Understanding emotional support animals in housing.

Numerous websites such as Pettable, CertaPet and US Service Animals advertising how easy it is to qualify emotional support animals. This broad application and enticement into a "work around" has been a growing focus area causing businesses and housing bodies to focus in on the legitimacy of emotional support animals and how that applies to access. In 2020, the Florida Legislature passed a bill affecting emotional-support animal guidance in Florida. The law created new clarifications for emotional support animals. It’s important to understand exactly what the law does and does not do. A major point under the new law: Some sort of certificate or other online registration obtained via the internet, by itself, is insufficient to establish that the person has a) a disability or b) a disability-related need for an ESA.

Emotional support animals was category created to help people overcome anxiety or other psychological ills and are different from “service animals,” which are trained to help people with disabilities navigate their surroundings or to warn owners of physical ailments such as low blood sugar. There are specific criteria for service animals in state or federal law, mostly having to do with training or the performance of specific tasks, and the animals are protected by the Americans with Disabilities Act (ADA). Emotional support animals don’t have the same ADA protection.

Under federal Department of Housing and Urban Development (HUD) guidance, emotional support animals are allowed in homes and apartments. Landlords are allowed to ask for documentation that the person needs the animal. In practice, a certification from a therapist or counselor that says the animal helps with anxiety, depression or other ills usually suffices. Pursuant to Section 760.27 of the Florida Statutes, “it is unlawful to discriminate in the provision of housing to a person with a disability or disability-related need for, and who has at or at any time obtains, an emotional support animal.” Translation: If a prospective buyer or tenant has an ESA or, at any point time obtains an ESA, the housing provider may not discriminate on this basis.

A person, i.e. a buyer or tenant, with a disability or disability-related need must be allowed to keep the animal in his or her dwelling as a reasonable accommodation in housing. Additionally, they cannot be charged extra for the animal. In other words, you cannot charge a pet fee/deposit for an ESA. This part of the law effectively mirrors existing federal law. (Note: A person with a disability or a disability-related need is liable for any damage done to the premises or to another person on the premises by his or her ESA.)
So what can a housing provider ask of a person with an ESA? The statute breaks down what may be requested in relation to what the housing provider is trying to establish: One, that the person does, in fact, have a disability, and two, the disability-related need for an ESA. It’s important to note that this information could come from different sources.

First: Establishing the person has a disability
When not readily apparent, housing providers are able to ask for “reliable information that reasonably supports that the person has a disability.” The statute goes on to list supporting information that may be requests, including:

1. A determination of disability from any federal, state or local government agency
2. Receipt of disability benefits or services from any federal, state or local government agency
3. Proof of eligibility for housing assistance or a housing voucher received because of a disability
4. Information from a qualified health care practitioner, telehealth provider or any other similarly licensed or certified practitioner or provider in good standing with his or her profession’s regulatory body in another state, but only if such out-of-state practitioner has provided in-person care or services to the tenant on at least one occasion. 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
5. 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 Act of 1973

In other words, when a person’s disability isn’t readily apparent, a housing provider may request information to support the claim of a disability. This could come in various forms, i.e. receipt of disability benefits from the state or a letter from a treating health provider stating the person does in fact have a disability.

Second: establishing the need for an ESA
Again, when not readily apparent, housing providers are able to ask for “reliable information that reasonably supports the person’s need for the particular emotional support animal being requested.” The statute clarifies that this information may include:

1. Information identifying the particular assistance or therapeutic emotional support provided by the specific animal from a qualified health care practitioner, telehealth provider 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 Act.

Namely, in establishing the need for a particular ESA, a housing provider may ask for evidence to show the need for the ESA itself. The law also states that if the person requests to keep more than one ESA, the housing provider can ask for information specific to each animal. This is in addition to being able to request proof of vaccinations.
It is also important to understand what cannot be asked for. Specifically, the law states that a housing provider may not request information that may disclose or reveal the actual diagnosis or severity of a person’s disability. Nor can any medical records be requested relating to that disability. If the person, i.e. tenant or buyer, chooses to provide this information, that is at the discretion of that individual.
Additionally, while a housing provider may develop and make available to persons a “routine method” for receiving and processing reasonable accommodation requests for ESAs, a housing provider may not require the use of a specific form or notarized statement, or deny a request solely because a person did not follow the housing provider’s “routine method.”