THE HONEST BROKER : QUALIFICATION OF EMOTIONAL SUPPORT ANIMALS (ESA)
BY: DIANE LOTT, BROKER PARADISE FOUND REALTY
The Florida legislature recently passed a law for emotional support animals (ESA) in housing. On July 1, 2020, the law went into effect. People with disabilities and disability-related needs for an ESA are entitled to reasonable accommodations to have the animal, which cannot be deemed a “pet” for purposes of exclusion or fees. Landlords, property managers and community associations should understand the statute to comply with the rights of tenants and homeowners under fair housing and disability laws. Not following the law will cause costly penalties for legal violations and apply penalties for fraudulent use of claiming an ESA.
There is a difference between an ESA, a service animal, and an assistance animal. Though many use the terms interchangeably, they have different legal meanings. An ESA may be any species that provides comfort to people with disabilities by addressing a disability-related need. The new Florida law defines an ESA as “an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence, which alleviates one or more identified symptoms or effects of a person’s disability.” The use of an ESA must be supported by a qualified physician or mental health professional based on a disability-related need. Under federal and Florida law, the disabled are entitled reasonable accommodations for ESA in housing and air travel.
Under the Americans with Disabilities Act, a service animal is a dog or miniature horse trained to do work or perform tasks for the benefit of a disabled person. Service animals enjoy broader legal protections and are entitled to greater accommodations and access to public places than ESA.
Multiple federal laws and Florida law require reasonable housing accommodations for assistance animals. They are defined as animals that work or aid with the benefit of persons with disabilities or give emotional support to alleviate identified symptoms of disabilities.
The new Florida statute provides the proper criteria to determine whether an ESA applicant has a disability. Various types of supporting documentation include a determination of disability from a government agency, proof of eligibility for financial housing assistance based on a disability, and information from a qualified health care provider with personal knowledge of the person’s disability, among other acceptable forms of evidence. A qualified health care provider may be asked to identify the assistance or therapeutic emotional support the animal gives.
The law also establishes new protections for ESA applicants. It prohibits housing providers from requesting certain kinds of information, including medical records, relating to the claimed disability. The applicant may not be required to use a specific form and a request can’t be denied solely for not following a routine method for supplying supporting information.
On the flip side, housing professionals lobbied for legal reforms to address a growing pattern of abuse and fraud with ESA. Many have sought to avoid landlord and community association prohibitions against pets by claiming their animals to be ESA. In response to these practices, the law creates more consistent standards for qualifying ESA and new penalties for false claims.
These anti-fraud reforms include making it a misdemeanor to knowingly provide false information or otherwise misrepresent oneself as having a disability or disability-related need for an ESA. A healthcare professional who states that a person has a disability or need for an ESA without personal knowledge of the disability is now subject to disciplinary action.
Significantly, the new statute addresses the proliferation of a cottage industry of certifying authorities selling ESA certificates without standards. It has become easy to download certificates online without submitting legitimate proof of a disability or related ESA need. Now, an ESA registration or certificate of any kind, by itself, is insufficient to establish a person has a disability or disability-related need for an ESA. The new law seems to balance the rights and legitimate needs of disabled people with clearer guidance and protections for housing providers.
Diane Lott, Broker
Owner: Paradise Found Realty
Paradise Found Realty, Inc. of Palm City
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