March 30, 2018

30 MARCH 2018 – WMA REPORTER

By Lisa Toke

Lisa Toke is a principal at Andre, Morris & Buttery, a law firm that has been advising mobile home park owners on pre-litigation strategy, and representing them in litigation, for decades.

“I know the park only allows one pet, but I have a second dog that is an emotional support animal.” These words, or words like them, have been frustrating mobile home park owners and managers for years.

The main problem with service and emotional support animals is that the law governing them is far from clear. And although that law was undoubtedly enacted with the best of intentions – to provide assistance and support to people who are truly in need of such assistance and support – there are people who take advantage of the lack of clarity in order to get around reasonable restrictions on the number of pets residents may have. Residents do not, in other words, usually have one pet that is also a service or emotional support animal. Instead, the service or emotional support animal is more often in addition to the number of pets permitted by the park, and owners and managers are literally afraid to ask for information about the animal for fear of violating the law or the resident’s privacy.

There are several things we know, namely that service animals are trained to perform specific tasks to assist people with physical or mental health disabilities (28 CFR Section 35.104), and that emotional support animals are not trained to perform specific tasks but provide comfort to people with mental health disabilities. We also know that parks can allow residents to have service animals as a “reasonable accommodation,” provided that the animals do not pose a direct threat to other residents and/or cause physical harm to the park. An example of an animal that would pose a direct threat and cause physical harm to the park is a “domesticated” mountain lion. We also know that the owner of a service animal may not be required to pay an extra charge or security deposit for the animal, but that he or she is responsible for any damage caused by the animal ( Civil Code Sections 54.l(b)(6)(B) and 54.2(a)).

Finally (for purposes of this article), we know that the park may ask the following questions regarding a service animal, if the nature of its service is not readily apparent: (1) if the animal is required due to its owner’s disability, without stating what the disability is, and (2) what tasks the animal is trained to perform (28 CFR Section 35.136(t)). The park may not ask for proof of the animal’s certification, training or licensing (Id.). And the park may ask for the following regarding an emotional support animal: (1) evidence that the owner has a disability, without stating what the disability is, and (2) evidence that the animal’s presence will alleviate the disability.

As an aside, I learned when researching this article that it is a misdemeanor to falsely claim that an animal is a service animal (Penal Code Section 365. 7). I cannot wait to cite Section 365.7 to the next resident who uses a “Service Animal” jacket that he or she purchased online to bring his or her additional dog into one of the parks I represent.

The issue of emotional support animals was in the news recently, when a passenger attempted to board a flight from Newark to Los Angeles with an emotional support peacock named Dexter. Peacocks are undoubtedly beautiful animals, but anyone who has had contact with them knows they can be loud, unfriendly and messy. Dexter was not permitted to board the flight due to the airline’s existing policy regarding emotional support animals, and this incident coincided with the airline’s decision to update its policy due to a seventy-five (75) percent increase in the number of emotional support animals on its flights. So it seems that mobile home parks are not the only places where emotional support animals are on the rise.

The new policy went into effect March 1, 2018, and while parts of it are not directly applicable to mobile home parks, it does an admirable job of balancing the rights of owners of emotional support animals with the rights of the people with whom the animals come into contact. The policy requires (1) notification that an emotional support animal will be brought onto a flight ( similar to notification that an emotional support animal will be brought into a park), (2) a note from a medical professional confirming that the passenger has a disability and that the animal’s presence will alleviate the disability (similar to the note from a medical professional that the resident must give to the park), and (3) a note from a veterinarian confirming the animal’s health and that the animal is trained to behave in a public setting. There is not a similar requirement imposed on residents with emotional support animals, but there should be.

Although the issues that could arise as a result of an unhealthy and/or untrained animal being on an airplane are not identical to the issues that could arise as a result of such an animal being in a mobilehome park, applying the requirement at No. 3 above to mobilehome parks ( and other properties) would decrease the likelihood that there would be an incident in the park involving the animal. This is especially true given that the animal, if allowed into the park, will interact with other residents in the common areas and elsewhere in the park. The requirement at No. 3 above would also add a layer of protection if, for example, a medical professional were to write a note stating that the pres­ence of an emotional support animal would alleviate a resident’s disability, before the resident actually obtained the animal. The veterinarian’s eval­uation would, in other words, make it more difficult for the resident to bring an unhealthy and/or untrained animal into the park based solely on the medical professional’s note.

In conclusion, this article will serve as a respectful request that the Legislature review the law regarding service and emotional support animals and attempt to render it more clear and protective of both people who are truly in need of assistance and support from such animals, and the people with whom such animals come into contact. Requiring a veterinarian’s note is one way to accomplish those goals, and it would likely result in Dexter being prevented from coming into your park – just as he was prevented from boarding that flight from Newark to Los Angeles.