So, you’re exasperated after looking out your pet-free condo window for the umpteenth time to catch a glimpse of your neighbor walking by with—of all the nerve—her emotional support chicken. And to top it off, the chicken even has its own emotional support chicken! Your blood boils as she walks by. There ought to be a law!
Indeed, federal laws providing disabled persons with the right to have a service or emotional support animal have been longstanding. Despite that, the issue has remained a proverbial gray area. Given the varieties of intensely personal situations necessitating assistance to the disabled, coupled with the sheer array of complex individual circumstances, it’s almost impossible to take a cookie cutter approach to any of them.
But the spirit of entrepreneurial creativity is strong with Americans and, when it comes to Florida, our state has seen its fair share of fraud. Now, as of July 1, 2020, the Florida Legislature put a bipartisan stop to a key aspect of the ongoing emotional support animal shenanigans. Or at least a big deterrent.
The provisions of S.B. 1084 became effective as of July 1, 2020, creating new statutory provisions which shed additional light to the emotional support animal debate. The new law (i.e., Fla. Stat. §760.27) provides clarity and protections prohibiting discrimination in housing provided to persons with disability or a disability-related need for an emotional support animal, while at the same time authorizing a housing provider to request specified information under certain circumstances. Additionally, the new law specifies the liability of owners for their emotional support animals.
In an effort to curtail the rampant abuse of ESAs, Fla. Stat. §456.072 was amended to prohibit a health care practitioner from providing information regarding a person’s need for an emotional support animal without having personal knowledge of that person’s need for the animal.
The most targeted effort to address fraud and abuse in this arena comes from the enactment of Section 817.265 of the Florida Statutes, which provides that a person who falsifies information or written documentation, or knowingly provides fraudulent information or written documentation, for an emotional support animal, or otherwise knowing and willfully misrepresents himself or herself 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. Thus, faking your need for an emotional support animal in the Sunshine State could result in misdemeanor charge of the second degree and land you in jail for two months, along with a $500 fine and 30 hours of community service for an organization that serves persons with disabilities or such other entity or organization that the court determines appropriate.
While Florida’s new law provides protections for the disabled to ensure they get the help they need from an emotional support animal without being discriminated against, harassed or charged additional fees for having it, if the emotional support chicken allegedly needs its own emotional support chicken, the new statute says there must be substantive proof both animals are warranted.
While the need for a service animal is governed by the Americans With Disabilities Act (ADA) a federal law, an emotional support animal is allowed by both the federal and Florida version of the Fair Housing Act. Of note, federal law can supersede local restrictions on ‘dangerous’ animals, such as Miami-Dade County’s ordinance banning pit bills. In Warren v. Del Vista Towers Condominium Assn., the U.S. District Court in Miami ruled in favor of a man who claimed to suffer from severe recurrent major depressive disorder and post-traumatic stress disorder. The association was accused of denying Warren’s request for a reasonable accommodation and its affirmative defense of enforcing the ordinance was overruled. The court determined the Fair Housing Act supersedes local breed restrictions when it comes to ESAs and reasonable accommodations.
Notably, Florida’s new law does not apply to service animals, since both the ADA and existing Florida law curtail that definition of a service animal to either a dog or miniature horse trained to perform specific tasks to assist the disabled person. An emotional support animal, which does not necessarily need to trained, may be another species better suited to accommodate an individual with a disability-related requirement. However, Florida does have a statute with similar protections related to service animals.
Unquestionably, a disabled person must get the help he or she needs to achieve autonomy and independence. So, when an abled individual fakes the need for disability assistance, it has the cruel effect of indirectly hurting the disabled who actually do need an emotional support animal, in addition to being morally galling.
Exactly how did the whole business of fake emotional support animals become a mainstream “thing?” In years past, a service dog or emotional support animal was actually known as a “prescription animal,” since the disabled person’s doctor would prescribe it. Since there was never any actual legal requirement for the doctor to write the prescription, those who knew of the loophole began to exploit it. Legal-sounding companies and online pseudo prescription mills materialized, becoming so widespread, that even community association managers and landlords would tell a tenant to “go online and get a certificate.”
Especially in Florida, all types of property managers were twisting themselves in knots making “reasonable accommodations” essentially based on phony documents emanating from a rogue system that had become so normalized, it was hard for them to be sure what to do without calling their lawyer. Needless to say, disputes ensued—some petty squabbles and others culminating in full-blown litigation.
Finally, on January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued guidance on many of the contested inconsistencies and required justification for “unique” emotional support animals (i.e. anything other than a typical household pet).
What would ultimately become Florida’s new law several months later now clarifies the HUD guidance, memorializes existing case law, and puts the federal definitions into more easily comprehensible terms. Most importantly, it carries the teeth of criminal penalty for abusive “prescription mill” fraud, while protecting disabled persons’ rights to fair housing and availing them of the animal-assisted help they need.
The next frontier in the ESA/Service Animal realm, and even more troubling for practitioners , is the increase of competing disabilities claims. Another resident may have purchased a unit in a pet-free building because of a severe allergy or a legitimate phobia. How can an association navigate competing claims and avoid discrimination or favoritism allegations? It is a tough call to provide reasonable accommodations for conflicting disabilities when living in a community association setting.
And yet, at the end of the day, the law remains vague—as it should—in order to preserve judicial flexibility in unique circumstances. Community associations and property managers remain in a difficult position, insofar as liability, as they review requests on a case-by-case basis and make tough decisions for the safety and welfare of the community.
Without sufficient direction from the U.S. Department of Housing and Urban Development or guidance from the Florida Fair Housing Act, and devoid of explicit case law, the good news is now that Florida’s new emotional support animal statute is in place, enforcing criminal penalties under this new law just got a little bit easier.
Alessandra Stivelman, partner at Eisinger Law is a Board Certified Specialist in Condominium and Planned Development Law and AV Preeminent® rated. She focuses her practice on community association and real estate law and can be reached at (954) 894-8000 x 304 or astivelman@eisingerlaw.com.
Carolina Sznajderman Sheir, partner at Eisinger Law, is AV Preeminent® rated and focuses her practice on real estate law, community association law, commercial litigation and developer representation. She can be reached at csheir@eisingerlaw.com or 954-894-8000 ext. 238.
Eisinger Law is a multi-practice Florida law firm focused on community association law, real estate law, developer representation, civil/commercial litigation, insurance law, estate planning and probate. For more information, visit eisingerlaw.com or call 954-894-8000.
