpful." 

 

That still leaves landlords, co-op boards and their legal representatives a
lot of gray area in determining what constitutes a legitimate disability,
and whether a dog (or other animal) truly helps alleviate it. No-pet
buildings worry that granting too many waivers will encourage other tenants
to line up with their own doctors' notes. And buildings must consider the
sentiments of residents who chose a dog-free building because of allergies
or a bad experience with an unruly animal. 

 

But denying a request for a disability accommodation can have negative
consequences, too. "No one wants to be held liable for discriminatory
conduct," said Adam Leitman Bailey, a lawyer who represents rental
buildings, co-ops and condos. "Most boards leave it up to their attorneys to
make these decisions." 

 

Mr. Bailey says he reviews at least one request a month for a waiver of a
no-pet rule to allow for a service or emotional-support animal - usually a
dog, although other animals, like birds, may qualify. He recommends
approving about half of these requests, suggesting a denial if the
documentation is thin. 

 

"We require a lot of information," Mr. Bailey said, "and often they can't
provide it." 

 

As an example, he shared a letter from a doctor, submitted on behalf of a
patient (whose name was redacted) with Type 2 diabetes and unspecified
"chronic medical conditions." The six-sentence letter mentioned the health
benefits of walking a dog ("great exercise") and the patient's observation
that "spending time with his dog had greatly improved his mood," but the
reasons were deemed insufficient to justify a waiver. 

 

A big challenge for building owners, lawyers say, is determining what proof
they can ask for in order to establish how a dog helps with a disability,
especially when the condition in question is not an obvious physical
impairment. 

 

The relevant statutes are the federal Fair Housing Act (which defines a
disability as a mental or physical condition that "substantially limits" a
major life activity), the New York State Human Rights Law and the New York
City Human Rights Law. The city law is generally considered the broadest of
the three, covering "physical, medical, mental or psychological" impairments
- which opens the door to a wide range of requests. 

 

One woman in a no-dog building who received a waiver illustrates the
complexity of some of these cases. 

 

Describing her situation on the condition that her name not be published,
she listed a succession of challenges that left her depressed: she lost her
job; her father died; her mother had to move into an assisted-living
facility; and the fate of her father's dog was up in the air. 

 

A neighbor recommended a lawyer with a disability-waiver track record. The
lawyer referred her to a therapist, who wrote a lengthy letter describing
her anxiety and outlining her family history, ultimately recommending that
she be allowed an emotional-support animal - her father's now-ownerless dog.
She secured a second letter from her primary-care physician, who based his
note on a sample letter she gave him. 

 

"Everything that the two notes said is actually true," she said, explaining
that the dog helps get her out of the house, alleviates her loneliness and
eases her depression. Still, she acknowledged that she probably would not
have taken on a dog if she hadn't inherited her father's pet. 

 

"I couldn't bring her to a shelter because I couldn't allow her to be
killed," she said. "I was trying to do the right thing by keeping her." 

 

She continued seeing the therapist, and estimated that she spent about
$3,000 in legal fees in order to get the waiver approved. 

 

Other cases, however, involve blatantly fraudulent attempts to evade the
no-dog rule. 

 

"Somebody asked for a dog to help them because they weren't very stable on
their feet," said Dennis H. Greenstein, a partner at Seyfarth Shaw who
represents co-op and condominium boards. "The board found out from other
residents that they saw that person jogging fairly regularly in Central Park
without the dog." 

 

Mr. Greenstein says he's seeing more requests for service or
emotional-support animals, and estimates that "a tad more are accepted than
rejected," especially when the dog performs a specific task, like reminding
the owner to take medication. 

 

"I think boards are generally interested in trying to do the right thing,"
he said. "They just want to make sure this is not a backdoor way to get a
pet in." 

 

To discourage bogus requests, some buildings are drafting rules outlining
the conditions for which waivers are granted. Typically, the application
includes a note from a doctor or therapist, and proof that the dog has a
license from the New York City Department of Health and Mental Hygiene (and
in some cases that it has been registered as a service dog). 

 

As part of the approval process, building owners and boards are allowed to
ask questions about the materials submitted, so there may be some
back-and-forth before a request is acted upon. 

 

"It's not unreasonable for a landlord to make some additional inquiries
about the case," said Karen Copeland, a lawyer who has represented dozens of
clients seeking such waivers. 

 

Among them: a woman with lung cancer whose dog helped prevent her from
smoking cigarettes ("It provided her with a distraction"); someone with
Parkinson's disease ("It was able to diminish his symptoms, like
trembling"); and a recovering alcoholic ("The dog gave her social things to
do - she could go to a dog park and make friends"). 

 

Ms. Copeland also represents Betty Cohen, the owner of a no-dog condominium
unit at the Bay Club in Bayside, Queens. Ms. Cohen, who says she suffers
from depression, acquired two West Highland terriers and requested a
disability accommodation for them. After she submitted letters from her
doctors attesting to her condition, the Bay Club said yes to one dog, but
notified her that she had to remove the second from the premises by Sept.
30. 

 

"I can't live without both dogs," Ms. Cohen said. "No matter what it costs
or what I have to do, I have to have them." 

 

Barbara Morley, the president of the Bay Club's board of managers, explained
the building's decision in an e-mail, noting that the documentation Ms.
Cohen submitted, which was reviewed by legal counsel, "did not support a
need for two dogs." 

 

"Over the last decade we have extended ourselves to accommodate people with
special needs who request permission to keep an emotional-support dog," Ms.
Morley wrote, adding that the increase in "comfort dogs" in the building had
increased the number of complaints from other residents about dogs barking
and soiling carpets. "Many have purchased apartments here because of the
no-dog policy," she said, "and so it is the responsibility of the Board of
Managers to consider the concerns and needs of all residents." 

 

As of last week, Ms. Cohen had not decided what she was going to do, but Ms.
Copeland said one option would be to submit a discrimination complaint to
the federal Department of Housing and Urban Development Office of Fair
Housing and Equal Opportunity. 

 

Other cases are filed with the New York City Commission on Human Rights,
which investigates complaints about housing discrimination, including claims
that an owner or landlord refuses to provide a reasonable accommodation for
a disabled individual. The commission can levy penalties and award damages. 

 

"If someone comes to us with a service-animal issue," said Cliff Mulqueen,
deputy commissioner and general counselor for the human rights commission,
"they've stated a claim of discrimination and we have to take the case." 

 

Mr. Mulqueen says that although housing providers may challenge the medical
documentation submitted by the resident, they should be careful about
adopting rules about service animals once a dog has been approved. 

 

"If you start requiring extra insurance or you start penalizing people," he
said, "you're going to risk running into other issues of discrimination.
That's a really tricky road." 

 

But housing providers do have the right to remove a service dog or an
emotional-support animal if it becomes a nuisance - for instance, by barking
incessantly or soiling common areas. 

 

Kody Keplinger, who is legally blind, had reservations about getting a
service dog before deciding to take the plunge earlier this year. One of her
concerns was how her building, which doesn't allow dogs, would deal with her
request; another was whether she could handle the responsibility of owning a
pet. 

 

The trainer from the agency that matched her with a German shepherd named
Corey helped ease the transition on both fronts, accompanying her when she
spoke with her landlord and emphasizing the training that service dogs
receive. 

 

"A legitimate concern my landlord did have was whether there would be any
peeing in the apartment," Ms. Keplinger recalled. Describing Corey, she
added: "That is something she's been trained for - she actually goes on
command. I take her to a spot and tell her when she should go." 

 

Although Ms. Keplinger's landlord didn't challenge her need for a service
dog, people at movie theaters and in other public places have accused her of
faking her disability. She worries that dishonest requests for service or
support animals will have negative repercussions for people who really need
them. 

 

"Frankly," she said, "I would rather a few people slip through the cracks
and cheat the system than have the regulations made harder on people who
need service dogs. It is a very complicated issue, and I understand it's
frustrating for landlords and co-ops. 

 

"Unfortunately, there is no perfect solution." 

 

A version of this article appears in print on September 29, 2013, on page
RE1 of the New York edition with the headline: Do You Have a Doctor's Note?.