As you may know, any Homeowners or Condominium Association has the right to impose a no pet policy in their community or building. This rule is typically made to avoid conflict with owners who have allergies, phobias or simply to avoid the potential noise that comes with a pet. This rule can get a bit sticky when it comes to service animals, and even stickier when it comes to fake “emotional support” animals (ESA).
While service animals and ESA are necessary for a number of reasons, many mental disabilities are not nearly as visible or identifiable as physical disabilities. The problem lies not with those who need service animals or ESAs but with those who fraudulently register their animals as an ESA. Some websites promise to send ESA letters with just an online test and a fee, and many of them even give out a ‘cheat code’ so you know exactly how to answer each question to ensure you will qualify for a letter.
These cases of fraudulent service animals can create serious problems for residents and Associations. If the Association approves the animal, residents who have phobias or allergies will now be forced to live with them. If they deny the claim, the Association can be subject to lawsuits and complaints.
Luckily, on July 1, 2020 several statutory amendments went into effect that are designed to give Associations ground to stand on when addressing requests for ESAs. One 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 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.
The purpose of this statute is to deter people from using fraudulent ESA requests by making it a misdemeanor for a person to knowingly and willfully misrepresent that they’re permitted to use, are using, or are training a service animal. Violators can be punished with as many as 60 days in prison and a fine of up to $500.
Before turning down someone’s request to allow their service animal however, the Association should know what kind of documentation they need to request from the owner to prove the need for an ESA. Florida Statute Sections 760.27(2)(b)(1)–(4) explain that if a person’s disability is 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.
If the person submitting the request cannot provide any of the above, the Association may also request information from a health care practitioner with personal knowledge of the person’s disability.
This is still a touchy subject, and the new law doesn’t make it much easier for Associations to deny a false ESA. Associations’ hands are still tied and asking the wrong questions about the legitimacy of someone’s disability can result in substantial financial penalty. The only thing the Association can really do is prove that someone has been intentionally misleading the Association all along, which is not simple.
It’s still easy for many people to take advantage of the laws surrounding service animals and ESA, despite the difficulties it can cause those with a real disability or need for an ESA.
There are people with real disabilities who require service animals or ESA, this article only intends to shine a light on the difficulties that Associations face in the event of a fraudulent ESA request.