On September 19, 2008, the U.S. Department Justice filed a complaint against 75 Main Avenue Owners Corp., a coop apartment board in Rockville Centre that is attempting to enforce its no-pet policy against a 90-year-old tenant, Mary Pasko. The United States has argued that Ms. Pasko’s right to live with her dog, a toy poodle named Coco, is protected by the Fair Housing Act Amendments of 1988 (“FHAA”), 42 USC §§ 3601-3619, and that the coop board’s refusal to waive its no-pet policy constitutes discrimination.
According to the complaint, Ms. Pasko suffers from depression, severe rheumatoid arthritis, hypertension, hearing loss and other disabilities. In a Newsday interview, Ms. Pasko stated that Coco gave her a reason to get out of bed and that the poodle is “like medicine for me. If I have her with me, I seem to feel better.” On several occasions since 2007, Ms. Pasko allegedly asked the coop board to waive its no-pet policy and offered to give the coop board a note from her psychologist stating that she needed the dog to help alleviate her depression.
The FHAA makes it unlawful to deny a person the right to live with a service animal who provides necessary support for a mental or physical impairment. The law makes it illegal:
(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of – (A) that buyer or renter, … (2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of – (A) that person. (42 USC § 3604(f)).
Unlawful discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” (42 USC § 3604(f)(3)(B)). As an example, federal regulations state that an apartment building’s no-pet policy cannot be enforced against a blind person who needs to live with a seeing-eye dog. (24 CFR § 100.24(a)). A handicap is “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.” (42 USC § 3602(h)). In addition to protecting individuals with physical impairments like blindness, the law protects individuals with mental disabilities such as depression and support animals need not be trained to perform a specific function. In Janush v. Charities Hous. Dev. Corp., 169 F Supp 2d 1133 (N.D. Cal 2000), a court found that a disabled tenant’s alleged need for two birds and two cats to act as service animals and expert testimony that the animals provided the tenant with companionship necessary to her mental health supported her claim that an eviction based on violating the apartment’s no-pet policy was prohibited by the FHAA.
In addition to the FHAA, other federal and state laws protect the right of certain senior citizens with physical or mental disabilities to live with service animals. Section 504 of the Rehabilitation Act of 1973, 29 USC § 794, provides that a person with a disability shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance …” This law protects the right of individuals with mental illness to keep animals in federally assisted housing. (E.g., Majors v. Housing Authority of County of De Kalb, 652 F.2d 454 (5th Cir. 1991); Crossroads Apartments Associates v. LeBoo, 152 Misc.2d 830 (City Ct. Rochester 1991)). Title II of the Americans with Disabilities Act protects against discrimination by a public entity against a person because of a disability. New York Civil Rights Law section 47 provides that no person shall be denied housing solely because that person has a disability and is accompanied by a guide dog, hearing dog or service dog. Finally, the Pet Ownership in Assisted Rental Housing for the Elderly or Handicapped rule, 12 USC § 1701r-1 provides senior citizens, regardless of disability, the right to keep a companion animal in federally assisted rental housing.
Unfortunately, these laws provide only some senior citizens with the right to live with companion animals. Much more can and should be done to ensure that all senior citizens can enjoys the benefits of living with companion animals. Numerous studies and articles document the effect that companion animals have on the mental and physical health of senior citizens. The Administration on Aging, U.S. Department of Health and Human Services, states that: “Having a pet in your life can offer a sense of well-being, encouragement, and even a reason for living. Being responsible for an animal’s life often gives new meaning to the lives of those who live alone or far from loved ones.” It is well known that many senior citizens are faced with loneliness and isolation after the death of a spouse. The important role that companion animals play in alleviating loneliness is extremely important because there is increasing evidence that loneliness can contribute to Alzheimer’s disease. For example, in a study of 823 senior citizens in Chicago, participants who were lonely were found to be at risk of developing Alzheimer’s disease at twice the rate of persons who were not lonely.1 Pet ownership and strong pet attachment are associated with lessened depression.2 A study has also shown that the presence of an animal after a stressful experience can aid in the reduction of blood pressure and heart rate.3 The Bazelon Center for Mental Health Law lists over 70 articles documenting the positive effect that a companion animal can have on an individual’s mental health on its Web site at
http://www.bazelon.org/issues/housing/infosheets/fhinfosheet6.html.
In most of New York State, existing law merely acts as a bandage, protecting the rights of people to live with animals only when the individual has already been diagnosed with a disability. Two municipalities have done more. Pursuant to their authority under the Municipal Home Rule Law, New York City and Westchester County enacted laws to establish the right to live with a companion animal in multiple dwellings. (See Starrett City, Inc. v. Jace, 137 Misc. 2d 328 (2d Dept. 1987)). New York City Administrative Code § 27-2009.1, commonly referred to as the “Pet Law,” protects all persons from eviction based on the presence of a companion animal if they have been living with the animal openly and notoriously for at least three months and the landlord was aware of the animal and took no action to enforce a no-pet clause in a lease. Westchester County has a similar law. (Laws of Westchester County § 694).
The New York City Council is currently considering strengthening its law to provide that no person aged 62 years or older shall be denied occupancy in a multiple dwelling or subject to eviction from a multiple dwelling on the ground that he or she owns or keeps a companion animal. (Introduction 751). Excep-tions exist where (1) the keeping of such type or species of animal is prohibited by law; (2) the animal causes damage to the premises; (3) the animal creates a nuisance; and (4) the animal interferes substantially with the health, safety or welfare of other tenants or lawful occupants. Buildings with fewer than three dwelling units are exempt from the law. These exceptions ensure that other tenants in the multiple dwelling are not unreasonably disturbed by another tenant’s companion animal.
Nassau County should consider enacting a law similar to the legislation currently being considered in New York City. If all senior citizens were given the right to live with companion animals regardless of disability, the law might actually help prevent or delay the onset of the same mental and physical impairments that would entitle senior tenants to rights under the FHAA. A local law would also establish a bright-line rule that would be more likely understood by the public and minimize the need for costly litigation – litigation that is undoubtedly taking a profound emotional toll on 90-year-old Mary Pasko as she fights to keep Coco.
Lori Barrett is a deputy county attorney in the Legal Counsel Bureau of the Nassau County Attorney’s Office. She is a past president of the New York University School of Law chapter of the Student Animal Legal Defense Fund.
1. Robert S. Wilson et al., Loneliness and Risk of Alzheimer’s Disease, 64 ARCHIVES OF GENERAL PSYCHIATRY 234 (Feb. 2007), available at www.archgenpsychiatry.com.
2. Thomas F. Garrity et al., Pet Ownership and Attachment as Supportive Factors in the Health of the Elderly, 3 ANTROZOOS 23 (1989).
3. Lesley R. Demello, The effect of the presence of a companion-animal on physiological changes following the termination of cognitive stressors, 14 PSYCHOLOGY & HEALTH 859 (Sept. 1999).
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