Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: We recently received a request for two emotional support animals. Our documents only allow one pet per unit and the potential purchaser is threatening to file a discrimination complaint if we do not allow the dogs. When we asked for documentation, the owner only provided a registration certificate with a national support animal registration. Are we required to allow the second dog?’
— A.F., Vero Beach
A: Possibly. There are a few issues here. First, it is important to remember that an emotional support animal is not subject to pet restrictions because it is viewed as a medical device rather than a pet. Florida law was recently changed to mirror some position statements from the Department of Housing and Urban Development that owners must provide supporting documentation for each pet when an owner requests more than one emotional support animal. In this situation, the person could have one pet and one emotional support animal, so the requesting party would only need documentation specifically addressing only one of the dogs. If your community was a no pet community, the person would need to provide documentation that each dog is separately necessary for the full use and enjoyment of the premises.
Next, irrespective of how many support animals are being considered, it is important to note that the association is allowed to request reasonably reliable documentation from a health care provider in the relevant field. This information must support a) that the person is disabled as defined by law; and b) that the animals are necessary for the full use and enjoyment of the premises as a result of the disability.
Here, these registration certificates are almost never reliable and should not be accepted without additional verification. These websites will charge a fee to “register” the animal where you pay money and get a certificate. A primary concern with this business model is that there is typically no independent verification that the person is disabled. In other words, the person requesting the registration certifies to the company that he or she is disabled and there is no independent verification. The Department of Housing and Urban Development has recently opined that these registrations website and on-line certifications are not reliable.
The thrust now appears to focus on reliable medical documentation from health care professionals with personal knowledge. In this case, there is a good chance that you could deny the request for an emotional support animal in addition to the pet allowance because the documentation provided is not reliable. All of this being said, this is an evolving and fact-sensitive analysis and I would highly recommend you have the request and supporting documentation reviewed by your legal counsel to provide an analysis and opinion on whether the accommodation is necessary and should be granted or denied.
Q: At a recent board meeting, we voted on revised COVID-19 protocols in anticipation of residents coming back to Florida for the winter months. We voted to prohibit all overnight guests in an attempt to limit the building’s population. An owner is threatening to sue because he wants friends to stay with him for golfing trips. Are we allowed to adopt this restriction?
— G.C., Stuart
A: In my opinion, yes, this is a valid and enforceable rule. For now. When Governor DeSantis executed his executive order declaring a state of emergency due to COVID-19, the association arguably became vested with emergency powers. These emergency powers were originally crafted with the idea that the association should have the ability to make quick and safe decisions in response to hurricane damages. Nevertheless, we believe that these same powers may be used in response to the coronavirus pandemic.
If this is true, then one of the emergency powers permits the association to declare certain portions of the condominium closed to residents, tenants, guests, invitees, or others when recommended by a professional. Here, when you take into account the many opinions and statements produced by state and federal agencies, and if your building includes a large population of residents who are susceptible to the effects of the virus, this is arguably a sufficient basis to declare a portion, or the entire building, closed to certain classes of occupants or guests. Many of our clients are using this authority to declare the entire building closed to overnight guests, or any guests at all.
The emergency powers statute provides that these powers are available so long as reasonably necessary for the health, safety and welfare of the residents. I do not know when the emergency powers will no longer be reasonably necessary, but we believe they are available today.
John C. Goede Esq. is co-founder and shareholder of the Law Firm of Goede, Adamczyk, DeBoest & Cross, PLLC. Visit gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: [email protected] The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.