SERVICE ANIMALS AND EMOTIONAL SUPPORT ANIMALS

By Eric Glazer, Esq.

Published July 21, 2014

    

It seems like the biggest issue today for community associations is whether or not ďno-petĒ communities have the authority to question individuals that request exemptions, so they can reside with animals that are medically necessary. Before we get into the authority of associations, itís important that you understand the definitions of some of the terms, which casually get thrown around by people, regarding these animals, and their distinctions.

  

First off, for most community associations in Florida , the primary law that deals with this issue is the Fair Housing Act, and its related regulations (there is a Florida FHA too, but weíre going to just deal with the federal law here). The FHA is, among other things, the law that protects individuals from discrimination in housing settings. In regards to individuals with disabilities that live in community associations, the FHA ensures that disabled people are able to live their homes as comfortably as their neighbors, and derive the same use and enjoyment from their communities as everyone else.

   

For some disabled individuals, ďassistance animalsĒ may be medically necessary for them to use and enjoy their homes; thus, the FHA provides protection. The label ďassistance animalĒ is a pretty vague term and itís not defined in the FHA, but itís generally recognized to encompass all of the other terms we hear in the news these days (e.g., emotional support animal, therapy dog, service animal). One thing that isnít vague or uncertain in any way is that legitimate assistance animals are not ďpets,Ē and should not be treated as pets by associations.

   

The term service animal (or service dog) has been around for a while, and most people think they understand what it means. Just as a refresher for everyone, and put as simply as possible, a service animal is a dog (or in some cases a small horse) that has received some sort of training to provide a specific service or benefit to an individual with a disability. The FHA does not define this term either, but the Americans with Disabilities Act provides the law here. While the ADA does not govern a large portion of the communities in Florida , make no mistake about it, the FHA protects individuals that require service animals too. The most familiar example of service animals are guide dogs for the blind. But, as the definition implies, the term service animal can include various other dogs (yes, basically only dogs can be considered service animals) that have been trained. For instance Iíve come across dogs trained to open doors and even detect seizures. These dogs have received extensive training, and when Iíve seen them in public always appear to be well-behaved companions that provide an essential service to our neighbors. For our purposes though, the most important thing to remember is that if a dog has not been trained to provide a ďserviceĒ itís not a service animal. Most associations with no-pet communities that I represent, do not object when service animals are brought into their communities. From what Iíve seen, when a request is made to an association, regarding a service animal, the need for it is usually pretty clear. Itís been my experience that the abuses causing many of problems for people, who legitimately need assistance animals, are not due to fraudulent service animals attempting to be passed off as the real thing.

   

Next letís talk about emotional support animals. These furry guys 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. While Iíve seen legitimate requests for emotional support animals, as the need for these assistance animals is real, Iíve also seen far too many fraudulent, laughable requests that make a mockery of the FHA. For every legitimate letter from a treating physician that prescribes an emotional support animal, demonstrating a clear need for resident-patient, Iíve probably read a dozen letters from Botox injectors, chiropractors and pay-for-prescription internet websites trying to scam an association with a fake emotional support animal. Under the current law no training is necessary for an emotional support animal, but there are reputable nonprofits out there that do train dogs to assist individuals that really require assistance for an emotional disability. Itís the lax regulation of emotional support animals that has created the negative stigma for individuals, who really need them, and individuals with service dogs, who are sometimes grouped in with emotional support animals. This is the biggest problem for associations, and while there may not be a great solution right now, there are ways of dealing with it.

  

In terms of an association requesting medical records from a resident, if the individualís 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.

 

Many of you recently read all about the case in Broward County , where a woman who suffered from multiple sclerosis sued her condominium for refusing to make an accommodation to its pet rules for her service animal. The judge in that case wrote a scathing opinion in the disabled individualís favor. However, 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 . . . .

 

Along these lines, in one particular case that I worked on, two 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. 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.

 

So where are we at? Well, it should be obvious that true service animal should never be turned away from a condominium if that animal was trained and assists a disabled person in using his or her condominium; thatís a no brainer. The more difficult issue is dealing with emotional support animals, when the resident has no outward physical disabilities, and even works all day while the animal remains at home. Until more of those types of cases are decided by our courts, and until healthcare professionals experience some consequences for, essentially, writing fake prescriptions, rest assured this issue will be around for a while.

 

While I donít like saying this (or maybe I do), associations should consult with their attorneys before making any decision regarding requests for accommodations to no-pet rules. Each request needs to be dealt with on a case-by-case basis, because the last thing an association should do is summarily deny a legitimate request, just because there are a lot of frauds currently going around.


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About HOA & Condo Blog

Eric Glazer Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He is currently entering his 20th year as a Florida lawyer practicing

community association law and is the owner of Glazer and Associates, P.A. an eight attorney law firm in Orlando and Hollywood. For the past two years Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show on 850 WFTL.

See: www.condocrazeandhoas.com.

  

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 7,500 Floridians. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Finally, he recently argued the Cohn v. Grand Condominium case before The Florida Supreme Court, which is perhaps the single most important association law case decided by the court in a decade. 


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