 This is Think Tech Hawaii, Community Matters here. Well it's Thursday at 3 o'clock, another day for Kondo Insider, Hawaii's show about living in an association, both Kondo's and homeowner associations, and I kind of feel like a child on the Christmas Eve because next Wednesday our legislature opened session and last year we had 157 bills that affect associations introduced, so I'm waiting with baited breath to find out what bills are going to come about this year and what people have in mind on how to change association living. But we'll give you some more reports on that in the future and as soon as we know what's going on we're hopeful that it will be a great year because we're always interested in balancing the rights of the owners as well as the board so they can have a nice place to live. Today I've asked a good friend of mine, Nala, an attorney to come and talk to us again about the proverbial word service animals and comfort animals. You know there's a whole lot of misunderstanding about this and associations more and more are finding out that homeowners are saying well we have a no pet rule however I need to have a pet for these reasons and they call them comfort animals although probably technically speaking the term would be assistance animal. But anyways I've asked Nalan who's a very good friend of mine, a very competent lawyer here in Hawaii to join us, I love seeing you always so tell us a little bit again, remind our viewers about your background a little bit. Good afternoon, very glad to be here. My name is Nalan, I'm of counsel with a law firm Damon Keeley and Capchak Hastert, I was born and raised in China, came to Hawaii in 2004 as a student, fell in love with this place and you know settled down with my husband and two sons on this island, I graduated from UH Law School and then since then I have been representing condominium and community associations for almost nine years, in 2012 I joined the legislative action committee of the community association's institute Hawaii chapter and I've been lobbying for our industry along with my fellow members including you. So a little bit about my firm, our firm was founded in 1963, has deep roots with our community and also with world view because we are the Hawaii exclusive member of the Maritas, it's a worldwide law firm network with 179 independent firms in almost 80 countries. Our legal team includes 28 attorneys, 23 legal staff supporting legal staff, we provide full services to condominium and community associations and cooperative housing corporations. We have the capacity and the experience handling all association matters including other compliance consulting, their transactional matters, dispute resolution, foreclosure, collection and litigation and insurance courage matters. We really emphasize on delivering quality services to our clients as problem solvers within their legal budget. Well I know you do some volunteer work for example, CAI legislative action committee, what is that and what do they do? We basically you know like testify in front of legislators, we monitor, review all the bills relevant to associations and then we of course we take positions, we take post among the associations including board directors, property managers, gather input and then we provide written oral testimonies on behalf of associations, lobbying for associations and then after that is done we do education promotion in the community to inform all the industry stakeholders about new laws passed in Hawaii affecting community associations and condominium. I think one of the misunderstood things about that in my opinion is that CAI which is the world's largest industry organization for community associations, the Virginia Home Office for lack of a better word appoints 12 members here in Hawaii to the LAC committee, legislative action committee and my recollection is that they're evenly divided between homeowners, board members, vendors like insurance companies and lawyers and management companies so it's not a biased organization that has the input of all the relevant parts of our industry as we review bills and make a decision on what we want to support or not support. Yes and there's actually restrictions on you know certain numbers of homeowners and also you know like it's like a very divided you know with everybody in stake also serving on the board and with you know guaranteed percentage. Well since we're going into the legislative session I would just remind all of our viewers that we put out information what's before us and the legislature is very moved by testimony and as a website we'll discuss next week where you have the ability to go in and with a touch of a few keys you can submit testimony for or against the bill you don't have to do a lot of writing or be specific you can even just say I'm for or against and then you can put a comments in the comment section but it's very important that all of you who are engaged in this share your views with the legislature no matter what they are no matter whether you agree with us or not but the legislature is very moved by that testimony of which frankly there's not very much every year it's tough to a few industry organizations to advocate the best. Definitely yeah well let's talk about something that's I don't think it's controversial it is controversial why should I say that and you know following this that haven't been an industry for 25 years I see a change where people move into an association they know the bylaws or house will say no pets or some limitation on pets and all of a sudden they show up with pets and some of the most recent cases that I have seen both locally and nationwide it was the one for example in Hawaii Kai where the owner had two chickens and then there was the case on Delta Airlines where they bought a ticket for a turkey and I thought that was interesting it was the weekend before Thanksgiving I'd always wondered whether the round trip ticket or not but they bought a ticket for the turkey and when of course the gate attendant said what is this they said well it's my emotional support turkey and we've seen it with pigs we've seen it with snakes we've seen it with goats it seems like a rising trend where people are saying they're in need maybe rightfully so of a assistance animal or emotional support animal so let's begin with the basics right what is the difference between a service animal and an assistance animal I'm going to call an emotional support animal since that's what everybody characterizes okay so a service animal it's really a concept defining the American Disabilities Act which applies only to places of public accommodation so you know in terms of associations unless your association takes a specific action to open itself up to the public ADA actually won't apply to your place because it only governs places of public accommodation the the other law emotional support animal or the broader concept assistance animal which included both emotional support animal and service animal this is a concept created by federal a federal fair housing act which applies to all kind of medium and community associations because we are multi units housing and it also this law is broad that it not only prohibits you know like a discrimination in terms of operation leasing or sale in the housing multi unit housing situation it also you know has other bases that you you should protect for example like gender you know race and you know sex and religion familiar status so it offers a much more broader you know protection here for a service animal under ADA it only has to be you know trained dogs or miniature horses but for emotional support animal there is really no restriction on what type animal it can be it can be any types of animal that you know really helps the disabled person alleviate some some kind of symptom of them it doesn't have to be trained you know there's no certification process for them so yeah they are different for i think there's also another act called air carrier access act which is for air traveling you know a literally service animal emotional support animal they got a free ticket but for pets the owner would have to pay for a ticket to in order for them to be on the on the air flight what seems to me you know that i understand that we want those who have a disability to have access to whatever they need to make their life more productive and beneficial and happier no one is arguing what i'm going to call the legitimate disabled person so can it could be said to have let's just use is this the term use everybody because we know it's an assistant analyst is called comfort animal for the show okay is it can it be said to be able to have a comfort animal you have to have a disability yes so they have to have some disability which now throws out the question of this person says i need my emotional support cat what questions can you ask that person can you did you just have to accept it on face value or can you say to that person well you know we have a no pet policy here we certainly want to recognize your rights if you have a disability you must be able to ask some questions and not just take a face value that they said i have a disability or can you ask questions yeah you definitely can ask questions uh first we have to correct for assistant animal or emotional support animal they are not pets you have to consider them as a different category uh so when the owner has a disability they have a need for assistant animal or emotional support animal they make a reasonable request for accommodation then you have to consider and what a kind of question you can ask is you can seek information from let's say a treating health care professional or a mental health you know care professional or social worker or you know anybody who's really familiar with his or her situation to ask to verify whether there is any disability and whether the animal is needed to alleviate any symptom in connection with a disability that's the thing you can ask you cannot ask for more like access to medical records that's a no you cannot you know ask the animal to do certain thing whether there's a training or something no there's no certification for that and you cannot enforce them to have to fill out your forms you cannot do that now is do you have to as a few of the person who has the emotional support animal do you have to tell the association give them i'm not saying fill out a form but you have to say to them i want you to know i have an emotional support animal or can i just do it on the road until you ask about it they do have to initiate a request either early or in writing the the for fair housing act is because it's a reactive statue they have to make the request and then you react to that that's the difference between ade and fha and so the the short answer is yes they have to make a request and then you have the right to ask for some type from it would be a social worker or a doctor you're you're able to ask for some sort of quote proof on proof that they have a disability under the act and that's what they have to do part one part two we're going to take a short break for one minute we'll be right back to talk more about emotional support animals and emotional support talk show hosts so we'll be right back for every game day a sign a designated driver what big eyes you have she said what are you doing research says reading from birth accelerates our baby's brain development push read aloud 15 minutes every child every parent every day we're back to condo insider talking about emotional support animals and we're with nonline a prominent local lawyer who does all sorts of association things but very knowledgeable about this issue and when we finished we talked about the fact that if a person in your association believes they have the right to an emotional support animal that number one they have to make a request either orally or in writing and number two you can ask for documentation to provide some type of reasonable evidence not about their medical condition and their medical records but just some kind of validation that they have a disability because you have to have a disability also for an emotional support animal that they have some sort of disability so very general in terms but you have that right but let me ask you this question I have personal experience with this because I was curious right so I got my internet out went into google did a support for emotional support animal certificate found a website that for $69.95 by filling out this online form and taking this online questionnaire about my mental state that I could get potentially if I passed or failed or I don't know if it's passed or failed the mental test but if I did this test that I could get a certificate so I decided to start the process and I did eating the doughnut was breakfast time so I decided to name my my fake elephant doughnut and so I filled out the form from my pygmy elephant doughnut and submitted it and then they said they directed me to these 10 questions and basically if you ever feel lonely you know if I answered them the way I wanted to knowing they were steering me to answer them a certain way flash up comes congratulation you've passed the test you're entitled to an emotional support certificate for your pygmy elephant doughnut now I never paid the $69.95 but how does that fit into all this it seems to me with the way the internet is today does it have to be a local person saying you have a disability it can be anybody are these certificates valid I mean how does this all fit into the scheme of this I mean there are definitely like a frauds abuses out there but unfortunately the law doesn't clarify you know whether that you know person who provides the certification or the supporting ladder has to be from a local professional or you know these online services would work and in many cases the the work I mean if you don't you know just you just deny that just question that without any further investigation or analysis you could get into trouble with the Hawaii Civil Rights Commission but there are also cases where we're writing the news you know you know this is really easy to get like a certificate like you mentioned we have to consider about if you live in an apartment building apparently having an elephant there as the emotional support animal that's not practical so you know that you have another basis to deny it and of course there are other rules assistant animal and including service animal they have to follow if they are in breach of those terms you know you have a right to remove those kind of animal but still offer that owner or resident you know a chance to enjoy or use that housing without the presence of the animal so in theory if you had an animal and you didn't have it on all these short it created a necessary consistent new sense of the noise or other types of problem because of the multifamily housing we all live close together those issues may be valid reasons not to allow them not the fact that they are not allowed to have support animal but the animal itself can't comply with the rules of the association yes I always recommend my clients to adopt a system animal policy to make it clear you know what are the things assistant animal owners have to you know follow so that everybody's on the same page I read an article recently about a case and I forget what state it was it wasn't in Hawaii where the person had emotional support goats and they tried to use an online certificate to support it but I believe what the issue was is that you know many governing documents you only allowed to have domestic animal domesticated animals well there's a go to domesticated animal probably not an elephant certainly not and a snake certainly not you know it's uh so I think you know there's going to be areas that people may not think that they want to have in the case of the chickens in Hawaii they were domesticated special chickens I forget their names now they had cute names so it's really a very gray area I think that association boards because the penalties are pretty severe if you interfere with their rights so I guess the appropriate suggestion would be to you have this issue to get legal counsel yes every case has to be determined on a case by case analysis you cannot just use a blanket rule to see yes or no I had another case too which I thought was interesting where I'll make your comment about it you know where the owners had a dog and they said the dog was an emotional support dog and because the dog was kind of a high strung dog the dog needed an emotional support dog to keep it company so it wouldn't be so high strung so that's the that's the statute provided for the the the emotional support animal to have an emotional support animal no but you know there's actually no restriction on the number of emotional support animal one owner can have one resident can have I mean if this owner is smart enough he can see both are he's the emotional support animal that you know he's going to have a stronger case of keeping them yeah I think that that's the issue and of course if you had a husband or wife one could say this is my emotional support animal and this is your emotional support animal and but in some ways a lot of people feel it's being used to get around the no pet rules because people want to have a pet and they call it an emotional support animal and I want to again say to everybody watching we as an industry totally support any disabled person from having all the resources necessary to make their life a great life but at the same time when we had you know the bill that I saw that was the legislature's tried to deal with this for about two years and what the California legislature did was make it a misdemeanor for a person like a doctor or a social worker to misstate a person that has a disability when they don't have a disability right and they put it on the person providing the certificate because the question is whether they're going to jeopardize your license in deference to somebody who may not qualify yeah you know and our legislature has not taken that up but to me that's probably a good first step to try to put some degree of of check and balance in this that the that'd be a misdemeanor for a licensed person social worker doctor whatever it may be to falsely state a person has a disability when they don't yes comments I agree I mean there are several states actually followed California staff they have a certain laws in place try to discourage people from you know like using abusing this or you know engaging in fraud regarding assisted animals but in order to have a good lot you know really balancing the disabled person's rights as versus to have a effective you know like restriction in place that's going to discourage them from you know other people from abusing this it's always a very hard line to walk you know you don't want to be like creating too much burdens on the disabled person because there are legitimate needs there but at the same time even if you have certain rules like that it's always kind of hard to enforce as well so I think we've seen bills in Hawaii in previous legislatures coming up it just the bill never got a family passed through you know I think with a trend going on like this we may see more bills coming up we'll see how it plays out in future you know it's interesting to me my experience I'm not trying to advocate this uh on behalf of all the other organizations out there but my recollection was that the testimony from the disabled disability organizations were in support because they too don't want to see this misuse because it affects them in the future too you know definitely because it sends the wrong messages the wrong perception of what the issues are so we didn't get much pushback other than the Hawaii Civil Rights Commission that was the one who didn't like this bill particularly for some reason and and uh I guess my question to you should the board be concerned about the Civil Rights Commission Hawaii Civil Rights Commission stepping in if they don't handle this properly well I mean that's the whole purpose of why we have a civil rights commission there they're trying to do their job I mean that's why you know associations when you get this kind of issues you got to be cautious and secretly go counsel when you're unsure of the answer that's always a good practice so you know but the civil rights commission could go in and create an order and yes they could find you I think I think they could also make the boards go to educational classes as part of a settlement agreement so I don't think we should take them lightly that they certainly have a valid legitimate job to do and they've done a lot of good things in the state here to help protect people in classes that need protection yeah but I think the message is that what we said earlier when a board has this problem number one seek legal advice and then number two don't take it for granted that the civil rights commission won't step in if that particularly a grieved person files a complaint it can be a tenant doesn't have to be an owner yeah in an association yeah they definitely have the right to investigate and issue fines or like even give a right to sue like kind of statement to the you know you know like a damaged person or injured person like disabled person and then they also have the right to issue fines damages that were legal fees and costs and although not exactly relevant to our show I guess it comes in a way civil rights commission another class of owner that may need protection would be if boards didn't handle the medical marijuana issue correctly you know they didn't allow what the law provides so it's not just civil rights commission is not there just for quote emotional support and it was there for a lot of classes of people who have protected rights under the fair housing law and other laws to protect them so we should be very cognizant that the risks are high if they don't address these things properly and it's back to as much you don't want to spend money you should you should use a lawyer in these cases because it's very technical in nature and you can stub your toe pretty good the effective way is really to prevent dispute instead of getting yourself into those kind of trouble so having a clear assistant animal policy know what you can do what you cannot do that's the right way to go any final comments before we close the show on emotional support animals I mean for our audience you know try your best not to abuse this you know right we are having and then if you have you know like urge to really participate in our legislative process when certain bills coming up I would encourage you to voice your opinion to vote for a certain way and then we know what the public really wants okay well thank you for being here today you're always a wealth of knowledge particularly in this subject but many subjects we look forward to having you watch us next week a condo insider at three o'clock if you ever have any suggestions for a show you're welcome to contact us and provide us information with what you'd like to see we're going to have quite a new extensive courses on some fire safety options next week but we thank you for watching condo insider and aloha