“New Laws Regarding Emotional Support Animals,” FCAP Managers Report

“New Laws Regarding Emotional Support Animals,” FCAP Managers Report

Other than political debate, perhaps nothing else evokes more of an “emotional” response than the issue of emotional support animals in a no pet community. While this is not a new issue, and has been discussed many times in this forum and others, new laws in Florida may affect how your community may handle a request for an association to make a reasonable accommodation to its governing documents, rules and regulations or policies to allow a resident to maintain an emotional support animal in a no pet community. These new laws may also affect how or what an applicant submits, what an association can be required to submit and may temper some of the, shall we say, not necessarily accurate portrayal of a requestor.

I want to be very clear that the comments in this article, as well as well as the new laws discussed, would have no effect at all on a legitimate application for an emotional support animal from an applicant that qualifies for an emotional support animal. The new laws have been enacted, and have unfortunately become necessary, to address the plethora of requests for a reasonable accommodation for persons who do not qualify for such an accommodation, and merely want to bring their pet into a no pet community because they want to, not because they need to medically. Such inappropriate applications have been accompanied by, for example, letters from podiatrists attesting to psychological issues; letters from registered nurses attesting to psychological issues, etc. No disrespect to our podiatrist and registered nurse friends; I just use them as an easy example of health care practitioners that have written letters stating a person is disabled due to a psychological issue.

We are all familiar with the basic requirements that must be provided by a medical health care provider’s letter in support of an applicant’s request for a reasonable accommodation to maintain an emotional support animal in a no pet community. The letter must state that the applicant is disabled, that the disability affects a major life function, which one, and how the animal ameliorates the effects of the disability on the major life function.

Recent changes to the law in Florida affect what is required in order for a person to make a valid request for a reasonable accommodation in Florida. Changes in §413.08, F.S.; §419.001, F.S.; §456.072, F.S.; §760.22, F.S.; §760.23, F.S.; §760.24, F.S.; §760.25, F.S.; §760.27, F.S.; §760.29, F.S.; §760.31, F.S.; §817.265, F.S., all of which are effective as of July 1, 2020, have changed the landscape a bit in regard to such requests.

For example, Section 817.265, Florida Statutes, provides:

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 6 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 for another entity or organization that the court determines is appropriate.

In addition, Section 456.072, Florida Statute, 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.

Moreover, Section 760.27, Florida Statutes, provides, in relevant part:

DEFINITIONS. As used in this section, the term:
(a) “Emotional support animal” means an animal 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.

(c) If a person’s disability-related need for an emotional support animal is not readily apparent, request reliable information that reasonably supports the person’s need for the particular emotional support animal being requested. Supporting information may include:

  • Information identifying the particular assistance or therapeutic emotional support provided by the specific animal from a health care practitioner, as defined in s. 456.001; a telehealth provider, as defined in s. 456.47; or any other similarly licensed or certified practitioner or provider in good standing with his or her profession’s regulatory body in another state. Such information is reliable if the practitioner or provider has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.

Finally, pursuant to FHEO-2020-01, dated January 28, 2020, HUD advised that a housing provider may take into consideration the totality of the circumstances surrounding the request, including facts such as, but not limited to, bringing the animal on property without seeking approval, the documentation provided was purchased online, etc.

The changes in the law apply to condominium, cooperatives and homeowners’ association. Some of the changes allows a housing provider, including a community association, to request certain written documentation prepared by a health care practitioner in a format prescribed in rule by the Department of Health.

The practitioner or provider of the supporting information must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice. The new laws also provide that if a person falsifies information or written documentation or knowingly provides fraudulent information to obtain an emotional support animal, they can be charged with a misdemeanor of the second degree. These new laws can, and should be, a deterrent to those who do not really qualify for a reasonable accommodation for an emotional support animal from applying for a reasonable accommodation, as well as a deterrent for health care professionals providing such letters for those who do not qualify for them.

Enforcing these new requirements and laws should make is easier for those who legitimately require the services of an emotional support animal to qualify with an association. Remember, all requests for an emotional support animal should be discussed with your association attorney to make sure the request contains the required information. An association should never merely deny an application for a reasonable accommodation; the association is required to engage in the “interactive process” in an attempt to obtain the required information. For these reasons you should always discuss any type of request for a reasonable accommodation with the association attorney.

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