Friday, March 18, 2016

Emotional Support Animals 2016 Update

     Emotional support animals have and continue to be a divisive issue in condominium communities, pitting the “no pet” contingent against those who desire to keep an animal to alleviate a disability.  The issue of fake service and emotional support animals has led to the Florida state legislature enacting a new law that criminalizes parties who falsely claim to have a service animal under the Americans with Disability Act (“ADA”): A person who knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using a service animal and being qualified to use a service animal or as a trainer of a service animal commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083…

Unlike service animals under the ADA, the residential community issue falls under a separate law established under the Florida and Federal Fair Housing Acts (the “Act”).  Federal lawsuits under the Fair Housing Act, arbitration claims with the Florida Department of Business and Professional Regulation and Administrative Complaints with the United States Housing and Urban Development continue to be filed, as communities struggle with addressing requests for a reasonable accommodation.

Two main issues continue to be raised in the cases being filed by owners and associations.  First, is the person, in fact disabled such that the disability impairs or limits a major life activity.  In many cases, the letters from doctors or mental health professionals fail to properly document or substantiate that a disability, in fact, exists.  Instead, they describe certain ailments of the person they are treating without stating that the ailment rises to a disability that does impair a major life activity.  The disability letter must be clear that a recognizable disability exists and that the specific disability significantly impairs a major life activity.  For example, a statement from the medical professional that contains language similar to the following may be sufficient to meet the initial burden of the Act, “Due to (describe the disability), he has certain limitations which substantially affect the following major life activity, to-wit: (Describe how such disability affects the patient).”

The second test is that the animal in question must, in some fashion, alleviate the symptoms of the disability and the person making the request has a need for the assistance.  The animal does not have to be specially trained depending on how the animal alleviates the disability.  Some Associations will not approve an ESA without proof of special training and this can lead to a violation of the Act by the Association.   The same disability letter should state what and how the animal alleviates the diagnosed symptoms, and the medical professional could include language such as, “In order to help alleviate these disabilities, and to enhance the patient’s ability to live independently and to fully use and enjoy the residential unit located within the condominium, I have prescribed an emotional support animal that will assist him in coping with his disability by the following assistance (describe how animal alleviates the disability).  Assuming both tests are actually met, the Association, under the Act, is required to make a reasonable accommodation.

Several recent cases have addressed elements of these issues, but as these are ongoing cases without final resolution, it is not clear the ultimate outcome.  In a truly tragic case between Alexander Peklun and the Tierra Del Mar Condominium, both sides moved for summary judgment in a reasonable accommodation case. The background of this case is what Plaintiff alleges led to the suicide of the disabled owner. In denying both motions, the United States District Court in December, 2015 entered an order that included several rules that may help clarify the obligations of owners and associations.  First, a reasonable accommodation is not a lifetime grant, and an association has a reasonable right to request follow-up information.  Second, not all ailments are “disabilities” that the Act was intended to protect.  However, the court found that sleep apnea, did interfere with a major life activity and rose to a level of a protected disability.  Third, the emotional support animal is not required to have task specific training (this issue is often confused, as was in the Peklun case, between a service animal, which is specially trained, and an emotional support animal).

In a Texas 2015 case (Chavez v. Aber), the United States District Court found that an employee of an owner can be found liable for violating the Act.  The employee defended on the grounds that only the landlord corporate owner can be liable for violating the Act.  The Court denied that motion, finding that if the employee assisted the owner in violating the Act by not making a reasonable accommodation (and taking affirmative action to threaten eviction, raise rents, etc.), then such employee can be personally liable.  This case could be ultimately extended to Association Board members who abuse and harass legitimate homeowners seeking a reasonable accommodation.

As we can see, the law regarding emotional support animals is both confusing and evolving.  If you are a disabled owner, it is best to provide good documentation so as to establish the required need for a reasonable accommodation.  If you are an Association, it is best to establish, in advance, reasonable rules regarding emotional support animal requests, and to avoid discrimination claims by failing to properly review and approve such requests.

Michael J Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County.  They specialize in real estate and can assist associations and owners in addressing emotional support animal issues.  They can be reached at 561.594.1452, or at mjposner@warddamon.com

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