Pretending Your Pet is an Emotional Support Animal is Now a Second Degree Misdemeanor in Florida

The emotional support animal or “ESA” designation is not intended to be a certificate you purchase online for Fluffy to avoid the inconvenience of pet restrictions. However, across the nation, for $99, that is much of what it has become.

ESAs are intended to provide emotional support to an individual with a disability. In relation to housing, ESAs and other assistance animals are protected by both the Florida and Federal Fair Housing Acts (FHA), which require that individuals be provided a reasonable accommodation to an Association or housing provider’s rules, regulations, policies, and procedures.

Under the FHA, an ESA, or more broadly an assistance animal, is defined as an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. No training is required of the animal, no formal certification is required, it can be any type of animal, and that animal is not treated as a pet. Therefore, in the event there is a pet exclusion, restriction on size or weight, or a pet deposit required, a reasonable accommodation from same is required absent some exclusion.

Typically, an Association or housing provider can only deny a reasonable accommodation request for an ESA if the animal poses a “direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others which threat cannot be reduced or eliminated by another reasonable accommodation.” Under the FHA, Associations or other housing providers had the ability to request additional documentation in considering the reasonable accommodation.

However, Associations could only do so if what the animal does for the person was not “obvious or readily apparent”. So, what could an Association actually ask for? Could they request medical records? The short answer is no. Associations could only ask for specific documentation indicating that the individual (1) has a disability; and (2) that the animal for which a reasonable accommodation was requested provides support for that person, or alleviates a disability related symptom or need. A disability is defined as a physical or mental impairment that substantially limits one or more major life activities or the operation of a major bodily function. Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, interacting with others, concentration, bending, reading, sleeping, thinking, standing, and communicating. See 42 U.S. Code § 12102(2)(a).

However, even with the ability to request specific documentation, many Associations and housing providers were reluctant to do and reluctant to question the validity of documents they did receive for fear of being accused of discrimination, which is a heavy accusation especially in today’s world. HonestESA, a targeted advocacy campaign launched by CALL, amongst others in Florida, expressed frustration with this procedure and abuse of the ESA designation and pushed for change. In its article titled “Honest ESA INITATIVE STARTS NOW!”, HonestESA states,” Growing frustration over perceived illegitimate ESA requests unites Florida community associations. Fraudulent ESA requests harm not only community associations by forcing them to spend limited resources and precious time evaluating sometimes blatantly fraudulent documentation but also harm persons with a legitimate disability-related need for an ESA.”

You can read the full article here: https://www.callbp.com/call-alerts/2020/01/call-alert-honestesa-initiative-starts-now/

The Florida legislature apparently heard the statewide frustration and ultimately passed Senate Bill 1084. Senate Bill 1084 was signed by the Governor on June 23, 2020.

You can read the Bill summary here: https://www.flsenate.gov/Committees/billsummaries/2020/html/2111 The full Bill is available here: https://www.flsenate.gov/Session/Bill/2020/1084

Pursuant to Senate Bill 1084, an ESA is now defined as, “an animal that does not require training to do specific work or perform special tasks for a person with a disability but, by virtue of its presence, provides support to alleviate one or more identified symptoms or effects of a person’s disability”.

Additionally, pursuant to Senate Bill 1084, which created Florida Statute §817.265, it is now a crime to falsify information or misrepresent a disability related to the need for an ESA. This went into effect on July 1, 2020. Specifically, Section 11 of Senate Bill 1084 states:

817.265 False or fraudulent proof of need for an emotional support animal. A person who falsifies information or written documentation or who knowingly provides fraudulent information or written documentation to obtain an emotional support animal (ESA) or otherwise knowingly and willfully misrepresents himself or herself as having a disability or a disability related need for an ESA commits a misdemeanor of the second degree as punishable as provided in s. 775.082 or s. 775.083. In addition, a person convicted under this new law must also perform thirty (30) hours of community service for an organization that serves persons with disabilities or such other organization that the court determines is appropriate. (emphasis added).

Pursuant to Florida Statute 775.082(4)(b), that could mean up to sixty days in jail.

But what if you already have a letter from your doctor? As Lauren Sweeny, Wink News Investigative Reporter, covered in her 2017 story, “Airline industry: Emotional support animals fraud increasing”:

A WINK News investigation found that those letters can be obtained by filling out online questionnaires without seeing or speaking to a mental health professional.

Lauren Sweeney and Katie Cribbs, a reporter and producer on WINK News’ investigative team, completed the questionnaires. Within two hours, both were sent letters from licensed mental health professionals.

The cost ranged from $90 to $160.

You can see the full story here: https://www.winknews.com/2017/02/02/airline-industry-emotional-support-animal-fraud-increasing/

Florida’s legislature has also taken action to deter this practice through the same Senate Bill in two ways (1) health professionals are now subject to discipline; and (2) the documentation Associations and other housing providers can now request is much broader.

Florida Statute §456.072 was amended making health professionals subject to disciplinary action for providing information, including written documentation, that a person has a disability or which documentation supports a person’s need for an ESA without personal knowledge of the person’s disability. Additionally, pursuant to the new changes to Florida Statute §456.072, an out-of-state health care practitioner must have provided in person services or care to the individual on at least one occasion to qualify to prepare such documentation.

Additionally, now Associations and other housing providers can request all of the following:

1. Information identifying the particular assistance or therapeutic emotional support provided by the specific animal from a health care practitioner, as defined in s. 456.001; a telehealth provider, as defined in s. 456.47; or any other similarly licensed or certified practitioner or provider in good standing with his or her profession’s regulatory body in another state. Such information is reliable if the practitioner or provider has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.

2. Information from any other source that the housing provider reasonably determines to be reliable in accordance with the federal Fair Housing Act and s. 504 of the Rehabilitation 105 Act of 1973.

(d) If a person requests to keep more than one emotional support animal, request information regarding the specific need for each animal.

(e) Require proof of compliance with state and local requirements for licensing and vaccinating each emotional support animal.

However, a housing provider still may not request information that discloses the diagnosis or severity of a person’s disability or any medical records relating to the disability. Those can be voluntarily provided should the individual so choose.

How Florida intends to enforce these new statutory restrictions and penalties is yet to be seen. Clearly, the tone regarding ESAs in Florida is changing and now even carrying criminal penalties for those who falsify or willfully misrepresent their need and health care professionals who assist in same are now subject to discipline.

That being said, you may want to reconsider claiming your household pet is an emotional support animal. But what about traveling with these animals? Air travel with assistance animals is governed by the Air Carrier Access Act, amendments to which have also been introduced to the United States House of Representatives. You can read more information regarding same here: https://www.congress.gov/bill/116th-congress/house-bill/1549

Keep in mind, we may see a supremacy clause argument in the near future. As described in detail above, the scope of the Federal Fair Housing Act and the protection afforded therein is broad against discrimination. Florida’s attempts to limit such protections or establish increased regulation regarding same may ultimately be challenged.

Should you have any questions regarding your legal rights, contact Hamisch & Hurvitz, PLLC – (239) 216-4783.