Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020. The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.
Changes in public perceptions and levels of awareness of the issues surrounding emotional support animals have created a mandate for new state laws and federal policies. Earlier this year I wrote in this column about new measures being considered by the Florida Legislature as well as the U.S. Department of Housing and Urban Development. HUD has now released its official guidance for assistance animal requests and the responses to such requests by housing providers under the Fair Housing Act.
The federal housing agency reported that complaints concerning denials of reasonable accommodations for assistance animals have been growing significantly, and they now represent one of the most common types of FHA complaints that HUD receives.
The new guidance is intended to serve as a tool for housing providers and those with disabilities. It covers many of the best practices for providers addressing requests for reasonable accommodations for assistance animals.
The guidance should help to make it easier for housing providers and individuals requesting an accommodation to gain a good understanding of the applicable laws. For requests for emotional support animals in which the underlying disability may not be readily observable, HUD states that housing providers may request information regarding both the disability and the disability-related need for the animal, but they are not entitled to know an individual’s diagnosis.
The issue of fraudulent emotional support animal requests is drawing significant attention at both the state and federal levels with the Florida Legislature and the U.S. Department of Housing and Urban Development.
As this year’s legislative session gets underway in Tallahassee, HB 209 seeks to protect individuals with legitimate disability-related needs for emotional support animals from discrimination or having to pay extra fees. However, if passed, it would also authorize landlords to request certain written documentation and prohibit the falsification of written documentation or other misrepresentations.
The bill, which is currently undergoing committee review, would make it a second-degree misdemeanor for the falsification of written documentation for an emotional support animal or the willful misrepresentation of qualifications for an ESA. It addresses the criteria for the written documentation that must be submitted from healthcare providers in support of ESA requests, and would also require the state’s Department of Health to adopt rules regarding the format of the required written documentation. Significantly, the bill would also mandate that the treatment provided must go beyond merely writing a letter.
The Community Associations Institute, the largest organization representing the interests of communities with associations, recently issued a new public policy titled “Assistance Animals and Pets in Community Associations.” The new policy recommendations, which were adopted by the organization’s Board of Trustees, serve as excellent guiding principles for associations and lawmakers on pet restrictions and assistance animal policies.
The policy recognizes the rights of residential community associations to regulate and adopt rules pertaining to pets and assistance animals, but it notes that such rules must guarantee the rights of individuals with disabilities to receive the assistance they need as mandated by state and federal laws. It will be used by the organization and its legislative action committees around the country to support legislation allowing associations to request documentation that verifies the need to accommodate for an assistance animal, and which imposes penalties for fraudulent requests for service or emotional support animals.
Assistance animals are recognized as deserving of reasonable accommodations for the qualified disabled under the federal Fair Housing Act. Assistance animals are not considered pets, according to the U.S. Department of Housing and Urban Development, which oversees the Fair Housing Act and investigates claims of housing discrimination. Continue reading
Firm shareholder Elizabeth A. Bowen authored an article that appeared as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Suit Against Association for Emotional Support Animal Denial Sends Message to Fla. Condos, HOAs,” discusses the implications of a recent lawsuit by Broward County against a Lauderhill condominium association for alleged violations of fair housing laws over its denial of an emotional support animal for a unit owner. Her article reads:
Emotional support animals have been in the news quite a bit during the last couple of years. There have been reports of airline passengers boarding with a peacock, hamster, pig, a duck wearing a diaper and a squirrel. As a result, companies have started to change their policies, and the public’s attitudes and perceptions toward ESAs also appear to be changing.
Frontier Airlines recently announced its new policy to allow only cats and dogs as emotional support animals. It joined Spirit Airlines, Delta Air Lines, United Airlines and American Airlines, which have all tightened their policies on ESAs this year. Publix also banned them from its stores and posted signs reading: “For food safety reasons, only service animals that are specifically trained to aid a person with disabilities are permitted within the store.”
These new policies and signs have raised awareness of the perceived abuse of ESAs by people trying to take advantage of federal disability laws in order to take their pets into businesses. As a result of the growing skepticism, community association boards of directors can easily fall into the trap of disregarding requests for accommodations for ESAs and summarily rejecting them.
A recent lawsuit by Broward County against a Lauderhill condominium association illustrates the potential pitfalls of such uninformed actions by associations. The county filed suit in federal court against the Environ Towers I Condominium Association seeking damages and injunctive relief for its alleged violation of federal fair housing laws as well as the Broward County Human Rights Act. Continue reading
Some good news for community associations struggling with questionable requests for the approval of emotional support animals: The Department of Housing and Urban Development is expected to issue revised guidelines later this year focusing on ESA requests and approvals. According to The National Association of Realtors, the new guidelines should give landlords, property managers and community associations greater authority to verify that the need for such an animal is legitimate.
The NAR reports it has had separate conversations with HUD and disability rights groups. Senior Policy Representative Megan Booth recently told attendees at a conference that the disability rights groups have expressed concerns over the widespread abuse of requests for companion animals, as they believe it is already making it more difficult for residents with legitimate needs to receive the approvals they require.
It appears that the new HUD guidance will be specifically aimed at curtailing the use of online ESA certification mills.
Firm partner Michael E. Chapnick authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “Emotional Support Animals Leave Many Condo Associations Howling,” focuses on the growth in requests for emotional support animals in condominium associations and other communities with pet restrictions. Michael’s article reads:
The laws governing emotional support animals emanate from the Fair Housing Amendments Act of 1988, and its state and local counterparts. The act prohibits discrimination in the provision of housing to disabled persons, and it requires that a reasonable accommodation in an association’s rules and regulations be provided to a disabled person so that they can use and enjoy the property to the same extent as a nondisabled person.
Disabilities can take many forms: some physical and others emotional and/or psychological. For emotional and/or psychological disabilities such as depression, there are rarely obvious, external symptoms.
A recent Florida case involving a condominium association and the dog of a 70 year-old army veteran and widower drew national attention after it was covered initially in the Orlando Sentinel. The newspaper’s reports chronicle how the association for the Orange Tree Village condominium is attempting to ban the dog because it weighs 41 pounds, which is six more than the maximum weight under its rules, and it may be a banned breed.
As a result of the association’s decision, retired veteran Robert Brady filed a complaint with the U.S. Department of Housing and Urban Development after an arbitrator determined he had to surrender the dog by Jan. 11. The federal agency is now looking into whether the association can force the long-time resident to surrender his emotional support dog.
The attorney for Orange Tree Village said that his office has received calls sympathetic to Brady, but his client must enforce its rules that were established to keep residents safe.
Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims —many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.
Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.
In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.
Associations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent. Associations may also request that the resident provide this information from their doctor.
Can snakes, the animal commonly known for instilling panic upon sight, actually help to ease anxiety? According to snake owner Darla McGinnis, they can.
WCVB-Channel 5 (ABC) in Boston recently covered a story about McGinnis and her fight with the City of Council Bluffs, Iowa, which currently has a ban on its residents having snakes as pets.
McGinnis — who suffers from anxiety and is pictured below together with her daughter and their pet pythons — claims that her pets are the only things that help to put her at ease.
However, the city isn’t budging. Albeit recognizing the importance of emotional support animals, Council Bluffs refuses to circumvent its code to grant her the special accommodation that she allegedly needs.
Rather, McGinnis has to travel across state lines to neighboring Omaha, Nebraska, in order to see her loving reptiles. In the meantime, she intends to continue to battle the ban in hopes to change the existing city code.