When Is an Animal Not a Pet? Hawaii State and “Assistance Animals”

So, What Is It? A Pet, Assistance, Service or Support Animal?

This is a common question and the root of most of the confusion. I will start by stating that I am not an attorney so am relying upon my everyday experience in the trenches of real estate sales and property management. This is to just help with clarifying and answering FAQs. If you need a specific opinion please consult a legal professional.

That being done, here we go. Assistance Animals are not pets. The first fact is that Assistance Animals do not have an owner. They have a “Handler,” and that term is used throughout all definitions and laws.

Assistance, Service, or Support Animal? Confusion starts with these three terms that are commonly used. Really there are only two categories. The term Assistance Animal is more a general umbrella description for both. The two distinct different types are Service Animal and Emotional Support Animals (ESA). Each category also has its own protections under Federal and State law. Let’s start with the original.

A Service Animal as defined in the Americans with Disabilities Act (ADA) as:

“Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities.”  

Notice the ADA definition for Service pertains to dogs only. They further clarify:

• Beginning on March 15, 2011, only dogs are recognized as service animals under titles II and III of the ADA.
• A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.
• Generally, title II and title III entities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

The ADA definition applies to public areas and access including transportation. It also states that the animal is formally trained to perform a specific task such as a seeing eye dog. This also applies to housing as defined by HUD. Adding to some confusion, ADA has also added Miniature Horses to this list as well. So there are only 2 kinds of Service Animals — Dogs and Miniature Horses. No other type of animal applies.

Emotional Support Animals (ESA) have a much broader definition especially here in Hawaii. Simply, an ESA is a comfort animal that is not trained for a specific purpose like a Service Animal is. The animal’s status is usually established by a doctor or social worker stating in writing that the person with a disability shows a benefit from the animal. According to the Hawaii State Civil Rights Commission using the umbrella term Assistance animal:

“Assistance animals are animals that work, assist or perform tasks for the benefit of a person with a disability. They can also be animals that provide emotional support. They are not pets. Assistance animals can include: service animals, support animals, therapy animals, and comfort animals. An assistance animal does not have to be a dog.”

As you can see, If a person with a disability can show benefit from an animal and get a note from a doctor, pretty much any animal can apply.

Does an Assistance Animal Need to be Certified and Registered?

Simply put, NO! This applies for both Service and ESAs. There is no centralized database or list of Service or Assistance Animals in the country nor is there a requirement. The Hawaii State Civil Rights Commission ad:

“There is no federal, state our county certification (or training requirement) for service animals”

However, If the local County or City do require an animal be licensed these rules must be adhered to. The same applies to vaccination requirements. However, If the County or city requires that the animal be registered as a Service Animal, that is a violation of the ADA.

Are There Registration Services Available?

If a handler wants to register their animal they can do so with many private services. For a fee, they will provide a registration certificate and maintain a list of animals in their registration pool. They might also have available vests and other I.D. for the animal. Many also provide a professional to review medical history and supply a “Doctor’s Note” stating the existence of a disability which is benefitted by the Service or Support Animal. Keep in mind though that there is no official national registry for service dogs. These are just databases held by the individual registration sites. According to the ADA:

“There are individuals and organizations that sell service animal certification or registration documents online. These documents do not convey any rights under the ADA and the Department of Justice does not recognize them as proof that the dog is a service animal.”

So again, there is no registration requirement. The jury is still out on these services. Are they legit? They might be a convenience but probably no real value except for getting the Doctor’s Note. As you will see in the next section, the required paperwork for an Assistance Animal is minimal.

What Proof is Required When Applying for Housing with an Assistance Animal?

Here is the fun part as a property owner or manager. Here in Hawaii, if pets are allowed in a dwelling or complex the landlord may require a separate Pet Addendum which spells out the tenants responsibilities. The addendum may also address additional insurance requirements covering the pet plus a separate Pet Deposit not to exceed 1 month’s rent over and above the standard Security Deposit. These are detailed in the Landlord Tenant Code.

When an Assistance Animal comes into the picture, whether pets are or are not allowed in a dwelling or complex things change. Remember, Assistance Animals are not pets. That means no Pet Addendum, Insurance, or additional Deposits are allowed by law. The landlord also may not discriminate against the applicant on the grounds of having an Assistance Animal.

Secondly, If a disability is apparent the landlord can not ask about any documentation on the animal. If the disability is NOT apparent, the landlord can only require seeing a doctor’s note. They are also prohibited from contacting the medical professional as medical records are protected.

Per the Hawaii State Civil Rights Commission:

“A housing provider, including an AOAO, may ask a resident to provide information from a treating health care professional, mental health professional, or social worker that verifies the person has a disability, and that the assistance animal is needed to alleviate one or more of the person’s disability, if the disability and disability-related need for the assistance animal are not obvious.”

Put simply, a potential tenant can get around any pet requirements by supplying a letter stating their condition exists and is benefitted by an Assistance Animal. However, this does not suspend the “handlers” responsibility to maintain the animal and abide by standard rules of a community like cleaning waste. The tenant is also responsible for any damages caused by the animal over and above normal wear and tear.

What About Homeowners and Condo Associations?

HOA’s and AOAO’s are not exempt from these rules. If a potential tenant or even owner takes up residency with an Assistance Animal they are not restricted. The same rules apply that the only requirement is a “doctor’s note” unless the disability is apparent(see above). As there is no national registration for Service Animals only county licensing requirements can be enforced. The tenant must still abide by rules such as not allowing animals to roam free, cleaning up after them and they are also responsible for any damages that may occur.

Can You Get a Vest for an Assistance Animal Saying it’s a “Service Animal”?

No. Only Service dogs or horses can wear a vest stating it is a Service Animal. It is illegal to misrepresent an animal as a Service Animal. The Hawaii legislature addressed this situation as Misrepresenting a Service Animal (HRS 347-2.6):

(a) It shall be unlawful for a person to knowingly misrepresent as a service animal any animal that does not meet the requirements of a service animal as defined in section 347‑2.5.

(b) Upon a finding of clear and convincing evidence, a person who violates subsection (a) shall be fined not less than $100 and not more than $250 for the first violation, and not less than $500 for a second violation and each violation thereafter.

Remember that a Service Animal is specifically trained to perform a specific task and covered by the ADA. A Support/ESA is an animal that provides a benefit or comfort defined by a doctor’s note. The problem especially for restaurants is they can only ask 2 questions:

1. Is this a Service Animal? (not Support Animal)
2. What task does this animal provide for you?

The slope is slippery because the Federal guidelines are designed to protect a patient’s privacy. One simple key to look for is Service Animals usually always wear a vest, remain close to their handler’s and are trained to ignore the surroundings. If an animal is running around or barking it probably isn’t a Service Animal.

So Where are We Now?

This issue is one that has been evolving over the last few years. It puts owners, property managers, associations, and even airlines in a difficult position. Error on the side of property preservation and rules or risk violating discrimination laws? Potential tenants and buyers as well are becoming well versed in the vagaries of these laws. This system is ripe for abuse. So what to do?

Stay informed. Abide by the rules as best as possible. Get a legal opinion if you feel it’s required. If you wait until a tenant takes you to court it is too late! The Hawaii Association of REALTORS (HAR) is now creating a separate addendum for Assistance Animals to be added to our standard lease. It will spell out the handler’s responsibility to look after the animal and to be a good tenant and neighbor.

This is not a simple discussion but I hope it helped clarify a few things. I’m sure as we go along things will become clearer probably through the courts. The following are some FAQs I hope will help you. If you have any questions feel free to contact me at DanMacdonell@HawaiiLife.com

Assistance Animal FAQs

Here are some quick answers to common questions:

What is a tenant’s options for getting housing with an Assistance Animal?

Get a doctor’s note. If the tenant has an apparent disability, that’s not even necessary per the ADA and Fair Housing laws.

What can a landlord ask an applicant with an Assistance Animal?

Nothing if a disability is apparent. For non-apparent disabilities, a doctor’s note can be requested. However, contacting the medical professional for clarification is restricted due to medical privacy laws. A landlord also can not discriminate against an applicant based upon them having an Assistance Animal.

Can a landlord require a Pet Deposit for an Assistance Animal?

No, in both Federal and State laws Assistance Animals are not considered pets. No additional fees or restrictions can be placed on a tenant for being a handler of an Assistance Animal. Tenant is responsible for any damages caused by the animal over and above normal wear and tear. The tenant can also be responsible for flea/pest treatment and disinfecting.

Can there be more than one Assistance Animal?

This is not specifically addressed past the ADA stating that more than one animal can provide specialized skills. With ESAs, it probably comes down to one letter per animal or, in the case of a couple, each one has their own animal.

Can an Assistance Animal go into a restaurant?

Depends. Service Animals (Dogs and Miniature Horses) are covered by the ADA for public access so they can. ESAs are not covered so they are restricted from these establishments. However, the operator is restricted to asking 1) Is this a Service Animal? 2) What task does this animal provide for you?.

Is there a central registration service for Assistance Animals?

No, there are private registration services available but no central database or requirement to register by law.

If there are damages to the property by the Animal what can a landlord do?

Service animals are not pets so no additional security deposit can be held. The lease should detail the tenant’s responsibilities for an animal including flea treatment. Do a complete walkthrough of the property prior to move in with the tenant and have them sign it. Upon move out again do a complete walkthrough of the property and document any damages over and above normal wear and tear. Document cost of repair and deduct from the Security Deposit.  Documentation is key. Written, photo, and video all help. If it is not documented from the beginning, the courts will not recognize damage.

Can a homeowners association deny an Assistance Animal based on its breed?

No. Breed, size requirement, or type of animal can not be restricted if it is deemed an Assistance Animal. This is even if a complex has an insurance policy that specifically forbids a breed such as pit bulls.

Resources For More Information:

• Hawaii State Civil Rights Division, Assistance Animals
• HUD Service Animal Notice 2013
• ADA Service Requirements – Service Animals
• United States Service Dog Registry (not a government site)
• United Service Dog (registration and doctor’s notes)