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Emotional Support Animals:
Legal but Still Fought
By Guest Blogger Maida Genser
President
Citizens
FOR Pets in Condos
Published
July 6, 2012
Most
people know that service animals are allowed in places where
dogs are not usually allowed.
The U.S.
Department of Justice is the agency that regulates
service animals through
the Americans with Disabilities Act.
Emotional
support animals are yet another type of assistance animal.
The
U.S. Department of Housing and Urban Development
(HUD) regulates emotional support animals through the
Fair Housing Amendments Act.
(The U.S.
Department of Transportation regulates law allowing emotional
support animals in airplanes.)
As opposed to service animals, emotional support animals
do NOT need to be trained to do a specific task to do
assistance. ESAs
assist persons with certain types of disabilities by simply
providing companionship and affection.
Citizens for Pets in Condos does, however, strongly
encourage getting Canine Good Citizenship or equivalent training
for all dogs to reduce potential nuisance issues.
Emotional
support animals (ESAs) are allowed in a disabled person's home
and in airplanes. ESAs
are not allowed in places of public accommodation like grocery
stores and movie theaters.
Furthermore,
while currently only dogs (and in some circumstances, miniature
horses) can be service animals, there are no such restrictions
on emotional support animals. Your cat, bird, gerbil, etc. can be your ESA.
Get
more detail on the definitions
of types of assistance animals here.
In
October of 2008 the U.S. Department of Housing and Urban
Development published new rules
intended to codify its existing policies regarding emotional
support animals. The HUD
rules clarify some misconceptions regarding a housing provider's
obligation to allow ESA's in "no-pet housing" as
follows:
1. Specialized task training of ESAs is unnecessary.
2.
Documentation of the need for an ESA may come from a
"physician, psychiatrist, social worker, or other mental
health professional." In
Florida, "other mental health professionals" refers to the
following health care professionals duly licensed by the Florida
Department of Health - licensed mental health counselors, licensed clinical psychologists,
licensed clinical social workers\licensed marriage and
family therapists.
3.
There is no need for formal CERTIFICATION of the disability.
For more detailed information see our legal
information tab.
What
types of housing are covered by the fair housing act?
The
Fair Housing Amendments Act applies to virtually all forms of
housing, whether owned or rented. Exemptions from the Act are
very narrow and fall into two basic categories: (1) buildings
with four or fewer units where the owner lives in one of the
units; and (2) the small owner provision, which exempts private
owners who do not own more than three single family houses at
one time, who do not use the services of a real estate broker or
agent, and who do not produce any discriminatory publications,
notices or mailings. 1 1 42 U.S.C. § 3603(b).
If
you are under treatment for anxiety, depression or other
emotional disorders, you may qualify to get a reasonable
accommodation to have an emotional support animal, with proper
documentation. The
person requesting the accommodation must show that they have a
disabling condition (mental or physical) that substantially
limits one or more major life activities.
The applicant must also show a "nexus" or
relationship between having an ESA and alleviating
the condition.
Emotional
disability can be difficult to prove because, unlike a physical
disability, it is not always apparent to the observer.
A person can be in tremendous emotional pain and
distress, yet still
be able to function at work,
just not be able to unwind and live a normal life at
home.
Citizens for
Pets in Condos says medical and mental health professionals
should be the ones to determine whether someone has an emotional
or mental disability - not lawyers, not association board
members, not condo managers.
Let the proper professionals decide, without asking
people to reveal sensitive and possibly embarrassing details
that are no one else's business!
Ever
since October, 2008 condo law firms have been pushing back,
trying to find loopholes by which to deny waivers of no-pet
rules. Condominium associations and condo lawyers have tried
creating overly intrusive forms to be filled out by people
requesting ESAs and their physicians/mental health counselors.
Also they have been known to force applicants to agree to
unreasonable stipulations in conciliation agreements when
allowing an ESA. For
instance, agreements say that a dog cannot be walked through the
complex, or only in the back where there are canals with
alligators. Another
example is saying your dog cannot be brought to a neighbor's unit, even if they want the dog there.
Citizens for Pets in Condos sees all these strategies as
not fitting the intent or spirit of fair housing law.
In one instance we heard about,
someone was told she could not even associate with other
people who had animals - which we believe is in violation of
first amendment rights and Florida
law.
Another
tactic used against people with assistance animals is to make
false claims of nuisance animal behavior.
No one wants a constantly barking dog or animal waste
that has not been cleaned up.
The answer is responsible
animal care and good neighbors who only complain if
there truly is an issue. Citizens
for Pets in Condos is adamant that responsible pet owners /
guardians should be able to keep their companion animals.
In
matters of law pertaining to animals we defer to Marcy LaHart, Florida
Animal Lawyer, on
the advisory board of Citizens for Pets in Condos.
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Note:
Citizens
FOR Pets in Condos is a non-profit public
advocacy and educational organization dedicated to
increasing acceptance of companion animals in condos and
other types of association-run housing. We educate
the public about the health benefits of having animal
companions and also advocate for responsible pet
ownership/guardianship. Our motto:
“creating a win-win situation for both people &
pets.”
We
provide resources for a pet-friendly America/Florida
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