I was planning on another review of recent decisions in the ADA and FHA world but was struck by the number of recent decisions about voting and the ADA. They are a pleasant break from the usual run of ADA cases motivated by nothing but the greed of the plaintiffs’ bar, and while they may cause political disagreements they do illustrate some key issues under the ADA.
Lainey Feingold, a long time and well know advocate for those with disabilities, referred to my earlier blog on website plug-ins* that promise accessibility in her latest blog. HONOR THE ADA: AVOID WEB ACCESSIBILITY QUICK-FIX OVERLAYS. That was nice, but even better was the way she collected other sources on website plug-ins and their problems, making her blog well worth reading for anyone interested in this subject. Of course no matter how much you study the situation the conclusion is always the same – you can’t make a website accessible with a plug-in and you certainly can’t avoid lawsuits with a plug-in. Businesses need relief from lawsuits that do nothing to promote accessibility and drain resources away from remediation, but that relief isn’t going to come in the form of doing almost nothing.
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.
By Richard Hunt in ADA, ADA Internet, ADA Internet Web, ADA Web Access, ADA Website Accessibility Tags: accessible.org, ADA defense, ADA Internet, ADA website, FHA Defense, Kris Rivenburgh, WCAG 2.0, WCAG 2.1
This 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.
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