Service Dogs, Service Animals, Assistance Animals and Emotional Support Animals in Hawaii

Here is information about services animals, emotional support animals and assistance animals from Bryan Andaya, Esq. E.F. Real Estate CE School

Perhaps the most common request made to associations for a reasonable accommodation relates to animals.  It is more common than not for an association to restrict animals (this is often entitled “pet rules” in the controlling documents) in some manner – whether it is an absolute ban or a restriction on species, weight or size.  It is likely that some type of animal restriction exists in nearly every association.

Reasonable accommodation requests for animals are sought by owners in relation to the accommodation of a disability; because a disability under the anti-discrimination laws can be physical, mental, sensory, AIDS/HIV and include persons recovering from addiction, the request can come to the association for a myriad of reasons.

Unless the disability is readily apparent, the owner requesting the accommodation must offer proof of the disability in the form of a medical certificate.  The association should be careful in how it approaches the request, as making the request burdensome on the owner or delaying the request may give rise to a claim of discrimination.  There also must be a reasonable relation between the disability and the accommodation requested, i.e., the animal.  An owner’s failure to provide such information would relieve the association from liability for a charge of discrimination in denying the request.

Generally, an owner must obtain documentation from a physician, psychiatrist, social worker or other mental health professional that the animal provides support that mitigates at least one identified symptom of the disability.  In doing so, however, it is important to note that the owner need not disclose the specific details of the disability nor provide a detailed medical history to the association.

There is much confusion between the definitions of a “service animal,” [Mostly applicable with respect to public accommodations, a service animal is an animal that is individually trained to do work or perform tasks for the benefit of an individual with a physical, intellectual, and/or a mental disability, i.e., guiding individuals with impaired vision, providing protection or rescue work, pulling a wheel chair, or retrieving dropped items.  Under the Americans with Disabilities Act, service animals are limited to dogs and miniature horses.] an “emotional support animal,” [Emotional support/companion animals provide some therapeutic benefit to a person with a mental/psychiatric/emotional disability.  The mere presence of the emotional support/companion animal mitigates the effects of the emotional or mental disability for the person with the disability. Emotional support/companion animals can be virtually any species of domesticated animal.  Under the ADA, a commercial establishment need not accommodate emotional support animals.  With respect to residential housing in Hawai`i, however, the Hawaii Civil Rights Commission’s (HCRC) definition of an assistance animal includes emotional support animals.] and an “assistance animal.”  In Hawai`i, the HCRC is the agency charged with the enforcement of the anti-discrimination laws.  The HCRC defines “assistance” animal as “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, therapy animals, and comfort animals.  An assistance animal does not have to be a dog.  Cats, birds, rabbits and other animals have been recognized as assistance animals.”

Based on this language, associations and unit owners must provide a reasonable accommodation to persons with documentation from a medical provider indicating the need for an assistance animal.  In most cases, a reasonable accommodation would be an exception to the association’s established policies, which would include allowing the animal in question.

The owner of an assistance animal is not required to provide proof of training or the certification of the animal.  An assistance animal need not demonstrate the function they perform.  It is possible to have multiple assistance animals.  Neither the association nor the unit owner may request a pet “fee” or “deposit” be paid because the assistance animal is not a “pet.”  If the animal causes damage to a common area, however, the owner may be required to pay for the cost of repair.  Assistance animals are permitted in all areas of the residence and the common areas including recreational facilities.