Allow Support and Service Animals in Your Community?
The federal and Florida Fair Housing act require community associations to make a reasonable accommodation in its rules and policies regarding animals in the community when the animal is either a Support Animal or a Service Animal.
It is important to note the distinction between a Support Animal and a Service Animal. According to HUD a Support Animal is not a pet. It is an animal that works, provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Support Animals perform many disability related functions but are not required to be individually trained or certified.
A Service Animal can be defined as an animal that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Generally a Service Animal’s work does not include emotional support, well-being or companionship.
Should you allow support and service animals in your community?
When evaluating a request for an accommodation, your association should ask the following questions:
- Does the person seeking to use and live with the Support Animal or Service Animal have a disability? (i.e. a physical or mental impairment that substantially limits one or more major life activities?)
- Does the person making the request have a disability-related need for a Support Animal or Service Animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotion support that alleviates on or more identified symptoms or effects of a person’s existing disability?
If the answer to the first and second question is yes, then the association must make a reasonable accommodation to its rules regarding animals.
Your association should not deny a request for accommodation because it is uncertain whether or not the person seeking the accommodation has a disability or a disability related need for the animal. Fortunately the law allows the association to make limited inquiries when the disability is not readily apparent or known. In this situation the association may ask for reliable documentation of a disability and their disability related need for the animal. For example, the association may ask for documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal alleviates one or more identified symptoms or effects of the disability. Sufficient documentation will show that the individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
It is important to note that the association cannot ask for documentation if the disability or the disability-related need is readily apparent or known to the association. For example, the association cannot ask for documentation from persons who are blind or have low vision regarding their need for a guide dog. In all cases the association cannot ask for access to medical records or medical providers or ask for detailed or extensive information or documentation of a person’s physical or mental impairments.
Your association may deny an accommodation request if the animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation. It may also deny the accommodation request if the animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation. This analysis cannot be based on fear or speculation and must be based on objective evidence on the animal’s conduct. Finally, the association cannot deny the accommodation request based on breed, size or weight limitations. Associations should be wary of phony animal credentials. Unit owners who are looking for ways to bypass the rules and policies may go to the Internet to buy vests, ID cards and certificates for their animals. If you suspect that the credentials are phony, ask for documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal alleviates one or more identified symptoms or effects of the disability. Sufficient documentation will show that the individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.
Unfortunately some associations handle accommodation requests incorrectly and it can be costly. In Sabal Palm Condominiums v. Fischer, the unit owner suffered from multiple sclerosis and was confined to a wheelchair. Fischer acquired a trained service dog that exceeded the association’s 20-pound pet restriction. Fischer asked for an accommodation and the association responded by requesting copies of her medical records from all her healthcare providers who diagnosed or treated her disability. The association also asked for documentation of the training her animal had received.
Fischer provided sufficient documentation of her disability and the disability-related assistance her dog would provide. Unfortunately the association responded by filing a lawsuit against Fischer seeking a declaratory judgment that it need not accommodate this request because the dog exceeded the 20-pound restricted. Fischer countersued the association for discrimination. In it’s decision the court found that the association violated the Federal Fair Housing Act because Fischer’s disability was obvious and her need for a service animal had been clearly established.
Additionally the court also found that the association’s president was personally liable to Fischer, as individual board members or agents can be held liability when they have personally committed or contributed to a Fair Housing Act violation.
After the court issued its ruling the parties agreed to a $300,000.00 settlement.
The important lesson for associations and their directors is to closely follow the applicable statutes and to consult with your counsel before taking any action on a request for accommodation. Lindsay & Allen, PLLC has extensive experience handling Support and Service Animal accommodation requests. Please call our office for a free consultation.