New Laws Regarding Emotional Support Animals

Nothing 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, Florida laws affect how a community handles a request for 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.

I want to be very clear that the comments in this article, as well as well as the laws discussed, would have no effect on an applicant that qualifies for an emotional support animal under the Fair Housing Laws. 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 who merely want to bring their pet into a no-pet community; not because they need to medically. There is certain information required by the Fair Housing Laws which must be provided. However, it is not our intention to create a blueprint for unit owners in this article, so we recommend discussing those requirements with your Community Association attorney.

Relatively recent changes to the law in Florida affect the request for a reasonable accommodation in Florida. 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. (Emphasis added.)

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.

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.

There are a lot of moving parts when it comes to Fair Housing Laws. 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 your association attorney before any decision is made in this landmine-filled arena.