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Dear Poles,
We are a condominium directly on the waterfront and continue to discuss emotional support and service animals. Our documents say “no dogs,” but our attorney says we should allow them because of the ADA and federal housing laws. We have designated an area in our fenced community to pick up dogs to relieve ourselves, and to put bags to collect feces in the designated area. We require the animal to be on a leash, but the owners do not always comply. It seems that everyone who buys or rents an apartment these days needs a pet. The question is: are these animals allowed by law to move anywhere in the territory where the animal owner is allowed? For example, walk on the dam and the adjacent grass area with benches, pool area, anywhere parking, elevator and laundry? What is Florida’s position on this ever-growing issue?
Signed, RD
Dear RD,
First, and for clarity, your condominium is almost certainly not covered by the Americans with Disabilities Act (ADA). The ADA manages public places, and unless you invite the public to a condominium for the event, you will not be covered by this law. Instead, you are covered by the Fair Housing Act, which prohibits discrimination against people with disabilities. You are obliged to make “smart” devices in your rules to allow the disabled person to fully use and enjoy the property. One such smart device is to allow them to have a pet, even if you have a “no pets” rule when needed as a result of their disability. This animal does not need special training and should not even be a typical companion animal, such as a dog or cat – it should only be tested (usually treated by a doctor, such as a physician or social worker) necessary to allow a person to fully use and enjoy the room. Once an animal has been inspected, it really should be allowed to go anywhere residents, with limited exceptions – this is the clear nature of the law. Of course, there are some recommendations you can implement that will be considered “smart” – for example, I don’t think you need to allow an animal to swim in your pool, as this probably violates a number of health laws. But I also think that restricting such animals to only housing and a dog walking area is likely to be challenged.
Now, keep in mind that you may well follow the rules that require that the animal is always on a leash and under the control of the handler, and the animal has no right to be dangerous to other owners or create trouble for other owners. Adapting a person to disability does not mean that he has carte blanche for what he wants and where he wants. But you need to make it a habit to consider these animals not just pets, but rather medicine.
As for the state, although it has laws on emotional support for animals, and although these laws declare it a crime if a person knowingly provides false information or presents a need for a pet benefit, it is unclear how these laws interact with federal law. Remember that federal law takes precedence, and while these restrictions may govern the application of Florida’s own version of fair housing, they do not necessarily affect the assessment of ESA issues under federal law. It is also virtually impossible to demonstrate that a person has made a mistake in needing ESA, or to prove that a doctor has falsely confirmed a person’s need for ESA. Most of ESA’s inquiries are based on disorders such as anxiety and depression, and I just don’t see a lot of criminal prosecution under these statutes.
Dear Poles,
In early March, my HOA had annual meetings and board elections. The management company said that the minutes of the annual meeting and elections will not be submitted until the annual meeting in 2023. Is this correct?
Signed, SJ
Dear SJ,
I used to take the position that this was the right way to do it, but new revised versions of the Robert Rules suggest that if an assembly (such as a membership) holds meetings less than once a quarter, the board can approve those meeting minutes. Or the council may appoint a commission to approve the protocols to perform this work. In any case, I have changed my mind and now believe that the board approves the minutes of the meeting of members, when members meet only annually.
Ryan Polyakov, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a certified specialist of the Council on Condominium Law and Planning. This column is dedicated to the memory of Harry Palyakov, the founder of the legal branch of public associations, a tireless defender, author of treatises, books and hundreds of articles. Ryan Polyakov and Gary Polyakov are co-authors of New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living. Send questions by email condocolumn@gmail.com. Don’t forget to specify your location.
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