Great response from our readers to Part 1 last week. Now let’s talk about the applicable laws and some do’s and don’ts.
For most community associations in Florida, the primary laws that deals with this issue are the Federal and Florida Fair Housing Acts, not the Americans With Disabilities ACT, or A.D.A In regards to individuals with disabilities that live in community associations, the federal and Florida FHA ensures that disabled people are able to live in their homes as comfortably as their neighbors, and derive the same use and enjoyment from their communities as everyone else.
The law differentiates between service animals and assistance animals, like an emotional support animal. The term service animal is a dog (or a small horse) that has received some sort of training to provide a specific service or benefit to an individual with a disability. The most familiar example of service animals are guide dogs for the blind. The most important thing to remember is that if a dog has not been trained to provide a “service” it’s not a service animal. When a request is made to an association, regarding a service animal, the need for it is usually pretty clear.
Next let’s talk about emotional support animals. These animals are not required to be trained, in stark contrast to service animals. Fundamentally, under the FHA, an individual must only demonstrate that her animal (not necessarily a dog) is required to ameliorate a symptom of her disability, in order to be exempted from any no-pet rules. Also, unlike service animals, emotional support animals, and the laws and regulations that protect their use, are currently being abused. In order to prove the need for an emotional support animal, all a resident in a no-pet community is required, under the law, to show her association is, essentially, a note from a healthcare provider that states that her patient requires her animal to help with a mental or emotional illness. While I’ve seen legitimate requests for emotional support animals, as the need for these assistance animals is real, I’ve also seen far too many fraudulent requests that make a mockery of the FHA.
In terms of an association requesting medical records from a resident, if the individual’s disability is apparent, and the need for the animal is obvious (i.e., guide dogs for the blind), an association cannot ask for such records. However, especially in terms of requests to keep an animal by a person with emotional disabilities, a disability may not be readily apparent and therefore an association can ask for medical documentation.
About two years ago, there was a case in Broward County, where a woman who suffered from multiple sclerosis sued her condominium association for refusing to make an accommodation to its pet rules for her service animal. That animal was trained to open doors, pick-up objects, turn on lights and more. Instead of the association immediately agreeing to allow her to keep the dog, they sued her. Bad move. The judge in that case wrote a scathing opinion in the disabled individual’s favor and the association was forced to pay a lot of money. However, while that case was not about emotional support animals, read what else the judge said about the issue regarding emotional support animals:
[t]he court realizes that there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly where the dog assists a disabled person by rendering emotional support . . . . there is a growing problem of people using fake service dogs . . . .
In the Sun Harbor Homeowner’s Association, Inc. v. Bonura case however, the 4th District Court of Appeals thought the association was well within its rights to request the owner to appear before the board, provide medical records, explain how her emotional support animal helps, and ultimately reject her request, where her disability was not obvious and she would go to work each day without the dog, who would remain in the home.
In another case our office co-counseled, a federal court jury returned a verdict in favor of the association and against an elderly woman with dementia who was unable to prove her emotional support animal was necessary for her to use and enjoy her dwelling by alleviating the symptoms of her illness.
Recently, in another case our firm handled, several different doctors testified at deposition that they wrote a medical note for a unit owner simply because they were asked to do so. The idea for a pet was not their medical diagnosis, but simply the suggestion of their patient. These doctors did not follow up to see if the pet was relieving the disability and had no idea if it was working. They simply did a favor for a patient, which happens far more often than should seem possible. One of the doctors even had a sign on his office door that said “No Dogs Allowed” and admitted under oath that he would not allow the emotional support animal that he prescribed, to enter his own medical office.
These doctors, or any healthcare professional for that matter, should know that these favors to their patients costs associations thousands of dollars in legal fees and court costs, when they decide to fight what are clearly bogus disability claims. Worse yet, because of all of the fake service animals and emotional support animals, people with real disabilities and who have legitimate service animals are suffering. On the Condo Craze radio show about two years ago, my guests who were severely disabled, one of whom lives in a wheelchair, told stories of how businesses discriminate against them and their real service animals. They told everyone that many times they are told by business owners that they can’t bring their service animal into a business establishment because the business owner says they don’t know any longer which animals are real and which ones are fake, and they are tired of these animals going to the bathroom on the floor, barking and biting their customers. As a result — no animal gets in, despite the fact that some requests may be legitimate.
So where are we at? Some good news is that it is now a crime in Florida to represent your animal as a service animal if it isn’t. It should also be obvious that true service animals should never be turned away from an association if that animal was trained and assists a clearly disabled person with their disability. That’s a no brainer. The more difficult issue is dealing with requests for emotional support animals, when the resident has no outward physical disabilities, and even works all day while the animal remains at home. Notwithstanding same, when presented with a request for a service animal or an emotional support animal, the association should act as quickly as possible so as not to “constructively” deny someone their rights.