The California Legislature Bites Back in Look Who’s Crying Woof, Part II

The Crisis Over "Emotional Support" Animals

The California Legislature Bites Back in Look Who’s Crying Woof, Part II
The Crisis Over “Emotional Support” Animals

By Martin H. Orlick

With alarming frequency, building owners, property managers, apartment owners, restaurants, theaters and shopping malls are confronted with making decisions as to whether a dog is a bona fide “service animal”, an “emotional support animal” or an ordinary pet. Things have become more complex since I first wrote about the issue in 2006 (See Look Who’s Crying Woof!) How owners, managers or security guards handle these decisions – often made in an instant – can determine whether a lawsuit is filed or an accommodation is properly made.

The Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act generally prohibit discrimination on the basis of various personal characteristics, including disability. These laws are intended to ensure full and equal access to all public and housing accommodations.

Existing law allows individuals with disabilities to keep an “emotional support” or “comfort animal” in apartment buildings and prohibits a person renting, leasing or otherwise providing real property for compensation from refusing to make reasonable modifications for individuals with disabilities. This has led to abuse by those claiming that their pets are “comfort animals” or “emotional support” animals, and the proliferation of questionable certification providers throughout the country and abroad.

For $65.00 on eBay you can purchase an embossed certificate, a “service animal” identification card, a vest, and medallion, purporting to give legal status to a service animal when, in fact, no such accoutrements are required by law.

California Assembly Bill 1569 – Disability Rights: Reasonable Accommodations:
Animals (“AB 1569”)

AB 1569, proposed by Assembly Member Caballero, is the first attempt by the California Legislature to take a bite out of the abuse of the disability laws concerning animals by tenants and prospective tenants. Under AB 1569, if a prospective or current tenant requests a disability-related reasonable accommodation to keep an animal in their apartment, for example, and the disability is not readily apparent or the disability-related need for an animal is not apparent, it would authorize the person renting, leasing or otherwise providing real property for compensation to request a third party provide verification of the disability and the disability-related need for the animal from the prospective or current tenant. To curb the proliferation of “mail order” certifications, the bill would require that the third party, among other things, have specific knowledge of the prospective or current tenant’s medical condition based on an individualized examination. Form letters from “letter mills” based on online questionnaires without even meeting the person requesting the certification or conducting an examination would no longer be sufficient verification, and the property owner could request reliable third party information. The bill would exclude guide dogs and other service animals as defined in the ADA or the California Health and Safety code.

Under AB 1569, the “third party verifying the disability and the disability-related need for an animal must be located in the United States and have specific knowledge of the prospective or current tenant’s medical condition based on an individualized examination. That examination shall include an in-person meeting with the prospective or current tenant. The third party shall not be operating primarily as a business to provide certifications for persons requesting verification of animals requested as reasonable accommodation.”

The bill would declare certain types of documentation alone to be insufficient verification such as: (1) identification cards or certificates for a requested service animal; (2) emotional support animal prescription letters; (3) doctor’s or other letters from online sources; (4) an emotional animal prescription letter; or (5) documentation that does not indicate the provider of the documentation ever met the person or performed an individualized examination.

AB 1569 is designed to curb abuse by requiring verifiable certification of emotional support animals and apply to bona fide “service animals”. We will keep you updated as to the status of this bill.

Martin Orlick is a partner in JMBM’s Real Estate Department and the Chair of its ADA Compliance and Defense Group. He has helped hotels, restaurants, banks, retailers, shopping centers and other commercial property owners defend more than 600 ADA lawsuits. In addition to defending lawsuits and government investigations, Marty and his team focus on enterprise-wide compliance and litigation prevention including facilities, website and operational compliance. He is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. Contact Marty Orlick at 415.984.9667 or MOrlick@jmbm.com.