18 October 2017

Emotional Support Animals

We get calls from service industry owners and managers all the time about animals they believe are fake support animals. It has become common for people to put a little "Service Animal" vest on Fifi and take her into the store or hotel and screech at the poor employee who dares to say anything that he's not allowed to question her service animal. These managers have seen many animals which are clearly providing no service gotten past the rules - usually claimed as an "emotional support animal." As one hotel manager put it to me, "I don't see them providing any service unless you count retrieving the ball their owner throws."

I addressed Virginia's laws in reference to this last year and you'll remember that Virginia specifically disclaims emotional support animals. This year, I'm going to try to lay out the federal laws.1

Service Animals
Are Not
Emotional Support Animals

There's a difference and it makes a difference. Under the umbrella of the Americans with Disabilities Act, 28 CFR 35.136 (backed more generally by 42 USC 12182) allows service animals, and service miniature ponies, to go pretty much anywhere the person they are serving is allowed to go as long as the animal is (1) under control and (2) housebroken (and not too big for the locale for the miniature horse). 28 CFR 35.104 specifically defines a service animal as (1) a dog that is (2) trained to do work or tasks directly related to the disability. Mostly this applies to dogs meant to help with physical disabilities. However, there is provision for dogs meant to help in psychiatric situations if the dog is trained to prevent or interrupt impulsive or destructive behavior. The definition specifically excludes emotional support animals.

This is the general rule. However, there are two exceptions. The first is found in 49 USC 41705 which has been interpreted to allow emotional support animals on airplanes (because nothing could go wrong there). That's all under the Air Carrier Access Act and if you want further info on that you'll have to look it up yourself because shockingly as a prosecutor in the mountains of Virginia I don't have much reason to research that amazingly stupid idea in depth.

The second exception is government supported housing (e.g. HUD housing and college dorms). In 2013, HUD issued a Notice (FHEO-2013-01) in which it ruled that emotional support animals somehow were required under the Fair Housing Act (banning the consideration of "race, color, religion, sex, familial status, or national origin" in the sale or rental of realty - 42 USC 3604 et al.) and the Rehabilitation Act of 1973 (if money comes from a federal grant or program a person cannot be excluded because of her disability - 29 USC 794). It also noted the ADA, but this Notice was clearly meant to go farther than the ADA allows. As well, it is very clear that the FHA does not apply on its face although I'm sure there's a CFR or court case out there somewhere providing some sort of sophistry to support its use. Still, even without these two Acts, the Rehabilitation Act would seem to apply.

The Notice points out that neither the FHA or Rehab Act require assistance animals to be trained and that neither requires the animal to be a dog. Since neither addresses assistance animals at all, this is true. It then sets out a two part test as to whether the animal is allowed: (1) Does the person have a physical or mental impairment that substantially limits one or more major life activities? (2) Does the person making the request have a disability-related need for an assistance animal? If the answer to both is "yes" then the HUD housing or college dorm must allow the animal unless (3) the animal is a direct threat to health and safety, or (4) it cannot be stopped from causing substantial damage. As part of question 2 above, the Notice makes it clear that emotional support is included in that question.


Obviously, all this is just begging for abuse. What steps can be taken to combat it?

For those facing a person claiming that Pepe, their skunk, is an emotional assistance animal and must live in their HUD housing or dorm room. Here, there is room for a significant requirement of proof. Per the Notice above, if the disability is not obvious and/or the need for the animal is not obvious, the person must provide "reliable" (1) proof of the disability and (2) the disability related need for the animal. The "reliable" part is important here because there is a cottage industry of "doctors" online who will give anybody a letter stating they need an animal for fee after they fill out a short online questionnaire. If it isn't from a local doctor who is continuing treatment for your renter then the letter probably isn't worth the paper it's printed on.

Outside of housing situations, there are two questions allowed per 28 CFR 35.136.  If it is not obvious what the dog (or miniature horse) is there for a hotel or shop employee can ask (1) if the animal is a service animal, and (2) what work or task has the animal been trained to perform. Unfortunately, if the person is dishonest and smart enough to give an answer that complies with the physical aid requirements of the CFR you cannot inquire any further. However, if they go for the "emotional support" answer which seems to be the go to answer for most of them you can refuse them entry. And, if you are a place that serves food you may be required to under health and safety laws.

Hopefully, this combined with the Virginia specific post will give everyone some guidance as to what the rules are for different support animals so that the next time a harried front desk clerk calls in from The Carlyle Hotel (Appalachian Division), you'll have the answer at the tip of your tongue - not that it will keep the customer from pitching a fit over the fact that the hotel is violating her rights by not letting her take her emotional support turkey vulture with her into her room.

1. Be advised that federal laws and regulations are Byzantine in the extreme and I am almost guaranteed to have missed something. 

06 October 2017

Why Does Anyone in Virginia Get Charged With False Pretenses?

I'm in the middle of a conference where we are discussing insurance fraud. Generally, it's a fairly useful conference discussing a subject which can be complex and hard to prosecute. However, the entire time we've been here they've been obsessive about the primary charge being Obtaining Money by False Pretenses (Va Code 18.2-178). Personally, I think this is an error that proceeds from the fact that people get blinders on them and ignore common law when there is a written statute.

I believe that a much easier prosecution proceeds from Larceny by Trick, a common law form of larceny punished, as most grand larcenies are by Va. Code 18.2-95 (I'm assuming that if an insurance company cares enough to get the ball rolling it will be over $200). Now, when your intrepid author brought this up and another experienced attorney asked me "What about venue?" This was a good question because the situation involved three co-conspirators at least one of which may not have even been at the scene of the claimed incident and therefore had a question as to where he should be charged.

Of course, I flat-footed it. Honestly, I haven't had a defense attorney argue venue for a long time and while the rule for its venue is in the statute for False Pretenses (it can be prosecuted where "(i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense"), I blanked on the general venue statute and made an argument that wasn't the strongest in the world. Consequently, the other prosecutors decided to go with False Pretenses and it probably didn't make much of a difference in the scenario we were working with.

However, as some people have discovered over the years, I have a stubborn streak a mile wide when it comes to arguing legal issues and I'm still convinced that Larceny by Trick should always be a favored charge over False Pretenses.

Larceny by Trick has the same elements of general larceny save one: "the element of trick substitutes for the wrongful taking element required by larceny."  Reid v. Commonwealth, 65 Va. App. 745, 753 (2016). So, larceny by trick would be caption accomplished by the voluntary giving of the money or property to the defendant through any sort of falsity known by the defendant to be false. Another way of thinking about this is that the trespass upon the victim's property is not realized by the victim initially because of a falsity knowingly put forth by the defendant. The remaining elements of asportation and the intent to permanently deprive the victim of the property remain the same as well as the monetary requirement for Grand Larceny ($200).

Obtaining by False Pretense is a species of fraud and therefore has two further limitations that larceny by trick does not. First is the transfer of title. This is a fraud statute instead of a larceny and therefore "an essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant." Shropshire v. Commonwealth, 40 Va. App. 34, 39 (2003). Second is the immediate misrepresentation requirement. For this statute to apply "the false representation [must be] of a past or existing fact." Hubbard v. Commonwealth, 201 Va. 61, 66 (1959). In fact, when monetary payouts are involved the title requirement is discounted and "cases tend to turn on whether the misrepresentation was one of existing fact which makes out false pretenses or some other fraud which makes out larceny by trick."  Reid at 750.  But See Owolabi v. Commonwealth, 16 Va. App. 78 (1993)(case about credit cards as choses in action which had dicta importing the fraud requirements into larceny by trick).

Combining the requirements of the statute and case law, False Pretenses requires that (1) defendant obtained, (2) by false pretense, (2.01) under an immediate misrepresentation (3) money/property, (3.01) that may be subject to larceny, and (3.02) the title thereto.

I'm hard pressed to think up an example that could be charged under False Pretenses that couldn't be charged instead under Larceny by Trick. And why wouldn't you if you could? Under Larceny by Trick you don't have an immediate misrepresentation requirement and no issues about whether title passed. It's cleaner, simpler prosecution.

Additionally, a prosecution under larceny gives at least one collateral advantage. False Pretenses is a fraud the proof of which causes a defendant to be "deemed guilty of larceny." Thus, it doesn't support a conviction of Conspiracy to Grand Larceny under Va Code 18.2-23 and a conspiracy would have to be prosecuted under Va Code 18.2-22 and carry less potential incarceration.

Venue:  And here's where I was a true idiot. Sure, the False Pretense statute sets out its own venue requirements, but the requirements for all other crimes aren't much different. If there's a crime in Virginia and the prosecution is uncertain where exactly it occurred then the default is where the defendant lives, or if not a Virginia resident where he was caught, or if he neither lives in Virginia nor is caught here any jurisdiction where a related crime occurred. Va Code 19.2-244. Consequently, if I know the crime occurred, but I have a hard time nailing down the exact locale of the criminal activity, I just try it where the defendant lives.

Simplest answer in the world and I just flat-footed it. Venue shouldn't provide any problems in prosecuting a Larceny by Trick.

04 October 2017

Fraud for Social Services and Medicaid

If you live in an economically depressed area you have a lot of people receiving various forms of social services. Most of them need it. Some of them don't. Anyone who has done criminal work for any period of time can tell you stories of people married to (or living with) someone who is rich and claiming benefits or claiming benefits in two States or just straight out lying about whether they have a job. It's money for the taking and people will try to scam their way into it.

So what can be done? Those in charge of the system can, and do, try to police it themselves, but in the case of more extreme, repetitive, and unrepentant abusers there are criminal legal sanctions. While there are probably more than what I'm going to list below, however these are the ones I see charged most often.

63.2-502 - Perjury for to Obtain Public Assistance - Obviously, this is about lying in order to get benefits and it is one of the two ways in which cases tend to start as people lie about their circumstances to get money or get more money. It is punished a perjury and therefore has a punishment of up to ten (10) years.

63.2-513 - Failing to Report Changed Circumstances - This is the other way in which cases start. This occurs when the person getting aid fails to report that they've gotten a job or gotten married or that the three kids they're claiming to get money have been removed by Child Welfare. These can be more difficult if the case is one in which the recipient has not had his six month review (they're reviewed every six months) because the recipient always claims he didn't know/understand he was supposed to take the initiative to report. However, after that six month check in when they are specifically asked if there's been a change (and they always say no) that claim becomes very difficult to defend.  Violating this section is a deemed to be a violation of 63.2-522 and therefore is a larceny. Punishment depends on whether it is a misdemeanor amount or felony, but since this is usually done in the felony level it generally carries up to twenty (20) years.

63.2-522 - Social Services Fraud - Basically, this is the statute which specifies that getting money by defrauding the Social Services is a larceny. Punishment depends on whether it is a misdemeanor amount or felony, but since this is usually done in the felony level it generally carries up to twenty (20) years.

However, if the benefits come from Medicaid then there are different charges which must be filed:

32.1-314(1) - Perjury to get Medicaid - This is basically the same as the basic charge for lying to get benefits, but it applies only to Medicaid benefits. It carries up to twenty (20) years as punishment.

32.1-314(2) - Medicaid Benefit Fraud - Lying, concealing to get Medicaid benefits.

32.1-314(3) - Failing to Report Changed Circumstances - Not reporting things which would change the amount of funds coming in.

All the charges under this section are punished with up to twenty (20) years in prison.