Michigan Senate Bill 663: Michigan cracks down on fake emotional support animals

On November 28, 2017, Senator Peter MacGregor introduced Senate Bill 663, which would criminalize a fake request for an emotional support animal or service animal. Requests for emotional support animals and service animals continue to increase under the Federal Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. While a legitimate request for an emotional support animal or service animal may require a reasonable accommodation, stronger penalties are needed to prevent a fake request that is merely intended to avoid the plain language of condominium bylaws or restrictive covenants in Michigan.

Senate Bill 663 would amend the Michigan Collars, Harnesses, and Leashes on Dogs in Public Places Act, MCL 752.61 et seq., which would now provide as follows:

Sec. 1. As used in this act:

(a) “Emotional support animal” means an assistance animal that provides emotional support to a person with a disability who has a disability-related need for that support.

(b) “Health care provider” means 1 of the following:

(i) A health professional licensed or otherwise authorized to engage in the practice of medicine or the practice of osteopathic medicine and surgery under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(ii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.

(iii) A local health department as that term is defined in section 1105 of the public health code, 1978 PA 368, MCL 333.1105.

(c) (a) “Person with a disability” means a person who has a disability as defined in section 12102 of the Americans with disabilities act of 1990, 42 USC 12102 and 28 CFR 36.104.

(d) (b) As used in subdivision (a), (c), “person with a disability” includes a veteran who has been diagnosed with 1 or more of the following:

(i) Post-traumatic stress disorder.

(ii) Traumatic brain injury.

(iii) Other service-related disabilities.

(e) (c) “Service animal” means all of the following:

(i) That term as defined in 28 CFR 36.104.

(ii) A miniature horse that has been individually trained to do work or perform tasks as described in 28 CFR 36.104 for the benefit of a person with a disability.

(f) (d) “Veteran” means any of the following:

(i) A person who performed military service in the armed forces for a period of more than 90 days and separated from the armed forces in a manner other than a dishonorable discharge.

(ii) A person discharged or released from military service because of a service-related disability.

(iii) A member of a reserve branch of the armed forces at the time he or she was ordered to military service during a period of war, or in a campaign or expedition for which a campaign badge is authorized, and was released from military service in a manner other than a dishonorable discharge.

Sec. 2. (1) A person shall not falsely represent that he or she is in possession of an emotional support animal, a service animal, or a service animal in training, in any public place or to a current or prospective landlord or other housing provider.

(2) A person who certifies the need for a person with a disability to possess an emotional support animal or a service animal shall not falsely represent that need and shall satisfy all of the following:

(a) The person shall be a health care provider licensed in this state or in another state.

(b) The person shall maintain a physical office space where he or she regularly treats patients.

(c) The person shall document that he or she has treated the person with a disability for at least 6 months before the date on which a public or private entity requests documentation establishing the validity of the person with a disability’s alleged disability and the nexus between that disability and the need for the emotional support animal or service animal.

(d) The person shall, upon request, provide the person with a disability or a public or private entity requesting the documentation described in subdivision (c) with a notarized letter certifying that the person with a disability is disabled and that the emotional support animal or service animal is necessary to alleviate the effects of the disability that would otherwise prevent the disabled person from having the same opportunities to use a public place or residence as a nondisabled person.

(e) The person shall provide the documentation described in subdivision (d) on an annual basis, upon request.

Sec. 3. (1) A person who knowingly violates this act is guilty of a misdemeanor punishable by 1 or more of the following:

(a) Imprisonment for not more than 90 days.

(b) A fine of not more than $500.00.

(c) Community service for not more than 30 days.

(2) A landlord or other housing provider who rents housing to a person who knowingly violates this act shall evict that person as provided in section 5714(1)(c)(i) or 5775(2)(k) of the revised judicature act of 1961, 1961 PA 263, MCL 600.5714 and 600.5775.

Sec. 4. The department of civil rights shall use its existing telephone complaint hotline to receive reports of a person falsely representing that he or she is in possession of an emotional support animal, a service animal, or a service animal in training, or reports of a health care provider who is falsely certifying the need for an emotional support animal or a service animal. The department may refer an alleged violation of this act to the appropriate law enforcement agency for investigation.

While we have previously discussed providing reasonable accommodations under the Federal Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq, Michigan condominium and homeowners associations should evaluate a request for an emotional support animal or service animal on a case-by-case basis.  However, the term “housing provider” should be specifically defined or further clarified before the bill is passed to confirm that a community association would fall within the definition of a “housing provider”, although it likely would.

Kevin Hirzel is a Michigan Community Association attorney that concentrates his practice on commercial litigation, community association law, condominium law, construction law and real estate law. Mr. Hirzel has been a Super Lawyer’s Rising Star in Real Estate Law from 2013-2017, an award given to only 2.5% of the attorneys in Michigan each year. He was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a designation given to less than 175 attorneys in the country. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (734) 261-2400 or khirzel@cmda-law.com.