HB 4910: Michigan seeks to criminalize fake emotional support animal requests

On September 3, 2019, Representative Matt Hill introduced House Bill 4910, which would create the “Misrepresentation of Emotional Support Animals Act” and criminalize a fake request for an emotional support animal. Requests for emotional support animals continue to rapidly increase under the Federal Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. According to a recent New York Times article, in 2011, the National Service Animal Registry, a for-profit company that sells official-looking vests and certificates for owners, had 2,400 service and emotional support animals in its registry. Now the number is nearly 200,000.

While a legitimate request for an emotional support animal may require a reasonable accommodation under the Federal Fair Housing Act and the Michigan Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq., stronger penalties are needed to prevent a fake request that is merely intended to avoid the plain language of condominium bylaws or restrictive covenants.

House Bill 4910 would make it a misdemeanor for a person to falsely represent to a condominium or homeowners association that they are disabled and in need of an emotional support animal. The bill would also make it a crime for a health care provider to make a false representation that a person is disabled and in need of an emotional support animal. House Bill 4910 also sets requirements with respect to the types of health care professionals that can prescribe an emotional support animal to prevent people from just paying for letters on the internet from health care providers they have never met. A person that is convicted of violating the proposed Misrepresentation of Emotional Support Animals Act could be punished by 90 days in jail, a fine of not more than $500 and/or community service for not more than 30 days.  The bill would also create a hotline for the Michigan Department of Civil Rights to monitor fake requests.  Unlike former Senate Bill 663 that was introduced in 2017, HB 4910 would not regulate service animals.

The full text of the bill provides is as follows:

Sec. 1. This act shall be known and may be cited as the “misrepresentation of emotional support animals act”.
Sec. 2. As used in this act:
(a) “Dwelling” means a building or structure, or any portion of a building or structure, that is occupied as or designed or intended for occupancy as a residence, including, but not limited to, a building or structure that is part of an apartment, manufactured home, or condominium community, a group home or nursing home, or a seasonal residential facility.
(b) “Emotional support animal” means a common domestic animal that is prescribed to a person with a disability, by a health care provider that has determined that the animal’s presence and the animal’s provision of emotional support, well-being, comfort, or companionship is necessary to alleviate the disabling effects of a mental, emotional, psychological, or psychiatric condition or illness that otherwise would prevent the person with a disability from having the same housing opportunities as a nondisabled person. Emotional support animal does not include a service animal as that term is defined in section 502c of the Michigan penal code, 1931 PA 328, MCL 750.502c.
(c) “Health care provider” means any of the following:
(i) A health professional licensed or registered 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.
(d) “Housing provider” means a person, including a private or public business, that is subject to fair housing laws and that offers, provides, or regulates the use of a dwelling.
(e) “Person with a disability” means an individual who has a disability as that term is defined in section 12102 of the Americans with disabilities act of 1990, 42 USC 12102 and 28 CFR 36.104.

Sec. 3. (1) An individual shall not falsely represent to a housing provider that he or she is a person with a disability or is in possession of an emotional support animal.
(2) Unless a disability and a disability-related need for an emotional support animal is readily apparent, a housing provider may request reliable documentation from an individual’s health care provider to confirm that the individual is a person with a disability and to indicate the relationship between the individual’s disability and the need for an emotional support animal.
(3) A health care provider that prescribes an emotional support animal shall not falsely represent that an individual has been diagnosed with a disabling mental, emotional, psychological, or psychiatric condition or illness and requires the use of an emotional support animal to alleviate the disabling effects of that condition or illness.
(4) All of the following apply to a health care provider that prescribes an emotional support animal:
(a) The health care provider must be licensed in this state or in the state in which the individual resides or resided during the previous 180 days.
(b) The health care provider must maintain a physical office space where patients are regularly treated and where the individual for whom an emotional support animal is prescribed has received treatment during the previous 180 days.
(c) Upon request by a housing provider, the health care provider must provide documentation establishing the following:
(i) That the health care provider has treated the individual for a period of not less than 6 months immediately preceding the date on which the housing provider requests the documentation.
(ii) That the individual is a person with a disability.
(iii) The disabling effects of the condition or illness.
(iv) The relationship between the disabling effects of the condition or illness described by the health care provider under subparagraph (iii) and the need for the emotional support animal.
(v) The manner in which the emotional support animal provides the person with a disability with the same opportunity to use and enjoy the dwelling as would a nondisabled person.
(d) The documentation required under subdivision (c) must be in the form of a notarized letter or a completed and notarized questionnaire.
(e) If requested by a housing provider, the health care provider must provide the notarized letter or completed questionnaire described in subdivision (d) on an annual basis.
(5) An emotional support animal registration of any kind, including, but not limited to, an identification card, patch, or certificate, or a similar registration that is obtained for a service animal under 2015 PA 146, MCL 37.301 to 37.307, does not satisfy the documentation requirements of this act.
Sec. 5. (1) An individual or health care provider that 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) If an individual who resides in a dwelling leased or otherwise provided or regulated by a housing provider falsely represents that an animal kept on the leased premises is an emotional support animal, the housing provider may terminate the lease, or otherwise terminate the tenancy of the individual, and recover possession of the premises under section 5714(1)(c)(iv) or section 5775(2)(l) of the revised judicature act of 1961, 1961 PA 264, MCL 600.5714 and 600.5775.
Sec. 7. The department of civil rights shall use a telephone complaint hotline, either currently existing or specifically created for the purposes of this act, to receive reports of an individual who is falsely representing that he or she is in possession of an emotional support animal or of a health care provider that is falsely representing that an individual is in need of an emotional support 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 must evaluate a request for an emotional support animal on a case-by-case basis even if House Bill 4910 is enacted into law.

This is especially true as the federal courts have held that,

…the language of the FHAA itself manifests a clear congressional intent to vitiate the application of any state law that would permit discrimination based on physical handicap. See 42 U.S.C. § 3615 (expressly commanding that “any law of a State … that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid”) (emphasis supplied). Astralis Condo Ass’n v Secy, US Dept of Hous & Urban Dev, 620 F3d 62, 70 (CA 1, 2010)

The Sixth Circuit Court of Appeals has also held as follows with respect to information that a housing provider, such as a condominium or homeowners association, can request to verify a disability:

A housing provider, however, is entitled to seek information from an allegedly disabled person in order to establish the existence of the disability and the necessity of the accommodation. According to the Joint Statement,[I]n response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act’s definition of disability …, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation. **5 Id. at 13. This inquiry need not be highly intrusive. “In most cases, an individual’s medical records or detailed information *622 about the nature of a person’s disability is not necessary….” Id. at 13–14.
In this case, Overlook was likely entitled to ask for more information than the Spencers initially provided. The August 1, 2007, letter from McCarthy was the first time Overlook was notified of Lynsey’s alleged disability. It specified no diagnosis and relied for support on a letter from Lynsey’s psychologist that merely stated that Lynsey was receiving “psychological counseling services” and required a “service dog.” This did not allow Overlook to verify that a qualifying disability existed or that the proposed accommodation was related to the disability. Even after receiving McCarthy’s letter of August 23, 2007, and the Spencers’ waiver request of August 31, 2007, Overlook was entitled to additional information. At the same time, Overlook was probably not entitled to the broad access to confidential medical and school records it demanded. Overlook Mut Homes, Inc v Spencer, 415 Fed Appx 617, 621–22 (CA 6, 2011)

Condominium and homeowners associations must be aware that federal law preempts state law, and that the federal law requirements for evaluating the legitimacy of emotional support animals are not as stringent as set forth in House Bill 4910.  Accordingly,  if a condominium or homeowners associations denies a request for an emotional support animal for a technical reason, such as not receiving a notarized letter from a medical provider or that the letter comes from a licensed professional that does not maintain a physical office, it could potentially still be deemed a violation of the Federal Fair Housing Act under Overlook, supra.  Consequently, condominium associations and homeowners associations should leave the enforcement of fake service animal requests to law enforcement if HB 4910 passes.

It has been reported that the Department of Housing and Urban Development (“HUD”) is exploring whether to issue further guidance on emotional support animals on a federal level.  As the Community Associations Institute points out, such guidance is sorely needed in order to bring uniformity to this area of law, avoid potential conflicts between state and federal and to create a uniform standard that a condominium or homeowners association can comply with in evaluating requests for emotional support animals.  As states continue to regulate fake emotional support animals, which has become necessary due to HUD’s inaction, it is possible that situations may arise in which a health care provider violates state law, but that the person requesting an emotional support animal would still be entitled to an emotional support animal under federal law.   Given that there can be major penalties for wrongfully denying a request for an emotional support animal, it is important for condominium and homeowners associations to consult with counsel in order to determine whether a request for an emotional support animal is legitimate.

Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine in 2018 and 2019, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or kevin@hirzellaw.com.