How many times have you heard the old axiom, “ignorance of the law is no excuse”? Well, it’s never more true than in the Fair Housing Act (FHA) reasonable accommodation request for an “emotional support animal” arena.
In a 2012 Fourth District Court of Appeal case, Sun Harbor Homeowners’ Association, Inc. v. Bonura, the homeowners’ association brought an action against a homeowner for violation of it’s no dog policy. As could be expected, the homeowner counterclaimed asserting that his live-in fiancée was entitled to the use of an “emotional therapy dog” (referred to by HUD as an “assistance animal/emotional support animal”).
Initially, the association demanded removal of Bonura’s fiancée’s dog due to the association’s no dog policy. In response, Bonura demanded an accommodation and informed the association that the dog was a “registered service dog” needed to assist his fiancée with her disability. Bonura did not provide any specificity as to the nature of the disability, but however, provided a “Registered Service Dog Certificate” purchased from an online vendor. In response, the association advised him, in writing, that he needed to have his request for accommodation placed on the association’s agenda for the next board meeting at which he would need to:
“1) demonstrate that a resident suffers from a medical disability or handicap, unless the disability or handicap was visible, and indicating that any written information provided by the resident would not be copied or shared and would be returned after viewing;
2) demonstrate how the service animal [sic] can or will reasonably accommodate the disability;
3) demonstrate that the service animal [sic] has special skills or training to accommodate the handicap; and
4) demonstrate how the special skills and in training of the service animal [sic] and will set it apart from an ordinary pet.”
To make a long story short, the Court ruled in favor of the association, and in so doing noted that Bonura never requested to be placed on the association’s agenda and that Bonura did not provide the necessary information for the association to conduct a meaningful review of the request for the accommodation.
If this case had been recently filed and had Bonura minimally alleged that the need for the assistance animal was related to his fiancée’s emotional disability, the outcome would likely have been drastically different. Here is why: On April 25, 2013 the U.S. Department of Housing and Urban Development (HUD), issued a Fair Housing Equal Opportunity Notice, FHEO – 2013–01 (“FHEO Notice”) and provided significant clarity as to Americans with Disabilities Act (ADA) “service animals” as compared against FHA “assistance animals” (and it’s subset classification of “emotional support animals”). First and foremost, the ADA applies to places of public accommodation. The FHA applies to housing providers, such as community associations. There can be some interplay between the ADA and the FHA such as a community association that allows it’s clubhouse to be rented out to the general public. The term “service animals” only refers to dogs (or miniature horses) and applies to the ADA, which as of this recent FHEO Notice, specifically excludes “emotional support animals.” In short, the practical application of excluding “emotional support animals” from the definition of “service animal,” means that a public facility does not need to permit “emotional support animals.” In any event, FHA “emotional support animals” do not require any specific training or certification whatsoever. Therefore, by asking whether the fiancée’s animal had special skills or training to accommodate the disability and how the special skills and training which set the animal apart from an ordinary pet would likely have cost the association thousands, if not hundreds of thousands of dollars, in penalties.
According to the FHEO Notice, after a housing provider receives a request for an assistance animal, the housing provider must consider: 1) does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities? and 2) does the person making the request have a disability-related need for an assistance animal? In other words does the animal work, provide assistance, perform tasks or services for the benefit of the person with the disability or provide emotional support that alleviates one or more of the identified symptoms or effects of the persons existing disability?
Remember, breed, size and weight limitations may not be applied to an assistance animal. While an association may require a pet deposit, the association may not require deposits for assistance animals. Furthermore, again according to the FHEO Notice, the assistance animal is allowed in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s (the association’s) services.
Finally, remember that if the assistance animal in question poses a direct threat of harm to others or would cause substantial damage to the property of others, based on objective evidence and not mere speculation or fear, then that specific animal may be prohibited.
Wait until you read Florida House Bill 849, which is gaining traction in the legislature. Rather than use the FHA and ADA definitions, this legislation confuses the term “service animal” to also include “assistance animals” with the exception of an “emotional support animal” that, at least in this bill, stands on its own.