The impact of USDA’s newly adopted final rule to certain exhibitors of farm animals remains unclear.

A positive result of the rule is the definition of “domesticated farm-type animals.”  Farm-type animals are defined as “animals that have historically been kept and raised on farms in the United States.”  Except for the use of the term “domesticated” this definition should be adopted by states to insure that livestock and poultry remain regulated by state and local laws even if owned as “pets” or for “companionship.”

However, the term “domesticated” should be replaced by “domestic,” since courts have held that certain dangerous and exotic animals can be “domesticated” based on the case-specific facts.  See City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owners monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”).  Unfortunately the term “domesticated” instead of “domestic” is used in existing and the amended rule.

Certain exhibitors of ‘domesticated farm-type animals’ are exempt from licensure, including: (1) those who “have a de minimis size of business based on the number of animals maintained, capability of providing adequate care and treatment of such animals, and public oversight . . .”; (2) “country fairs, livestock shows, rodeos, field trials, coursing events . . . and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary”; and (3) owners of “livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.”

The amendments exclude from licensure “[a]ny person who maintains a total of eight or fewer pet animals as defined in part 1 of this subchapter, small exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), and/or domesticated farm-type animals (such as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and is not otherwise required to obtain a license.”

For those who maintain more than eight domesticated farm-type animals, they can also be exempt from licensure if: the animals are used or intended for use as food or fiber; for improving animal nutrition, breeding, management, or production efficiency; or for improving the quality of food or fiber,  even if those animals are exhibited.  However, that was not the holding in In re: Daniel J. Hill and Montrose Orchards, Inc., AWA Docket No. 06-0006, Chief ALJ Hillson (USDA April 18, 2007).

In this case, a Complaint was issued on January 13, 2006, by Kevin Shea, Administrator of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to “Respondents, Daniel J. Hill and Montrose Orchard, Inc., for operating as exhibitors under the Animal Welfare Act without obtaining the requisite license.”

The Findings of Fact, included, in relevant part:

Respondents operate a business which offers the public an opportunity to purchase apples, blueberries, Christmas trees, asparagus, pumpkins and other products. Most products are sold in the Orchard’s gift shop, and some products are also offered to the public on a self-pick basis.

Respondents display to the public a number of animals including, at various times, a pig, a cow, English fallow deer, Barbados sheep and goats. These animals were displayed in large pens. There were signs directing the public to these pens.  There were signs on some of the pens identifying the animal(s) inside.  There were food dispensing machines where members of the public could insert some money and buy food to feed the animals, and a hand washing station near the pens available for public use.

The Court rejected Respondents’ argument that it was exempt from licensure because it made less than $500 from its animal operations.  It also rejected the argument that Respondents were exempt from licensure because “the animals on display at Montrose Orchards were ultimately raised for food.”

Instead the Court held,

Respondents did operate as an exhibitor under the Animal Welfare Act.  I find that Respondents’ operations were in interstate commerce or at least affected commerce, and that the display of animals as part of an inducement to visit a commercial operation constituted the charging of compensation.  I find that the exemption for those who make less than $500 from animal operations applies to dealers, and is inapplicable to Respondents.  I find that while the animals on display at Montrose Orchards were ultimately raised for food, the fact that they were on display for extended periods of time still requires an exhibitor’s license. Finally, I impose a civil penalty of $1,000 against Respondents jointly.

Whether and to the extent that similar “exhibitors” would be considered exempt pursuant to the newly adopted rules, remains to be seen.

Perhaps further clarity from USDA-APHIS would be instructive.

 

On June 4, the regulation titled “Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act” which purportedly implement[s] amendments to the Animal Welfare Act (AWA), was published by USDA-APHIS, effective on the date of publication.

The regulation expands some exemptions to the licensing requirements pursuant to the AWA.  There are some unintended consequences to these expansions that may be detrimental to certain animal owners.  For example, the ever-expanding pet store sourcing bans often limit sources to USDA-licensed dog breeders—if these professional breeders are not entirely excluded.  Many exempt breeders—those who own four or fewer breeding females—would prefer to be licensed so that they can sell to pet stores.  However, because the provision that permits an exempt breeder to apply for a voluntary license was previously deleted from the regulations, these breeders have cannot obtain an USDA license.

USDA notes that the “four or fewer exemption” has been in place since 2004 (addressing a comment related to licensure of small exotic and wild animal owners), there was no discussion about the growing impact to dog “hobby” breeders, perhaps because no one submitted a relevant comment.  (There was a comment that permitting these breeders to go unlicensed created a loophole, but USDA “made no changes in response to that comment”).

If these breeders were to try to use third party certifiers to prove to the public that it complies with or exceeds standards required pursuant to the AWA, the reliance on such certification may be questioned based on USDA’s recent announcement that it “will not establish new criteria for recognizing third-party inspection and certification programs when determining the Agency’s own inspection frequency under the Animal Welfare Act (AWA).”

USDA explained:

In this case, APHIS found the vast majority of the comments we received to not be in favor of establishing new criteria for recognizing third party inspection and certification programs.  Stakeholders on all sides of the issue expressed concern about APHIS’ ability to maintain responsibility for inspections and AWA compliance should third-party inspections be taken into account when determining APHIS inspection frequencies.

APHIS will continue to use its current risk-based inspection system to determine the frequency of inspections, and will continue to promote compliance with the AWA by conducting quality inspections, offering voluntary compliance support and learning opportunities, and taking enforcement action, as appropriate.

Still, no one should be surprised if activists use USDA’s decision to support their unsubstantiated position that certain third party certifications are meaningless.

While it is understandable that USDA has adopted this rule to “allow . . . APHIS to focus its limited resources on situations that pose a higher risk to animal welfare and public safety” I hope that these exemptions do not create additional hardships for animal owners, breeders, and exhibitors.  More to follow in PART TWO.

 

In Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018)-the case in which Naruto, a crested macaque by and through his alleged “next friends,” People for the Ethical Treatment of Animals, sued a photographer and his publishers for copyright infringement-the Court, citing an earlier case, Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) stated that at least part of the requirements for standing-the existence of a case or controversy-was not impossible simply because the plaintiffs were animals.

While in both cases, the Ninth Circuit held that the plaintiffs did not have standing under the relevant statutes-in-suit, the fact that animals may have standing has been disputed by some and seems inconsistent with this court’s reasoning.

In Cetacean Cmty. the Court stated “we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.”  Cetacean Cmty., 386 F.3d at 1176.

But what the courts seem to overlook is that Article III is one of several articles to the Constitution of the United States which begins:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.  (Emphasis added).

I find Circuit Judge Smith’s concurring opinion in Naruto v. Slater, explaining the restrictions on “next friend” or “third party” standing, instructive.

The limitations on the ‘next friend’ doctrine are driven by the recognition that ‘it was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves as next friends.’

NOTE-isn’t this essentially what the Nonhuman rights project has done in its various, non-winning petitions for writs of habeas corpus.

And Judge Smith added:

Indeed, if there were no restrictions on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’

Judge Smith disagreed with the majority finding that lack of next friend standing removes jurisdiction of the court, while the majority held that next-friend standing is nonjurisdictional.

Both Judge Smith and the majority agreed that “animals cannot be represented by a next friend.”

And Judge Smith explains that “[t]here is no textual support in either the habeas corpus statute or Rule 17 for animal next friends,” providing additional legal support for courts’ rejections of the Nonhuman Rights Projects’ petitions that claimed that animals were legal persons.

However, because of these holdings over standing via Article III’s case and controversy provision by the 9th Circuit we expect to see more cases brought under the guise of the next friend.

Of note, in Oregon, a lawsuit was filed by a horse (Justice) “by and through his Guardian, Kim Mosiman” against his former owner, who had already pleaded guilty to neglect of the horse.  The suit includes a single claim for relief of negligence, allegedly based on Justice’s owner’s requirement to comply with Oregon’s anti-cruelty statute, which the owner had previously pleaded guilty to.  Justice requests relief for economic damages of not less than $100,000, non-economic damages in an amount to be determined at trial, reasonable attorneys’ fees, costs and disbursements, and other relief the court deems proper.

We should expect similar lawsuits to be filed in many jurisdictions.

 

On May 17, 2018 a plethora bills were reported out of the New Jersey Assembly Agriculture and Natural Resources Committee, some with amendments that will benefit animals and their owners if they become law, and others with sorely needed amendments.

Here is a summary of what occurred (as reported on the New Jersey Legislative website):

A781 is a bill that would establish processes for recovering the cost of caring for domestic companion animals involved in animal cruelty violations.  This bill was reported favorably with some amendments, but more should be adopted before further action.

This bill, as amended, provides for the cost of care for animals involved in animal cruelty violations, and establishes a procedure, when the owner of the animal is the alleged violator, for the owner of the animal to pay for the cost of care of the animal. The bill, as amended, specifies that ‘animal’ includes the whole brute creation, but does not include agricultural livestock or domestic livestock.

This amendment protects farmers from the overreaching practices of law enforcement supported by animal activist groups that assist in seizures of animals before the owner(s) has a hearing or opportunity to prove they have not committed alleged acts of animal cruelty.

The groups that house the seized animals charge owners millions of dollars for the “care” of these animals, even though, in some instances, they do not have adequate, if any, training in providing such care. The seized animals suffer from negligent care and sometimes die.  Many animal owners, particularly farmers, would be unable to pay for such costs and therefore forfeit ownership-all before they are actually found guilty of anything.

A1334 is a bill which would add the theft or release of an animal during burglary to the ever-expanding list of provisions that constitute animal cruelty. This amendment is not necessary and makes the cruelty statute even more cumbersome than it currently is.   If someone steals an animal that constitutes theft, for which there are existing legal remedies.  If the thief does not properly care for the animal while in their possession, then the cruelty statute already provides for remedies.  If an animal is released during a burglary and is injured there are also existing provisions in the law that would apply.

A1923, a.k.a. Nosey’s law, was amended before it was reported out of committee, but still requires amendments.  The original intent of this bill was to ban the exhibition of elephants in circuses and traveling zoos.  The amendments to the current version (which is much better than prior versions) largely address concerns of those who humanely exhibit exotic animals.  However, a glaring error remains. The bill defines “[w]ild or exotic animal” as any live animal that is classified into any of the following scientific classifications: (1) Artiodactyla, excluding domestic cattle, bison, water buffalo, yak, zebu, gayal, bali cattle, suidae, sheep, goats, llamas, vicunas, or alpacas; (2) Camelidae . . .”

This effectively excludes llama, vicunas and alpacas from the definition of wild or exotic animals on the one hand, but then includes them since they are members of the Camelidae family.

Additional amendments are clearly required.

A2318 , a bill that would permit any person to break into a vehicle to “rescue” an animal, if they believed that an animal was in danger, was also reported out of committee.  The bill should require any animal so “rescued” to be immediately examined by a licensed veterinarian.  If the rescuer has a good faith belief that the animal is in need of help, then examination by a veterinarian should be mandated.  The owner should pay for that examination if the veterinarian determines the animal’s health was in jeopardy, but if not, the rescuer should have to pay for the veterinary examination.  Adding those provisions may help decrease unnecessary rescues.

Another issue with this bill is that the wording “other circumstances likely to endanger or cause bodily injury or death to the animal” is vague and essentially meaningless.

A3218, a bill that “permits municipalities to contract with animal and humane societies which engage in animal foster care,” was also reported out of committee.  This bill would expose animals and people to unnecessary harm because animal foster care organizations are not regulated in New Jersey.

Finally, A4385, a bill that would require “institutions of higher education, and related research facilities, to offer cats and dogs no longer used for educational, research, or scientific purposes to animal rescue organizations for adoption prior to euthanizing the animals,” was also voted out of committee.  Not only is this bill unnecessary since successful adoption programs from these institutions have been in existence for years, reliance on unregulated animal rescue operations, as above, places animals and people at risk.

It looks like Animal Agriculture Alliance had another stellar stakeholder summit held on May 3-4 in Arlington, Va.

As reported on its website

The future of food, consumer choice, sustainability and the connection farmers and ranchers have with consumers were all topics of discussion on the first day of the Animal Agriculture Alliance’s 2018 Stakeholders Summit, themed “Protect Your Roots,” at the Renaissance Capital View Hotel in Arlington, Va.

“The conversations are changing about food to include agriculture and the message of farmers,” said Tyne Morgan, host of U.S. Farm Report and Summit moderator. “There are a lot of companies taking notice of the positive side of agriculture and they are starting to tell that story too.”

Speakers explored the increasing importance of food labels to consumers, trends in the food industry, and the future of animal agriculture, a topic commonly discussed amongst farmers and supporting industries who wonder if sufficient numbers from younger generations will take on the huge task of feeding the nation and the world, while providing for the humane care of their stock.

Other speakers presented scientific advances in the field that benefit animals and the environment, but may not always address consumer misconceptions about agricultural practices.  The agriculture community recognizes the increasing importance of educating consumers about the truth and dispelling the myths relating to animal agriculture, broadcasted by animal rights organizations .

The Animal Agriculture Alliance, “an industry-united, nonprofit organization that helps bridge the communication gap between farm and fork” brings these issues front and center on its website. Commonly misunderstood issues about Animal Care, Antibiotics, and Sustainability are discussed along with a number of resources.

The Alliance drafted comprehensive graphics depicting the interactions between animal rights activist groups, who commonly work together to mislead the public and animal welfare-related issues.

Animal Rights Activist Web by Animal Agriculture Alliance

Radical activist organizations are leading the fight to grant animals the same legal rights as humans and eliminate the consumption of food and all other products derived from animals. The ideology of the animal rights movement- that animals are not ours to own, enjoy, or use in any way- is a direct assault on farmers and pet owners. Activists often hide their true agenda in order to gain the support of unknowing pet lovers. Here, you will find current updates from the world of animal rights. The Alliance monitors the activities of these activist groups and seeks to proactively engage in the same areas they target to correct misinformation and tell the true story of agriculture.

Farmers and ranchers have a lot on their plates.  In addition to raising and caring for the animals that feed the world, they must learn how to address attacks by animal rights organizations intent on their demise, and more importantly learn to connect with consumers who have been mislead by activists.

Organizations like the Animal Agriculture Alliance, and others like Protect the Harvest, should be commended for work they do to dispel those myths.

I recently returned from a trip to South Africa, Botswana, Zambia and Zimbabwe with my best friend (husband) and have to share some of the awe-inspiring scenes of these majestic countries and wildlife residing therein.  I will concoct related legal theories and pass them along another time.  Until then, enjoy.

Zebra
Leopard guarding Cape Town
Hippo
Lionesses
Leopard

Cape buffalo
Giraffe
White Rhino
Lion
Elephant

By Scott M. Badami originally posted on January 22, 2018.

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

The lawsuit filed against SeaWorld Parks and Entertainment, Inc. (SeaWorld) in the Northern District of California, styled Marc Anderson, et al. v. SeaWorld Parks and Entertainment, Inc. has been ongoing since May 14, 2015.

The Court recently ruled on SeaWorld’s Motion for Summary Judgment, which it granted in part and denied in part.  Marc Anderson, et al. v. SeaWorld Parks and Entertainment, Inc., No. 15-02172, slip op. (N.D. Cal. Feb. 20, 2018).

As a reminder, three plaintiffs brought individual and putative class claims for various alleged violations of California’s False Advertising Law and California’s Unfair Competition Law based on allegations that Plaintiffs relied on statements from SeaWorld about their care of animals before making certain purchases.

The Court denied SeaWorld’s Motion on the issue of standing which would have put an end to the litigation (unless the decision was appealed).  The Court stated, “[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements.”  Id. (citing Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007).  The Court found that SeaWorld “failed to meet its burden on the question of whether [Plaintiff] Anderson has standing to seek injunctive relief . . . because the testimony . . .presented on this issue relates to whether Anderson would purchase tickets to SeaWorld in the future; not whether he would purchase SeaWorld merchandize if he could rely on its advertising.”  Id. (citations omitted).  Since Anderson purchased merchandize, the Court held the argument was faulty.  As to the other two Plaintiffs, the Court held that it “cannot make credibility determinations at this stage of the proceedings” which was the basis of SeaWorld’s evidence.

However, the Court granted, in part, SeaWorld’s Motion on [Plaintiff] Anderson’s claims, stating

[i]n order to survive SeaWorld’s motion, Anderson ‘must point to specific facts indicating that [he] actually saw the misrepresentations about which’ he complains, ‘and that those misrepresentations were ‘substantial factor[s]’ in’ his decision to purchase the Shamu toy.  Id. (citations omitted).

The Court concludes that, like the plaintiffs in In re iphone, Anderson has not met his burden to overcome Sea World’s motion to the extent his claims are premised on the mother-calf separation statement . . . Anderson has not shown that he saw the mother-calf separation statement and, therefore, he could not have relied on that statement when he purchased the Shamu toy.  Id. (citations omitted).

However, the Court held that, when considering the entirety of Anderson’s testimony, “the record is sufficient for a reasonable juror to find that if Anderson had known what he contends to be the truth about orca lifespans in captivity, in all reasonable probability he would not have purchased the Shamu toy,” thereby granting in part and denying in part SeaWorld’s motion on Anderson’s claims.

As to Plaintiff Nelson, the Court concluded that “Nelson has put forth sufficient evidence to create a triable issue of fact about whether she suffered an economic injury.”  The Court was “not willing to find as a matter of law that Nelson lacks standing simply because her husband turned over the funds that were used to purchase the tickets” and that therefore Nelson did not suffer an economic injury.

The Court found sufficient evidence, at this point, to deny SeaWorld’s motion claiming that Nelson did not rely on SeaWorld’s statements before her husband purchased tickets to SeaWorld, despite Nelson being unable to identify where or when she actually saw those statements.

Finally, the Court denied the motion claiming that Plaintiff Morizur had “abandoned her claim for restitution because she testified that she does not ‘care about the money’; is not ‘in this for the money’; and is asking the Court to give her ‘0.00 dollars.’”  Id.

The Court did invite SeaWorld to ‘“attempt to impeach [Plaintiffs] . . . at trial with prior statements’ it believes ‘are inconsistent . . .”  Id.

I am sure SeaWorld will do just that.

Journey on.

In the wake of mass shootings, legislators across the country have been introducing bills to address the tragic and needless loss of life-some good, others not so much.

In New Jersey, a set of sister bills (S2239 and A3693) have been introduced that would prohibit possession of a firearm by any person convicted of “any crime or offense constituting animal cruelty enumerated under chapter 22 of Title 4 of the Revised Statutes [the Statute].”

While there are certainly some offenders that should be considered dangerous felons, proposed amendments like these that impact all found liable under the Statute sweep too broadly.

For example, some shelter managers and staff have been accused of animal cruelty for violations of the Department of Health’s shelter regulations.  Arguably, a violation of such a regulation falls outside the cruelty statute, but it is common practice in the State to issue summons citing the animal cruelty statute for alleged violations of other statutes.

Historically, the New Jersey Society for Prevention of Cruelty to Animals issued citations to horse owners after stopping them when traveling on State roads without a Coggins test report, which is a violation of the State agriculture laws, and has nothing to do with animal cruelty.  Fortunately, the enforcement authority of the NJSPCA has since been rescinded.

The individuals accused of animal cruelty described above often pleaded guilty to a single count of animal cruelty, which to date, has few negative long lasting consequences.  Notably these are not the type of individuals who intentionally harmed animals and do not pose a risk that would warrant a lifelong ban on gun ownership.  So these proposed gun bans, like animal cruelty registries that are similarly overly broad should not be applied to all animal cruelty offenders.

This is yet another reason why the outdated, antiquated Statute, N.J.S.A. §§4:22.1 – 4:22-56, first enacted in 1868, rife with undefined terms and provisions, should be revamped.  As described in the State Commission of Investigation’s Report (SCI-2000) about the NJSPCA, published in 2000.  “Some statutory provisions are archaic and nonsensical.  Some of the provisions that were enacted over 100 years ago have not been implemented for most, if any of the 20th Century.”  SCI-2000, at p. 11.

At the same time, we need a much greater understanding about people who knowingly and intentionally harm, torture and/or kill animals and those who exhibit hoarding behavior.  The former, include some who go on to inflict violent acts against other people.  These offenders are dangerous.  The latter-hoarders-often believe they are helping the animals who, never the less, suffer under their care.  Much more research is needed to study “hoarding” to help identify the initial signs of this disorder and hopefully intercede before animals are harmed.

The FBI’s new data collecting and tracking program that now includes some acts of animal cruelty will help quantify, for the first time, how many acts of animal cruelty have been committed.

On January 1, the Bureau’s National Incident-Based Reporting System (NIBRS) began collecting detailed data from participating law enforcement agencies on acts of animal cruelty, including gross neglect, torture, organized abuse, and sexual abuse. Before this year, crimes that involved animals were lumped into an “All Other Offenses” category in the FBI’s Uniform Crime Reporting (UCR) Program’s annual Crime in the United States report, a survey of crime data provided by about 18,000 city, county, state, tribal, and federal law enforcement agencies.  Tracking Animal Cruelty FBI Collecting Data on Crimes.

Clearly, more has to be done to protect animals and humans.

By Scott M. Badami originally posted on February 27, 2018.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

  • General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);
  • Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;
  • Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or
  • Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.