LEGAL MORSEL: NEW FLORIDA LEGISLATION ON EMOTIONAL SUPPORT ANIMALS

LEGAL MORSELS | BY ROBERT KAYE, ESQ., B.C.S.

In the 2020 Legislative session, the Florida Legislature adopted Senate Bill 1084, which was signed into law by the Governor, and became effective on July 1, 2020.  This new law addresses emotional support animals on a state level.  It provides clarification regarding qualifications for this special status under Florida’s Fair Housing Act, as well as identifies penalties for wrongfully and/or fraudulently attempting to qualify for the exempt status and have the animal.  However, while significant and helpful, it is also important to bear in mind that there are Federal laws on this topic that apply as well and care is needed to avoid potential conflicts.

The new Section 760.27 of Florida Statutes, within the Florida Fair Housing Act, initially adds a definition for an “emotional support animal”.  Specifically, an emotional support animal is one 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.”  When considering an application for an emotional support animal, the Statute indicates that the person requesting the emotional support animal cannot be required by the housing provider (which includes associations) to pay extra compensation to the provider in order for the requesting individual to have the animal.

The new Statute does allow the housing provider/association the right to deny the reasonable accommodation request under certain circumstances.  One instance is if such 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, which cannot be reduced or eliminated by another reasonable accommodation.  This could be significant in the event there is an existing resident who may have a documented medical condition that would be negatively impacted by the presence of the animal (such as an allergy condition).

If the disability is not readily apparent, a housing provider/association may request reliable information that reasonably supports that the person requesting the animal has a disability and lists the types of supporting documents that would qualify as acceptable.  These include: a determination of disability from any federal, state or local government agency; receipt of disability benefits or services from any federal, state or local government agency; proof of eligibility for housing assistance or a housing voucher received because of a disability; information from a health care provider, with the requirement that if such provider is not physically located in Florida, the provider must have provided in-person care or services to the applicant on at least one occasion (this “in-person” care requirement for an out-of-state provider is a significant change in the new Statute); and, information from any other source that the housing provider/association reasonably determines to be reliable in accordance with federal law.  Also authorized in the new statute is for the housing provider/association to request reliable information that may include identifying the particular assistance or therapeutic emotional support provided by the specific animal; and, other information that the housing provider reasonably determines to be reliable under federal law.

If the person requesting the animal is asking for more than one emotional support animal, the housing provider/association may request information regarding the specific need for each animal.  Proof of compliance with state and local requirements for licensing and vaccinating each emotional support animal may also be required.

A housing provider/association may not request information that discloses the diagnosis or severity of a person’s disability or any medical records relating to that disability.  The housing provider/association may develop and make available the application form the housing provider/association prefers be used in making the application, but may not require the use of a specific form or notarized statement or deny a request solely because the requesting party did not use the housing provider/association’s method.

The statute expressly indicates that emotional support animal registration of any kind is not, by itself, sufficient information to reliably establish that a person has a disability or disability-related need.  If the animal causes any damage to the premises or another person, the owner of the animal is liable for such damages.

A significant and notable portion of this Bill is the addition of Section 817.265 F.S., within the Criminal Code of Florida.  This new provision identifies as a misdemeanor of the second degree for falsifying information or written documentation or knowingly providing fraudulent information or written documentation for an emotional support animal application.  The wrongful conduct also includes otherwise knowingly and willfully misrepresenting 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.  This could result in imprisonment for a period not to exceed sixty (60) days and/or a fine of up to $500.00.  If an individual is convicted for this conduct, the person must also perform 30 hours of community service for an organization that serves persons with disabilities or for another entity or organization that the court may decide upon.  These sanctions could apply not only to the individual requesting the reasonable accommodation, but also to the “medical provider” who provides fraudulent information to support the request.

While is it significant that there are criminal sanctions included in this new statute, it is also necessary to recognize the limits that are included in it as well.  The words “knowingly” and “willfully” create a substantial burden on the State in prosecuting an alleged incident since it will be required to prove beyond a reasonable doubt the knowledge and intent of the party being charged, which can be extremely difficult to do.  Whether a local Assistant State Attorney is willing to pursue such a charge is generally an open question at this time.

Although it is helpful to have these guidelines in the State statutes, it is also important to keep in mind that there are Federal Fair Housing Laws that include this particular issue and whenever there is any conflict between the Federal and State requirements, the Federal law will apply.  Since these types of issues can create costly potential exposure to associations, it remains a necessity that board members consult with competent association attorneys versed on this topic whenever confronted with a request for a reasonable accommodation of this type.

Attorney Robert Kaye, Author of the 'Legal Morsels' column, Next Appears on Radio Show 'Ask the Experts' Thursday, September 3rd

REMBAUM’S ASSOCIATION ROUNDUP: YOU GET WHAT YOU PAY FOR – ASSISTANCE ANIMAL APPLICATION PACKAGES

The complaint heard often from condominium and HOA board members is in regard to the influx of assistance animals in their “no pet” or pet restricted communities. Few other topics within the body of community association law cause more consternation then the application of the Federal, State and local Fair Housing laws. In fact, one relatively minor misstep from a board member or manager can cost an association tens of thousands of dollars in damages, as well as attorney’s fees and costs. Not only that, but this is one of the very few areas where board members could potentially face individual liability for their actions. Under most circumstances, board members will have protection from liability under the “business judgment rule,” but this is not necessarily the case in the Fair Housing arena.

I have read applications for assistance animal requests, believed to be prepared by lawyers with knowledge in this field, which are used as a method to obtain new community association clients by selling the applications for a very low cost, even below several hundred dollars. Unfortunately, these application packages, while seemingly inexpensive, can expose the association to significant monetary penalties.

One such application package is a nightmare waiting to happen to an unsuspecting board because it requires the application to be completed in order for the board to review the matter. While Fair Housing laws encourage a uniform policy be implemented, an association’s assistance animal application package cannot be made a prerequisite. It can be suggested that providing a completed application will assist in expediting the review process, but it cannot be mandated to be considered for approval. Also, without good cause, an association cannot demand regularly updated medical information concerning a claimed disability, regardless of the use of an application created by an association demanding otherwise.

Recent decisions point out the legal exposure to an association when board members or other agents of the association attempt to curtail the rights of assistance animal owners in an apparent effort to placate the rest of the community.

In a recent Fair Housing consent order entered September 28, 2018 by and between an applicant for an assistance animal and Hudson Harbor Condominium Association, Inc., located in New Jersey, the association was ordered to pay $30,000 to the assistance animal applicant for failing to grant a reasonable accommodation to its policy of requiring the animal be carried in a crate or carrier in the common elements and that the owner of the animal only use a service door when accompanied by the animal.

In another case, Pekiun v. Tierra Del Mar Condominium Association, Inc., 2015 WL 8029840, the association’s motion for summary judgment was denied where the plaintiff’s estate sued the association due to its failure to allow an assistance animal and argued that the association caused the intentional infliction of emotional distress and violations of both Florida and Federal Fair Housing Acts. In this case, the association demanded an assistance animal be removed from the premises due to another individual’s allergies and required, not only that a specific application be completed by a particular time. After the assistance animal was approved, the association’s management company changed and the new management company required the owner to “recertify” his assistance animal. Later, the owner committed suicide. Had the Association not given the owner such a hard time, would the owner still have committed suicide? We will never know. The damage award could easily exceed six figures given these occurrences and resulting suicide.

Remember, when considering an assistance animal request, all that is necessary is that the applicant has a disability recognized by the Fair Housing laws and that the animal helps ameliorate the symptoms or effects of the disability. This information can come to the association from a doctor, psychiatrist, social worker, mental health worker or any other qualified individual.

If the association desires a uniform application for assistance animals to assist in trying to streamline request procedures, the board should be looking to work with an attorney/law firm familiar in this area of law, and not simply go for the low cost option.

Unless and until the Federal, State, and local laws are modified to address this ever-growing situation, when considering assistance animal applications, the association would be wise to seek legal counsel before taking any action. This is particularly true if the association is going to request additional information, implement limitations or restrictions on the owner or assistance animal within the community, or perhaps deny the request.