Chapter 760 of the Florida Statutes protects residents of the state who need emotional support animals (ESA) while penalizing providers of fake online certificates that are designed to claim that any animal is an ESA. The statute specifies the type of certification used to verify an ESA, therefore protecting those who have legitimately documented animals for emotional support purposes.

As a result of these statutes, Florida condo associations must now respect the rights of residents to have an ESA despite general restrictions on pets. On the other hand, the statutes provide condo associations with a legal tool to prevent the formerly commonplace fraud of passing off pets as ESAs.

What Are Emotional Support Animals (ESA)?

For legal purposes, it is important to identify what an ESA is and isn’t.

An ESA is any species of animal that can provide comfort to a person with a disability by remedying a disability-related emotional need. The statute states that an ESA must be “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.”

A currently qualified physician or mental health professional may prescribe the use of an ESA for the purposes of managing a disability-related need.

It is important to note that an ESA is not a service animal. This is a distinction that is often not made in common parlance but that exists legally. The Americans with Disabilities Act (ADA), defines a service animal as a dog or miniature horse that is specifically trained to perform tasks for a blind or otherwise disabled person. When it comes to legal protections, a service animal enjoys greater accommodations and access to public places than an ESA would. Therefore, it is very important not to confuse these two distinct classes of animal companion.

A Cause of Concern for Condo Associations

Prior to the current Florida state laws which were passed in July 2020, there had been an established pattern of fraud and abuse regarding the permission to have ESAs on a condo association. People regularly circumvented community association rules against pets by claiming that their pets were ESAs. The Florida statute is, in part, an anti-fraud reform that stipulates a more consistent standard for determining the requirements of an ESA and sets out penalties that can be levied on those who make false claims.

It is now a misdemeanor to knowingly provide false documentation that misrepresents oneself as having a disability-related need for an ESA and healthcare professionals that aid and abet such misrepresentation are subject to disciplinary action.

“An [emotional support animal] is any species of animal that can provide comfort to a person with a disability by remedying a disability-related emotional need.”

ESA Documentation Criteria

Florida statute defines the criteria that determine whether an ESA applicant has a qualifying disability. In the absence of a readily apparent disability, an applicant would be required to give official proof that such disability exists and that it is a qualifying disability.

The list of supporting documentation must show that an individual has a disability and that the disability qualifies as one that reasonably requires an ESA.

To prove a disability, a resident can present a government agency’s determination of disability, such as a document showing eligibility for financial housing assistance based on the disability. A letter from a qualified health care provider is also an acceptable form of evidence that a disability exists.

Once a determination is made that a disability exists, Florida statute makes clear what documentation is needed to establish that a disabled person medically requires an ESA. This documentation needs to be written by a medical professional who is acting in the capacity of treating the disabled person and needs to explain the specific support that the ESA provides to the disabled person.

Disabled people preparing to present documentation to their condo association would check with a real estate attorney with experience in condo association law to ensure that the paperwork presented provides a sufficient legal basis to support their ESA.

ESAs in Florida Housing

Pre-existing federal law as well as Florida statute stipulates that the disabled are entitled to reasonable accommodations being made for ESAs in housing. These laws prohibit housing providers, including condo associations, from demanding certain types of information (eg: a disabled person’s medical records). An applicant also cannot be required to fill a specific form and denials cannot be based solely on a failure to follow a certain process or routine.

Multiple federal laws and Florida law require reasonable housing accommodations for assistance animals. Assistance animals are defined as either service animals or ESAs, any animals that work or provide assistance for the benefit of persons with disabilities or give emotional support to alleviate identified symptoms of disabilities.

Those in Florida seeking enforcement of the legal protections granted by the federal and state laws for ESAs are advised to seek out an attorney that is experienced in real estate matters and matters regarding condo associations in particular.

South Florida Law

Florida law and federal housing laws seek to balance the rights and medical requirements of the disabled while protecting housing providers from fraudulent claims that attempt to pass off pets as ESAs. If you are a condo owner with an ESA, a property manager or a condo association board member worried about fair housing and disability rights compliance, contact South Florida Law on (954) 900-8885 or via our contact form.