By M. Francesca Passeri
It is a generally accepted rule that animals are prohibited from being in many public places and within some types of communal housing areas. However, federal and Florida law allows persons with a disability to reside with and bring their service and assistance animals into their homes and to places of public accommodation. A “service animal” is a dog or miniature horse trained to perform tasks or work for an individual with a disability which work or tasks must be directly related to the person’s disability. These animals are not considered pets and are exempt from being excluded from housing and public accommodations. Service animals, while working and often when in training, are allowed in the workplace, public schools, and on public and private modes of transportation. Emotional support animals, comfort animals and therapy dogs are not considered service animals as they do not have special training to perform tasks designed to assist or support a person with their disability. Service animals and emotional support animals are referred to collectively in this article as “working animals”.
Florida Statute §413.08 pertains to the use of service animals by individuals with a disability in the realm of housing and public accommodations and mirrors the federal Americans with Disabilities Act. Under Florida law, a person with a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities of the individual (self-care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working) or a mental or psychological disorder that meets one of the diagnostic criteria specified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Mental disorders would include intellectual or developmental disability, organic brain syndrome, traumatic brain injury, post-traumatic stress disorder, or emotional or mental illness. Service animals are permitted to accompany a disabled person to all area and places of public accommodation that the public or customers are permitted to occupy. A “public accommodation” for the purposes of Florida law means most modes of transportation, hotels and lodging places, place of public accommodation amusement or resort; and other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons.
In the case of housing accommodations, a disabled person may not be required to pay extra compensation for the service animal in the form of a deposit or surcharge. The service animal must be under the control of its handler. The individual with a disability is responsible for the care of his/her service animal, providing proof of vaccination compliance, and for any damage caused by the animal. It is prohibited for a public accommodation (the statute is silent as to housing accommodations) to ask about the nature or extent of a person’s disability, but may inquire whether an animal is a service animal required because of a disability and what work or tasks the animal has been trained to perform. Any person, firm or corporation providing housing accommodations or the agent of any person, firm or corporation who discriminates against an individual with a disability, commits a second degree misdemeanor. Similarly, any person who knowingly or willfully misrepresents herself of himself as using a service animal or being a handler of a service animal commits a second degree misdemeanor.
The Florida Fair Housing Act makes it unlawful to discriminate in the rental, sale, terms, privileges, conditions or privileges in the sale or rental of a dwelling based on a person’s handicap. Specifically, F.S. §760.23 makes it unlawful to “otherwise make unavailable or deny a dwelling to any person because of…handicap.” Discrimination, as defined by the statute means “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” What constitutes a reasonable accommodation is a fact specific analysis which may vary from case to case. An accommodation is not reasonable if it would fundamentally alter the nature of the housing provider’s operations or would impose an undue financial and administrative burden. Size, breed and weight limitations are not factors to be imposed upon working animals. In the case of Warren v. Delvista Towers Condominium Association, Inc. (2014), a resident requested a pit bull be allowed to reside in his unit as an emotional assistance animal. The association argued that since the dog breed was banned by local ordinance, the request was unreasonable. The Court held that to the extent that the Miami-Dade County breed ban came into direct conflict with federal law, the local law was preempted.
It may not be readily apparent that an animal unexpectedly found in a public place is actually working for its handler. If you see a dog at the workplace or a miniature horse pulling a person in a wheelchair through a restaurant, you may be witnessing a working animal in action. Working animals provide much needed assistance to their human companions with disabilities and their presence in public accommodations or housing is legally protected so that a disabled person may enjoy the benefits of housing and public accommodations to an equal extent as non-disabled persons.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Francesca Passeri practices in the areas of residential and commercial real estate transactions, zoning and land use matters and real estate related litigation. Ms. Passeri received a B.A. in Theater Arts from the University of Iowa (1988) and graduated with distinction from the University of Iowa College of Law in 1995. Ms. Passeri worked as a sole practitioner in Tipton, Iowa until 2004.
She is a member of The Florida Bar (Real Property, Probate & Trust Law Section). She is also a member of the Collier County Bar Association, Collier County Women’s Bar Association, Iowa Bar Association, and Cedar County Bar Association. She has volunteered extensively for the Iowa Legal Services Volunteer Lawyer’s Project and Florida Attorneys Saving Homes. Ms. Passeri has been recognized by Legal Aid of Collier County for her efforts on behalf of the Collier County Foreclosure Task Force.
Salvatori, Wood, Buckel, Carmichael & Lottes
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