Service Animals

Dogs Trained to Assist Those with Disabilities

by Michael J. Gelfand, Esq. / Published January 2016

Many associations have faced issues involving dogs in their community. Can dogs be banned altogether? Generally, “no pets” restrictions bend to accommodations required for “service animals,” and “emotional support animals.” The United States Department of Justice recently issued a service animal update entitled “Frequently Asked Questions about Service Animals and the ADA” (FAQs). As background, the ADA is an acronym for the Americans with Disabilities Act, which primarily impacts those providing public accommodations, such as hotels, restaurants, and businesses. In contrast, the Fair Housing Act (FHA) affects those providing housing accommodations, usually impacting apartment owners and community associations; however, if a housing development, such as a condominium or country club, is open to the public, especially for business purposes such as hosting entertainment, recreation, or food services, the development may be also governed by the ADA!

While the recent Department of Justice FAQs specifically state that it is to provide guidance for compliance with the ADA, not expressly addressing the FHA, it will be of interest to many condominium and homeowners associations because many of the ADA FAQs’ concepts are similar to FHA concepts; thus, the FAQs likely will be of significant interest to Florida community associations as well as to others involved in multifamily housing.

Anticipating the Federal policy will lead state and county enforcement, the following provides a short summary of some of the areas covered.

A “service animal” is defined as “a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability.” Emotional support, therapy, comfort, or companion animals are not considered service animals. A dog whose “mere presence provides comfort” is not a service animal.

While mandatory registration certification of an animal as a service animal is not required, local animal licensing and vaccination requirements that are required for health and safety purposes are not superseded by the ADA.

Service animals can be any breed of dog. A service animal may not be excluded based on assumptions or stereotypes about the animal’s breed, unless the particular service animal behaves in a way that poses a threat to the health or safety of others.

Service animals must be under the control of the handler at all times. The service animal must be leashed or harnessed, unless that interferes with the service animal’s work.

For more information about the ADA, you can visit its website at www.ADA.gov. Note that the FAQs do not prevent applications for emotional support animals. For any specific questions or problems, contact your association’s attorney.

Michael J. Gelfand, Esq.

Senior Partner of Gelfand & Arpe, P.A.

Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners’ Association Mediator, an Arbitrator, and Parliamentarian. He is the Director of the Real Property Division of The Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at Michael@flcaj.com or (561) 655-6224.

Employment Agreements: Perils of Hiring

Want to hire a specific manager or another vendor’s employee? What happens if that person has an employment agreement? Does the person recall with clarity what they signed when hired by the manager or vendor? Regardless of what the person recalls, or thinks they remember, if the agreement contains a non-compete clause, then that employee may be barred from working for the association.

A recent Florida appellate court decision that could easily apply to Florida community association hiring practices is Infinity Home Care v. Amedisys Holding, 40 Fla. L. Weekly D 1929 (Fla. 4th DCA, August 19, 2015). This decision addresses a challenge to a home health care services agreement, and in particular interest to community associations, whether and how to enforce employee non-compete agreements.

The decision recites that while employed by Amedisys, Forjet, who was responsible for developing and maintaining Amedisys’s relationships with individual case managers at certain health care facilities, signed a non-compete agreement. Before her employment at Amedisys, Forjet developed the Cleveland Clinic as a referral source. The non-compete agreement specifically required her to not solicit referrals from any of the case managers at the Cleveland Clinic until her agreement expired.

Forjet then went to work for Infinity, a competitor of Amedisys, where she began soliciting referral sources that had previously referred business to Amedisys. Amedisys sued Infinity and Forjet seeking a temporary and permanent injunction. The trial court granted Amedisys a temporary injunction for one year finding that Forjet was violating the non-compete agreement.

The Florida appellate court agreed. The Court held that “referral sources” are a protectable “legitimate business interest” and affirmed the trial court order granting a temporary injunction. The court explained that Section 542.335, Fla. Stat. (2012) requires that to be enforceable, a restrictive covenant, i.e., non-compete agreement, must be a “legitimate business interest.” Although not exclusive, Section 542.335 includes as a legitimate business interest “[s]ubstantial relationships with specific prospective or existing customers, patients, or clients.”

This case is important because it shows the perils for an association of hiring a manager or vendor employee that may have a non-compete agreement that has not expired. It is best to find out before hiring an employee to prevent any surprises.