| FN1. |
See Kelly Field, These Students Requests Are a
Different Animal, Chron. of Higher Ed.,
Oct. 13, 2006, at A30; see also Appendix A to
28 C.F.R. Part 35, Guidance to Revisions to ADA Regulation on Nondiscrimination on the
Basis of Disability in State and Local Government Services, at 75 Fed. Reg. 56192
(September 15, 2010) (noting the increased use of exotic species as service animals, many
of which are untrained); id. at 56193
(“When the Department originally issued its title III regulation in the early 1990s .
. . few anticipated the variety of animals that would be promoted as service animals in
the years to come, which ranged from pigs and miniature horses to snakes, iguanas, and
parrots”).
|
| FN2. |
See Appendix A to 28 C.F.R. Part 35 at 75 Fed. Reg.
56192 (September 15, 2010) (noting the sometimes incorrect view that animals protected
under the Fair Housing Act are equally protected as service animals under the ADA, which
is not necessarily the case).
|
| FN3. |
28
C.F.R. Part 35.136.
See also Appendix A to 28 C.F.R. Part 35 at 75 Fed. Reg. 56191
(September 15, 2010) (“Although there is no specific language in the 1991 title II
regulation concerning service animals, title II entities have the same legal obligations
as title III entities to make reasonable modifications in policies, practices or
procedures to allow service animals when necessary in order to avoid discrimination on the
basis of disability . . . ”).
|
| FN4. |
Final Rule
on Nondiscrimination on the Basis of Disability in State and Local Government Services, 75
Fed. Reg. 56164 (September 15, 2010); 28 C.F.R. Part 35.104 (effective March 15, 2011).
|
| FN5. |
See
28
C.F.R. Part 35.104.
|
| FN6. |
Id.
|
| FN7. |
Joan
Froling, Service Dog Tasks for
Psychiatric Disabilities, Sterling Service Dogs, July 30, 2009.
|
| FN8. |
See
28
C.F.R. Part 35.136.
|
| FN9. |
See
75
Fed. Reg. 56177; 28 C.F.R. Part 35.104.
|
| FN10. |
See
Appendix
A to 28 C.F.R. Part 35 at 75 Fed. Reg. 56193 (September 15, 2010).
|
| FN11. |
75
Fed. Reg. 56178; 28 C.F.R. Part 35.136.
|
| FN12. |
28
C.F.R. Part 36.102.
|
| FN13. |
28
C.F.R. Part 36.302.
|
| FN14. |
28
C.F.R. Parts 36.104, 36.302.
|
| FN15. |
34 C.F.R.
Part 104.44(b) (the purpose of which, pursuant to 34 C.F.R. 104.1, is “to effectuate
section 504 of the Rehabilitation Act of 1973”).
|
| FN16. |
Dawinder
S. Sidhu, Cujo Goes to College: On the Use
of Animals by Individuals with Disabilities in Postsecondary Institutions, 38 U. Balt. L. Rev. 267
at 277-79 (2009) (citing December 2006 OCR internal guidance that directed enforcement
offices to adopt the definition of “service animal” found in 28 C.F.R. 36.104
– the implementing regulation for Title III of the ADA).
|
| FN17. |
Franchi v. New Hampton School, 656 F. Supp. 2d 252,
260 (D.N.H. 2009).
|
| FN18. |
See United States v. Mass. Indus. Fin. Agency, 910
F. Supp. 21, 26 n.2 (D. Mass. 1996) (granting summary judgment for plaintiffs on the issue
of whether a residential school satisfies the meaning of dwelling in the FHA, but noting
that the defendant did not dispute it); see also
Robert G. Schwemm, Housing Discrimination Law and
Litigation §9:2 (2007).
|
| FN19. |
See,
e.g., Cohen v. Twp. of Cheltenham,
174 F. Supp. 2d 307, 323 (E.D.Pa. 2001) (group home with average stay of nine or ten
months); United States v. Hughes Mem’l Home,
396 F. Supp. 544, 549 (W.D.Va. 1975) (children’s home with four year average stay); Conn. Hosp. v. City of New London, 129 F. Supp. 2d
123, 135 (D.Conn.2001) (group home with average stay of six weeks); United States v. Columbus Country Club, 915 F.2d
877, 881 (3d Cir. 1990) (summer bungalow); Villegas
v. Sandy Farms, Inc., 929 F. Supp. 1324, 1328 (D.Or.1996) (short-term cabins for
migrant workers); Hovsons, Inc. v. Township of Brick,
89 F.3d 1096, 1102 (3d Cir. 1996) (nursing home).
|
| FN20. |
Patel v. Holley House Motels, 483 F. Supp. 374, 381
(S.D.Ala. 1979).
|
| FN21. |
Schneider
v. County of Will,
190 F. Supp. 2d 1082, 1087 (N.D.Ill. 2002).
|
| FN22. |
Garcia v. Condarco, 114 F. Supp. 2d 1158, 1163
(D.N.M.2000).
|
| FN23. |
In
short, courts have generally taken a case-specific approach when determining whether
housing constitutes a “dwelling” under the FHA, analyzing factors like whether
the facility is intended or designed for occupants intending to remain for a significant
period of time; and whether the occupants view the facility as a place to return. See Lakeside
Resort Enter, LP v. Bd.of Supervisors of Palmyra Twp., 455 F.3d 154, 158 (3d Cir.
2006). If the occupants cook, eat, do laundry,
and otherwise treat the facility like a home (as opposed to a hotel), a court is also more
likely to find it to be a dwelling subject to the FHA.
See Schwartz v. City of Treasure
Island, 544 F.3d 1201, 1214 (11th Cir. 2008).
It should also be noted that when considering whether housing is a
“dwelling” subject to the FHA, courts will give a “generous
construction” to the FHA’s “broad and inclusive language.” Lakeside
Resort Enter. 455 F.3d at 156 (3d Cir.
2006)( quoting Trafficante v. Metro Life Ins. Co.,
409 U.S. 205, 209 (1972)).
|
| FN24. |
24 C.F.R.
Part 100.201; see also 24 C.F.R. Part 100.204
(emphasis added).
|
| FN25. |
See
United States v. Millikin
University, FHEO No. 05-06-0829-8 (September 18, 2009).
|
| FN26. |
See
Bryan
Greene, University Housing and the Fair Housing Act,
Disability Blog, February 28, 2011.
|
| FN27. |
Id.
|
| FN28. |
See
HUD’s
National Fair Housing Collegiate Partnership Campaign website.
|
| FN29. |
42
U.S.C. 3604(f)(2).
|
| FN30. |
42
U.S.C. 3604(f)(3)(b).
|
| FN31. |
24
C.F.R. Part 100.204.
|
| FN32. |
Department
of Housing and Urban Development, Final Rule on Pet Ownership for the Elderly and Persons
with Disabilities, 73 Fed. Reg. 63836 (October 27,2008).
|
| FN33. |
See Kate A. Brewer, Emotional Support Animals Excepted from “No
Pets” Lease Provisions Under Federal Law, Animal Legal & Historical Center,
Michigan State University College of Law (2005).
|
| FN34. |
73 Fed. Reg.
63836
|
| FN35. |
Id.
at 63835.
|
| FN36. |
“[P]ersons
who are seeking a reasonable accommodation for an emotional support animal may be required
to provide documentation from a physician, psychiatrist, social worker, or other mental
health professional that the animal provides support that alleviates at least one of the
identified symptoms or effects of the existing disability.” 73 Fed. Reg. 63835.
|
| FN37. |
U.S.
Department of Housing and Urban Development, Memo from Sara K. Pratt, Deputy Assistant
Secretary for Enforcement and Programs to FHEO Region Directors (February 17, 2011).
|
| FN38. |
See, e.g., Green v. Hous. Auth. Of Clackamas, 994
F. Supp. 1253 (D. Or. 1998) (finding that a housing authority violated the FHA and Section
504 by refusing to accommodate a hearing impaired resident’s dog that alerted him to
noises, on the basis that the dog was not certified by a trainer).
|
| FN39. |
See, e.g., Janush v. Charities Hous. Dev. Corp.,
169 F. Supp. 2d 1133 (N.D. Cal. 2000) (holding that what is a reasonable accommodation is
a fact-based, not species-based inquiry, and finding two birds and two cats could be a
reasonable accommodation under the broadly worded federal law).
|
| FN40. |
73
Fed. Reg. 63835.
|
| FN41. |
See U.S.
Department of Housing and Urban Development, Memo from Sara K. Pratt, Deputy Assistant
Secretary for Enforcement and Programs to FHEO Region Directors (February 17, 2011)
(“In situations where both [the ADA and the FHA] apply, housing providers must meet
the broader FHAct/Section 504 standard in deciding whether to grant reasonable
accommodation requests”).
|
| FN42. |
5
M.R.S.A. § 4553(9)(D) (2008).
|
| FN43. |
See Mass.
Gen. Laws, ch. 272,
§ 98A (2009); Md. Code, Hum. Servs. § 7-701
(2007); N.J. Stat. Ann. § 10:5-29.3 (2009).
|
| FN44. |
One study,
run by a professor emeritus of psychology at Ohio State University, found that college
students living with pets were less likely to report feeling depressed or lonely and that
they believed that their pets helped them deal with tough times. The results of that
survey also found that combating loneliness was the number one reason for having a pet. Jenna McGuire, College Students Find Comfort
in Their Pets During Hard Times, Research News, Ohio State University, updated Dec
22, 2008.
|
| FN45. |
Eckerd
College in Florida, for example, has a pet privilege policy.
Eckerd describes the purpose of such a pet policy as follows: “The
Eckerd College Pet Policy allows resident students the privilege of bringing their family
pet to live on campus while the student is enrolled in classes. It is the purpose of the
Eckerd College Pet Council (ECPC) to provide a safe environment for members of the Eckerd
College community, and to protect, maintain, and regulate the pet ownership privilege
enjoyed by members of the community. It is the
responsibility of the pet owner to protect the rights of all students as well as the
physical beauty of the campus. The Pet Policy provides the guidelines by which this can be
accomplished. By bringing a pet to campus, the student has indicated an understanding of
the policy and has agreed to the conditions and penalties therein. Every pet owner is encouraged to consider carefully
the advantages and disadvantages of the campus environment for his/her individual
pet.” Eckerd College Pet Policy.
|
| FN46. |
Darlene
Berkel, Finding
Pet Friendly Colleges and Universities, Ezine @rticles.
|
| FN47. |
Id. |