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Proposed Florida Legislation Might Help Stem the Tide of Fraudulent Emotional Support Animal Requests

If there is one topic that unites all types of shared ownership communities regardless of their location, size, or demographics, it is a growing frustration over fraudulent emotional support animal (ESA) requests. Communities throughout Florida have seen their ability to enforce reasonable pet restrictions eviscerated as more residents make dubious claims about needing an ESA.

Fortunately, there may be some legislative relief on the horizon. As previously reported by CALL, there are two legislative proposals aimed at combatting the very fraud identified by the more than 1,100 Florida residents who participated in our ESA survey over the summer. Our survey revealed a consensus that fraud plays a large role when individuals want pets in pet-restricted communities. The increasing volume of these requests has resulted in a cottage industry of online “medical providers” willing to submit form-driven paperwork to support these requests. And, there appears to be no end in sight until such time as the legal landscape changes.

More than 75% of survey respondents were board members or managers. Respondents were evenly split between men and women and Broward, Collier, Lee, Miami-Dade, Palm Beach, and Pinellas counties had the greatest participation. Eighty percent of the survey respondents live in condominiums and more than 60% live in communities with more than 100 units. Ninety-five percent of our survey respondents indicated that they have some pet restrictions in their governing documents. Only 30% claim to be an entirely “pet free” community. Over 44% of the respondents receive between 1-4 ESA requests each year. Twenty-one percent receive more than five of these requests each year.

Across the board, respondents indicate that these requests for ESAs are increasing each year and, in some cases, more than doubling each year. Thirty-two percent responded that they always have legal counsel review their ESA requests, while a quarter of respondents go it alone without the benefit of counsel. This may explain why over 76% have never disapproved an ESA request, which may also indicate that these boards are “rubber stamping” these requests to avoid conflicts or they are using counsel who may not understand the intricacies of the Fair Housing Act.

Notwithstanding the high approval rate for ESA requests, nearly 94% of respondents stated that their principal concerns are that most of the requests they receive are fraudulent. Over 93% of respondents currently own or have owned a pet at some point in their lives so the issue is not one of being anti-pet but rather anti-fraud. Over 87% of respondents would support a requirement that a medical professional signing a letter supporting the ESA request have treated the individual for whom they are submitting such paperwork within a reasonable time frame. Over 83% support subjecting medical professionals who write fraudulent letters to criminal penalties as well as the owners submitting same.

Undoubtedly there are legitimate requests by disabled residents that should be accommodated, but how those requests are verified and how fraud is prevented and punished is the subject of two newly filed bills. While HB 721, sponsored by Representative Sam Killebrew (R-Polk County), has been indefinitely postponed, HB 209, co-sponsored by Representative Tina Polsky (D-Palm Beach County), is currently making its way through subcommittee review. In brief, both bills would make it a misdemeanor of the second degree if any person falsifies written documentation for an emotional support animal or otherwise knowingly and willfully misrepresents themselves as being qualified to use an emotional support animal. Equally significant, these legislative proposals address the quality of the written documentation that must be submitted from the health care provider in support of the request for accommodation. First, the bills would require the Department of Health to adopt rules regarding the format of the required written documentation. Second, these bills would require that the treatment provided to the disabled person must go beyond merely writing a letter. If passed, these bills would prohibit letters prepared by health care practitioners whose exclusive service to the person with a disability is preparation of the document in exchange for a fee. Many fraudulent ESA requests are currently successfully pursued on the basis of letters obtained over the internet from providers who provide no real treatment to the individuals seeking an ESA.

Not only is Florida starting to pay attention to the proliferation of fraudulent ESA requests, but at the federal level the Department of Housing and Urban Development (“HUD”) is also stepping up its efforts to prevent exploitation of the system. In a letter to the Chairman of the Federal Trade Commission (“FTC”) and the Director of the Bureau of Consumer Protection, the Secretary of HUD expressed concern with online companies that profit from selling bogus documentation at the expense of those with legitimate needs. It has always been the position of HUD that letters, registrations, or certificates purchased online are insufficient to warrant an accommodation, but now, by urging the FTC and Department of Consumer Protection to prosecute the websites selling scam documentation, HUD has suggested a path by which these companies can be held accountable and fraud can ultimately be prevented.  Click here to read the Secretary of HUD’s letter.

We will continue to advise you of the progress of the Florida bills and any further developments from HUD and encourage all of our CALL followers to stay tuned for more ways to get involved. For now, if you’d like to show your support for HB 209 and HB 721, please click here to use our Legislator Connect feature.

If you’d like to read the full results from our survey, Helpful or Harmful? Emotional Support Animals in Your Community? please click here.

 

Donna DiMaggio Berger

Donna DiMaggio Berger

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.