By Jim Melican, President Emeritus and GSAC Board Member
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Perhaps one of the thorniest issues confronting Association managers and boards occurs when a new or existing owner or lessee indicates that he or she needs what has come to be known as an “emotional support animal.” This is especially the case because many if not most Associations have provisions in their governance documents excluding or limiting an owner’s or lessee’s right to have pets on the property. There are many misconceptions concerning what an Association can or cannot do when confronted with a request for what is termed a “reasonable accommodation.” Because the federal and state law on this subject is complex, any Association confronted with such a request would be well advised to consult their Association attorney immediately, and not attempt to “wing it” as the situation evolves or escalates. Any mistakes made early in the process may be difficult to rectify if the request is pursued, and there are significant penalties for non-compliance.
With that caveat, and because of the prevalent feeling that there has been rampant abuse of the “emotional support animal” designation, this article will provide a brief overview of the subject, including reference to the statute that the Florida Legislature passed last summer in an effort to deal with some of the abuses.
The first fact to recognize is that the Federal and State Fair Housing Acts trump whatever is in an Association’s governance documents; i.e., condominium associations are required to modify or make exceptions to policies governing animals when it may be necessary to permit persons with a “disability or a disability-related need” to have equal opportunity to use and enjoy their housing, including public and common use spaces. “Disability” is defined as any physical or mental impairment that substantially limits one or more major life activities. If a person’s disability or disability-related need is not readily apparent, the Association is permitted to request written documentation prepared by a licensed health care practitioner verifying that the person has been under the practitioner’s care or treatment for such disability or need, and that the animal provides support to alleviate one or more identified symptoms or effects. However, under Florida law, the term “health care practitioner” is very broadly defined, and would include, for example, clinical social workers and mental health counselors. The Florida statute passed last summer, presumably to deal with the common conception that such documentation can be readily purchased over the internet, does provide that it “may not be prepared by a health care practitioner whose exclusive service to the person with a disability is preparation of the written documentation in exchange for a fee.”
The new Florida law also makes it a misdemeanor for any person to falsify the required written documentation or misrepresent himself or herself as having a disability which qualifies them to have an emotional support animal within their home. If convicted, the person must perform 30 hours of community service. It remains to be seen what effect this penalty will have on the frequency of requests for exceptions to established policies regarding pets that Association boards will have to deal with.
