Community Associations – Falsifying Need For Emotional Support Animals – Is it Dr. Ben Carson To The Rescue?

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (407) 992-2251 / (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.

The term “Emotional Support Animal” is supposed to be taken seriously as these animals are supposed to be for the mental and physical assistance of persons in actual need. Unfortunately the term has now a negative connotation as there is a tremendous amount of fraud being perpetrated in order to bypass pet restrictions in community associations. Is it Dr. Ben Carson to the rescue? Possibly so.

On November 6, 2019, Dr. Carson, the 17^th United States Secretary of Housing and Urban Development, issued a memo to Andrew Smith, Director of the Bureau of Consumer Protection, U.S. Federal Trade Commission, addressing the wide spread issue of persons obtaining fraudulent documents to claim their pets as emotional support animals in order to avoid otherwise valid pet restrictions in housing. The Fair Housing Act (FHA) and applicable regulations prohibit discrimination on the basis of disability in the sale or rental of a dwelling and in other housing-related transactions. Under the FHA, it is illegal for housing providers to refuse to grant reasonable accommodations for individuals with disabilities substantially limiting a major life activity when it may be necessary for such individuals to have equal opportunity to enjoy and use a dwelling. One type of common accommodation is an exception to a housing provider’s pet rules to permit an individual with a disability to keep an assistance animal.

Assistance animals are not pets. An assistance animal is one that works, performs tasks, or provides assistance for the benefit of a person with a disability. Under the FHA, assistance animals are not required to be “registered” or “certified”. Dr. Carson is rightfully concerned with websites that “provide diagnosis” of emotional support needs and issue emotional support need certificates to persons who visit their sights. As stated by Dr. Carson:

“[t]he websites in question offer documentation that is not reliable for purposes of determining whether an individual has a disability or disability-related need for an assistance animal because the website operators and health care professionals who consult with them lack the personal knowledge [of the person in need] that is necessary to make such determination. The websites typically obtain information from the individual purchasing documentation by requiring the individual to answer an online questionnaire or, at most, having the individual participate in a brief interview.”

In his November 6, 2019 letter to the Federal Trade Commission, Dr. Carson requests that an investigation be made to determine if such websites violate the FTC Act or any other authority that the FTC is empowered to use in its efforts to protect consumers from deceptive and unfair business practices. Therefore the wheels are in motion to hopefully have some clarifying rulings in the near future to correct the abuse of the “emotional need” category of animals in the community association by hopefully limiting or eliminating websites providing bogus approvals of emotional support need.

If you are interested, you can obtain the full text of Dr. Carson’s memo, please visit https://www.hud.gov/sites/dfiles/Main/documents/11_06_2019_Letter.pdf

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. Associations should seek legal advice for all issues related to this article. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.