By JoAnn Nesta Burnett / Published September 2020
One of the most difficult issues facing community association board members is how to evaluate and address requests for accommodations for emotional support animals (“ESA”). Often, mental disabilities are not as visible and obvious as 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 cannot win. If they approve the animal, the residents are forced to live with an animal, despite having severe allergies and/or phobias. If they deny the animal, the associations are subject to lawsuits and HUD complaints.
For years, medical professionals and the requesting parties have been able to provide letters purchased online for a fee by simply answering questions and submitting the 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.” Occasionally, some of the websites conduct a telephonic or Skype “session” to evaluate the need for an ESA. After this session, an ESA letter is issued. The fraud and abuse related to ESA requests has skyrocketed.
Finally, on July 1, 2020, several statutory amendments went into effect that are designed to give associations some teeth when addressing requests for ESAs. Arguably, the most important of these statutes is Florida Statute Section 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 dis-ability 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.
It is hoped that 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, will deter people from making these requests.
In addition, if medical professionals are held accountable for the letters they write, there will be an added deterrent directed to the source of the problem. Florida Statute Section 456.072, with a July 1, 2020, effective date, 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. The fact that a medical professional may be disciplined for writing these letters without “personal knowledge” of the requesting party’s condition should thwart at least some, if not many, of these requests.
Florida Statute Section 760.27 was created to address ESAs specifically. This statute provides definitions of ESAs and “housing providers.” Most notably, 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. The person with an ESA “may not be required to pay extra compensation for such animal.”
Florida Statute Section 760.27(2)(a) provides cover for associations to deny a reasonable accommodation request 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 is often seen in the context of an animal that is approved and thereafter is 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, the animal may be removed from the property through the proper legal channels.
Many associations are confused about the type of documentation that may be requested from someone making a request for an accommodation for an ESA. Florida Statute Sections 760.27(2)(b)(1)–(4) explain that if a person’s disability is 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.
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 the out-of-state telehealth individuals that advertise to write these letters from submitting documentation on behalf of a requesting party unless he/she provided care or services through their own practice. There are a number of different platforms that match requesting parties with telehealth practitioners for the sole purpose of writing these letters. This practice is no longer permitted.
Additionally, the practitioner or provider 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.
While it is acknowledged that there are people with mental disabilities who require ESAs, this article addresses only fraudulent requests for ESAs. 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.
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 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. For more information, visit www.beckerlawyers.com.