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Iowa Supreme Court to hear arguments Feb. 10 in a case of an emotional support dog versus a neighbor with allergies

by Rox Laird | February 7, 2020

Two tenants on the same floor of an Iowa City apartment building assert conflicting rights that seem irreconcilable — one needs a dog for emotional support and the other is allergic to dogs — and they are asking the Iowa Supreme Court to decide which party should prevail.

The case, Cohen v. Clark, will be argued in a special evening session of the Iowa Supreme Court Feb. 10 at 7 p.m. at the Judicial Branch Building in Des Moines.

This appeal raises a question the Court has not previously addressed: Does Karen Cohen’s right to live in an apartment building free of cats and dogs, which aggravate her at times life-threatening allergies, prevail over David Clark’s right to have a dog in his apartment to cope with his mental disability?

Caught in the middle is the landlord who must figure out a way to enforce the no-pets provision in lease agreements to protect one tenant’s physical health while at the same time reasonably accommodating another tenant’s mental health disability. Accommodating both tenants could be expensive — ranging from $350 for carpet cleaning to $80,000 to hermetically seal the apartment building.

Cohen argues that her landlord’s waiver of its no-pets policy is not a reasonable accommodation of Clark’s disability because it threatens her health. Clark counters that the landlord and tenant should be allowed to work toward a solution that accommodates both parties, and that the Court should avoid creating a hard-and-fast rule in such cases.

Cohen argues that the distinction has been blurred between trained “service animals” — such as a seeing-eye dog — and “emotional support animals” — such as the dog Clark needs for emotional support. Cohen cites a 2014 federal decision from the Southern District of Florida, which held that an emotional support animal “need not be specifically trained because the symptoms the animal ameliorates are mental and emotional, rather than physical.”

A 1995 Seventh Circuit Court of Appeals decision is frequently cited as support for the per se reasonableness of any type of animal as an accommodation, Cohen argues.

Meanwhile, the numbers and varieties of emotional support animals are growing. Cohen’s landlord testified that, of its nearly 2,000 tenants, requests to accommodate emotional support animals jumped from nine in 2015 to 30 in the first six months of 2016. And he testified that while most requests for accommodation were for dogs and cats, “We’ve had a micro-pig request, we’ve had a rabbit request, and we’ve had snake requests.”

Legal requirements in state and federal law are in conflict, Cohen argues, as they simultaneously require landlords to accept animals as an accommodation while also saying such accommodation is not reasonable if it causes a direct threat to the health of other persons. The parties stipulated that Clark has a mental disability, and that Clark’s dog caused her to have allergic reactions, for which her allergist prescribed an emergency Epi-pen due to the threat of potentially deadly anaphylactic shock.

Clark agrees that both parties have compelling claims and that the law does not offer a clear answer about how to balance those claims. However, he urges the Court not to draw a bright line but to approach the issue on a case-by-case basis that allows landlords and tenants to seek solutions that accommodate both parties.

“Perhaps in this case, the only solution was to offer a different apartment to one of the tenants, as this particular landlord had other properties,” Clark argues in a brief filed with the Court. “In other scenarios, perhaps a different approach would resolve the conflict. Careful consideration, including a balancing of the benefits and burdens on all affected parties, must be given in all cases where there is a conflict between tenants. No fast or hard rules should apply.”

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