Emotional Support Animals: Legal but Still Fought
By Guest Blogger Maida Genser
President Citizens FOR Pets in Condos
Published July 6, 2012
Most people know that service animals are allowed in places where dogs are not usually allowed. The U.S. Department of Justice is the agency that regulates service animals through the Americans with Disabilities Act.
Emotional support animals are yet another type of assistance animal.
The U.S. Department of Housing and Urban Development (HUD) regulates emotional support animals through the Fair Housing Amendments Act. (The U.S. Department of Transportation regulates law allowing emotional support animals in airplanes.) As opposed to service animals, emotional support animals do NOT need to be trained to do a specific task to do assistance. ESAs assist persons with certain types of disabilities by simply providing companionship and affection. Citizens for Pets in Condos does, however, strongly encourage getting Canine Good Citizenship or equivalent training for all dogs to reduce potential nuisance issues.
Emotional support animals (ESAs) are allowed in a disabled person's home and in airplanes. ESAs are not allowed in places of public accommodation like grocery stores and movie theaters.
Furthermore, while currently only dogs (and in some circumstances, miniature horses) can be service animals, there are no such restrictions on emotional support animals. Your cat, bird, gerbil, etc. can be your ESA.
Get more detail on the definitions of types of assistance animals here.
In October of 2008 the U.S. Department of Housing and Urban Development published new rules intended to codify its existing policies regarding emotional support animals. The HUD rules clarify some misconceptions regarding a housing provider's obligation to allow ESA's in "no-pet housing" as follows:
1. Specialized task training of ESAs is unnecessary.
2. Documentation of the need for an ESA may come from a "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.
3. There is no need for formal CERTIFICATION of the disability.
For more detailed information see our legal information tab.
What types of housing are covered by the fair housing 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).
If you are under treatment for anxiety, depression or other emotional disorders, you may qualify to get a reasonable accommodation to have an emotional support animal, with proper documentation. The person requesting the accommodation must show that they have a disabling condition (mental or physical) that substantially limits one or more major life activities. The applicant must also show a "nexus" or relationship between having an ESA and alleviating the condition.
Emotional disability can be difficult to prove because, unlike a physical disability, it is not always apparent to the observer. A person can be in tremendous emotional pain and distress, yet still be able to function at work, just not be able to unwind and live a normal life at home.
Citizens for Pets in Condos says medical and mental health professionals should be the ones to determine whether someone has an emotional or mental disability - not lawyers, not association board members, not condo managers. Let the proper professionals decide, without asking people to reveal sensitive and possibly embarrassing details that are no one else's business!
Ever since October, 2008 condo law firms have been pushing back, trying to find loopholes by which to deny waivers of no-pet rules. Condominium associations and condo lawyers have tried creating overly intrusive forms to be filled out by people requesting ESAs and their physicians/mental health counselors. Also they have been known to force applicants to agree to unreasonable stipulations in conciliation agreements when allowing an ESA. For instance, agreements say that a dog cannot be walked through the complex, or only in the back where there are canals with alligators. Another example is saying your dog cannot be brought to a neighbor's unit, even if they want the dog there. Citizens for Pets in Condos sees all these strategies as not fitting the intent or spirit of fair housing law. In one instance we heard about, someone was told she could not even associate with other people who had animals - which we believe is in violation of first amendment rights and Florida law.
Another tactic used against people with assistance animals is to make false claims of nuisance animal behavior. No one wants a constantly barking dog or animal waste that has not been cleaned up. The answer is responsible animal care and good neighbors who only complain if there truly is an issue. Citizens for Pets in Condos is adamant that responsible pet owners / guardians should be able to keep their companion animals.
In matters of law pertaining to animals we defer to Marcy LaHart, Florida Animal Lawyer, on the advisory board of Citizens for Pets in Condos.