Legal Update: Recent Statutory Changes Impacting Service Animals in Michigan

(The image on this post was linked from http://www.pawsitivityservicedogs.com)

On October 20, 2015, Governor Rick Snyder signed into law Senate Bills 298 and 299 and House Bills 4521 and 4527, which became effective January 18, 2016. The Bills updated rules on the use of service animals in places of public accommodation, as well as, the identification and licensing of service animals and criminalizing certain activities associated with service animals.

The laws were updated for the reason that people were still abusing service animal use and this was causing individuals with valid service animals to be denied access in places of public accommodation. Prior to the enactment of the new laws, incidents for public places turning away service animals was handled at the federal level and could take a few years.  The new statutory provisions will enable local authorities to resolve incidents involving the refusal of service animals and people falsely claiming their pets as a service animal.

The New Laws

Senate Bill 298, Public Act 144 of 2015, now makes it a crime to refuse entry to a person using a service animal or to assault a service animal. Senate Bill 299, Public Act 145 of 2015, exempts dogs from licensing fees, if they are a service animal to someone with a disability or veteran with a service-related disability.

House Bill 4521, Public Act 146 as of 2015, requires the Michigan Department of Civil Rights to offer voluntary identification for service animals. It also requires the department to receive reports of problems encountered by a person with a disability while using a service animal. This bill is now Public Act 146 as of 2015.  House Bill 4527, Public Act 147 as of 2015, makes it a misdemeanor to falsely represent a service animal, and brings state law more in line with the Americans with Disabilities Act with respect to the definitions of “person with a disability” and “service animal.” It also specifically permits veterans to possess a service animal for post-traumatic stress disorder, a traumatic brain injury, or other service-related disability.

How do the New Laws Impact Condominium Associations?

Federal laws such as the Americans with Disabilities Act of 1990, as amended, the Fair Housing Act and the Fair Housing Amendments Act of 1988, and state laws such as Persons with Disabilities Civil Rights Act, require people with disabilities using service animals to be allowed into all places open to the public.

The new laws will affect public places such as inns, hotels, restaurants, bars, theaters, convention centers, retail stores, parks, schools, gyms, to name a few. The entire list of private entities that would be considered public accommodations can be found in the definitional section found in 42 U.S.C. §12181(7) and 28 C.F.R. §36.104 and the definition of place of public accommodation is contained in 28 C.F.R. §36.104.

For most Condominium Associations the new laws regarding public access of service animals and failure to allow access will not impact everyday operations as the majority of condominium projects are not considered places of public accommodation.   However, there may be instances where they would be considered places of public accommodation.  For example, if an Association rents out to non-residents and/or non-co-owners for the use of the Association’s swimming pool, clubhouse, tennis and/or basketball courts, or similar amenity. Doing so may be considered tantamount to being considered a place of public accommodation and you should consult with your experienced association lawyer regarding the legal and practical consequences of doing so.  

Under House Bill 4521, Public Act 146 as of 2015, individuals will be able to register their service animal with the Michigan Department of Civil Rights.  There is no charge for the registration service and the individual will receive an official Registered Service Animal Identification card and big, bold patch for the service animal. To qualify for a service patch, the owner will be required to submit a notarized statement about the duties the animal performs as well as a medical professional’s signature.

Although the new IDs and patches are voluntary, state civil rights officials and lawmakers have been encouraging those with service animals to register to ease their ability to enter places of public accommodations and to help assist business owners and/or employers by allowing them to examine the new IDs and patches to verify that the service animal is allowed in their public place of accommodation.

Thus, the new identification provision, along with the other provisions, will help Boards when they are faced with requests for accommodations as the new statutory provisions will provide easily identifiable markings/identification of service animals, provide for notifying false representation of an animal as a service animal and stiffens penalties for individuals who falsely say their pet is a service animal.  Officials have also said that the new laws will help them have a better handle on how many service animals are in Michigan and educate establishments and the disabled about the rules.

Finally, Boards will need to take into account the new provisions dealing with veterans with post-traumatic stress disorder, a traumatic brain injury or other service-related disability, when faced with requests for accommodations, as under these provisions they are entitled to the use of service animals.

Do the New Laws Impact the Use of Emotional Support / Companion Animals?

Unfortunately, the new laws do not impact emotional support and companion animals.  As set forth in a blog post last year, Emotional Support / Companion Animals – Are People Claiming Disabilities to Get Around Pet Restrictions?, unlike service animals that are trained and licensed, emotional support and companion animals are not trained or licensed and you can simply pay a flat fee to get a license that qualifies an animal as an emotional support / companion animal.

Thus, Boards will still face the same problems and issues associated with emotional support and companion animals as set forth in last year’s article. However, given the story last month about an emotional support turkey on a Delta flight, there have been rumblings both federally and at the state level to address the abuses that have occurred in this area.  We can only hope that legislation will be introduced in the next year or two that will curtail the abuse.

Conclusion

The implementation of the new laws is a positive step in addressing issues that have arisen in the context of the use of service animals and to help clarify what is a true service animal.  Although the new laws should make it easier to determine who is legally entitled to a service animal accommodation, as always, if the Board is presented with a request for accommodation from a co-owner, veteran, tenant and/or visitor to the condominium unit or project, the Board should consult with its experienced community association lawyer regarding both the legal and practical consequences of the accommodation request.

 

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.