| These legal links explain more about your right to have an emotional support animal:
http://www.drcnh.org/emotsupportweb.pdf
http://www.bazelon.org/issues/
HUD rules covering Emotional Support Animals (2008)
For legal professionals:
Obtaining Waivers of No Pet Policies for Clients That Rely Upon Service
Animals And Emotional Support Animals
by Marcy LaHart, Florida Animal Lawyer
“The Department of Justice explained an important distinction between
a service animal for ADA purposes and a support animal for FHAA
purposes. The new rules limit service animals to dogs, but that
doesn’t mean that housing providers can prohibit the
use of other animals as a reasonable accommodation for
a disability pursuant to the FHAA.
“In the final rule, the Department excluded emotional support animals
from the definition of “service animal.” The ADA definition says that
emotional support, well-being, comfort, or companionship will
not qualify as “work” or “tasks” for the purposes of determining
whether an animal is a service animal.
Therefore, emotional support animals are not necessarily service
animals (although a dog can qualify as both at the same time). The
U.S. Department of Housing and Urban Development confirmed
exactly that in a memorandum directed to fair housing enforcement
officers and regional counsel.”
(source, Florida Condo Law Blog, Posted on March 10, 2011 by
Lisa Magill).
[Note – the memorandum from HUD says, “Disabled individuals
may request a reasonable accommodation for assistance animals
in addition to dogs, including emotional support
animals, under the FHAct [fair housing act] or Section 504.”]
HUD fair housing regulations, changed in October 2008
made it easier to have emotional support animals:
Gary A. Poliakoff, former head of the Becker and Poliakoff law firm that
represents many condo associations in Florida, said “…The Courts and
the U.S. Department of Housing and Urban Development (HUD) have
interpreted the [federal Fair Housing Act] to allow not only trained
service animals, but also emotional support animals. Proposed
HUD Rules on the subject [would] vastly expand the definition of
those pets allowed to such an extent, that if approved, will pretty much
eviscerate no pet restrictions…”
As of October 27, 2008, those proposed rules were in fact
approved.
Bryan Greene, Deputy Assistant Secretary for Enforcement and Programs, Department of
Housing and Urban Development (identified in the Federal Register as the contact person
for questions regarding the 2008 rule change), advised us that these rules DO
apply to residents or owners of condos.
(See also Fair Housing Laws vs. a Community Association’s CC&R’s.) There are a few very
limited exemptions to federal fair housing law such as single family homes and housing for
no more than four families.
What types of housing are covered by the Fair Housing Amendments Act?
The Fair Housing Amendments Act applies to virtually all forms of housing, whether
owned or rented. Exemptions from the Act are very narrow and fall into two basic
categories:(1) buildings with four or fewer units where the owner lives in one of the
units; and
(2) the small owner provision, which exempts private owners who do not own
more than three single family houses at one time, who do not use the services of a real
estate broker or agent, and who do not produce any discriminatory publications,
notices or mailings. 1 1 42 U.S.C. § 3603(b).
Doris Day Animal League Best Friends 4 Life, p.17 |
To read the entire text of the 2008 HUD rules which cover the right to have ESAs, go to
http://www.hud.gov/offices/fheo/FINALRULE/Pet_Ownership_Final_Rule.pdf.
The2008 HUD rules struck down some of the obstacles to ESA’s in “no pet” housing as follows:
1. Specialized task training of ESAs is unnecessary – “emotional support animals do not need
training to ameliorate the effects of a person’s mental and emotional disabilities. Emotional
support animals by their very nature, and without training, may relieve depression and anxiety,
and/or help reduce stress-induced pain in persons with certain medical conditions affected by
stress.”
2. Documentation of the need for an ESA may come from “physician, psychiatrist, social
worker, or other mental health professional.” In Florida, “other mental health professionals”
refers to the following health care professionals duly licensed by the Florida Department of
Health:
- licensed mental health counselors
- licensed clinical psychologists
- licensed clinical social workers\
- licensed marriage and family therapists.
[Note – 65% of drugs for dpression are by prescribed by primary care physicians, not
psychiatrists, per CBS News 3/18/1012.]
3. There is no need for formal CERTIFICATION of the disability.
Our legal advisor, Marcy LaHart, Esq, summarizes, “As a matter of law a disabled person is not required
to provide proof of training or certification of an emotional support animal. The U.S. Department of Housing
and Urban Development recently amended the Code of Federal Regulations to clarify that the federal Fair
Housing Act applies to both emotional support animals and individually trained service animals. Emotional
support animals may be prescribed by a psychiatrist, but also by a physician, social worker or other mental
health professional.”
Attorney LaHart continues “An affidavit is not necessary, a letter stating that the person has a disability,
the disability affects the patients major life activities, and that in the doctor’s professional opinion an ESA
is needed to ameliorate the symptoms of that disability or help the patient cope with the disability is
sufficient. In fact under the FHA the letter need not be from a doctor – a social worker or other “mental
health professional” may prescribe an ESA.”
Further, there is no requirement that a doctor state that an ESA is “absolutely necessary” nor does the doctor
have to state that he or she is willing to go to court.”
“Just because you have asked to have an emotional support animal, does not mean your condo board is
entitled to your medical or psychiatric records. The board is entitled to enough information to verify that
you have a disability and your animal helps you cope with your disability, nothing more,” Ms. LaHart said.
“The condo is not doing you a favor by allowing you to keep an emotional support animal, the condo is
complying with the law.”
Also, as we have said above, the Florida Commission on Human Relations has told us that the
“doctors letter” does NOT need to be notarized if the letter is on the doctor’s stationary.
= = = = = = = = = = = = = = = = = = = = = = = = = = =
Gary Poliakoff, of Becker & Poliakoff, recently commented (read here) that the doctor writing the letter
“must provide details as to his or her experience in the field of the alleged handicap,” which seems a
much stronger requirement than HUD guidelines.”Family doctors ARE qualified to write prescriptions
for anxiety, depression and other emotional ailments – and frequently do prescribe this type of medication.
Cardiologists often prescribe some of these same drugs when heart patients undergo unusually stressing
events in order to prevent a cardiac event. We see no reason that a professional who can prescribe these
strong pharmaceuticals should have to show any specialized expertise. In many mental health
practices, it is the social workers doing the counseling therapy who actually work with the patients (and
only consult the MD psychiatrists for adjustments to medication.) This is why we need stronger laws to
clarify the right to have ESAs.” Maida Genser, Founder, Citizens for Pets in Condos.
Poliakoff further elaborates on the increasing trend to allow Emotional Support Animals in
“Prescription Pets,” Common Ground, January/February 2008, including a reference to a 2004 California
appeals court case that found in favor of a dog owner because”the innate qualities of a dog, in particular,
a dog’s friendliness and ability to interact with humans, made it therapeutic.” The article states that, “Recent
court decisions have loosened the standard for pets to be considered ‘trained’ to meet the needs of a
disabled person and, thus, protected by law.
In yet another article Poliakoff states that “…pet restrictions, other than in the case of emotional support
animals, are enforceable.” Condo Consultant, July 30, 2008.
See also, Pets Just May be the Right Medicine on Becker and Poliakoff’s “Florida Condo and HOA Law
Blog, including comments from Barbara Feeney on the advisory board of Citizens for Pets in Condos.
In “Breed-profiling OK, but board can’t ban service dogs,” Poliakoff makes it clear that the association
must a dog of any breed if it is a service animal required for a handicapped unit owner. (So, if your
emotional support animal is a breed that is being discriminated against, Citizens for Pets in Condos
suggests you look into getting your animal certified as a service animal).
= = = = = = =
Mr. Poliakoff has recently retracted his previous statements. In Evading no-pet restriction tougher,
Palm Beach Post, 04/07/2009, he claims that it is actuallyh getting more difficult for associations to
ban animals (AFTER the new HUD regulations in 2008). The north Florida case that he cites in
this 4/7/09 column is being challenged in the
courts favor of the dog owner.
According to our legal advisors, the case in north Florida was NOT a sign of the pendulum swinging back to tougher
handling of pets in condos cases, but rather an indication that emotional support animals are not pets according
to the law.
Facts of the case that was referenced are that:
1) Booster’s owner had first lobbied the Association to keep the Animal as a “Pet” ,
2) All medical evidence of need of the “pet” as a service animal was gathered after filing litigation, not before the
request was presented to the Board, or even before acquiring or owning the pet in the first place.
3) Therefore, the Court seemed to believe that he was using this only to keep a pet, not a service animal.
= = = = = = =
“The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973, and Title II
of the Americans with Disabilities Act protect the right of people with disabilities to keep emotional
support animals, even when a landlord’s policy explicitly prohibits pets. Because emotional support and
service animals are not “pets,” but rather are considered to be more like assistive aids such as wheelchairs,
the law will generally require the landlord to make an exception to its “no pet” policy so that a tenant with
a disability can fully use and enjoy his or her dwelling. In most housing complexes, so long as the tenant
has a letter or prescription from an appropriate professional, such as a therapist or physician, and
meets the definition of a person with a disability, he or she is entitled to a reasonable accommodation
that would allow an emotional support animal in the apartment……Although the [board] is entitled to
ask for supporting materials which document the need for an emotional support animal, federal law
does not require the tenant to provide proof of training or certification of the animal. The two courts that
have addressed this issue directly – the Court of Appeals for the Seventh Circuit and the U.S. District
Court of Oregon – have held that the only requirements to be classified as a service animal under federal
regulations are that the animal be (1) individually*trained, and (2) work for the benefit of an individual
with a disability. For a more detailed discussion, see Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995) and
Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (Or. 1998).”
—Bazelon Center for Mental Health Law*people can train their animals themselves |
|
A handout from the Center for Independent Living of Broward statement on Companion and Emotional Support Animals
(see link: http://www.petsincondos.org/CILBroward.html) makes it clear, among other things, that no special training
is required for companion and emotional support animals.
“Emotional support animals don’t need to have “task specific” training that supports the disabled person and are therefore
d ifferent from service animals. It’s the animal’s presence that contributes to the person’s welfare. They don’t have the
same rights to public access as service animals. In most states, tenants have the right to an emotional support animals
when there is a clear link between a medical condition and the animal’s presence, even in housing with “no pet” policies.
Medical documentation that shows a link between the animal’s presence and the health of the individual is usually required.”
(reference http://www-unix.oit.umass.edu/~ebarney/esa.htm)
Support and service animals are considered assistive aids. The relevant federal laws that are applicable are:
- The Fair Housing Amendments Act of 1988
- Section 504 of the Rehabilitation Act of 1973
- The Americans with Disabilities Act, Title II
The relevant Florida laws are Section 413.08(6) to allow support animals and Sections 413.081(1), 775.082 and775.083
to define penalties for not allowing support animals. Furthermore, Florida Statute 760.23 says it is unlawful to discriminate
against persons with handicaps. 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.” (These laws cover emotional/mental as well as physical disabilities.) 760.23 was applied in this case.
Federal disability law says that helper animals must be allowed if you obtain a letter from a medical doctor saying you need
an animal to “ameliorate and help with life functions.”
Click here for definitions of different types of assistive animals, including emotional support animals.
Furthermore, an assistive animal does NOT need specialized training to ameliorate a specific emotional illness. Just interacting
with a pet can help alleviate stress, anxiety and depression. See more on the health benefits of companion animals.
According to Dr. Virgil Rizzo, former state of Florida Condo Ombudsman, “A condo board
cannot make rules that are in conflict with the law. A note from any qualified doctor, a psychologist (PhD)
or a medical doctor will suffice.”
Harry Lamb, Director of the Palm Beach County Office of Equal Opportunity says that “About nine out of 12 cases are
resolved in favor of the person keeping the pet — a support or service animal — based upon the findings of a physician or
mental health professional treating the condition.”
Under the Federal Fair Housing Act, disabled individuals have a legal right to an “assistance animal”
in their home, despite any “no pet” policy. The law extends to homeowners and renters in all 50 states,
and protects people with both physical and mental disabilities (including depression). For information on how to
file a free housing discrimination complaint with the U.S. Department of Housing and Urban Development,
call 800-669-9777 or visit http://www.hud.gov. You can also go to any local Fair Housing Assistance Partner, usually
one per county. In south Florida, for example, you can go to:
the Broward County Civil Rights Division,
the Miami-Dade County Equal Opportunity Board (MDCEOB)
or the Palm Beach County Office of Equal Opportunity.
Virgil Rizzo (first Florida Condo Ombusdsman) said, “If a service animal or a pet is a “necessary or reasonable
accommodation” for a person’s disability it may be allowed to remain with a unit owner under the Federal Fair
Housing Act and Americans With Disabilities Act. The unit owner must have a letter from his or her physician
that clearly states that their pet is absolutely necessary for that person’s well being, medical health and
condition and that the presence of the pet is necessarily and directly related to that persons medical disability,
well being, and medical health and without the pet that person’s health
would deteriorate and be seriously compromised.”
“Refusal to make reasonable accommodations in rules, policies or practices, when such accommodations may be
necessary to afford such a person equal opportunity to use and enjoy a dwelling is prohibited.” (42 U.S.C. 3604).
Fair Housing Act case law indicates that “emotional support” or “therapeutic” animals are recognized as “service” or ”
assistance animals” and should be permitted to stay on a property despite a “no pets” policy. Such an animal is not a
pet. Therefore, the accommodation is to exempt a disabled tenant or owner from the policy. The reasonable
accommodation is based on the Fair Housing Act’s provisions that prohibit discrimination based on disability.
Home owner association or board policies are superceded by Federal, State, and/or local ordinances.
— Diego Demaya, Legal Specialist, Disability Law Resource Project (DLRP)
“Under federal, state, and local fair housing laws, a housing provider must make reasonable accommodations
in rules, services, or practices to afford a “disabled individual” equal opportunity to use and enjoy a dwelling
unit as if he or she had no disability. For more information, review the federal Fair Housing Amendments Act
of 1988, Florida Statutes section 413.08, and county ordinances.”
Robert M. Burrell,727-517-3989, attorney who practices pet and animal law in Florida.
article by Robert M. Burrell on Pet Restriction
Emotional Support Animals and Waiver of “No Pets”Rules
Ensuring a “Yes-Pets” Rule
Keeping pets in private retirement and sheltered housing, a Good Practice Guide (UK) – some sensible advice from our
friends in Great Britain.
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In Broward County, Florida, Commissioners Dale Holness and Lois Wexler sponsored an ordinance amending Broward
County’s Human Rights Act. The amendment states that if an application for housing is denied by a homeowners’,
condominium or cooperative association in Broward County, the applicant will receive a written notice explaining
the reason for the denial within forty five days of the filing. Applicants must also be notified if their application is not
properly filled out within fifteen days of the application date.
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Resources from Animal Legal Defense Fund:
No Pets Allowed: Housing Issues and Companion Animals
Additional case law can be found here: http://animallaw.info/cases/statecases/causcaset.htm
For a full discussion of your legal rights and responsibilities as the guardian of a companion animal, an excellent
resource book is “Every Dog’s Legal Guide:
A Must-Have Book for Your Owners,” by Mary Randolph. Written for non-lawyers, it’s a helpful book on a variety
of legal issues relating to canine companions.
It’s available for purchase from Nolo Press.
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“The Joint Statement of The Department of Housing and Urban Development and the Department of Justice
– Reasonable Accommodations under the Fair Housing Act,”states:
“…Courts have applied the Act to individual, corporations, associations and others involved in the provision of housing
and residential lending, including property owners, housing managers, homeowners and condominium associations
lenders, real estate agents, and brokerage services…” “The Act defines a person with a disability to include (1) individuals
with a physical or mental impairment that substantially limit one or more major life
activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an
impairment…”
Click here to read: WHAT “FAIR HOUSING” MEANS FOR PEOPLE WITH DISABILITIES
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The legal status of pets when the owners/guardians become deceased is one of the issues involved in getting people
to accept pets in 55+ housing associations. According to Animal Legal and Historical Center, 39 states (including
Florida) have enacted Companion Animal (Pet) Trust Laws.
Read more about this issue in our Issues and Answers section. Also check out this resource:
http://www.estateplanningforpets.com/, which has a sample pet trust document.
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The official position of AARP (American Association of Retired Persons) on pets:
The federal Fair Housing Act requires that animals be allowed as a reasonable accommodation for people who
have a disability that requires such an animal. For example, a visually impaired person may have a service
animal. Somewhat less established is the right of a person with a mental disability to have a companion animal.
“…AARP understands that [Emotional Support Animals] is an important issue for our members. Our policy
book recognizes the many benefits of having a companion pet for those 50 and older, such as improving both
their physical and mental health. AARP feels that state and local governments should promote policies that
allow pets in housing, as long as they are subject to appropriate rules and regulations affecting health
and safety.”
– Laura Cantwell, AARP Florida Program Coordinator
Recommended Reading:
Every Dog’s Legal Guide: A Must Have Book for Your Owner by Mary Randolph
Ensuring a “Yes-Pets” Rule – reprinted from the American Bar Association’s “ABA-TIPS Animal
Law Committee Newsletter” (Spring 2007)
You can either view or order a print copy of the “Best Friends for Life” booklet from Doris Day
Animal League which goes into a lot of detail about pet guardianship laws covering your right to
have an animal companion in various kinds of housing situations. (Read this publication here.
If you need the free viewer to read the online .pdf version, you can download it from Adobe.com. |
Citizens for Pets in Condos is all about making changes so you don’t have to be considered
sick to do something that is entirely normal – have an animal companion for all of the many
benefits it could have.
California currently is the only state that already has a law allowing pets in condos:
California Civil Code Section 1360.50, signed into law in 2000 and effective Jan 2001> states that:
’No governing documents shall prohibit an owner of a separate interest within a common interest development
from keeping at least one pet within the common interest development subject to reasonable rules and
regulations of the association.” The law also applies to mobile home parks. Under California law, “governing
documents,” by the way, includes “operating rules.”’
In Fair Employment Housing Commission v Auburn Woods I, a California Appeals court established
the “companion animal” principle, namely: that companion animals are as vital to the emotional health of their
owners as service dogs are to the physical well-being of persons with disabilities. The principle was re-stated
in the press release by the Department of Fair Employment and Housing after the Appellate ruling.
(see http://www.calhomelaw.org/doc.asp?id=420).
Delaware has a law, which says that the elderly and disabled renters must be allowed to have one pet.
New Jersey:
In 2006, ASPCA advocates supported a bill in New Jersey to make more animal-friendly housing available. |
