Were it acknowledged by the parties in this case that Pierre [the dog at issue] was a hearing dog providing needed assistance to the plaintiffs, this case might be susceptible to determination as a matter of law. Balanced against a landlord's economic or aesthetic concerns as expressed in a no-pets policy, a deaf individual's need for the accommodation afforded by a hearing dog is, we think, per se reasonable within the meaning of the statute. Pierre's skill level, however, was hotly contested, and there was ample evidence to support a jury determination in favor of the defendant. Other than their own protestations and self-serving affidavits which were undermined at trial, plaintiffs offered no evidence that Pierre had ever had any discernible skills. The defendant, on the other hand, introduced evidence that Pierre was not a hearing dog -- the testimony of plaintiffs' former roommate and the defense expert -- and impeached plaintiffs on a number of aspects of their testimony including the claim that Pierre had been certified at a training center. Given this level of uncertainty and conflicting evidence about Pierre's training level, it was well within the province of a rational jury to conclude that Pierre's utility to plaintiffs was as simple house pet and weapon against cranky landlord, not necessarily in that order. If Pierre was not necessary as a hearing dog, then his presence in the townhouse was not necessarily a reasonable accommodation.
Id., 54 F.3d at 429 (footnote omitted). The court's difficulty with the jury instructions was that the trial court combined requirements of local, state, and federal law which may have lead the jury to erroneously infer that without school training a dog cannot be a reasonable accommodation. The court explained that professional credentials may be a part of the sum in determining whether a dog is a reasonable accommodation, but ?they are not its sine qua non.? Id., 54 F.3d at 431.
In Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D.Or. 1998), the United States District Court for the District of Oregon granted summary judgment on behalf of a deaf plaintiff in his FFHA claim against his landlord for refusing to allow him to have a service dog. The dispute was whether plaintiff's hearing assistance dog was, in fact, a hearing assistance dog or simply a household pet. The landlord argued that the dog was not an appropriate accommodation for the plaintiff's disability because the plaintiff was unable to produce any ?verification? that the dog was a ?certified? hearing assistance trained animal. Green, 994 F.Supp. at 1255. The district court rejected this argument, and explained,
there is no federal or Oregon certification process or requirement for hearing dogs, guide dogs, companion animals, or any type of service animal. There is no federal or Oregon certification of hearing dog trainers or any other type of service animal. The only requirements to be classified as a service animal under federal regulations are that the animal be (1) individually trained, and (2) work for the benefit of a disabled individual. There is no requirement as to the amount or type of training a service animal must undergo. Further, there is no requirement as to the amount or type of work a service animal must provide for the benefit of the disabled person. 28 C.F.R. ? 36.104. The regulations establish minimum requirements for service animals.
Plaintiffs claim that the dog underwent individual training at home and was also trained by a professional trainer. Plaintiffs state that the dog alerted [plaintiff] to several sounds, including knocks at the door, the sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. [The landlord's] requirement that an assistance animal be trained by a certified trainer of assistance animals, or at least by a highly skilled individual, has no basis in law or fact. There is no requirement in any statute that an assistance animal be trained by a certified trainer.
Green, 994 F.Supp. at 1255-1256.
Finally, in Janush v. Charities Housing Development Corp., 169 F.Supp.2d 1133 (N.D.Cal. 2000), the plaintiff, who suffered from a severe mental health disability, was denied permission to have two birds and two cats. She brought suit under the FFHA and alleged that the animals lessened the effects of her disability by providing her with companionship and were necessary to her mental health. The court denied the defendant's motions to dismiss and for summary judgment, and reasoned:
The legal basis for defendants' motion appears to be the assertion that California's definition of a ?service dog? should be read into the federal statute to create a bright-line rule that accommodation of animals other than service dogs is per se unreasonable. See Cal. Civ.Code. ? 54.1(b)(6)(C)(iii). Although the federal regulations specifically refer to accommodation of seeing-eye dogs, there is no indication that accommodation of other animals is per se unreasonable under the statute. In fact, the federal regulations provide a broad definition of service animals. ?Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability. . . .? 28 C.F.R. ? 36.104.
Janush, at 169 F.Supp.2d at 1135-36 (footnote omitted).
We now consider the specific facts of this case in light of the principles set forth above. In its ruling below, the circuit court assumed that the Jessups suffer from a ?handicap? under the FFHA. Our own review of the record reveals nothing which indicates that this finding is clearly wrong. Instead, the record reveals that both Mr. and Mrs. Jessup suffer from conditions which most likely substantially impair their mobility. Accordingly, this Court presumes that the Jessups suffer from a ?handicap? for the purpose of our analysis.
Contrary to the Jessups' claim, we believe that a requirement that a service dog be ?properly trained? does not conflict with federal or state law. Federal regulations interpreting the ADA define a service animal as one that is individually trained. 28 C.F.R. ? 36.104 (2001). (See footnote 10) The court in Green stated as one of the requirements of a service animal that it be ?individually trained.? Green, 994 F.2d at 1256. Also, the Bronk court said that the evidence was sufficient to support a defense verdict where the jury could conclude from the evidence that the alleged service dog had no discernible skills as a hearing dog. Obviously, a dog cannot acquire discernible skills as a service dog without some type of training. While the courts in Bronk and Green did say that the FFHA does not require professional training, certainly some type of training is necessary to transform a pet into a service animal. Significantly, Rule 21 does not mandate ?professional? training, only ?proper? training. Therefore, we conclude that the requirement under Rule 21 that an alleged service dog be ?properly trained? does not violate the FFHA or the WVFHA.
Second, the Jessups aver that the requirement in Rule 21 that a service dog be ?certified for the particular disability? violates the FFHA and the WVFHA. As set forth above, federal case law holds that an animal does not have to have professional credentials in order to be a service animal under the FFHA. This is because there appear to be no uniform standards or credentialing criteria applied to all service animals or service animal trainers. (See footnote 11) Further, there is no federal certification process, see Green, supra, and we are aware of no West Virginia certification process, for any type of service animal. Absent uniform professional or legal standards of certification for service animals or service animal trainers, a requirement that a service dog be trained by a certified trainer, or certified by a governmental entity, would place too great a burden on disabled persons and would violate the FFHA and the WVFHA. (See footnote 12) Therefore, read in its strictest sense, Kenna Home's certification requirement would appear to violate the federal courts' interpretation of the Federal Fair Housing Act.
However, Kenna Homes indicated at oral argument its willingness to administer Rule 21 in a flexible manner, and this Court agrees that Rule 21 can be enforced in a way that would not violate the FFHA. Accordingly, we set forth several guidelines which should govern the issue of certification. A landlord or person similarly situated may require a tenant seeking to keep a service animal under the Federal Fair Housing Act, 42 U.S.C. ?? 3601 to 3631, and the West Virginia Fair Housing Act, W.Va. Code ?? 5-11A-1 to 5-11A-20, to demonstrate that he or she made a bona fide effort to locate a certifying authority and, if such authority is located, to subject the service animal to the specialized training necessary for such certification. If the tenant fails to locate a certifying authority, it is reasonable for the landlord or person similarly situated to attempt to locate a certifying authority and, if one is located, to require certification of the service animal. If neither the tenant nor the landlord or person similarly situated can locate a certifying authority after reasonable attempts to do so, it is reasonable for the landlord or person similarly situated to require that a recognized training facility or person certify that the service animal has that degree of training and temperament which would enable the service animal to ameliorate the effects of its owners disability and to live in its owner's household without disturbing the peace of mind of a person of ordinary sensibilities regarding animals.
We do not believe that these guidelines are at odds with the provisions of Rule 21. The rule merely requires a service animal to be ?certified for the particular disability.? ?Certification? simply means ?[t]he formal assertion in writing of some fact.? Black's Law Dictionary (6th ed. 1990), 227. This Court determined above that it is not improper under the law to require that a service animal be ?properly trained.? Further, the burden is on the person claiming the need for a service animal as a reasonable accommodation to show that his or her animal is properly trained. In light of this, it is not unreasonable to require proof of proper training in the form of a written assertion by the dog's trainer that the dog has been trained to perform specific tasks. (See footnote 13)
Finally, the Jessups challenge the requirement in Rule 21 of a certificate or authorization request from a licensed physician specializing in the field of the subject disability. One of the two requirements to be classified as a service animal under the FFHA is that the animal work for the benefit of the disabled individual to ameliorate the effects of the disability so that the disabled person has an equal opportunity to use and enjoy his or her dwelling. As stated earlier, the necessity element ?requires the demonstration of a direct linkage between the proposed accommodation and the 'equal opportunity' to be provided to the handicapped person. This requirement has attributes of a causation requirement.? Bryant Woods Inn, 124 F.3d at 604. In order to show that the disabled person needs the assistance of a service animal to ameliorate the effects of his or her specific disability, it is reasonable to require the opinion of a physician who is knowledgeable about the subject disability and the manner is which a service dog can ameliorate the effects of the disability. Absent any clear law to the contrary, we do not believe that this requirement violates the FFHA or the WVFHA. (See footnote 14)
In addition, we recognize that a tenant may suffer from a disability, as defined by the FFHA and the WVFHA, which is not readily apparent to a landlord or a person similarly situated. As discussed above, a disability under the FFHA and the WVFHA includes not only obvious ones such as blindness or deafness but any impairment which substantially limits one or more major life activities, a record of having such an impairment, or being regarded as having such an impairment. Therefore, we hold that under the Federal Fair Housing Act, 42 U.S.C. ?? 3601 to 3631, and the West Virginia Fair Housing Act, W.Va. Code ?? 5-11A-1 to 5-11A-20, where a tenant suffers from a disability which is not apparent to a person untrained in medical matters, it is reasonable for a landlord or person similarly situated to require a second concurring opinion from a qualified physician selected by the landlord or person similarly situated to substantiate the tenant's need for a service animal.
Finally, we emphasize that the FFHA and the WVFHA require that the service animal be a reasonable accommodation. This means that under the Federal Fair Housing Act, 42 U.S.C. ?? 3601 to 3631, and the West Virginia Fair Housing Act, W.Va. Code ?? 5-11A-1 to 5-11A-20, a landlord or person similarly situated may require that a service animal not be a nuisance. For example, a vicious dog or one which howls and barks incessantly could be excluded, even if the animal were otherwise certified or trained. Also, a landlord or person similarly situated may require the owner of a service animal to maintain good sanitary conditions with respect to the service animal and to be financially responsible for any damage caused by the service animal.
In sum, we hold that the Federal Fair Housing Act, 42 U.S.C. ?? 3601 to 3631, and the West Virginia Fair Housing Act, W.Va. Code ?? 5-11A-1 to 5-11A-20, require that a service animal be individually trained and work for the benefit of a disabled person in order to be considered a reasonable accommodation of that person's disability. A person claiming the need for an alleged service animal as a reasonable accommodation of his or her disability has the burden of proving these requirements. Further, under the Federal Fair Housing Act, 42 U.S.C. ?? 3601 to 3631, and the West Virginia Fair Housing Act, W.Va. Code ?? 5-11A- 1 to 5-11A-20, a landlord or person similarly situated may require a disabled tenant who asserts the need to keep an alleged service animal to show that the animal is properly trained; to produce in writing the formal assertion of the trainer that the animal has been so trained; and to present a statement from a licensed physician specializing in the field of subject disability which certifies that the alleged service animal is necessary to ameliorate the effects of the tenant's disability.
The Jessups further assert, however, that Rule 21 is invalid as it was applied to them because they should be permitted to keep their two dogs as a reasonable accommodation under the FFHA and the WVFHA. We do not agree. As set forth above, the FFHA requires that an animal be individually trained in order to be a service animal. There is no evidence that the Jessups' dogs have been individually trained or have any discernible skills. Further, the Jessups have failed to show that their two dogs are necessary for them to have an equal opportunity to use and enjoy their apartment. As stated by the circuit court, ?[t]he 'necessity' for these dogs as indicated by the physicians is not related to any specific disability and is not related to the Jessups' ability to stay or live at Kenna Homes.? We agree.
The evidence indicates that the dogs provide comfort and companionship to the Jessups. However, the same can be said of most household pets. Palliative care and the ordinary comfort of a pet are not sufficient to justify a request for a service animal under the FFHA and the WVFHA. (See footnote 15) There is also evidence that the dogs stimulate Mr. Jessup to walk more regularly and for longer periods of time. Nothing, however, prevents Mr. Jessup from maintaining a healthy, active lifestyle without the dogs. We find, therefore, that the circuit court properly found that Rule 21 does not violate the FFHA or the WVFHA as applied to the Jessups. (See footnote 16)
This case is difficult because it requires the Court to balance the important but conflicting rights of people living in fairly close circumstances. The right to keep an animal must be balanced against the health interests of other tenants who may have serious allergies, emphysema, or other respiratory problems which may be aggravated by animal hair, fur, dander, feathers, droppings or parasites such as fleas and ticks. Further, this case should not be misused to permit a person to keep an animal as a mere pet when that animal is not, in fact, a bona fide service animal, properly trained or certified to accommodate a specific and genuine disability.
IV.
CONCLUSION
For the reasons stated above, we affirm the November 15, 2000 order of the Circuit Court of Kanawha County which found that Rule 21 of the ?Rules Of Occupancy For Kenna Homes? does not violate state or federal law either on its face or as it was applied to the Jessups.
Affirmed.
.
Topic: KENNA HOMES case Wv state case, tenants lost (Read 657 times)