Diana Alton’s living room table is stacked high with Santa Claus figurines and other Christmas decorations, but until about three years ago the holidays were no cause for her to celebrate.
That’s when her doctor told her to get a dog for emotional support. Alton, 65, still can’t work, but Scrappee Anne, her miniature schnauzer, makes it possible for her to socialize and cope with the anxieties of clinical depression and posttraumatic stress disorder.
“If it weren’t for Scrappee Anne, I don’t even know I would be talking with you today,” Alton said.
But Scrappee Anne also was the center of a three-year legal battle about “emotional support animals” that involved Alton, the federal government and her landlords, who required her to pay a $1,000 pet deposit for her Kelso apartment.
Alton’s case sets two rights in conflict – her right to cope with her medical condition and the landlords’ right to control and maintain their property. Alton is part of a growing trend of people with mental illnesses relying on what are known as therapy, comfort or “emotional support” animals to stem the symptoms of their illness. But the confusing patchwork of state and federal laws makes landlords and other businesses vulnerable to lawsuits if they impose restrictions.
Alton’s landlords, Linda and Bert Barber of Castle Rock, recently settled the case after incurring $175,000 in legal fees fighting Alton and the U.S. Department of House and Urban Development (HUD), which represented her. Early this month, they agreed to pay a $25,000 settlement to Alton and the government just to end it all.
“What happened to us is a warning to other landlords … and to brick and mortar stores,” Bert Barber said last week.
‘Ignorant of rights’
Alton moved into her apartment at 1632/1634 Minor Road in 2008. At least once, in 2009, Alton wrote to the Barbers about her wish to obtain a comfort/assistance animal to cope with her disabilities. She included a note from her doctor saying it would be helpful to her. In January 2011, Alton’s neighbor gave her Scrappee Anne to use as an assistance animal.
Bert Barber said last week that the dog had been a pet “and overnight it became a service animal.”
According to court documents, Alton testified that the property manager, Lori Thompson, told her Scrappee Anne did not qualify as a service animal and that Alton would have to pay a $1,000 pet deposit. Alton signed a pet agreement and began making $50 monthly payments toward the deposit.
It wasn’t until several months later that a caseworker with the Kelso Housing Authority told Alton, who was on federal housing assistance, that she shouldn’t have to pay the deposit.
Alton filed a complaint with HUD, which charged the Barbers with discrimination and referred the case to the U.S. Justice Department, which filed the case in U.S. District Court in Tacoma. HUD argued that the Barbers’ failure to waive the deposit violated Alton’s right for a reasonable accommodation for her disability under the federal Fair Housing Act.
The two parties disagree on several points about what followed. Linda Barber claims that Alton never requested a waiver of the pet deposit and would have received one if she had done so. Alton contends the Barbers retaliated by enforcing certain rules more strictly.
Alton moved out in May 2012 , saying she was becoming uncomfortable living there. She lost her federal housing assistance, but the Kelso Housing Authority found her a subsidized apartment near the Three Rivers Mall.
In October, U.S. District Court Judge Benjamin Settle found that “the government has failed to show a policy of discrimination” in the case. At the same time, he found “sufficient evidence of intimidation or threat” that lead to Alton to move out of the Barbers’ building. He denied both parties’ request for summary judgment and the case was set for trial on Nov. 19.
Bert Barber said he and his wife decided to settle the case not as admission of guilt but “as a business decision.” By this time, the Barbers and their insurance company had racked up $175,000 in legal fees, and Bert Barber said they couldn’t afford the risk of incurring more costs.
While the Barbers say they feel the government targeted them, Alton said it stood up for her rights.
“I think the problem is that people are ignorant of their rights,” Alton said.
Federal and state laws regulate service and comfort animals differently, and that “confuses the landlords and the people renting,” said Sharon Ortiz, executive director of the Washington State Human Rights Commission.
Under state law, “service animals” are specially trained to perform a disability-related task, such as alerting people who are deaf, pulling a wheelchair, reminding a person to take medication or calming a person with PTSD. State law does not regulate how landlords must accommodate people with service animals, but it bars businesses and public entities from discriminating and turning away people with service animals (there is no specific license for such animals).
However, under pressure from the Washington Restaurant Association and other food-industry groups, the Legislature tweaked the law in 2011. It allowed restaurants, bars and grocery stores to prohibit all animals except for dogs and miniature horses that are trained as service animals.
Except for airlines, businesses and public entities do not have any legal obligation to permit comfort or emotional support animals that are not specially trained. Neither state law nor the federal Americans with Disability Act makes provisions for emotional support, comfort, therapy or companion animals that have no special training but can help their owners cope with mental illnesses.
“You can understand why the individual who has that animal for their PTSD would want it to accompany them out in the public, but the ADA doesn’t protect that privilege unless the animal has been trained,” said John Dineen of the Northwest ADA Center.
Once you step inside someone’s home, the rules change. The federal Fair Housing Act broadly defines “assistance animals” as any species, trained or untrained, that assists someone with a disability or mental illness. Under it, landlords must allow tenants to live with their assistance animals regardless of what their pet policies allow, but landlords can take any damages the animal cause out of the security deposit. Tenants also may request any fees or pet deposits to be waived as a reasonable accommodation for their disability. If the person’s disability is not apparent, a landlord may ask the tenant to provide medical documentation of the disability-related need for the animal.
The complexity of the rules leaves business owners confused about what to allow.
Dineen said that about 20 percent of the Northwest ADA Center come from landlords, business owners and people with disabilities confused about the laws involving service animals. The calls range from “a manager from a cafe in Oregon calling up and asking ‘is there really such a thing as a service squirrel?’” to a person with service animal complaining that a hotel wouldn’t allow them to book a room, he said.
Dana Millard, who owns the Pancake House in Longview, said she often has customers bring in emotional support animals into her restaurant. Other customers don’t say anything, but she wonders what they think.
“I love animals but I don’t think they have a place in restaurants unless they are serving a person’s (disability) need,” Millard said.
“I wouldn’t like seeing someone feeding the dog a piece of bacon and the dog is licking their finger and then they reach up to move the salt and pepper shaker,” Millard said. “We sanitize everything, but do other restaurants?”
Animal owners are responsible for cleaning up after their animal whether inside or outside the home, said Ortiz, the state Human Rights Commission director.
Alton said she has not encountered major problems with taking her dog into public places, restaurants and grocery stores. Many businesses and patients aren’t actually aware of the differences in state and federal law, and many don’t enforce the new tighter regulations.
Scrappee Anne is not a pet, but a critical aspect of her medical treatment, she argued, and asking her to pay pet deposit “would be like charging rent for a caretaker to come to my house.”
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