Q. I live in a 40-unit condo building with a no pet amendment from 1980. A woman recently purchased a unit and has been seen with a dog, and the dog barks all the time. She signed all the disclosure forms stating we don’t allow pets or renters, but has given the board a note from a nurse practitioner stating that the dog is an emotional support dog. What can we do?
—Up in Arms
A. “Unfortunately there are individuals that abuse the right to have a service animal or emotional support animal,” says Nicki Fernandez Asmer, an attorney for the Tampa-based firm FL Legal Group. “Certain individuals who have disabilities are afforded rights and protections under the Americans with Disabilities Act (ADA) and the federal and Florida Fair Housing Acts (FHA) with regard to service animals.
“Don’t confuse a service animal from an emotional support animal. These are two very different categories. The ADA defines a service animal as a dog that has been specifically trained to work or perform tasks for a person with a disability. Emotional support animals are not service animals, but there are psychiatric service animals. Dogs that are trained to detect and lessen an anxiety attack are examples of service dogs for these types of disabilities.
“The ADA applies to places of public accommodation, such as hotels and restaurants. However, the ADA does not apply to condominium associations or homeowners’ associations, unless the association permits public accommodations, or functions as a hotel. For example, if the association allows stays of 30 days or less, or other characteristics of a hotel….
“Associations are almost always governed by the federal Fair Housing Act (“FHA”), which prohibits discrimination against disabled persons in housing. If a “housing provider,” which includes condominium and homeowners’ associations, refuses to make a ‘reasonable accommodation’ in its rules, policies, practices or services, or refuses to allow an owner to make a “reasonable modification” when such accommodation or modification may be necessary to afford a handicapped person an equal opportunity to use and enjoy a dwelling or the common areas associated with the dwelling–then a handicapped individual may be entitled to keep an assistance animal as a reasonable accommodation if the person has a real handicap and there is a nexus between the handicap and the assistance the animal provides.
“Unfortunately, I’ve had several association clients faced with homeowners and tenants that abuse this area; the law favors protecting the rights of people who want pets in ‘no pet’ communities, regardless if those people have lied on their requests to have an animal as a necessity for emotional support. The rights of people, unfortunately, who specifically purchased a home in a pet-restricted community due to allergies or other health problems, are not protected by the government, and as a result the board is estopped from protecting their rights.
“Even though Fair Housing continues to remove most of an association’s ability to properly evaluate an emotional support animal request, the ultimate accommodation must still be ‘reasonable.’ So remember, the key question is, ‘Is it a reasonable request?’ It is important for the board to contact their legal counsel when a service animal or emotional support animal request comes through. The association could face a federal discrimination lawsuit if a reasonable accommodation request is denied.”