[RPPTL LandTen] EMOTIONAL SUPPORT ANIMALS
Carlos Arias
Carias at ablawfl.com
Wed Aug 19 09:10:04 PDT 2015
Just to clarify, HOAs are not subject to ADA unless they hold themselves out to the public such as a condotel. HOAs are subject to the Fair Housing Act. Additionally, you need to be careful to understand whether the request is for a service animal or emotional support animal. The latter is much easier to qualify for and a note on a prescription pad would be sufficient to place you on notice of the need for the support animal.
Best regards,
Carlos R. Arias
[Arias Bosinger Law Firm Logo-01]
140 N. Westmonte Dr., Ste. 100A
Altamonte Springs, Florida 32714
Tel: 407.636.2549
Fax: 321.280.2489
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Martin Lawyer
Sent: Tuesday, August 18, 2015 2:32 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] EMOTIONAL SUPPORT ANIMALS
Just so know, Harry, any insurance company that refuses to insure under the circumstances you describe would be violating 42 U.S.C. § 3604. Thus, an apartment landlord would have a claim against the insurance company.
I don’t see what’s so difficult about asking a consumer to prove a “handicap” and to also prove the nexus between the handicap and the accommodation that is requested.
A note on a prescription pad is generally not sufficient.
Most HOA law firms are backing off from the hard lines. Here in Tampa, the big firm is Bush Ross; and their former department head, Steve Mezer, just left to be a department head at Becker, Poliakov. He is a frequent speaker at Community Association CLEs, so you might seek out his opinion.
If an HOA sues a unit-owner landlord (your client, I suppose) for failing to evict, then the unit owner and the tenant can jointly defend and, upon prevailing be awarded an attorneys fees.
Within the past year, we represented a home-renter whose landlord home-owner joined with us (or we with him) in defeating an eviction lawsuit brought by the subdivision HOA. The discrimination was based upon “familial status” because the HOA folks thought our client had too many children (7).
= = = =
The term “service animal” would be appropriate in application of the Americans with Disability Act for persons with physical and/or mobility impairments; and HOAs and insurance companies are subject to that law as well.
Marty
C. Martin (Marty) Lawyer, III
Florida Bar # 128095
Bay Area Legal Services, Inc.
1302 N. 19th St., Suite # 400
Tampa, FL 33605-5230
(813) 232-1222, Ext.109
FAX: 248-9922
“Preserving Independence, Hope and Dignity”
From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, 18 August, 2015 13:08
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
Thank you Marty,
For the record, I am not advocating for or against service animals. We all just need firm advice we can safely give. It is exploding in college towns right now as the students are all getting prescriptions from their doctors.
I would like the big firms who work for all the associations to chime in as they take a very hard line approach with the person requesting the service animals and are causing us a lot of problems and liability to the unit owners and their property managers.
If there is enough interest, I can put some pressure on the National Apartment Association and the National Multihousing Council and FAR can pressure NAR. It is almost an emergency situation and then add to that the dog exclusions in all the homeowner’s insurance policies. A clear legislative fix is needed ASAP.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Martin Lawyer
Sent: Tuesday, August 18, 2015 12:39 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
Dear Harry (and others):
I can provide the perspective of the tenant/consumer of housing services in the context of the U.S. Fair Housing Act as amended in 1988 (signed into law by President Ronald Reagan).
The fact you most need to know about the “animal” situation is that the law’s focus is on the person -- not the animal. Thus, a landlord’s or HOA’s prohibition and regulation of “pets” is fairly well useless in defense of claims under the Act.
The Act is found at 42 U.S.C. §§ 3601 et sequitur.
For your purposes, the operative statutes are § 3602(h) (definition of “handicap”) and § 3604(f) (special rights of persons with “handicaps”). I have attached formatted versions of both statutes.
You also need to recognize that the Act does not protect persons with “disability”. It protects persons with “handicap”. “Handicap” is a much broader, more inclusive category. If you have trouble rationalizing this, remember that with the “Education of All Children’s Handicap Act”, kids who are “gifted” and in honors classes are considered “handicapped” requiring special educational adjustments.
Thus, the first question of proof is: Does the consumer have a “handicap” that is recognized by a person entitled to give opinion testimony in a court of law. The law does not require opinion testimony; but I would never make a claim/request without its existence.
The second question is: Is there a condition of the premises (or the provider’s rules) that adversely affects the consumer’s handicap?
The third question is: Is there a “reasonable action” that the provider can take that will “accommodate” the consumer?
The one factor in the Act in the housing provider’s favor is that the action requested by the consumer must be reasonable.
To give an exaggerated example, the consumer may prove that he has an emotional need (not desire) to have an elephant present in the home; but no court in the U.S. would say that the provider has to allow the consumer to bring an elephant into the home.
However, you should know that the U.S. Dept. of HUD took a “canary” case all the way to U.S. 10th Circuit and won wherein the condo unit owner’s grandson had the emotional need for the canary. (Both parents of this minor child were killed simultaneously.)
= = = = =
I hope that you find the above brief synopsis useful and a good starting point.
Cheers !
Marty
C. Martin (Marty) Lawyer, III
Florida Bar # 128095
Bay Area Legal Services, Inc.
1302 N. 19th St., Suite # 400
Tampa, FL 33605-5230
(813) 232-1222, Ext.109
FAX: 248-9922
“Preserving Independence, Hope and Dignity”
From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, 18 August, 2015 11:51
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
I have never been at such a loss in my life on one area of law.
While I am not too into learning new law at this point, maybe we can get a small subgroup together.
I had 3 of these already today.
The main issue is what proof can be asked of the applicant/tenant for the service animal need and who is qualified to provide that proof.
I have seen some wild things/forms/info requests coming out of extremely large national and Florida firms who focus on representing associations. I do not think they are legal. I would welcome their input as they are putting their neck out on the line for these associations.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary P. Sabol, Esq.
Sent: Tuesday, August 18, 2015 11:40 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
I actually attended a CLE on this issue recently and my guess would be that there probably are not any private attorneys who feel confident in this area of law right now. Even the attorney from the housing commission who gave the presentation acknowledged there is a lot of confusion and conflicting rules when it comes to application of ADA, Fair Housing, Fed. laws and State Statutes. I have found it's almost impossible to give the right answer to a property owner. If one set of laws doesn't apply or allows for a certain course of action, then there always seems to be another set of laws that is the opposite.
I would love to see any CLE's or discussions on the issue because as Harry said, this is not going away.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Office: (561) 413-4449
Cell: (561) 281-2744
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-------- Original Message --------
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals
etc.
From: Jariel Bortnick <jariel.bortnick at gmail.com<mailto:jariel.bortnick at gmail.com>>
Date: Tue, August 18, 2015 10:58 am
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
To start, maybe we could do a section CLE on the topic?
Jariel
On Tue, Aug 18, 2015 at 10:36 AM, Harry Heist <harry at evict.com<mailto:harry at evict.com>> wrote:
We need an attorney who REALLY knows this law inside and out for referrals for questions.
We are buried in questions and requests that we cannot answer or are uncomfortable in answering.
We just saw a Florida case the other day where a Florida attorney’s blatant bad advice cost an association over 20K
Never in 25 years have I seen this. It is totally out of control.
We have an attorney we refer all the time in Georgia but we are looking for one who knows this law inside and out in Florida and is prepared to go out on a limb and actually answer questions.
You all probably know we have a LOT of clients. This could be good opportunity for someone who really knows the law, is keeping up on it 100% and can give a solid answer.
This stuff is NOT going away.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428<tel:1%20800%20253%208428>
FAX: 1 800 367 9038<tel:1%20800%20367%209038>
"Serving the Property Management Professional"
Website: www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
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Jariel Bortnick
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