New ADA Regulations on Service Animals: Does It Impact Your Community Association?

On March 15th, new rules for the Americans with Disabilities Act (“ADA”) go into effect.  The revised rules are especially interesting for the new approach to service animals, but will it impact community associations?

The ADA is very often referred to when residents and board members talk about disability issues in their communities.  However, we must make clear that the ADA does not apply to most community associations.  The ADA imposes requirements on governments and private entities that are open to the public at large, known as “public accommodations.”  The facilities and open spaces at planned communities and condominiums are not “public accommodations” under the ADA – in part because they are open only to a limited set of individuals, namely the owners or their tenants and guests.  Unless the facilities at a community association are regularly open to use by non-members, the facilities will not be subject to the ADA.  A Court of Appeals case in Arizona suggests that the common area facilities must be “indiscriminately open” to the public in order to be deemed “public accommodations” subject to the ADA requirements. See Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 486 (App. 2007).  Having a few meetings or events every year that include non-members is not sufficient to subject your clubhouse, pool or other common area to the ADA requirements. 

The new ADA rules have been crafted to curb abuses of the service animal rules, which allow disabled individuals (or even non-disabled individuals) to take their service animals (or pets) into public places, like stores and restaurants, even if their service animals are snakes, lizards, spiders or monkeys.  The Wall Street Journal published an interesting story this week on the abuses and oddities of the current ADA rules that are about to change:  WSJ Leaping Lizards Article.  As the article shows, some non-disabled people are not ashamed to take advantage of the loopholes in the disability system for their own convenience.  We know this all too well in the community association world. 

Unfortunately, the ADA’s tightening of control on service animals is not going to directly impact community associations who have to grapple with accommodation of disabilities under the federal and state Fair Housing Acts.  While the ADA now only recognizes dogs and occasionally a miniature horse as service animals, there still are no regulatory limits on what animals might be “reasonable accommodations” under the Fair Housing Acts.  Certain so-called vicious breed restrictions and some exotic wildlife that is regulated by the state or the federal government might be subject to exclusion by an association, but for the most part, disabled residents can request an accommodation for most types of animals – if they can document that they are disabled and that the animal will alleviate the effects of their disability.

The new ADA rules presented a timely opportunity to remind everyone that, with little exception, the ADA does not apply to community associations.  The Fair Housing Acts are the primary disability laws that raise a host of varied and often complex legal issues for community associations, but Fair Housing also includes issues related to race, color, national origin, gender, familial status, and religion.  And, as a closing reminder, always remember that you have the right to request documentation to support the resident’s claim of disability and how the requested accommodation will alleviate the effects of that disability before you make a decision to grant a variance to that resident, at least if the disability is not visibly apparent.

If you have any questions about Fair Housing or ADA issues, please contact Jason Smith in our office for more information.