Has the Florida legislature found a solution for fake ESA’s?

By in Animals, FHA, FHA Emotional Support Animals Tags: , , , , , , ,

In late June Florida became, with the passage of Senate Bill 1084, the latest state to take on the problem of emotional support animals. From the descriptions in various articles it would have appeared two opposite bills were passed, for the statute was praised as both helping eliminate fraudulent ESA claims and helping disabled individuals obtain accommodations for their ESAs. It may have no real effect at all since nothing in it can affect the Fair Housing Act, which is the statute that is most relied on in making ESA requests. What it does do, though, it point out some of the problems with the way HUD and others call for accommodation requests to be evaluated. If it means what it says Florida can justly claim to be the first state to recognize that few if any ESA* requests meet the reasonable accommodation requirements of the FHA and its Florida equivalent.

The best place to start is with a basic definition of handicap or disability found in all the statutes: A disability is a mental or physical impairment that substantially limits a major life activity. There is plenty of room for argument about what constitutes a physical as opposed to a mental impairment given the fact that mental impairments are associated with the brain, which is a physical organ; nonetheless the distinction reflects a reality about scientific knowledge of mental as opposed to physical impairments. Physical impairments can almost always be objectively determined by a physical examination. Many mental impairments, especially those like anxiety, depression and PTSD, are diagnosed based on what the patient reports to the doctor about how they feel. If a patient lies or exaggerates those lies and exaggerations may be difficult or impossible to detect, especially if the patient only sees a doctor or therapist a few times, or the diagnosis is based on a standardized test. Equally important, these mental impairments range from being so mild as to constitute a mere annoyance to so severe that the person is unable to function, and the doctor or therapist has to rely on the patient to tell them how severe the impairment is.

I mention anxiety, depression and PTSD because almost every request for an emotional support animal is based on one of these three mental impairments. This is where the language of the Florida statute becomes important. Section 760.27(2)(b) says a property owner can request information that “reasonably supports that a person has a disability,” including information from a health care provider, provided that the 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.” “Personal knowledge” is in italics because it is a phrase with a very specific legal meaning. “Personal knowledge” is knowledge obtained by direct observation. In contrast, “hearsay,” is knowledge based on something that is reported. To use a classic example, if I see a traffic light turn from green to red then I have personal knowledge that it changed. If I had my back turned but my companion tells me that she saw it turn from red to green then I do not have personal knowledge; I only have hearsay knowledge. If a patient tells their therapist they cannot sleep at night without their cat the patient has personal knowledge but the therapist has only hearsay knowledge.

If the Florida legislature means what they said, there will be very few, if any, letters from doctors and therapists that “reasonably support” a demand for an emotional support animal based on a diagnosis of anxiety, depression, PTSD and similar disorders. Why? Because the mental health professional writing the letter has no personal knowledge of the patient’s mental impairment. They only know what the patient tells them about feelings that cannot be seen and actions that take place elsewhere. In most cases, of course, not only is their only knowledge hearsay, but it is unreliable because it was obtained when the patient came in specifically to ask for an emotional support animal prescription.¹

There is another phrase in the statute that could make a difference. The statute says an ESA letter reasonably supports a request only if the doctor or therapist is “acting within the scope of his or her practice to provide the supporting information.” “Scope of practice” is not defined in the statute, but is defined elsewhere in Florida law. For example, the definition of “marriage and family therapy” is therapy in the context of marital and family systems² and would presumably not include a “diagnosis” for the individual problems of a single person. Given the number of ESA requests supported by someone with a marriage and family counseling license this alone would be a significant limit on fake ESA requests.

In addition, under Florida law every kind of mental health service is specifically limited to those who are “appropriately trained in the use of such methods, techniques, or modalities. . .” Because there is no scientific evidence that emotional support animals provide benefits to individuals suffering from disabling anxiety, PTSD and depression³ it is unlikely any mental health professional will be able to show they have training in techniques or modalities of treatment that include ESAs, making the prescription of an ESA beyond the scope of practice for any mental health professional.

If the Florida legislature were the U.S. Congress this statute would be great news for landlords everywhere. As it is, it probably won’t be that helpful even to Floridians. No state legislature can change the application of federal laws like the Fair Housing Act or change how a federal agency like HUD interprets those acts. HUD has always taken its advice on ESA’s from pet advocates  and groups who believe as an article of faith rather than a matter of scientific inquiry that emotional support animals are beneficial for those with disabilities. That doesn’t mean the Florida legislature could not act in a very effective way if it chose to do so. The federal government decides what the FHA means and how it is applied, but state governments establish professional standards for doctors and therapists. It is well within the State of Florida’s power to simply declare that the prescription of an ESA constitutes unprofessional conduct subjecting a doctor or therapist to discipline or the loss of their license. That is something the legislature might want to consider when it realizes that the current law will not solve the problem.

¹ This is not by any means the only problem, of course. It is unlikely that any mental health professional other than a psychiatrist or psychologist is professionally qualified to diagnose a disabling mental impairment. There is also a clear conflict between a mental health professional’s duty to the patient (get them what it seems they need) and the duty to tell the truth to others (that is, tell the landlord the patient is not entitled to an ESA.). Finally, of course, whether any mental or physical impairment is a disability depends on a legal test (“substantially limits a major life activity”) that mental health professionals are not trained to apply.

² FS 491.003(8)

³ See my blog “Science v. HUD” It is important to recognize the difference between specially trained animals (service animals) whose work may include some component of emotional support, therapy animals that provide support during therapy but don’t go home with the patient, and emotional support animals, that have no training and live with the patient. There has been quite a bit of scientific study of therapy animals; but little or none concerning emotional support animals.


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The horns of a dilemma – landlords, tenants and emotional support animals under the FHA

By in FHA, FHA Emotional Support Animals, FHA Guidance, FHA Regulation Tags: , , , ,

ancient minoan painting of a man holding the horns of a bullThis blog and the next were prompted by two recent efforts by state officials to deal with the problem of emotional support animals. One was a decision from the Iowa Supreme Court that puts a state law overlay on how to deal with conflicts between disabled and non-disabled tenants. You can find the details in William Goren’s blog.¹ The other was a recent legislative effort in Florida, the passage of Senate Bill 1084, which adds specific anti-discrimination provisions for emotional support animals.² These are far from the first efforts at the state level to do something about animals and disabilities,³ but they illustrate the problems these laws create for landlords trying to deal with fake emotional support animal requests.(4)

The Iowa Supreme Court’s decision in Cohen v. Clark is, to be blunt, completely wrong. This is because it suggests landlords can be liable to non-disabled tenants if they offer a disabled tenant the wrong accommodation. The case  offers a  “balancing test” for deciding whether the landlord did the right thing, but the test still requires landlords who receive an accommodation request to choose between the risk of a state court lawsuit for breach of lease and a HUD investigation or federal court lawsuit for failure to accommodate.

The plaintiff was a tenant with allergies who chose a no pets apartment for that very reason. When the landlord permitted another tenant to keep an emotional support animal as a reasonable accommodation under the Iowa Civil Rights Act, the first tenant sued. He claimed he had been forced out of his apartment because the animal aggravated his allergies despite efforts by the landlord to mitigate the effect of having the animal in the same building. Like any landlord-tenant dispute the case went through the Iowa state court system, and because it involved advice from a state agency the discussion centered on provisions in the Iowa Civil Rights Act rather than the Fair Housing Act. However, the Iowa Supreme Court observed that:

The ICRA’s housing provision is nearly identical to the Federal Fair Housing Act (FHA), compare Iowa Code section 216.8A(3)(c)(2), with 42 U.S.C. § 3604(f)(3)(B) (2018), so cases interpreting the FHA may be instructive in our interpretation of the Iowa Act.

In other words, the choice of state or federal law didn’t really matter, and in fact the Court relied mostly on federal FHA precedents because there are almost no Iowa Civil Rights Act cases.

The Court ruled for the plaintiff. The state law aspects of the decision were straightforward. The plaintiff had a lease that included at least an implied obligation to keep the apartments pet free and the landlord breached that lease by allowing pets.  It rejected the landlord’s first line of defense, which was that it acted on informal advice from the Iowa Civil Rights Commission to the effect that the landlord had no choice but to permit the emotional support animal. The Court found a landlord could not rely on that kind of informal advice. The Court then engaged in its own analysis of whether the landlord was excused from complying with the lease by its reasonable accommodation obligation. It applied a balancing test that weighed the interests of the parties to decide which tenant would have to give in some respect. It found in this case the landlord should have denied the disabled tenant’s ESA request because there were other equal accommodations possible that would not have interfered with the plaintiff’s rights. Having made the wrong choice, the landlord was liable to the non-disabled tenant for breach of lease.

The Court manages to reach this conclusion without considering that its decision puts the landlord squarely on the horns of a dilemma.  Granting the accommodation exposes the landlord to state law liability for breach of lease while denying the request exposes the landlord to state and federal law liability for refusal to accommodate. As guidance the landlord has nothing but a nebulous “balancing test” that is admittedly fact specific, meaning that earlier court decisions are unlikely to be helpful as guidance on what to do.

It is clear that the FHA preempts state law when they are in conflict. In Astralis Condo. Ass’n v. Sec., U.S. Dept. of Hous. and Urb. Dev., 620 F.3d 62 (1st Cir. 2010), for example, the First Circuit refused to recognize a defense to an accommodation claim based on a conflicting local statute. It held that: “Astralis must regulate the use of common elements in compliance with the FHAA’s anti-discrimination policies, regardless of local law.”  A step beyond relying on state law as a defense to an FHA claim is the use of state law to claim affirmative relief for damages arising out of compliance with the FHA. In S & R Dev. Estates, LLC v. Town of Greenburgh, New York, 336 F. Supp. 3d 300 (S.D.N.Y. 2018) a property owner whose deed restrictions violated the anti-discrimination provisions in the FHA sought compensation under a state law for the loss of value the elimination of those restrictions would cause. The Court rejected the claim, holding that: “Enforcing a state statute that compensates an FHA violator would undermine Congress’s purpose in achieving the result of the availability of fair housing.”

Although they do not apply to claims by a third-party these cases and cases applying federal preemption more generally suggest that the FHA preempts any state law permitting non-disabled tenants to sue for a breach of lease that arises from the landlord’s granting a reasonable accommodation. It should not matter whether the landlord was right or wrong in granting the accommodation because any liability imposed on a landlord for the consequences of an accommodation to third-parties is bound to interfere with the landlord’s consideration of the accommodation request and to make it less likely the request will be granted. The decision in Cohen v. Clark and its balancing test are interesting, but there is no doubt the result is wrong. A tenant should never be permitted to sue a landlord based on the landlord’s granting of an accommodation request because allowing such suits undermines the purpose of the FHA.

¹  ESA in Iowa? Not under Iowa Law if in Residential Complexes or Dormitories

² The bill can be found at https://www.flsenate.gov/Session/Bill/2020/1084

³ A list of state laws dealing with service dogs in an ADA setting can be found at https://www.animallaw.info/topic/table-state-assistance-animal-laws. Information on laws concerning assistance animals in housing can be found at https://www.animallaw.info/content/fraudulent-service-dogs

4 HUD has tried to help as well, not with great success. See HUD’s new Guidance on assistance animals


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Quick Hits – Now is the summer of our discontent edition

By in Accessibility Litigation Trends, ADA - Hotels, ADA - serial litigation, ADA Litigation Procedure, ADA Mootness Tags: , , , , , , , ,

King Richard IIIHere’s a very unhappy looking King Richard III contemplating the murder of his nephews and possible rivals for the throne, or perhaps the latest headlines. While the latest cases on accessibility law don’t usually look like light reading, right now they are a cheery diversion from the rest of world events. Here we go:

Voting Rights and the ADA

People First of Alabama v. Merrill, 2020 WL 3207824 (N.D. Ala. June 15, 2020) deserves its own blog, but illustrates how the reach of the ADA is sufficient to touch every aspect of public life. In People First the plaintiffs were elderly and disabled, suffering as a result from an enhanced risk of significant illness or death from Covid-19. They claimed that Alabama’s restrictive absentee voting laws violated Title II of the ADA by depriving them of access to voting, which is for ADA purposes a state program for which the ADA requires equality of access. The Court agreed in most respects and entered a preliminary injunction requiring the state to make absentee voting easier in several respects. The case is on appeal, so the outcome remains uncertain, but it illustrates how the provisions of Title II of the ADA can affect every state and local government program, including those usually thought of as purely political.

Mootness done right, eventually

Johnson v. Montpelier One LLC, 2020 WL 3268613 (N.D. Cal. June 17, 2020) appears to be on the way to dismissal for mootness, but only after a false start with an affidavit that did not state in sufficient detail how the alleged architectural barriers had been remediated. Mootness is the best defense to a physical access case under the ADA, but cutting corners with a conclusory affidavit won’t get you there.

Accessible counters – a Ninth Circuit victory for common sense.

Kong v. Mana Inv. Co., LLC, 2020 WL 3265179 (9th Cir. June 17, 2020),  Johnson v. Starbucks Corp.,  2020 WL 3265063, at *1 (9th Cir. June 17, 2020) and  Lindsay v. Starbucks Corp., 19-55738, 2020 WL 3265180, at *2 (9th Cir. June 17, 2020).  Are a trio of Ninth Circuit rulings on an issue that has been litigated frequently: Does the counter length requirement in the ADA require that the counter be free of clutter? The answer is a definitive no, at least in the 9th Circuit. *

Braille gift cards and the ADA – the answer is no.

Dominguez v. Taco Bell Corp., 2020 WL 3263258 (S.D.N.Y. June 17, 2020), Mendez v. BG Retail LLC et al 2020 WL 3318293 (S.D.N.Y. June 18, 2020) and Delacruz v. Jamba Juice Co.,  2020 WL 3250392, at *1 (S.D.N.Y. June 16, 2020) are among a growing number of cases (at least 10 decisions this week alone) holding that the ADA does not require braille gift cards because it does not require modification of products. This is now a predictable result, but it is bothersome that dozens of lawsuits making a patently absurd claim were filed in the first place, that who knows how much money and judicial resources have been wasted on attorneys’ fees defending them, and that it appears the lawyers for the plaintiffs who filed the lawsuits will suffer no consequences.

Another federal court declines supplemental jurisdiction over Unruh Act claims

In Schutza v. Enniss Family Realty LLC et al 2020 WL 3316969 (S.D. Cal. June 18, 2020) another federal judge in California declined to exercise supplemental jurisdiction over an Unruh Act claim, depriving the plaintiff of the damage remedy that drivers higher settlements in California. The decision is not unique* but other courts disagree with the arguments for declining supplemental jurisdiction. Until the 9th Circuit rules on this issue the rule will be to know your judge because these decisions are being made on a court by court level.

Negligence and the ADA

Strojnik v. Braemar Partn., 2020 WL 3250184 (S.D. Cal. June 16, 2020) adopts the majority view that the ADA is not a safety statute and that ADA accessibility violations do not automatically give rise to a claim for negligence. I’ve blogged about this before, as has William Goren. See,Personal injury and the ADA – is every violation per se negligence?  ADA and FHA Quick Hits – is it safe to come out yet edition. and Goren’s blog at  Negligence/negligence per se and title III of the ADA: Opportunity for personal injury attorneys to expand their practice. As is often the case in ADA matters, you need to know your court and state law to know whether the ADA plays a role in negligence claims.

Strojnik again – and perhaps in real trouble.

Peter Strojnik is a prolific litigator who does not always lose, but may have pushed his luck too far. In Strojnik v. Village 1017 Coronado, Inc., 2020 WL 3250608 (S.D. Cal. June 16, 2020) his claims were dismissed for lack of standing because he never visited the defendant hotel, but in its discussion the Court noted that in another case:

the Court has an evidentiary hearing scheduled for July 24, 2020 on the issue of whether Plaintiff should be declared a vexatious litigant in part for misrepresenting his disability status in that complaint.

Strojnik has already been declared a vexatious litigant by another Federal Court in California and was disbarred in his home state of Arizona. See, Strojnik v. IA Lodging Napa First LLC, 2020 WL 2838814 (N.D. Cal. June 1, 2020). He remains unrepentant and undeterred because there are few effective remedies against those who abuse the legal system and even fewer judges willing to take strong action against lawyers and non-lawyers who use the system to wreck legal and economic havoc on the lives of innocent business owners.

Pleading the “readily achievable” standard.

Girotto v. LXC, Inc. et al,  2020 WL 3318275 (S.D.N.Y. June 18, 2020) includes a number of little lessons. For example, it is not basis for early dismissal to call the plaintiff a liar because the Court assumes the allegations in the complaint are true. It does touch on an issue on which not all courts agree; that is, whether the plaintiff must plead that removal of architectural barriers is readily achievable. This Court says no; the plaintiff must prove the remediation is readily achievable at trial, but does not need to plead it. Other courts have disagreed**, so know your court and judge is, as usual, the rule.

The danger of being the enforcer

The plaintiff in Sullivan v. Storer Transit Sys., 2020 WL 3254400 (N.D. Cal. June 16, 2020) has a physical disability that is not apparent. When she tried to sit in the rows of a casino bus reserved for the disabled she was (she claims) yelled at by the driver and told to sit elsewhere. After a failed original complaint the beefed up allegations in her amended complaints were sufficient to state a cause of action. Sometimes it is necessary to make sure that those without disabilities don’t take advantage of disabled seating or parking, but businesses that choose to judge need to have policies to prevent hasty action. Legitimate resentment against those who abuse the disability rights laws has to be tempered with the understanding that not all disabilities are obvious.

Advocacy or idiocy? A blogger prevails

Straw v. Dentons US LLP,  2020 WL 3182775 (S.D.N.Y. June 11, 2020) is only tangentially an ADA case although an ADA claim was made. The Plaintiff, who was suspended from the practice of law in Indiana, sued a blogger and a legal publisher for reporting on his difficulties. The Court had little trouble finding the claims should be dismissed, but did make an argument that seems likely to be wrong. Based on a 2nd Circuit decision in an employment case the Court held that the ADA anti-retaliation provision does not give rise to individual liability and dismissed the claims against the blogger sued by Mr. Straw. It makes sense in an employment context to hold only the employer, not individual agents of the employer, liable for retaliation against a disabled person.  In this case, however, it appears that the blogger was acting as an individual rather than merely as an agent of his employer. To say that no individual can be liable for retaliating against a person advocating for the disabled doesn’t really make sense. A more pertinent problem with the plaintiff’s claim here is that the ADA’s anti-retaliation provision prohibits “discrimination,” which implies disparate treatment of some kind. Those who criticize the ADA plaintiffs’ bar² are not discriminating against them in any meaningful sense of the word.

*  I have blogged about this trend several times, most recently in Blogathon – not so quick hits on the ADA and FHA.

** See, “Readily Achievable” – It’s as easy as pie – maybe.

¹ See, for example, Quick Hits – Halloween Candy edition. Quick Hits – Tax Day Edition and Counter clutter – Is it a barrier or a bad policy under the ADA?

² I should say I have a personal interest in this, having been threatened many times with suits for defamation based on my blogs. So far no one has had the nerve to follow through on those threats, but there is clearly a segment of the ADA plaintiffs’ bar that doesn’t like those who tell the truth about their business.


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Injury without recourse – a primer on ADA standing from the 7th Circuit

By in ADA, ADA - Standing Tags: , , ,

One of the problem disability rights organizations  face when they try to create sweeping change through litigation is that laws like the ADA protect individuals and redress individual injuries. The Supreme Court has recognized something called “organizational standing” that recognizes the harm an organization may suffer from illegal discrimination, but the Seventh Circuit’s recent decision in Access Living of Metro. Chicago v. Uber Techs., Inc., 958 F.3d 604 (7th Cir. 2020) illustrates how this court created doctrine will always end up limited by the actual words of the statute.

“Standing” comes from the provision in the U.S. Constitution that says Federal Courts can hear cases and controversies. The Supreme Court has long said that for there to be a “case or controversy” you need a plaintiff that has been harmed in a way the court can fix. Without both there is no case or controversy and the court doesn’t have the power to consider the matter. This is a basic constitutional requirement, but it isn’t the end of the story. When the harm comes from some violation of a federal law that law will say just who has the right to file a lawsuit  That is where Access Living found it had a problem.

Access Living claimed that it was harmed by Uber’s failure to provide services available to the disabled equal to the services offered others. Access Living claimed that when it paid for transportation for its disabled staff members and others it had to pay too much because it couldn’t always use Uber, which was often the least expensive way to travel.  The Seventh Circuit agreed that this was an injury – Uber’s supposed discrimination against the disabled cost Access Living money.*  It was also an injury the court could in theory do something about. The ADA would permit an order that required Uber to provide equal service so that Access Living wouldn’t have to spend to much in the future. Thus, Access Living met the requirements of Article III of the Constitution – it had “standing” to bring a lawsuit.

For Access Defense the problem was the next step. Did the ADA give Access Defense the right to file a lawsuit? The ADA forbids discrimination against those with disabilities and with those who are associated with someone who is disabled.**  This is common in civil rights statutes, and prevents attacks on organizations and people who might try to assist the disabled. However, Access Defense was not claiming that Uber discriminated against it – the discrimination was against its disabled staff who were not given equal Uber service. According to the Seventh Circuit merely being harmed by discrimination against someone else was not enough for Access Living to have a right to sue under Title III of the ADA. The provision in Title III that says who can sue to enforce Title III gives that right to anyone “being subjected to discrimination.”† The Seventh Circuit read this to mean that only a direct victim of discrimination has the right to sue. Someone who has indirectly suffered from discrimination cannot.‡ The staff members who couldn’t ride an Uber were subjected to direct discrimination; Access Living was only indirectly harmed. Thus Access Living could be a victim of discrimination without having the right to sue.

It is worth noting that this ruling only applies to Title III of the ADA. Other civil rights statutes under which disability rights groups often sue are not as limited as Title III of the ADA. The Fair Housing Act, for example, gives the right to sue to any “aggrieved person,” which is defined to mean any one injured by discrimination. The FHA allows individuals and entities who are indirectly harmed by discrimination against others to sue because it only requires an injury, not a direct injury. At the other end of the spectrum are laws like the Air Carrier Access Act which contains no provision for a private lawsuit. Even a direct victim of disability discrimination in violation of the ACAA cannot sue. According to the Seventh Circuit even Title II of the ADA would have granted Access Defense the right to sue because a Title II case can be brought by anyone “alleging discrimination on the basis of disability” even if they were not the direct subject of the discrimination. Courts have treated Title VII of the Civil Rights Act of 1964 just like Title III of the ADA, holding that the statute only allows suits by “employees or applicants for employment,” not organizations of employees. See, Cook v. Billington, 541 F. Supp. 2d 358, 363 (D.D.C. 2008).

It also has to be noted that while this is a good case for defendants, it isn’t going to stop organizations from suing under Title III of the ADA. Under many circumstances an organization can file suit as a representative of its members who were subjected to discrimination even if it suffered no harm itself.‡ There is a more general lesson though; when considering who has a right to sue for a violation of civil rights, including the rights of the disabled, merely invoking “organizational standing” or even standing under Article III of the Constitution isn’t enough. Who was harmed, how they were harmed, and the precise words of the statute all matter.

* The appeal came from an early dismissal of the claims by Access Living when the Court was only considering what Access Living said happened, not whether it was actually true. The first requirement in any lawsuit is that you make a claim that can be recognized if your allegations are true. If you can’t do that, whether they are true or not doesn’t matter.

** The prohibition against associational discrimination is found in § 12182(b)(1)(E), which says it is discriminatory to deny equal services to “to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.”† Section 12188(a)(1).

‡ The difference between direct and indirect harm isn’t always clear, but in this case could be illustrated by what lawyers love; a hypothetical. Suppose Access Living tried to open a corporate Uber account and was told that it could not do so because disability rights organizations are not allowed to open such accounts. In that case Access Level would be a direct victim of discrimination that came from its association with disabled individuals.

‡ See, for example, Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp. 2d 510, 525 (D. Md. 2010), on reconsideration in part (Jan. 31, 2011). Like Access Living, the plaintiff in Equal Rights Center was not able to show a right to sue for the injuries it supposedly suffered as a result of discrimination against its members, but it was able to show it had a right to sue as a representative of its members.


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