|Amendments that affect Associations: |
On July 1, 2020, several statutory amendments were designed to give Associations ground to stand on when addressing requests for ESAs. One of these statutes is Florida Statute Section 817.265, which states:
A person who falsifies information or written documentation or knowingly provides fraudulent information or written documentation for an emotional support animal under s. 760.27, or otherwise knowingly and willfully misrepresents himself or herself, through his or her conduct or through a verbal or written notice, as having a disability or disability-related need for an emotional support animal or being otherwise qualified to use an emotional support animal, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. In addition, within six months after a conviction under this section, a person must perform 30 hours of community service for an organization that serves persons with disabilities or another entity or organization that the court determines is appropriate.
It is now a misdemeanor for a person to knowingly misrepresent that they’re permitted to use, or are using, or are training a service animal.
In addition, Section 456.072, Florida Statutes, was amended to provide that a health professional who provides information, including written documentation, indicating that a person has a disability or which documentation supports a person’s need for an ESA without personal knowledge of the person’s disability or disability-related need for the specific ESA, is subject to disciplinary action.
|What is the difference between Service Animals and Emotional Support Animals? |
Service animals and emotional support animals are not the same. Service animals receive a high level of training to perform disability-related tasks for their owner. For example, hearing dogs are trained to respond to a variety of sounds so that they can lead or alert their deaf owners.
Emotional support animals do not require specialized training to provide emotional support for their owners. Also known as therapy animals, their purpose is to help alleviate their owner’s disability symptoms or effects. Emotional support dogs may be taught to remind owners with mental illness that it’s time to take their meds.
The FHA defines persons with a disability as: (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such impairment.
Housing communities are private properties, so they are not under the jurisdiction of the ADA. Associations must follow the FHA, providing protection to service animals and emotional support animals. People with emotional support animals also have equal access to housing. This also supersedes your Associations pet policy.
What rights do Associations have?
Upon receipt of an accommodation request by a unit owner, the Association may ask the following two questions:
– Does the person seeking to use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
– Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
The Association can ask for documentation from the owner to prove the need for an ESA. Florida Statute Sections 760.27(2)(b)(1)–(4) explain that if a person’s disability is apparent, the Association may request “reliable information that reasonably supports that the person has a disability.” This includes a determination of disability, or receipt of disability benefits or services, from any federal, state, or local government agency or proof of eligibility for housing assistance due to a disability.
If the person submitting the request cannot provide any of the above, the Association may also request information from a health care practitioner with personal knowledge of the person’s disability.
It is crucial that HOAs not overstep their bounds when dealing with ESA requests. While “reasonable” accommodations will differ from association to association, the fact remains that a refusal must also be reasonable. If an HOA declines to accommodate a tenant who is disabled and has the proper paperwork for their animal, they may find themselves on the receiving end of a lawsuit, either under Florida Law or under the U.S. Fair Housing Act; if in doubt, contact your friendly HOA/Condo attorney.