By Joann Nesta Burnett / Published December 2021
As a community association attorney who focuses her practice on Fair Housing issues, I can state that one of the most difficult issues facing community association board members is how to evaluate and address requests for accommodations for service and emotional support animals (ESA). Over the last two years, we have seen changes regarding how to evaluate these requests. Notably, HUD issued FHEO-2020-01 on January 28, 2020. This is considered HUD’s “best practices” for evaluating requests for service and support animals. FHEO-2020-01, titled “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” provides guidance for evaluating these requests. Florida also enacted statutory amendments to address these requests.
HUD’s “best practices” suggests that requests for service animals should be treated in the same manner as requests for service animals under the Americans with Disabilities Act (ADA). HUD recommends that associations only ask two questions when a service animal request is made.
This oversimplifies the process and would require approval of a service animal in virtually every case. In my opinion, since the “best practices” says it should be read in conjunction with the FHA, 24 CFR 100, and the joint statement (all of which define disability in the same manner), arguably an association can still require documentation for service animals. HUD’s “best practices” also state that a “[f]ailure to adhere to this guidance does not necessarily constitute a violation by housing providers of the FHA or regulations promulgated thereunder.” When an association is skeptical of a request, it should be able to seek clarifying information and/or documentation to conduct a meaningful review of the request.
Turning to requests for ESAs, for the most part, mental disabilities are not as open and obvious as compared to many physical disabilities. Combine this with the number of websites and individual medical professionals that advertise to write letters after a one-time evaluation, or worse yet, an online “test,” and you have a situation in which a community association is in a very difficult position. If the association approves the animal, the residents are forced to live with an animal despite having severe allergies and/or phobias.1 If an animal is denied, associations are subject to lawsuits and HUD complaints.
For years, healthcare professionals and the requesting parties have been able to provide letters purchased online by simply answering questions and submitting the self-serving and self-authenticating answers. Many of the websites explain exactly how a person should answer the questions to ensure the requesting party is approved for an ESA. Generally, the websites state that “your ESA letter will be sent in 24–48 hours.” Some even state that the letter will appear in your inbox within hours. Occasionally, some of the websites conduct a telephonic or video conferencing platform “session” to evaluate the need for an ESA. After this session, an ESA letter is issued. This is where most of the fraud and abuse related to ESA requests can be found.
On July 1, 2020, several statutory amendments went into effect that are intended to provide associations some teeth when addressing requests for ESAs. Arguably, the most important of these statutes is Florida Statute §817.265, which states
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.
This statute, which criminalizes fraudulent ESA requests to the extent a person knowingly submits fraudulent information or misrepresents a disability-related need for an animal when no such need exists, has been in effect for over one year. While it was hoped this statute would deter people from making these requests, it has not slowed down the number of requests made, but it has decreased the number of animals approved once a requesting party is made aware of the penalties for making a fraudulent request.2
In addition, medical professionals are now held accountable for the letters they author, as an added deterrent directed at the source of the problem. Florida Statute Section 456.072, effective July 1, 2020, 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. Again, this statute has been in effect for over a year. It was hoped that the fact that a medical professional may be disciplined for writing these letters without “personal knowledge” of the requesting party’s condition would decrease or prevent at least some, if not many, of these requests. Unfortunately, what has happened instead is that many of the agencies issuing these letters have created “legal departments” to respond to associations requesting better documentation. The legal team sends threatening emails intimidating the associations into granting requests. When challenged, however, the legal team generally backs down.
Additionally, Florida Statute §760.27 was created and specifically addresses requests for ESAs. An ESA is defined as “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.” This statute also explains that it is unlawful to discriminate, in the provision of housing, against a person with a disability or disability-related need for an ESA.
Florida Statute §760.27(2)(a) provides protection for associations to deny a reasonable accommodation request, or to remove an animal after the request is granted, for an ESA if the animal being requested poses a “direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others which threat cannot be reduced or eliminated by another reasonable accommodation.” This decision cannot be based upon a potential or perceived threat but must be based on the particular animal’s conduct. In other words, a certain breed of animal should not be denied because it is considered a “dangerous breed,” but rather, the decision should be based upon a particular animal’s actions. This is often seen in situations where an approved animal is thereafter aggressive or bites another person or animal. A reasonable accommodation might be for the animal to be muzzled when outside the unit. If the handler refuses, or if the threat is not removed by the use of a muzzle or other accommodation, the animal may be removed from the property through proper legal channels.
Many associations are perplexed about the type of documentation that may be requested from someone making a request for an accommodation for an ESA. Florida Statute §760.27(2)(b)(1) – (4) explains that if a person’s disability is not readily apparent, the association may request “reliable information that reasonably supports that the person has a disability.” This includes a determination of disability, or receipt of disability benefits or services, from any federal, state, or local government agency or proof of eligibility for housing assistance due to a disability. Further, the association is also entitled to “[i]nformation identifying the particular assistance or therapeutic emotional support provided by the specific animal from a health care practitioner….” Fla. Stat. §760.27(2)(c)(1).
Subsection (4) explains that if the above is not provided, an association may require information from a health care practitioner, which includes a telehealth provider. However, if an out-of-state practitioner provides the information, he/she must have provided “in-person care or services” to the requesting party on at least one occasion. The information must be provided by a health care practitioner who has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide supporting documentation.
This is arguably the second most important statutory addition regarding ESAs. This prohibits out-of-state telehealth individuals who advertise to write these letters from submitting documentation on behalf of a requesting party unless he/she provided “in-person” care or services. This is especially important because many of the online agencies attempt to match a person making a request with a health care practitioner in the same state. If they are out of state, the association is entitled to know if there has been an “in-person” session or service.
Additionally, the health care practitioner who submits supporting information for the ESA must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice. If a requesting party requests more than one ESA, he or she must provide supporting information regarding the specific need for each animal. The association may also require proof that each ESA is properly licensed and vaccinated. Persons with ESAs are liable for any damage done to the premises or to another person or animal by the ESA.
Both Florida Statute §760.27(3)(c) and FHEO-2020-01 provide that “[a]n emotional support animal registration of any kind, including, but not limited to, an identification card, patch, certificate, or similar registration obtained from the internet is not, by itself, sufficient information to reliably establish that a person has a disability or a disability-related need for an emotional support animal.” Often, requests for accommodations are submitted with the only documentation supporting the request being a certificate or identification card that purports to establish an animal is a service or support animal. These are not sufficient to establish a person has a disability-related need for an animal.
While it is acknowledged that there are people with disabilities who require service and support animals, this article is focused on fraudulent requests for service and support animals. With these legislative changes in place, associations will be better able to evaluate these requests on a more level playing field to weed out the fraudulent requests, while at the same time approving the necessary and legitimate requests.
1 But see Cohen v. Clark and 2800-1, LLC, 2020 WL 3524851 (Sup. Ct. Iowa). Plaintiff, Cohen, possessed a severe allergy to pet dander which was medically documented. Cohen entered into a lease agreement with 2800-1 LLC to rent an apartment relying on the fact that the apartment complex had a no-pet policy. A resident moved into an apartment down the hall from Cohen and requested an accommodation for an emotional support dog which was granted. Cohen objected and filed a small claims action alleging Defendants breached the implied warranty of quiet enjoyment and their contractual obligations to Cohen by allowing an animal to reside in the building. The small claims court dismissed Cohen’s claims. Cohen filed a notice of appeal three days later to the district court. The case was eventually heard by the Supreme Court of Iowa. The Iowa Supreme Court ultimately found that the ESA was not a reasonable accommodation. The resident could have resided in another building that allowed pets. Cohen also had priority in time since she signed her lease first.
2 There is a virtually identical statute governing fraudulent requests for service animals found at Fla. Stat. §413.08(9).
Joann Nesta Burnett
Ms. Burnett concentrates her practice in state and federal appellate practice and procedure, complex commercial and civil litigation including Fair Housing discrimination, association litigation, and general business litigation. Ms. Burnett has represented numerous association clients in defending discrimination complaints based upon alleged fair housing violations before local, county agencies and in State and Federal Court. Ms. Burnett has extensive experience in representing association clients in covenant enforcement cases in arbitration and State Court proceedings. Additionally, Ms. Burnett has experience with collections and foreclosures.