Seyfarth Synopsis: A new law in Florida takes aim at fraudulent requests for emotional support animals in housing by requiring that residents do more than provide online animal "registrations" or certificates, mandates that health care providers have personal knowledge of their patients' disabilities and related needs before supporting these requests under threat of professional discipline, and even provides for criminal penalties.
Florida recently enacted a law intended to combat fraudulent requests for emotional support animals in housing. Effective July 1, 2020, SB 1084 provides that animal registries, certifications, and similar online documents are insufficient to support these requests. Significantly, the law also provides a basis for professional discipline for health care practitioners that issue supporting documentation without personal knowledge. Further, it imposes criminal penalties for those who make or support fraudulent requests for these animals in housing.
What is an emotional support animal? SB 1084 defines it 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." Contrast that with a service animal which, by definition, must be trained to perform work or tasks for a person with a disability.
The federal Fair Housing Act has always required housing providers to accommodate emotional support animals. SB 1084 adopts that requirement under Florida law and provides guidance about the documentation that a housing provider can ask for when considering a request to accommodate an emotional support animal.
For example, a housing provider can only request medical support when the resident's disability is not readily apparent, and it cannot require disclosure of the resident's diagnosis or severity of a disability. If the evidence that the resident provides is sufficient, then the provider cannot charge a fee or higher rent based on the animal (but it can assess charges for property damage caused by that animal). Additionally, consistent with federal rules, the Florida law provides that a housing provider is under no obligation to accommodate an animal that poses a direct threat to the health or safety of others, where that threat cannot be reduced or eliminated by another reasonable accommodation.
The Florida law goes further than federal law, however, to address what type of supporting evidence is and is not legally sufficient for emotional support animal requests. Also, unlike federal law, SB 1084 imposes penalties on those who make (and support) fraudulent requests. Here are the key aspects:
Online Registries and Certifications Insufficient. An emotional support animal registration of any kind, including an identification card, patch, certificate, or similar registration document obtained from the internet is not, by itself, sufficient to show a resident disability or need for the animal. For health care or other practitioners to provide reliable information about resident disabilities and emotional support animals, they must have personal knowledge of the resident's disability and be acting within the scope of their practice to provide the supporting information.
Out-of-State Support Limited. The law places limitations on out-of-state health care and other practitioners (excluding licensed telehealth providers) that certify these requests. To document that a resident has a disability, an out-of-state practitioner must have provided in-person care or services to the resident on at least one occasion.
Potential for Professional Discipline For Health Care Providers. Offering information about either a person's disability or disability-related need for an emotional support animal, without personal knowledge, is grounds for disciplinary action.
Criminal Penalties. A person who falsifies information or documents, or knowingly provides fraudulent information or documents, to support an emotional support animal request, or who otherwise knowingly and willfully misrepresents their disability status or needs, commits a misdemeanor offense in the second degree. A convicted offender must also perform 30 hours of community service for an organization that serves people with disabilities, or another organization designated by the court.
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Reports of outlandish or exotic animals being passed off as emotional support animals on airplanes or in housing, while often entertaining, obscure the legitimate function of these animals for people with disabilities. Emotional support animals are not pets, and often provide critical assistance for people with disabilities. Also, "no pet" rules in housing serve the legitimate function of reducing animal hair and dander in living spaces for the benefit of residents with allergies and other respiratory disabilities and impairments.
The Florida law is a welcome development for housing providers that seek to abide by their "no pet" rules, and make exceptions only for non-fraudulent requests by residents with disabilities. Other jurisdictions facing similar abusive practices may take note and consider whether to implement their own legislation in the future.
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