Pets | Rembaum's Association Roundup

If you live in a community association, and especially if you serve as a board member in an otherwise “No Pets Allowed” community, few subjects are more polarizing than that of a member’s request for a “Service Animal,” most especially, an “emotional support dog.” On February 27, State of Florida Representative Ricardo Rangel, (District 43, Dem, Osceola County) filed House Bill 1073, titled “Service Animals.” It is officially referred to as the “Dawson and David Caras Act.”

For many situations, HB 1073 clarifies that a person seeking an emotional support pet MUST have a disability and the service animal must be trained or perform tasks of benefit to the disabled person requesting the accommodation. In many respects, HB 1073 codifies the holdings of various court decisions into the Laws of the State of Florida. If enacted into law, relevant portions of HB 1073, with which every board member and manager should be familiar, follow:

Definition of a Service Animal. “Service Animal” is defined as “any domesticated animal that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping individuals with psychiatric or neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”
Emotional Support Animal. “The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this paragraph.”
Proof. “Documentation that the service animal is trained is not a precondition for providing service to an individual accompanied by a service animal.”
Vaccines. “A housing accommodation may request proof of compliance with vaccination requirements.”
No Extra Charge. “An individual requiring assistance who has a service animal is entitled to full and equal access to all housing accommodations … and that individual is not required to pay extra compensation for the service animal.”
Trainers. “Any person who trains a service animal, while engaged in the training of such an animal, has the same rights and privileges with respect to access to public facilities and housing accommodations … as is provided for a person … who is accompanied by a service animal. … an individual who is the trainer of a service animal is entitled to full and equal access to all housing accommodations provided for in this section, and that individual is not required to pay extra compensation for the service animal.”
Public Accommodations. “An individual requiring assistance has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy. A public accommodation may ask if an animal is a service animal or what tasks the animal has been trained to perform in order to determine the difference between a service animal and a pet. A public accommodation may not impose a deposit or surcharge on an individual requiring assistance as a precondition to permitting a service animal to accompany the individual requiring assistance, even if a deposit is routinely required for pets.”

While it remains to be seen whether HB 1073 will be voted into law, there is no doubt that it raises many new concerns. For instance, while there are statutory enumerated remedies for a place of public accommodation, such as a hotel, to demand removal of the service animal that growls, excessively barks, bites, poses a threat, or fails to respond to its trainer, there are no similar remedies for those same situations that may occur within a condominium or homeowners’ association. In addition, a long standing principle of legislative interpretation, overly simplified, is that the inclusion of a specific item in a law is interpreted to mean that the legislature intended the exclusion of all other similarly situated items. Does that mean because “proof of vaccination” can be requested, that no other questions of substantiation can be asked?

Criminal misdemeanor charges can be filed against a person, firm, or corporation and/or their agent who interferes with the rights of a person requiring service animal assistance. Such charges can also be filed against a person who knowingly and fraudulently represents themselves as the owner or trainer of a service animal.

Should you have strong feelings that HB 1073 should (or should not) be voted into law, you should contact your state legislators to let your voice be heard.

Pets make happy homes. After a hard day, it sure is great to come home to a wagging tail. No one would deny the benefit of a trained service dog who assists the visually impaired. Sadly, the same cannot be said in regard to emotional support dogs. Even the courts have been split on this issue. Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation. However, more recent court decisions recognize that the Fair Housing Act (the “FHA”) has no such “training” requirement, and thus have concluded that an emotional support animal may be considered for a “reasonable accommodation” under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights.

Let’s face it, when the decision is made to live in a condominium, certain liberties must give way in favor of communal living. Often, it is the unit owner who is required to compromise their behavior to conform to the condominium’s rules. But, at times, the condominium association, acting through its board, is the one that needs to compromise their rules in favor of one or two unit owners. What if a situation arises where a purchaser requests an exception to the rules and regulations before they take ownership and becomes an association member? What rights does a prospective owner have? More specifically, if dogs are not allowed, can a disabled prospective owner be denied unit ownership based on their properly completed application where the purchaser requests a “reasonable accommodation” to bring their emotional support dog into the condominium where dogs are prohibited?

On May 28, 2012, in denying a defendant condominium association’s motion for summary judgment where the association argued that emotional support dogs who have no special training are not “service animals”, the federal court for the Southern District of Florida, in Falin v. Condominium Association of LA Mer Estates, Inc., explained that the Federal FHA (as amended by the Fair Housing Amendments Act of 1988) make it unlawful “to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of … that buyer or renter [or] any person associated with that buyer or renter…discrimination includes … a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Read together, the court explained, “these provisions make clear that refusing to make reasonable accommodations violates the FHA’s general prohibition against denying housing based on a disability.” To establish a reasonable accommodation claim, a plaintiff must show that “(1) he [or a person associated with him] is disabled or handicapped within the meaning of the FHA, (2) a reasonable accommodation was requested, (3) such accommodation was necessary to afford him [or the associated person] an opportunity to use and enjoy his dwelling, and (4) the defendants refused to make the requested accommodation.”

The defendant condominium association’s main argument in support of their motion for summary judgment focused on the third element; specifically, whether 95 year old Ms. Falin’s request for an accommodation to allow her 21 year old emotional support dog was necessary to afford her an opportunity to use and enjoy her condominium unit. The association went so far as to point out that Ms. Falin’s dog was not a “service animal” that was trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures. In fact, the record shows conclusively that the dog had no such training, but instead served only as an “emotional-support animal” for Ms. Falin. However, her doctor opined that the dog helped remedy Ms. Falin’s anxiety, difficulty in sleeping, and related symptoms. In the end, the court sided with the prospective owner clearing the way for the case to head towards trial when they held that a disabled person’s emotional support dog, without any specific training, can still be a “service animal”.

In making a request for a reasonable accommodation for a service animal, be it for an emotional support pet or otherwise, remember that a licensed physician must clearly explain your recognized disability and how the requested accommodation will assist you in the opportunity to use and enjoy your dwelling.

Another lesson can be gleaned from this decision, too. Don’t get caught in the trap of believing that only unit owners have standing to sue their association based on the rules and regulations. While that may be true more often than not because owners need “legal standing” to bring their claim, which they get by virtue of association membership, in the right circumstances, other laws can create such “standing” in favor of non-owners, too.

Category: Pets

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