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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 “no-pet” 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, it’s 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 we’re 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, “assistance animals” may be
medically necessary for them to use and enjoy their homes; thus,
the FHA provides protection. The label “assistance animal”
is a pretty vague term and it’s not defined in the FHA, but
it’s 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 isn’t
vague or uncertain in any way is that legitimate assistance
animals are not “pets,” 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 I’ve come across
dogs trained to open doors and even detect seizures. These dogs
have received extensive training, and when I’ve 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 “service” it’s 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 I’ve seen, when a request is made
to an association, regarding a service animal, the need for it
is usually pretty clear. It’s 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
let’s 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 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, 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, I’ve 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. It’s 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 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.
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 individual’s 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; that’s 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 don’t 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
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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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