Seyfarth Synopsis: California enacts new law, effective January 1, 2022, to crack down on fraudulent emotional support dogs.
Yesterday, September 16, having just defeated a recall effort, California Governor Newsom signed into law a bill, AB 468, that will impose various requirements, effective January 1, 2022, designed to curb emotional support animal fraud.
To be clear, emotional support animals (ESAs) are NOT service animals. Under the ADA, a service animal is a dog that has been individually trained to perform tasks for an individual with a disability. ESAs are not service animals under the ADA, though that line can sometimes be a bit blurry when the dog is trained to perform tasks related to mental or psychological disabilities. As the committee analyses of the legislation note, "an ESA is a dog (or other animal) that is not trained to perform specific acts related to a person's disability. Instead, the owner of an ESA derives a sense of wellbeing, fulfillment, companionship, or lessened anxiety with the presence of the animal. Of note, ESAs do not enjoy the same legal privileges as trained service dogs: for example, while federal and state law require that service dogs be allowed to accompany their human partner in public places, ESAs on the other hand do not have to be accommodated."
The committee analyses further note that "[a]ccording to the bill's author and sponsors, the emergence of ESAs has led to an increase in the fraudulent selling and subsequent misrepresenting of emotional support dogs as service dogs," including "businesses[es] now sell[ing] various misleading ESA-related certificates and merchandise that inaccurately imply that ESAs have the same legal rights and privileges as service dogs. Items generally include vests, tags, patches, holographic identification cards, and certificate documents prominently featuring the words "Emotional Support Animal" and in some instances "ESA, Protected Under Federal Law" which can imply that ESAs wearing such accessories are granted the same rights as service dogs."
California law currently contains a provision providing that a person who knowingly and fraudulently represents a dog is a guide, signal, or service dog, can be found guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment. But there was no similar provision for ESAs – until now.
The new law, sponsored by Guide Dogs for the Blind and Canine Companions for Independence, will have three main components to attempt to crack down on ESA fraud:
First, a person or business that sells or provides a dog for use as an emotional support dog will have to provide a written notice – in at least 12-point bold type, on the receipt or a separate paper – to the buyer or recipient of the dog stating that (1) the dog does not have the special training required to qualify as a guide, signal, or service dog; (2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and (3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
Second, a person or business that sells or provides a certificate, identification, tag, vest, leash, or harness for an emotional support animal will also be required to provide the same written notice to the buyer or recipient.
Violation of these written notice requirements or knowingly and fraudulently representing, selling, or offering for sale, or attempting to represent, sell, or offer for sale, an emotional support dog as being entitled to the rights and privileges accorded by law to a guide, signal, or service dog, is subject to a civil penalty of $500 for the first violation, $1,000 for the second, and $2,500 for third and subsequent violations.
Third, the new law will also prohibit health care practitioners from providing documentation relating to an individual's need for an emotional support dog unless the health care practitioner (1) holds a valid, active, license to provide professional services within the scope of the license in the jurisdiction where the documentation is provided; (2) establishes a client-provider relationship with the individual for at least 30 days prior to providing the documentation, (3) completes a clinical evaluation of the individual regarding the need for an emotional support dog, and (4) provides notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor. Violating these requirements subjects the health care practitioner to discipline from the licensing board.
Housing providers that must make reasonable accommodations for residents who need ESAs under the federal Fair Housing Act will appreciate the new health care practitioner requirements as they will help ensure that letters from such providers in support of ESA requests are legitimate.
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