On Wednesday, July 1, 2020, legislation was signed into law by the Governor (2020-76) which is intended to, among other things, address the issues of accommodation requests for emotional support animals, false emotional support animal claims, the use (and prevalence) of downloaded certificates for emotional support animals, etc. The new law does not really change the rights of housing providers, community associations, and disabled persons; rather, from a community association standpoint, the new law addresses the manner in which accommodation requests may be considered.
Straley | Otto is ready and willing to assist associations navigating the new legislation relating to emotional support animals in their communities.
The new law confirms what existing law had already required: a disabled person must be permitted to have an assistance animal where that animal is necessary for the disabled person to enjoy his/her home as does any other person. This is, perhaps, an oversimplification, but in essence, it is what the law requires—even in the face of limitations or prohibitions of animals within a community’s rules and restrictions, an association must grant an “accommodation” (make an exception to the restriction) for a disabled person’s animal where that animal is necessary for the disabled person to enjoy his/her home and the community’s amenities as would any other non-disabled person. The new law, including the newly created Fla.Stat. §760.27, does NOT require a community association to simply take the word of someone seeking an accommodation that he/she is disabled and entitled to an accommodation. Instead, an association IS permitted to perform somewhat limited due-diligence to confirm that approval of an accommodation request for an emotional support animal is required.
First, a community association MAY require (limited) proof of a disability from a person requesting an accommodation and approval of his/her emotional support animal. The proof may take the form of:
- a governmental agency’s determination of a disability
- proof of receipt of disability benefits/services from a governmental agency
- proof of eligibility for housing assistance which is offered to a disabled person
- written correspondence from a health care provider (such as a doctor, psychiatrist, psychologist, or other mental health professional) with a license in good standing that he/she knows from his/her personal knowledge that the requesting person is disabled and that it is within the scope of provider’s practice to provide such supporting information for an emotional support animal accommodation request
- other reasonably reliable evidence of a disability. The association cannot request a specific diagnosis nor question the severity of the requesting party’s disability; and apparently, the association must accept written confirmation of the existence of the disability from an appropriate source
Second, if the NEED for the emotional support animal is not readily apparent to the community association (presuming that the requesting party has confirmed his/her disability as described above), the association MAY request reliable information supporting the claimed need for the animal. More particularly, the association MAY require submission of information which identifies the particular assistance or therapeutic emotional support that the animal does or will provide. Further, the association MAY require that this information be submitted through written correspondence by a health care provider (such as a doctor, psychiatrist, psychologist, or other mental health professional) with a license in good standing, indicating that such provider knows from his/her personal knowledge that the requesting person is disabled and that it is within the scope of provider’s practice to provide such supporting information for an emotional support animal accommodation request. In addition, if multiple emotional support animals are requested by a single requesting party, the association MAY require information about the specific need for each, individual animal.
Third, a community association MAY require the submission of evidence that the animal is up-to-date on any/all governmental licensing requirements and up-to-date on any/all vaccinations.
With regard to the foregoing requirements, a community association MAY implement a specific process to follow for submission of accommodation requests, and the association MAY develop forms to be used to simplify that process. An association may NOT, however, deny a request solely because the requesting party did not follow the specific process or submit the usual forms. The new law requires consideration of substance over form. Following from this, the new law confirms that a “certificate” or “registration” of an animal as an emotional support animal is NOT sufficient, alone, to support an accommodation request. Also, the language of the new statute suggests that it is appropriate, where a submission in support of an accommodation request comes from an out-of-state health care provider, for the provider to confirm, in writing, that he/she “has provided in-person care or services to the [requesting party] on at least one occasion”. Finally, IF an animal poses a “direct threat of physical damage” to persons or property, and that threat “cannot be reduced or eliminated by another reasonable accommodation”, then per Fla.Stat. §760.27(2)(a), the association may be justified in denying the accommodation request for that animal.
In the past, many of my community association clients have developed, with our assistance, forms and procedures which they have used to process accommodation requests for emotional support/assistance/service animals. Under the new law, these forms and procedures may require some revisions (particularly as to references for the submission of information about an alleged disability). Other than some modifications, though, the forms should remain useful in considering accommodation requests under the new statute provisions. If you have any questions or concerns on the foregoing, if your association wishes to review its forms and procedures relating to accommodation requests, or should you wish to further discuss issues related to emotional support/assistance/service animals, please feel free to contact me and the Straley | Otto team.