By Joann Nesta Burnett, Esq. / Published April 2019
With increasing frequency, associations are faced with owners’, tenants’, and guests’ requests for accommodations under the Fair Housing Act. Title VIII of the Civil Rights Act of 1968, aka The Fair Housing Amendments Act, found at 42 U.S.C. §3601 et. seq. (1968), was enacted by Congress as a means of preventing housing discrimination based upon race, color, religion, sex, and national origin. In 1988, Congress enacted the Fair Housing Amendments Act (FHAA) codified at 42 U.S.C. §3602 (1988), which expanded the scope of the Act to include discrimination based upon “familial status” and “handicap.” One of the fundamental policy considerations in expanding the FHAA to include handicapped persons was to prohibit practices that restrict the choices of individuals with disabilities to live where they wish or that discourage or obstruct those choices in a community, neighborhood, or development. One of the most prevalent and controversial accommodations under the FHAA concerns requests to house emotional support animals for therapeutic functions. The acceptance of service animals trained to assist sight-impaired or hearing-impaired individuals is generally not debated or a point of contention. How-ever, there is a dispute when dealing with requests to waive no pet restrictions (or weight, size, and breed restrictions) based upon claims that an animal is necessary for everything from companionship to relieving symptoms of depression and arthritis. These animals are generally referred to as “emotional support animals.”
A person who is physically or mentally disabled/handicapped may be entitled to an emotional support animal as an accommodation. A person making a request for an accommodation must provide documentation from a “reliable” source that demonstrates the requesting party has a physical or mental impairment, states which major life activities are substantially impaired, and explains how the animal ameliorates the symptoms.
Virtually anyone can obtain a letter that satisfies the above requirements with a simple Google search. There are a number of individuals and websites that advertise to write letters for housing and air travel for a fee after a one-time assessment or review of an online examination. There is no “treatment” history. A person goes to the website, takes an online examination, and enters a credit card number and a letter ships in two to three days. You can also pay an extra fee to have the letter expedited the same day. Many of these websites also provide the answers that are necessary to obtain a letter. For example, one website tells the person taking the exam that they should say they are sad or depressed at least five times per week. It makes it very difficult to fail an examination when the answers are provided in advance.
In some cases, after the examination is over and payment is made, a letter is sent to the requesting party. In other cases, a one-time skype session or telephone session is conducted by a social worker or therapist, and then the letter issues. In addition to the letters for housing and air travel, many of these websites offer other products like certificates, identification cards/tags, vests, and other products that purportedly establish an animal is an emotional support animal.
On July 1, 2015, Florida Statute Section 413.08(9) was amended to provide a deterrent for people bringing dogs into places of public accommodation under the guise that the animal is a “service” animal. The amendment to Florida Law states that a person who misrepresents having a service animal commits a misdemeanor of the second degree. However, as stated above, service animals are not the problem for community associations addressing requests for emotional support animals. While this amendment may have deterred some people from bringing their dogs into places of public accommodation, it did nothing to curtail the fraud and abuse in housing.
However, there is currently a House Bill in Florida which would enact the same type of language for emotional support animals and their handlers and amend Florida Statute Section 413.08 and further address the fraudulent letters purchased online. House Bill 721, adds a definition of an “emotional support animal” as follows:
§413.08 Rights and responsibilities of an individual with a disability; use of a service animal or an emotional support animal; prohibited discrimination in public employment, public accommodations, and housing accommodations; penalties. —
(1) As used in this section and §413.081, the term:
(a) “Emotional support animal” means an animal that does not require training to do specific work or perform special tasks for an individual with a disability but, by virtue of its presence, provides support to alleviate one or more identified symptoms or effects of an individual’s disability.
House Bill 721 also clarifies how emotional support animals and their handlers are to be treated.
2.a. An individual with a disability who has an emotional support animal or who obtains an emotional support animal is entitled to full and equal access to all housing accommodations provided for in this section, and such individual may not be required to pay extra compensation for such animal. If an individual’s disability or disability-related need is not readily apparent to a housing accommodation, the housing accommodation may request written documentation prepared by a health care practitioner, as defined in §456.001, which verifies that the individual has a disability or a disability-related need and has been under the practitioner’s care or treatment for such disability or need, and the animal provides support to alleviate one or more identified symptoms or effects of the individual’s disability or disability-related need.
The bolded language states that the requesting party must have been under health care practitioner’s care or treatment; however, it does not state how long the “care or treatment” must have taken place or how many visits must have occurred. This leaves the field wide open for online health care professionals to require and charge for a second visit and claim there is a treatment history. That does not appear to be what was intended by this amendment.
Subsection (b) states:
b. The written documentation, as specified in subparagraph a., must be prepared in a format prescribed by the Department of Health in rule and may not be prepared by a health care practitioner whose exclusive service to the individual with a disability is preparation of the written documentation in exchange for a fee. The Department of Health may adopt rules to administer this sub-subparagraph.
This section clarifies that a one-time skype or telephone session is insufficient but still does not address the length of time or number of visits necessary to establish “care or treatment.” It is possible that the Department of Health could address these issues in the rules promulgated to administer the amendment.
Subsection (10) adds the language making it a crime to misrepresent that an animal is an emotional support animal, and states:
(10) A person who falsifies written documentation, as specified in sub-subparagraph (6)(b)2.a., for an emotional support animal or otherwise knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using an emotional support animal and being qualified to use an emotional support animal commits a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083, and must perform 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months.
The problem with this section is that there is no clear guidance as to how to report a suspected falsification or misrepresentation or to whom to report the complaint. Further, there should be clarification that a “good faith” report of falsification or misrepresentation is not considered discrimination or retaliation under the FHAA. If House Bill 721 passes, it is to take effect on July 1, 2019.
While the proposed amendment to Florida Statute Section 413.08, via House Bill 721, is a good start to attempt to curb the fraud and abuse associated with emotional support animals, the language of the bill must be clarified to address the expected arguments the online health care professionals will make and to protect community associations and their board members who act in good faith in challenging what appears to be fraudulent documentation or requests.
Joann Nesta Burnett
Senior Attorney, Becker
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.
For more information, call (954) 987-7550 or visit JBurnett@beckerlawyers.com.