California recently passed legislation in an attempt to reduce emotional support animal ("ESA") fraud. Under AB 468 becomes effective January 1, 2022.
ESA are not the same as service animals. See my blog post here for more information on the differences. The pertinent part of this legislation to landlords is that sellers of ESA and health care practitioners that issue certifications for emotional support animals are held to higher standards to avoid the abuse of ESA. Landlords are often being confronted with ESA issues. Tenants or applicants have ESA "documentation" that is doctored or fake as a means to get their pet approved. The new rules are designed to mitigate those instances by reducing the number of illegitimate ESA certifications. Keep in mind this law is mainly geared towards dogs and not other types of ESA pets.
Sellers of ESA Dogs
In Short- Anyone selling ESA dogs or ESA certification or related equipment must disclose that the ESA dog is not trained as as service dog, is not afforded the same legal rights and privileges of a service dog and that misrepresenting such is a misdemeanor.
"(a) A person or business that sells or provides a dog for use as an emotional support dog shall provide a written notice to the buyer or recipient of the dog that states all of the following:
(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.
(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 violation of Section 365.7 of the Penal Code.
(b) A person or business that sells or provides a certificate, identification, tag, vest, leash, or harness for an emotional support animal shall provide a written notice to the buyer or recipient that states all of the following:
(1) The item does not entitle an emotional support animal to the rights and privileges accorded by law to a guide, signal, or service dog.
(2) 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 violation of Section 365.7 of the Penal Code.
(c) The written notices described in subdivisions (a) and (b) shall be made in at least 12-point bold type, and shall be provided on the receipt for the emotional support dog or the product described in subdivision (b), or on a separate piece of paper." Health and Safety Code § 122317
Health Care Practitioner
In Short- Any health care practitioner that issues documentation supporting an ESA dog must have a valid and active license, place their pertinent license information on the documentation, they are allowed to issue the documentation under their license, have a relationship with the individual (patient) receiving the documentation for at least 30 days, have done a clinical evaluation prior to issuing the documentation and informs the individual (patient) that knowingly and fraudulently holding the ESA dog out as a service dog is a misdemeanor.
"(a) A health care practitioner shall not provide documentation relating to an individual’s need for an emotional support dog unless the health care practitioner complies with all of the following criteria:
(1) Possesses a valid, active license and includes the effective date, license number, jurisdiction, and type of professional license in the documentation.
(2) Is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided.
(3) Establishes a client-provider relationship with the individual for at least 30 days prior to providing the documentation requested regarding the individual’s need for an emotional support dog.
(4) Completes a clinical evaluation of the individual regarding the need for an emotional support dog.
(5) Provides a verbal or written 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 violation of Section 365.7 of the Penal Code.
(b) For purposes of this section, “health care practitioner” means a person who is licensed and regulated pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, who is acting within the scope of practice of the person’s license or certificate.
(c) A health care practitioner may be subject to discipline from the health care practitioner’s licensing board for a violation of this section." Health and Safety Code § 122318
"(a) (1) A violation of either of the following shall be subject to a civil penalty of five hundred dollars ($500) for the first violation, one thousand dollars ($1,000) for the second violation, and two thousand five hundred dollars ($2,500) for the third and any subsequent violation.." Health and Safety Code § 122319
The violations are against vendors and practitioners, however those are the ones responsible for condoning the rampant misuse of ESA dog designation. It is always advisable to get the proper documentation from tenants for their ESA pets (dogs). You are allowed to verify the documentation. Use the above law to verify all documentation and certification you receive from tenants about their ESA pets (dogs).
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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.