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Direct from an HOA attorney website in Floirda
July 20th, 2015
FLORIDA’S NEW SERVICE ANIMAL LAWS – A NAIL WITHOUT A HAMMER
When it comes to service dogs and assistance animals, people often confuse the Federal American with Disabilities Act (ADA) with the Federal Fair Housing Act (FHA). The ADA laws apply only to commercial (non-residential) settings. They apply to specifically trained service dogs (and the very occasional miniature horse). The ADA laws specifically exclude emotional support animals of any kind. On the other hand, the FHA laws apply to residential communities and apply to pretty much all domestic animals, including dogs, cats, pot belly pigs, etc. The FHA laws allow a person living in a residential community access to both specifically trained and untrained animals and, importantly, include the sub-category of the much beloved emotional support animal, especially when they might be otherwise prohibited by the community’s governing documents. While the ADA uses the term “disability” and the FHA uses the term “handicap”, these two terms are, for all intents and purposes, interchangeable.
What is missing from both the FHA and the ADA are penalties to prevent against fraudulent misuse of both acts. In trying to create conformity with FHA and the ADA protections and greater protection against fraud, the Florida Legislature has brought the definition of an “individual with a disability” as set out in Chapter 413, Florida Statutes, into conformity with both the definitions for the terms “disability” and “handicap” as set out in the ADA and FHA, respectively. Florida’s newest legislation also defines the term “service animal” similar to the ADA legislation to mean an animal that is trained to do work, or perform tasks, for an individual with a disability and clarifies that the crime- deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition. But, a service animal does include a dog (or miniature horse) trained to assist mentally and emotionally disabled individuals with such tasks as helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors, reminding an individual with mental illness to take prescribed medications or calming an individual with posttraumatic stress disorder during an anxiety attack. The important distinction is the dog’s training.
It is important for community associations to remember that, although this new State law exists, community associations must ensure that they do not run afoul of the Federal Fair Housing Act by requiring that an “assistance animal” be a dog or be specifically trained to assist with the disability. If so, then FHA penalties will apply.
Chapter 413, Florida Statutes, also provides that a disabled person is entitled to rent, lease or purchase any housing accommodations offered for rent, lease or purchase in this state as any other member of the general public would be entitled and is entitled to full and equal access to all housing accommodations and cannot be required to pay an extra fee for the service animal, which is in conformity with its Federal counterparts, the ADA and the FHA.
What has really gotten people talking is that this new law makes it a second degree misdemeanor offense for a person to knowingly and willfully misrepresent herself or himself, through conduct or verbal or written notice, as using a service animal, being qualified to use a service animal or as a trainer of a service animal. Those who are found to have done so may serve up to 60 days imprisonment or pay a fine of $500.00 and must perform 30 hours of community service for an organization that serves individuals with disabilities or for another organization selected by the court to be completed in not more than six months. So, what does all this mean? It means that while there is a penalty for misrepresentation where it concerns a trained service dog or miniature horse, there is still no penalty ascribed for the one major area where the most abuse occurs, that of the qualification to own an emotional support animal! In summary:
• As to residential settings inclusive of Florida’s community associations, if the dog is specifically trained to assist its owner with a handicap or disability, then the FHA and the laws set out in Florida’s Chapter 413 apply. Fraudulent penalties apply.
• If an animal is not trained and otherwise qualifies as an emotional support comfort animal, then only the FHA applies. No fraudulent penalties apply.
• As to non-residential settings, if the animal is a dog or miniature horse and is specially trained, then the ADA and Florida’s Chapter 413 apply. Fraudulent penalties apply.
With all that in mind, I’m still waiting to see a miniature horse riding in the elevator of a commercial condominium who is specially trained to alert its owner to take his or her medications. One day, I fully expect the elevator doors to open and a miniature version of Mr. Ed to look up and say, “Hello Willllllbur”.
This makes the most sense! Thank you for posting this - will circulate in my newsletter, which includes quite a few landlords.
But it surprises me that, when a property must be adapted for a reasonable accomodation the tenant needs to pay for it. But if a tenant has an ESA, the tenant needn't pay the pet deposit required of all other tenants. That seems quite unfair.
The basis is that the tenant is asking the landlord to install or alter property what otherwise is a fully usable rental unit as it stands. The installation and modification are special to the disabled person so the law allows a pass through of the expenses to make the modifications. However, if you (like we do) have handicap or barrier free rental units, we can not charge the tenant more for that unit. If the tenant wants a standard available unit but request it be modified for their disability, the law says they must pay.
As for the Assistance Animal, you are looking at the animal as being a pet. It is not technically a pet. It is a medical device just like a wheelchair, O2 concentrater, crutches or scooter. That is one reason this discussion gets so far off track by some. However, there is nothing in the regulations that prevents a landlord from charging for damages if the animal causes damages. Likewise, if it becomes a nuisance, health or safety issue, they can terminate the reasonable accommodation and have the animal removed.
As this thread has shown, clearly landlords and others who are involved in the rental industry confuses the regulations under FHA with that of the ADA. They take parts of the ADA and apply it or use terminology under FHA as if it's ADA. It would be like people spouting ADA or FHA rules when talking about assistance animals traveling on airlines. Airlines are not under ADA neither and they have their own set of rules (Air Carrier Access Act) just like housing has the FHA.
Wow...just wow. OP I feel for you. I'm in a similar situation, and came here hoping to get some answers, but instead have just had my fears reinforced. The question is: when do we have to disclose our ESA's to a LL to avoid being discriminated against? Before the application process? During the application process? After being approved, but before signing the lease? The problem with being upfront (and I've had this happen to me) is that the landlord will just find a different reason not to approve you, or won't even let you apply. It is extremely frustrating. I understand that many people do abuse the system, but if I were a landlord I would rather be safe than sorry. Risking a lawsuit in addition to severe penalties from the DOJ just doesn't seem worth it because you don't agree with the system. The fact is, there are laws in place specifically to prevent this type of discrimination. Sorry Charlie...
What's even more frustrating, are the people that are completely ignorant/ uninformed when it comes to mental illnesses. Major depressive disorder is not just a "case of the bummers," and even when treated it can cause serious side effects–suicide being one of them. Let me say that again, suicide is a symptom of depression. Just like other physically manifested diseases and disorders can cause death, so can mental illnesses. Just because you can't see it, doesn't mean it's not real, or life threatening. I pray none of you has to go through losing a loved one due to depression as I have. And for those of you who cannot seem to comprehend the importance of ESA's to those who suffer from mental illnesses, I can tell you first hand that I know several people who have said the only reason they are here today is because of their ESA. It may be difficult for people who have not suffered from, or know someone who has suffered from mental illnesses to understand this, but I urge you to take the time to educate yourselves. Empathy is your friend. Cynicism is not.
Yeah lol... after hearing from most of the landlords here, it is clear that they do discriminate against people with ESA and will find any reason to not approve them. 90% of the info on here was stuff I already knew, flat out incorrect information, and landlords just talking about how most people with ESA cheat the system. 10% was actually helpful and objective.
1. As already mentioned, we don't use "pets", our attorney was adamant the proper terminology is "Animal". Since we know the laws, the Assistance Animal issue isn't a factor in approving an application, so this wouldn't apply to us. However, we also provide a detailed application packet that spells out the requirements in advance so nobody who doesn't or is unwilling to meet the application requirements (including pets) should be applying.
2. Does not apply s that is just being a sleaze landlord.
3. Can't evict over a Assistance Animal. No court will accept the suit if the tenant has followed the requirements for requesting a reasonable accommodation. This just wouldn't happen and if a tenant is served eviction papers over an Assistance Animal, they just need to contact the feds who will step in.
4. Under FHA, the landlord is requited to take reasonable steps to accommodate the Assistance Animals. However, they can deny the request if it posses a health or safety concern to other tenants. The bar for such proof is darn high so the tenant with the allergies will need to provide documented medical proof and the landlord will have to show they attempted to mitigate any issues before denying the Reasonable Request. The courts are well aware of this and apply a high bar but not one unreachable in legitimate cases.
First, there is no law or regulation that requires you to inform the landlord you have an Assistance Animal unless they ask if you have an Assistance Animal. If they say "pet", answer no. If the landlord is stupid enough to not address these issues in advance, not your fault.
Apply without mentioning any animal. Once approved and you have possession of the unit, at that point you submit a written request for a Reasonable Accommodation under FHA. That throws it back into the landlord's lap. If they know the law they will act properly and accordingly. If they don't know the law and start playing games, sue them and collect the hefty penalties associated with a violation.
Most times, the landlord are ignorant of this issue because they are just stupid and cheap! If they are so stupid to be that cheapo to act without knowing the law, hit them in their pockets and take everything from them that you can. They will learn and learn real fast when they have to fork over a $10,000 check to you and another to the feds as a penalty. Plus they still are forced to keep you and your Assistance Animal. DO NOT be afraid to bring down the full weight of the law on these idiot landlords and don't feel guilty if they are bankrupt over their ignorance!
Thank you. This was very helpful info.
With the part I bolded about health and safety, couldn't landlords just deny because that particular dog is considered to be an "aggressive breed"? Seems like (basing this off the landlords on this topic) LL will do whatever it takes to keep you from qualifying or staying in their building since it's clear they don't take ESA seriously and want animals out.
With the part I bolded about health and safety, couldn't landlords just deny because that particular dog is considered to be an "aggressive breed"? Seems like (basing this off the landlords on this topic) LL will do whatever it takes to keep you from qualifying or staying in their building since it's clear they don't take ESA seriously and want animals out.
Yes and No. If he animal is in fact aggressive, they can deny for safety. But absent any first hand evidence that the specific animal in question is aggressive, they can't deny just because the animal is a bully breed or listed as an aggressive breed. That specific animal has to actually be aggressive.
Here's more to ponder, many landlords think that if their insurance says they won't cover specific breeds or will cancel the policy if that breed is on the premises, that would be sufficient grounds to deny the reasonable accommodation. Well the courts have all disagreed with the landlords. It takes a whole lot more documentation and processes before insurance can be used as a reason. Actually, in most cases, the insurance company ends up making the case for the tenant.
Although there are many sleazy landlord who because of ignorance or stubbornness (my property I can do what I want), there are as many if not more that do know the laws, do comply with the laws, and don't play these childish games.
Insurance is interesting in that I had an audit looking for prohibited breeds by my insurance carrier after the SF incident where a woman was killed in her apartment building.
A few years later I called my insurance agent regarding tenants with prohibited breeds claiming ESA and my agent said prohibited breeds are no longer in the policies for rentals.
All my encounters are Pit Bulls and everyone with one has a child with Autism.
It is just like the Business Use prohibition for residential units that now allow licensed child care... go figure?
Being a property manager/landlord was so simple back in the day...
........ landlords just talking about how most people with ESA cheat the system. .........
Absolutely no one said that people with ESA cheat the system. What was said is that a huge number of people with an ordinary pet, a pet that is not an ESA, will claim that their pet is an ESA in order to get it into a no-pets-allowed apartment. That's quite different than what you are claiming above.
I allow pets. I don't charge a pet fee. So I don't deal with as many false claims as some other landlords have to listen to, other than having to put up with every untrained pitbull in the county being claimed as a service animal.
Even though I allow pets and I allow service animals and ESA, I try very hard to keep out applicants that have a bad attitude, or that are entitled and demanding. My written criteria which is applied evenly and fairly to every applicant is written so that I can reject applicants with a bad attitude. So, it is possible in the past that someone with an ESA was rejected, but it was not for their dog.
Absolutely no one said that people with ESA cheat the system. What was said is that a huge number of people with an ordinary pet, a pet that is not an ESA, will claim that their pet is an ESA in order to get it into a no-pets-allowed apartment. That's quite different than what you are claiming above.
I allow pets. I don't charge a pet fee. So I don't deal with as many false claims as some other landlords have to listen to, other than having to put up with every untrained pitbull in the county being claimed as a service animal.
Even though I allow pets and I allow service animals and ESA, I try very hard to keep out applicants that have a bad attitude, or that are entitled and demanding. My written criteria which is applied evenly and fairly to every applicant is written so that I can reject applicants with a bad attitude. So, it is possible in the past that someone with an ESA was rejected, but it was not for their dog.
This is a good post.
I am totally supportive of ESA's for all my tenants because I am a believer in the value of pet family members. I have just decided to waive pet fees on the first animal in a home if it is a neutered/spayed rescue animal from a tax-qualified rescue group or shelter; but continue charging pet fees for any animals over the first. Because, seriously, after the first we are talking some likely damage/heavier wear to the property.
I am totally supportive of ESA's for all my tenants because I am a believer in the value of pet family members. I have just decided to waive pet fees on the first animal in a home if it is a neutered/spayed rescue animal from a tax-qualified rescue group or shelter; but continue charging pet fees for any animals over the first. Because, seriously, after the first we are talking some likely damage/heavier wear to the property.
This is a little unrelated to my topic, but can a landlord/complex charge both pet rent and an additional deposit? I understand charging a larger deposit due to damages that an animal may cause (and agree with it to protect the landlord) but why pet rent?
Yeah lol... after hearing from most of the landlords here, it is clear that they do discriminate against people with ESA and will find any reason to not approve them. 90% of the info on here was stuff I already knew, flat out incorrect information, and landlords just talking about how most people with ESA cheat the system. 10% was actually helpful and objective.
Well....you don't seem like you have any emotional issues either.
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