California Assembly Bill #468

Emotional support animal fraud is a big deal for not only businesses but for people with disabilities with service animals. Businesses and landlords have to manage it. People with disabilities with service animals wind up in a situation where their service animals might be in jeopardy. Also, the emotional support animal abuse creates a presumption that the person with the disability does not have a service animal. Accordingly, various states are passing laws to deal with this issue. We previously discussed what Illinois did here. Just recently, on September 8, 2021, California enacted a law dealing with emotional support animals, and I thought it would be worthwhile discussing. Before going further, I do have to disclose that I am not a licensed attorney in California even though my first law degree was from the University of San Diego. I knew early that I did not want to practice in California, so I never took the California bar. So, what is offered here is just a look at the plain meaning of the statute. If you have any questions, you do want to consult an attorney licensed in California. As usual the blog entry is divided into the categories, which are the provisions of Assembly Bill #468 and thoughts/takeaways. The blog entry is such that you will want to read the whole thing.

 

I

What Are the Provisions of Assembly Bill #468

1. A business or a person selling or providing a dog for use as an emotional support dog “shall,” provide a written notice to the buyer or recipient of the dog stating 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; and 3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
2. A person or business selling or providing a certificate, identification, tag, vest, leash, or harness for an emotional support animal “shall,” provide a written notice to the buyer or recipient stating 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 license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor; 3) the written notice “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 or on a separate piece of paper.
3. A healthcare practitioner “shall,” not provide documentation relating to an individual’s need for an emotional support dog unless the healthcare practitioner complies with all of the following: 1) possesses a valid, active license and includes the effective date, license number, jurisdiction, and 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 a relationship with the individual for at least 30 days prior to the 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; and 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 license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
4. A healthcare practitioner may be subject to discipline from the healthcare practitioner’s licensing board for a violation of the statute.
5. Violation of the statute are subject to a civil penalty of $500 for the first violation, $1000 for the second violation, and $2500 for the third and any subsequent violation.
6. The Atty. Gen. may bring an action for civil penalties as well as a district attorney, County Counsel, and city attorneys.
7. The statute does not preempt any rights afforded under the California Fair Employment and Housing Act, the Unruh Civil Rights Act, or the Disabled Persons Act.
8. Emotional support animal means an animal that provides emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
9. Emotional support dog means a dog providing emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
10. Guide, signal, or service dog references back to specific California statutory provisions in the Penal Code and in the Civil Code.

II

Thoughts/Takeaways

 

1. I have to confess that much of the statute doesn’t make a lot of sense to me.
2. “Shall,” can have up to seven different meanings, which is why the word appears in quotes in this blog entry. Commonly, it has up to four different meanings. For example, if your child says “I shall clean up my room,” what does that mean in terms of timeframe? As we all know, it may mean immediately, soon, not so soon, or never. So, we are left with the question of whether “shall,” is mandatory or whether it just means maybe maybe not.
3. California has a misdemeanor statute for people who knowingly and fraudulently represent their animal as a service animal, which is not the case in all other states in the country.
4. A dog by existing is an emotional support animal. Therefore, a real question arises whether everyone selling a dog in California must provide the notice described in the statute.
5. I realize that California has specific meaning for guide, signal, or service dog. Keep in mind, that the ADA doesn’t break it down that way. The animal is a service animal or not. Under the ADA, as we discussed here, a service animal must be a dog, though miniature horses get similar treatment after a balancing test is applied. Also, the Fair Housing Act circular has its own set of rules, discussed here. Whether that circular is at all persuasive to the courts is another question per this blog entry because the circular is not based upon any regulation or even any statutory provision.
6. With respect to the healthcare provider, the statute says that the healthcare provider must be licensed to provide professional services within the scope of the license and in the jurisdiction in which the documentation is provided. I don’t have a problem with understanding what is the scope of the license. However, what does “in the jurisdiction in which the documentation is provided,” mean? Are we talking at the state level or are we talking at some level below that? It just isn’t clear.
7. It can be somewhat problematic that a client-provider relationship must be in place 30 days before submitting any documentation of the need for an emotional support dog. What if a person who needs an emotional support animal has just moved to the state? They can’t use an out-of-state provider per the statute. So, are they supposed to go without their emotional support animal for 30 days until they can find a healthcare practitioner to meet with them and recognize that they need an emotional support animal?
8. A healthcare practitioner that does not follow the statutory provisions of this law is subject to discipline by their licensing board.
9. Civil penalties are in order for violations of the statute.
10. Emotional support animals and emotional support dogs are not certified. Why the language of certification appears in the definition of emotional support animal and emotional support dog in this statute is hard to figure out.
11. The written notice must be in 12 point bold type, but nothing is said about making the notice accessible to a person with a visual impairment. So, don’t forget about the ADA.
12. The statute has all kinds of problems. I prefer the Illinois statute on the subject, which we discussed here.
13. I am not a California licensed attorney. Be sure to get such an individual at this law has all kinds of questions arising from it.

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