Emotional support animal rights run amok? Condo resident balks at service dogs poolside

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: We live in a 142-unit condominium. Regarding pets, our rules state that “this is a pet free community. No unit owner, lessee or guest may keep a pet within any unit or common area.”

That includes prohibiting pets in the pool area, and there are signs informing residents and guests about this prohibition.

We are aware that a working service animal is allowed, and we all understand that law. The problem we are experiencing is now everyone that has an ESA (Emotional Support Animal) has started bringing those animals into the pool area. This was brought up to our board and property manager and we are being told that they have heard other properties are dealing with residents filing lawsuits against rules restricting support animals in the pool area, and they don’t want to deal with a possible lawsuit.

Isn’t the whole restriction a matter of the Health Department rules for a community pool? It gets uncomfortable when people are bringing their pets to the pool area for the day and messes are being made, pets sitting on lawn furniture, etc. It seems like the whole ESA situation is getting totally out of hand. How can people who are highly allergic to dogs and or cats be protected? Seems like rules don’t mean anything. Should we be calling the Health Department? Please help! Signed, P.S.

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Dear P.S.,

First, and to clarify this issue again (and this is something I have discussed in prior columns), the vast majority of private communities, including condos and HOAs, are not subject to the Americans With Disabilities Act (the ADA). It is under that Act that you find rules related to working service animals. But that law has no application whatsoever in your community. This is a very common mistake, and I regularly get emails from clients making this distinction —but it doesn’t exist. The only way the ADA would be relevant to your community is if you have events that are open to the public — which would be very unusual.

Instead, your community is governed by the Fair Housing Act (the FHA), and under the FHA you are obligated to make reasonable accommodations to your rules to allow disabled persons the full use and enjoyment of the premises. That includes allowing people to have assistance animals (such as emotional support animals) even in no-pet properties or areas.

You need to get away from the idea that whether an animal is trained or not has any relevance in the condo or HOA context — it doesn’t. All animals that assist disabled persons are treated the same — and, legally speaking, they are not considered “pets.”

Florida law states that public pools (including condo and HOA pools) must have rules that prohibit animals within the fenced pool area (or within 50 feet of an unfenced pool). But, when dealing with a pool governed by the ADA, the law also permits service dogs to go anywhere but the pool itself.

So, the ultimate question is whether allowing ESAs in your pool area, despite the state regulation, constitutes a “reasonable” accommodation of such rules. Given how permissive the courts have become when dealing with these issues, my opinion is that ESAs should be allowed at the pool area, except perhaps within the wet deck four feet from the pool and in the pool itself.

One could make an argument that having an animal in the pool area introduces unique health risks, in that people are usually barefoot — if an animal with worms were to defecate on the deck, it’s at least conceivable those worms could be transmitted to someone trampling over that area. I just don’t think that remote risk supersedes federal law, and I suspect a court would find that allowing ESAs at the pool is a reasonable accommodation of your pool rules.

With that said, remember that you never have to tolerate ESAs being out of their owner’s control, or damaging property in any way (including eliminating in the pool area). I also think you could reasonably prohibit animals from being on the furniture (except perhaps in a rare instance when a disabled person requires an animal to be on the furniture with them — but it’s hard to imagine a situation where that would be the case).

Finally, you ask about allergic people. Aren’t they disabled, and don’t they deserve to be kept away from animals due to their disability? This question comes up frequently, and really, you’re asking when one disability trumps another.

I am not aware that this question has ever been considered by a court, and it’s a doozy. But, my best guess is that a disabled person can’t argue that their disability should prevent another disabled person from their own reasonable accommodation — instead, perhaps it would require an additional accommodation, such as creating a small area at the pool designated to be free of all animals. We won’t know the answer until someone gets upset enough to litigate.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Legal expert explains which laws apply when it comes to service anmals