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In 2004, the California Court of Appeal similarly found that an Auburn condominium association had "unlawfully discriminated" against a mentally ill couple in refusing to allow their dog, Pookie, on the premises. The ruling noted that "it was the innate qualities of a dog, in particular a dog's friendliness and ability to interact with humans, that made it therapeutic here."
(It warrants mentioning that no fewer than three federal agencies enforce rules regarding service animals: The Department of Housing and Urban Development, the aforementioned Department of Justice, and the Department of Transportation — meaning a disabled person with a service animal who leaves her apartment, takes a bus or cab to the airport, and gets on a plane has navigated through three different federal sets of rules and regulations.)
Following the "Pookie Case," San Francisco landlord attorneys reported a spike in the number of tenants demanding reasonable accommodation for a cornucopia of service animals — and statistics bear this out. Beth Rosen-Prinz, the deputy director of the state's Department of Fair Employment and Housing, affirmed the number of complaints regarding disability discrimination in housing has exploded over the past half a dozen years; it's now the number one complaint her office receives, outstripping even claims of racism. "I'd be reluctant to say there's increased [disability] discrimination," she said. "I think disability rights groups have been very diligent and successful in informing their constituency of their rights to demand reasonable modification."
Many of the city's top landlord attorneys — people who are all but burned in effigy by San Francisco's tenant activists — have a surprising strategy for their property-owning clients when confronted with service animal demands: acquiesce. In all but the most outlandish of cases, lawyer after lawyer told SF Weekly that it was neither legally nor financially worthwhile to fight tenants' demands. "It always starts out the same way. The landlord catches the tenant with a pet they're not supposed to have, words or writings are exchanged, and, before too long, the tenant ends up with a letter from a doctor," attorney Clifford Fried says. "At that point, it's game over." Cases involving dogs, cats, birds, or multiple combinations thereof — even a woman who produced a doctor's note stating her inability to conceive and express her maternal instinct necessitated her to breed hamsters — were all waved through.
Landlords can even be sued by people who are not their tenants. Lawyer Martin Snitow handled a case in which a woman in a wheelchair and her self-proclaimed service dog showed up at a local apartment to fill out an application. When the manager asked for a document proving the dog to be a service animal, the woman rolled out without even putting pen to paper — the dog was not registered, and she claimed to have trained it herself. She filed a discrimination complaint in San Francisco federal court; Snitow recalls the settlement was "in the low five digits."
While it would be hyperbole to claim San Francisco is inundated with service creatures, within certain communities the number of animals has grown to be significant. James Holland is the director of property management for the Tenderloin Housing Clinic, overseeing 16 SRO hotels with an average of 88 units apiece. He estimates fully one-quarter of his tenants have service animals, and the more folks get them, the more he says everyone wants one.
In fact, since service animals are not legally considered "pets," disabled would-be renters are legally entitled to claim they have no pets when filling out apartment applications, then lawfully move in with their service animals. "I always tell people that they have the right not to ask for [accommodation for service animals] until they're in the building," notes Sara Malan, a housing attorney at the AIDS Legal Referral Panel.
Even in situations such as the one described by Fried, in which a renter — perhaps disingenuously — slips pets into the building, San Francisco officials still aggressively push for allowing the animals to stay. Cases involving recalcitrant landlords are often referred to the city's Human Rights Commission. Ed Illumin, the commission's fair housing and public accommodation compliance officer, said anyone busted with pets should follow their landlord's orders and move them off the premises — at first. "Come to the landlord, say 'They're gone,' and once that's established, get a doctor's statement declaring you have a disability and part of the prescription to treat your disability is to have service animals," he says. "And the law is on your side."
Stubborn landlords with money to burn and a good attorney "stretch things out," he says. "But, ultimately, they all fail. ... Ultimately they have to comply with the law."
At the start of the year, a ripple went through the nation's disabled community, as the previously noted changes to the ADA were rumored to be imminent. In addition to narrowing the definition of a service animal, the new rules would also have eliminated certain species from consideration, including "wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents."
As quickly as the hue and cry went out among supporters of the mentally ill, the proposals died with a whimper in late January. Rahm Emanuel, President Obama's chief of staff, ordered the Department of Justice to hold off from implementing any changes until the incoming administration could amply review them. It's a safe bet that reviewing these proposals — or even appointing the personnel to do so — is not a top priority of the Obama administration.
But even if the ADA's potential new rules are adopted, Charles Esler and Cosmie Silfa will still likely be able to take their animals anywhere in San Francisco they wish. Critics have long assailed the ADA for its amorphousness — and its potential changes offer new amorphous language to replace the old. While the proposed regulations offer distinctions between untrained "comfort animals" such as Tita the Chihuahua and "psychiatric service animals," exploiting this difference seems to merely be a matter of semantics.
