Many community associations are presented with requests for accommodating service animals and emotional support animals. It can be difficult to navigate through the various laws. There are specific obligations required of housing providers under the Fair Housing Act (“FHA”) and, if applicable, the Americans with Disabilities Act (“ADA”).
Fair Housing Act
Community associations are governed by the FHA, which prohibits discrimination against disabled individuals as it relates to housing accommodations. The FHA covers nearly every type of housing provider, whether privately owned or federally assisted, including homeowner’s associations and condominiums. Under the FHA, a disability is defined as a physical or mental impairment which significantly limits a person’s major life activities. Assistance animals are animals that work, provide assistance or perform tasks for the benefit of a person with a disability; or an emotional support animal that provides therapeutic benefits and improves the symptoms of a person with a mental or psychiatric disability. Assistance animals perform many disability-related functions and there is no requirement that an assistance animal be individually trained or certified. Assistance animals are not considered pets under the FHA, which is why pet restrictions and fees must be waived for them. Even if an association has a “no pet” policy or restricts pets based on breed and/or weight, the association is required to make a reasonable accommodation in its rules, policies, practices or services, to allow assistance animals that are necessary to provide a disabled person with an equal opportunity to use and enjoy their residence or the common areas within the community. This includes emotional support animals.
In 2013, the U.S. Department of Housing and Urban Development (“HUD”) released a memorandum for housing providers that offers guidance for community associations. The HUD memorandum recommends that a housing provider evaluate a reasonable accommodation request carefully and must consider 1) whether the person has a disability, and 2) whether the person making the request has a disability-related need for an assistance animal. If so, the association must modify or provide an exception to any “no pet” rule that may be in place to permit a disabled individual to live with an assistance animal, and use the animal in all areas of the premises where people are normally allowed to go.
The HUD memorandum clarifies when housing providers may ask for documentation of disabilities and disability-related needs for assistance animals, and provides that a housing provider may not deny a reasonable accommodation request because he or she is uncertain whether or not the person seeking the accommodation has a disability or a disability-related need for an assistance animal. If a person’s disability or disability-related need for an assistance animal is readily apparent or already known, the housing provider may not ask the person for documentation of the disability.
Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal. For example, the housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support. A housing provider may not inquire about the extent of the disability or request access to medical records for the person seeking a reasonable accommodation.
There could be a valid reason to prohibit a person from having an assistance animal, such as when the animal poses a direct threat to the health and safety of others or the animal would cause substantial physical damage to the property of others, if that danger or damage cannot be eliminated or reduced by another reasonable accommodation.
Americans with Disabilities Act and Section 413.08, Florida Statutes
The ADA narrowly defines a “service animal” as “any dog 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.” Similarly, Florida Statutes, section 413.08 (1)(d), defines a service animal as “an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” § 413.08, Fla. Stat. (2015). To qualify as a service animal, the animals’ “work done or tasks performed must be directly related to the individual’s disability and may include, but are not limited to, guiding an individual who is visually impaired or blind, alerting an individual who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting an individual who is having a seizure…” § 413.08, Fla. Stat. (2015). Emotional support animals do not qualify as service animals under the ADA or section 413.08, Florida Statutes.
Certain entities, such as public housing agencies and some places of public accommodation, like rental offices, shelters, residential homes, and assisted living facilities may be subject to both the service animal requirements under the ADA and the reasonable accommodation provisions of the FHA. Therefore, a housing provider must first determine whether they are an ADA-covered facility. If so, an animal need only meet the definition of “service animal” to be allowed into a covered facility. A housing provider may only ask two questions to determine if an animal is considered a service animal: 1) Is this a service animal that is required because of a disability? and 2) What work or tasks has the animal been trained to perform? These are the only permissible inquiries, and a housing provider may not ask about the nature or extent of a person’s disability. If the animal does not meet the ADA service animal test, then the housing provider must evaluate the request as a reasonable accommodation under the FHA.
Community associations should take proper steps in evaluating requests for accommodating service animals and emotional support animals to ensure compliance with the FHA, and possibly ADA. Do not ignore a request for accommodation, and consider consulting with an attorney when seeking additional information from the person seeking an accommodation and before any request is denied.
For more information, the HUD Memorandum can be found at the following link:
http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf