SEPTEMBER 1, 2020
In these uncertain times it is not unusual for boards operating pet-restricted communities to receive even more emotional support animal (ESA) requests than usual. What is unusual is the emerging trend that some people requesting these ESAs are retracting their requests when confronted with a new law in Florida which criminalizes fraudulent requests.
The amendments to Chapter 760 of the Florida Statutes became effective on July 1, 2020. In addition to the eye-opening provisions which make a fraudulent request a crime in Florida subjecting the perpetrator to fines, possible court-ordered community service and, in extreme cases, jail time, the new law provides these lesser known changes:
- Section 760.27(1)(a) defines an “emotional support animal” to mean an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability. This underscores why those ESA certificates printed off the internet are meaningless and therefore provide no credibility to the request.
- Section 760.27(2) makes it unlawful for a housing provider (aka a community association) to require a person to pay extra compensation to keep the ESA. This means that “pet deposits” and fees associated with tags or DNA testing for pets in the community cannot be charged to ESAs and service animals.
- A housing provider may deny a request for a reasonable accommodation if the animal poses a direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others (e.g. the animal has a history of attacking people or other dogs). An aggressive breed alone would not be sufficient to deny a request; your board would have to have specific knowledge of the requested animal’s aggressive behavior.
- If the person’s disability is not readily apparent, the housing provider may request “reliable information” to support the person’s disability claim. Residents and guests who claim that you cannot inquire about their need for an ESA are wrong. Speak to your association attorney about the nature of your inquiry though before proceeding.
- An out-of-state practitioner providing supporting information must have provided “in-person care or services” to the individual on at least one occasion and that practitioner must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice. This portion of the new law is designed to eliminate the medical letters that can be printed out online without the person ever being seen or treated by that medical professional. Don’t assume that tele-counseling does not qualify as “in person care or services”-speak to your association attorney and get a legal opinion.
- If a person requests to keep more than one ESA, the Association can request information to support the need for each animal.
- An association can also require proof that the animal’s owner has complied with state and local licensing and vaccinating requirements. Many boards ask if they can request this information annually-this new law answers that question.
- Section 760.27(3) provides that an Association CANNOT request information that discloses the person’s diagnosis or the severity of a person’s disability and/or medical records related to the disability. However, an individual is allowed to share this information voluntarily with the association. Many of the discrimination claims brought against associations have not been based upon an outright denial but have been based on the manner in which repeated requests for information were handled. Requesting additional and often sensitive information should be handled solely by your association attorney.
- While an Association can establish a standard policy or procedure for receiving and processing ESA requests it cannot require the use of a specific form or notarized statement and cannot deny the individual’s request for failure to follow the policy. Many communities are still using forms and protocols that were created years ago. This new law warrants a complete review of your ESA and service animal forms and policies. Often, less is more in this regard; overly complicated policies and forms can be counterproductive.
- Section 760.27(4) provides that the owner of an ESA is personally liable for any personal or property damage caused by his or her ESA. It’s important to remember that the Fair Housing laws require a reasonable accommodation not an unconditional one. If the accommodation for a previously approved ESA or service animal has become unreasonable speak to association counsel about your ability to revoke that accommodation.
This new law certainly won’t stop all of the rampant abuse we’ve seen over the last few years but it is a step in the right direction. With this little bit of cover provided by the Florida Legislature it is now incumbent upon boards and the legal experts they retain to create and enforce the necessary framework within which to properly evaluate ESA requests.
Donna DiMaggio Berger is a Shareholder in Becker’s Community Association Practice in Ft. Lauderdale, Florida. She is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization. Donna frequently appears on radio talk shows and in print media discussing these issues, including a monthly HOA column she writes for the Miami Herald. She is the author of a popular association industry blog – www.communityassociationlawblog.com. Ms. Berger can be reached at (954) 364-6031 or via e-mail at firstname.lastname@example.org.