Discussion: Emotional Support Animals cause legal trouble for county

After months of long debates and multiple rewrites, on Dec. 21, 2017, Chatham County adopted a new Animal Services ordinance. Four short sentences in the updated ordinance removed Emotional Support Animal (ESA) status from dogs without Canine Good Citizen certification (CGC).

The CGC is a 4 to 6-week course that teaches “good manners to dogs and responsible dog ownership to their owners.” A certified American Kennel Club (AKC) trainer is required to facilitate the test. ESAs, which are prescribed by a qualified healthcare provider, are protected by the Americans with Disability Act (ADA), a civil rights law enacted in 1990. That protection has since been removed under Chapter 5, Section 9 of the new Chatham County ordinance. The Fair Housing Act (FHA) and the Georgia Fair Housing Law of 1988 (GFHL), like the ADA, all define an ESA as not requiring any specialized training.

Chatham County makes it impossible to have an ESA that cannot go through CGC training, discriminating against people who require an ESA to help with their disability. According to the U.S. Census Bureau in 2017, 9.9 percent, or 145,444 people are living in Savannah with a disability.

Federal laws, as described in Article VI of the Constitution, overrule states’ rights due to the supremacy clause. In this case, Chatham County is violating both Georgia and federal law, creating legal issues for the city and those in Chatham County who enforce the ordinance. If Chatham County is found violating the FHA they can be charged with thousands of dollars in civil penalties.

Emotional Support Animal ID tag

On the 50^th anniversary of the Fair Housing Act, Allona L. Cross, the Director of Fair Housing at the Georgia Commission on Equal Opportunity- Office of the Governor (GCEO), flew from Atlanta to Savannah to discuss the FHA. I asked about Chatham’s new animal ordinance and she reaffirmed that Emotional Support Animals do not need training. When approached with the same question, Alison Slagowitz of the Equal Justice Works Georgia Housing Corps said that both on a federal and State level, referencing Article VI of the constitution, Chatham County cannot enforce the new ordinance.

How the Ordinance Is Affecting Students

The Savannah College of Art and Design (SCAD), who falls under Chatham’s ordinance, have failed to update their ESA policy to reflect the change, even though it was updated on September 10^th, 5 months after the new ordinance was approved by the city council. SCAD’s policy and accommodation services explicitly state that “an ESA does not require any specialized training.” The FHA, which both Chatham County and SCAD are bound by, relies on ADA regulations and definitions. This puts SCAD in a difficult position; to follow Chatham County or to follow State and federal law.

SCAD’s accommodations policy has exempted Section 504 from applying to ESAs, which was not a requirement from the ordinance. According to the Department of Health and Human Services, Section 504 of the Rehabilitation Act is a “national law that protects qualified individuals from discrimination based on their disability.” For organizations that do not receive “financial assistance from any Federal department or agency,” Section 504 at face value does not seem applicable to SCAD or other private organizations. However, the U.S. Department of Housing and Urban Development (HUD) states that “the FHAct and the U.S. Department of Housing and Urban Development’s implementing regulations prohibit discrimination because of disability and apply regardless of the presence of Federal Financial assistance.”

Screenshot of SCAD’s most recent accommodations policy

The ordinance’s ESA revision has barely been, if at all, publicized, making it challenging for incoming and returning students to be properly informed. For SCAD students, the only direct way to get information on the ordinance is to contact accommodations in person. After personally contacting accommodations through email to get SCAD’s ESA requirements, they refused to give any information prior to meetings. This is problematic for students who need this information before school starts, or on short notice. Many students learn of the ordinance after they have already acquired an ESA, forcing them to go for an extended period without it.

The problem with ESAs

The subject of ESAs is recent, both as a recognized tool in treating certain disabilities and in the public conscious. People with ESAs struggle with legitimacy due to frequent misunderstandings of what an ESA is, and rampant abuse of the title from those without proper doctor notes. Some believe that people are faking their disability to get a dog in no-pet housing areas. This frustration is not baseless, the AKC even mentions that “the guidelines for ESAs have become more restrictive because so many people abused the ESA category by alleging their pet dogs were service dogs.” This has made it challenging for people with a need for an ESA to acquire one.

Dr. Risë VanFleet, a nationally and internationally awarded psychologist, is concerned about the lack of regulations on getting ESA letters. In a document located on her Animal Assisted Play Therapy Facebook group, she writes: “The only thing they need for

[getting an ESA]

is a letter from a medical or mental health professional saying they have a disability and need an emotional support animal… While there are people with legitimate needs, this has also turned into a bit of a nightmare with people using the provision to get around housing rules just so they can have pets where they live.”

I reached out to Dr. VanFleet to help answer some questions I had regarding people’s concerns about unqualified ESAs. She explained that anyone “can go online, take a ‘test’ or answer a questionnaire (very lightweight questions, as I did go through one of these part-way once to see what it was like), pay their money, and get a letter.” These online tests, offered by companies like Express Pet Certify, promise that you can get a doctor letter the same day and promote ludicrous offers like “3 ESA letters for the price of 1.” I asked Dr. VanFleet, “does it seem odd that psychiatrists or other qualified individuals go against clinical judgment when they issue ESAs?” Referring to the online sites, she said that “it seems very unethical for a mental health professional to do this, but they have some cagey wording on these sites that probably lets them get away with it.”

The American Psychological Association (APA) believes that issuing ESAs should be a legal assessment. Dr. VanFleet suggests that a clinician should be the first evaluator, but not write the actual letter, to avoid conflicts of interest. This means that a clinician “cannot simultaneously be serving in both a clinical and a forensic capacity.” She added that there are discussions in her field which argue that “clinicians are not properly trained to determine if any particular dog is suitable to meet the client’s needs.” Although Dr. VanFleet does not deny that animal companionship is a suitable treatment for specific needs, she implores that the law is more direct when deciding if a client’s disability warrants an ESA or if they can actively care for one.

While other licensed mental health professionals, like Lisa Gassin, vary in opinion about the same topics, all discussions reveal that the true problems ESAs face start with acquiring doctor’s letters. Dr.VanFleet recommended that therapists read this source by the APA discussing how to certify an animal as an ESA.

The Future for ESAs in Chatham County

There are options opening for students affected by the ordinance. Contacted by more than 20 SCAD students, Robert “Bob” Olson, an AKC approved evaluator, regional manager for 17 PetSmart locations, and trainer of service and police dogs for over 20 years has offered his services to SCAD students who have ESAs that are not CGC certified. While Olson has encouraged students to get their dogs CGC certified for years, the ordinance passed over a year ago has made training more important. You can find the contact information for Robert Olson at the bottom of the article.

ESAs are currently a topic of discussion by others concerned with Chatham County. Wayne Dawson, the Executive Director of the Savannah-Chatham County Fair Housing Council, Inc. told me that on October 1^st, “a group of disability advocates met with HUD Assistant Secretary for the Fair Housing Equal Opportunity (FHEO), Anna Maria Farias, to discuss possible guidance from HUD on this very issue.”

All the immediate options I have come across are compromises, not solutions. An effective step forward is to tighten regulations on how someone can get a letter, rather than allowing municipalities to take matters into their own hands. If you have an ESA in Chatham County without CGC training, you are not alone. You share a struggle with many. Even if the ordinance is undone, the general lack of education on mental health and ESAs will result in similar issues happening in the future, not just in Chatham County, but elsewhere in the United States.

As the law stands now, Chatham County issued an unenforceable and legally questionable ordinance. With or without CGC training, ESAs still retain their rights to housing.