Effective since the beginning of this year, Assembly Bill 468, signed into law by California Governor Newsom, imposes several new requirements intended to crack down on emotional support animal (“ESA”) fraud. Fraudulent practices surrounding ESAs are problematic for not only businesses but homeowner associations as well. HOAs have seen an influx of ESA requests for reasonable accommodation and an increase in the fraudulent selling of misleading ESA-related certificates and merchandise that frequently misrepresent emotional support dogs as service dogs.

The new law seeks to crack down on the increased misrepresentation of emotional support animals as service animals. It also aims to prevent businesses that sell ESA certificates, vests, tags, patches, holographic identification cards, and harnesses that attempt to mislead others into thinking the emotional support animal is a service animal. Until now, there was no law to punish those who knowingly and fraudulently represent ESAs as service animals.

To fully appreciate what this new law is attempting to accomplish, we must understand the difference between an ESA and a service animal. A service animal is specially trained to assist a specific individual with a disability with services such as guiding people who are blind, alerting a hearing-impaired person to a sound, alerting a person to the onset of a seizure and helping the person remain safe during the seizure, or pulling a wheelchair, among other assigned tasks. Furthermore, only a dog can qualify as a service animal. No other animal can be recognized as a service animal, even if that animal is trained to assist a person with a disability.

On the other hand, an ESA can be any animal and does not have training specific to the owner's disability. According to the United States Department of Housing and Urban Development (HUD), an ESA is any animal that provides emotional support that alleviates one or more identified symptoms or effects of a person's disability. However, ESAs are not trained to perform specific tasks to assist people with disabilities. ESAs “do not need training to ameliorate the effects of a person's mental and emotional disabilities.”

Before AB 468, the bar was low for homeowners and residents to assert a disability and demand rights and recognition for their ESAs. One of the major changes under the new law concerns requirements for licensed healthcare practitioners who provide documentation relating to an individual's need for an ESA. Health care practitioners are no longer allowed to issue letters or documentation related to an individual's need for an ESA unless the following requirements are met:

(1) They possess a valid and active license, and their letter/documentation must include their license number, the effective date, jurisdiction, and type of professional license;

(2) They are licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided;

(3) They must establish a client-provider relationship with the individual for at least 30 days prior to providing the documentation;

(4) They must complete a clinical evaluation of the individual regarding the need for an ESA; and

(5) They must provide 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 in violation of Penal Code Section 365.7

Under the new law, a person who knowingly and fraudulently represents ESAs as service animals “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.” (Civil Code 122319.) As for the health care practitioner, failure to comply with the law may subject the health care practitioner to discipline from the health care practitioner's licensing board.

Unfortunately, the new law will not impact homeowners/residents who currently have an animal that gained their status as an ESA, even if their status was obtained through fraudulent means. Furthermore, the new law does not restrict or change existing federal and state laws related to a person's right to a reasonable accommodation. There is still no limit to the number of ESAs a person can have. However, each ESA must be covered by the ESA documentation from the licensed health care practitioner and must assist the person with the disability in a specific way. Associations should continue to consult with legal counsel about what documentation may