by Kathy Danforth / Published November 2014
Strong feelings regarding pets, both pro and con, have traditionally been a source of contention in communities. When residents, who need or choose to live without pets, are gathered together in an association that bans pets, sentiments can run high when those residents are legally required to accept an emotional support animal for a handicapped individual into the community.
“The Fair Housing Act (FHA) states that an association has to provide reasonable accommodation to handicapped individuals so they can make use of the property in the same way as if they were not handicapped,” explains Keith Backer, attorney with Backer Law Firm. “People sometimes think this requirement is under the Americans with Disabilities Act (ADA), but that’s a different statute that applies to public accommodations, and most associations will not fall under that definition as long as they do not open up their facilities to the public. The ADA provides that service animals, which are trained to perform certain tasks, cannot be excluded. The FHA extends to emotional support animals, which requires that a reasonable accommodation must be provided to handicapped individuals who demonstrate that they require an animal to ameliorate one or more of the effects of their handicap. The law does not currently require that those animals have specific training.”
Lisa Magill, attorney with Becker & Poliakoff, explains, “Discrimina-tion in housing includes failure to make accommodation in rules, policies, practices, and procedures when necessary to allow a resident to have full use and enjoyment of the property. If an individual is disabled and requests accommodation, as long as they can show the accommodation will alleviate one or more effects of their disability, then the association isresponsible to approve it unless it is going to fundamentally alter the nature of the housing or cause an undue hardship. The only service or support accommodation I have seen which was not found by the appellate court to be reasonable was when the animal in question had displayed aggressive tendencies and bitten people. An accommodation cannot be refused because other residents are afraid or extremely allergic.”
Determining if a resident is handicapped as defined under the FHA is the first step in evaluating a request. “A handicap is defined as lacking the ability to perform one or more of life’s daily activities,” relates Backer. “You can imagine ascertaining what a ‘daily activity’ is may be rather difficult. It is often harder to determine why someone needs an animal if they do not have a readily observable disability, and they go to work and otherwise appear to carry on ordinary activities without theanimal outside of the home, but assert that they need the animal at home.
Among the biggest problems is that the law doesn’t entitle the association to know someone’s specific medical history in evaluating their request or require a certain type of professional to certify the person’s request for accommodation. This leads the association to a catch-22 situation because they sometimes cannot find out the information needed to determine whether the applicant qualifies for an accommodation by granting an exception to the no-pet rule, except by having a hearing and conducting an investigation. If the applicant refuses to cooperate and a board has insufficient facts to justify granting an accommodation, an association may find itself facing a housing discrimination complaint. Sometimes, applicants who have refused to cooperate with the association’s investigation provide more details about their disability and their medical needs to the government investigators who make determinations about whether there exists cause to suggest that discrimination has occurred. ” Backer notes, “The animal must also ameliorate the effect of the disability in some way.
“For an emotional support animal, the claim is often that the animal helps the individual cope with one or more of the symptoms of a psychological disorder. If the animal provides the applicant with nothing more than the warm fuzzies that most people get from owning an animal, the applicant may not have met his burden. If another person has a psychological disability that prevents him from going outside, for example, and owning a dog forces him to go outside to walk the dog or take it elsewhere, that applicant will have demonstrated that owning the dog serves to ameliorate an effect of his disability. There is a subtle distinction between the two examples since the first individual also likely walks his dog and takes it elsewhere, but none of the symptoms of his disability are ameliorated by owning the dog.”
Boards must balance the need to comply with federal, state, and local laws with the obligation to their residents to equally apply the association regulations. Magill recommends, “The first step is to adopt a policy on handling such a request for reasonable accommodation under the FHA. It should be published and on record as acknowledging the need for compliance and letting the owners know what’s needed to process a claim.” “You cannot ignore a request, even if it’s not specific,” Magill points out. “If an owner’s request has anything to do with a disability or medical condition, it is incumbent on the association to not ignore the request. Even if the request is vague, that does not insulate the board from requirements.”
Backer advises, “The board has to evaluate if the material the resident provided is adequate. If not, a form letter can be provided for the owner to have filled out by a health care professional. The board can ask how the resident is handicapped under the law—what daily activity she has lost the ability to perform—and what the animal will do to ameliorate the effect of this handicap. The board does not have the authority to ask for the resident’s diagnosis or medication list. If there is no response, the board can invite the owner to come to a meeting to answer questions. In a Florida case where a resident claimed that being requested to provide information was an act of discrimination, an appellate court ruled that an association could not be found in violation of the FHA by seeking to obtain relevant information.”
Magill stresses, “The board cannot divulge any medical information they have received, as that is protected by federal and state privacy laws. It is very reasonable for board members to feel pressure to answer questions about why the individual has an animal contrary to regulations. The appropriate answer is either that they are in the process of investigating or that an accommodation has been granted under the FHA, with no reference to the particular disability.”
“The policy should not include any restrictions on breed, size, or weight for emotional support animals,” according to Magill. “Even in a pet building where a standard fee is charged for pets, a service/support animal cannot be charged as the animal is not considered a pet. No insurance requirements are allowed, and the resident can’t be required to use a service elevator or garage entrance with the animal,” Magill explains. And, the fact that a breed is banned by local ordinance is not in itself a defense against accommodating an animal. “A judge denied a motion for summary judgment [ruling without trial when the facts are not debated] when requested by a board because the animal was a pit bull, which is banned in Miami-Dade County,” Magill reports.
“It is important to treat everyone with respect on a uniform basis, regardless of how you feel about the veracity of the request,” advises Magill. Backer also points out, “A board cannot look at what a person can do and conclude that he is not handicapped. The question is if he has lost the ability to perform one of life’s daily activities, not all of them.”
If a board does not act promptly or denies a request for accommodation of an emotional support animal, the individual may file a complaint. Florida laws mirror the federal regulations, so in most cases, the federal Department of Housing and Urban Development will delegate the investigation to the Florida Commission on Human Relations, though in some locations, a local agency will take the lead.
“Often, the complaint arises because the individual has provided scant evidence—they may just say they need it, or they may have provided a note from their dentist or some other health professional that does not appear to be qualified to prescribe an emotional support animal, and the board doesn’t see how that professional is qualified to make the statement that a person is handicapped and an animal will help,” Backer says. “Most of those who provide inadequate information but file a complaint turn out to have needs that are solid enough for the association to not take the next step and go before a panel of the Fair Housing Board. Associations usually want to comply with the FHA and be able to demonstrate that they’re not selectively enforcing the pet restriction, but they don’t want to keep spending resources to keep out a dog or cat if the applicant properly demonstrates a right to an accommodation under the law.”
“Once the investigating office issues a charge of discrimination, there is generally no fine if the situation is resolved through conciliation,” Magill reports. “The association agrees the animal can be kept on the property and the conditions are open to negotiation. That could include cleaning up after the animal, controlling its conduct, and ensuring that it doesn’t bark or lunge at people or constitute a nuisance.”
While most people can clearly see the need for service animals for the blind or deaf, the situation is less distinct for emotional support animals because of more nebulous criteria and abuse of the system. “When you have so many people gaming the system, the people with legitimate needs are the real victims,” states Backer. “The people with a real need are looked upon with a jaundiced eye because there is so much abuse. In California, the state legislature held hearings on the effects of fake emotional support animals; and here in Florida, there was talk about amending statutes (though it was not approved) to provide penalties for residents requesting reasonable accommodation who were not able to establish a need.”
Magill comments, “There is a lot of abuse in the system right now. The level of requests has risen in recent years as people have become aware of this situation. From my clients’ perspective, the vast majority of people making these requests are not justified. They are not considered disabled in the minds of the board of directors.”
“Unfortunately, the law has not yet evolved so that it takes everyone’s rights into account,” Backer points out. “Some people who reside in no-pet communities where someone has applied for an accommodation to allow a service animal have had terrible experiences with animals and have phobias, and their phobia can be as real and debilitating to them as the handicapped individual’s emotional condition. There is often a perception that those people who demonstrate that they have a handicap and need a pet are being provided with rights that are greater than those who have handicaps such as asthma or allergies or fear of animals. Unfortunately, there is nothing in the law that expressly permits an association to consider the handicaps of other residents who cannot be around animals when considering an application for an accommodation. Until the law gets around to addressing that problem, many associations may have to approve accommodations for people who want animals and can demonstrate that they are entitled to them. There have been cases where HUD has concluded that the intrusive nature of the proposed service animal on other residents may not be considered. This is one area where the legislature’s good intentions have led to a really difficult situation for associations that want to protect the rights of those who have handicaps and can’t be around the animals and who made a conscious choice to live in a place where animals were not permitted.”
“There is no question that some people need animals to help them,” Backer states. “In one case, a woman had endured child abuse, sexual assault, and other traumas, which had put her in an emotional state such that she wouldn’t leave her house. A doctor felt a dog would make her go out and interact, and the dog did in fact force her to go out and thus ameliorated the effects of her handicap. Associations are faced with the challenge of how to weed out people who are faking or exaggerating so they can make legitimate accommodations for those who need them.”