HOUSE BILL NO. 439
INTRODUCED BY D. LOGE, F. ANDERSON, D. FERN, K. HOLMLUND, R. KNUDSEN, M. NOLAND, S. VINTON, P. WEBB, M. DUNWELL
AN ACT GENERALLY REVISING LAWS RELATED TO SERVICE ANIMALS; DEFINING THE TYPES OF ANIMALS ALLOWED AS SERVICE ANIMALS; ALLOWING FOR CERTAIN QUESTIONS TO BE ASKED OF A PERSON WHO REPRESENTS THAT THE PERSON HAS A DISABILITY AND IS ACCOMPANIED BY A SERVICE ANIMAL; REQUIRING THAT THE ANIMAL BE UNDER THE HANDLER'S CONTROL; REQUIRING CERTAIN POSTING PROVISIONS; CREATING PROCEDURES FOR IDENTIFYING AND EXCUSING A MISREPRESENTED SERVICE ANIMAL; CREATING A MISDEMEANOR OFFENSE FOR THE MISREPRESENTATION OF A SERVICE ANIMAL; AND AMENDING 49-4-203 AND 49-4-214, MCA.
WHEREAS, under the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq., dogs that have been trained to do work or perform a task for the benefit of a person with a disability and whose work or task is directly related to the individual's disability meet the definition of a service animal; and
WHEREAS, properly trained service animals play a vital role in helping individuals with disabilities achieve and maintain independence, and the status of service animals is therefore protected by federal and state laws requiring places of public accommodation, including restaurants, theaters, stores, hospitals, and more to allow any animal that is presented as a service animal or a service animal in training into the place of public accommodation; and
WHEREAS, there is an increasing number of occurrences of people bringing pets, therapy animals, and emotional support animals into a place where the animal would otherwise not be allowed to enter by passing the animal off as a service animal or service animal in training, either by oral misrepresentation, placing a misleading vest or other article on the animal, or presenting a falsified certificate despite knowing that the animal is not a service animal; and
WHEREAS, the use of a misrepresented service animal erodes the public's trust of service animals that are well trained, adequately equipped, and fully serving the person with a disability they are entrusted to guide, aid, or protect.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
"49-4-203. Definitions. (1) "Housing accommodation" means any real property or portion of real property that is used or occupied or is intended, arranged, or designed to be used or occupied as the home, residence, or sleeping place of one or more human beings. The term does not include any single-family residence the occupants of which furnish for compensation not more than one room within the residence.
(2) "Service animal" means a dog or other animal miniature horse individually trained to provide assistance to an individual with a disability. The term does not include an emotional support animal."
"49-4-214. Right to be accompanied by service animal -- identification for service animals in training. (1) A person with a disability has the right to be accompanied by a service animal or a service animal in training with identification complying with subsection (4) in any of the places mentioned in 49-4-211(2) without being charged extra for the service animal. The person with a disability is liable for any damage done to the property by the animal.
(2) A person with a disability who has a service animal or who obtains a service animal is entitled to full and equal access to all housing accommodations as provided in 49-2-305 and 49-4-212. The person with a disability may not be required to pay extra compensation for the service animal but is liable for any damage done to the premises by the service animal.
(3) A person who is training a service animal is entitled to the same rights and assumes the same responsibilities granted to a person with a disability in this section.
(4) For the purposes of this section, a service animal in training that is a dog shall wear a leash, collar, cape, harness, or backpack that identifies in writing that the dog animal is a service animal in training. Other service animals in training must also be identifiable by written identification as a service animal in training. The written identification for service animals in training must be visible and legible from a distance of at least 20 feet.
(5) If a person has a service animal that provides assistance and the person wishes to access the places and accommodations mentioned in 49-4-211 accompanied by the animal in its capacity as a service animal:
(a) the animal must be under the handler's control as required under 28 CFR 35.136 that is in effect as of [the effective date of this act]; and
(b) the person may be asked by a representative of the place or accommodation:
(i) whether the animal is a service animal that is required because of a disability; and
(ii) to describe the work or task the animal is trained to perform.
(6) (a) If the animal described in subsection (5) is not under the handler's control and the handler has not taken effective action to control the animal or the animal is not housebroken, the handler may be asked to remove the animal from the place or accommodation.
(b) A place or accommodation that asks that an animal be removed from the place or accommodation as provided in subsection (6)(a) shall give the animal's handler the opportunity to participate in the service, program, or activity without having the service animal on the premises.
(7) If a place or accommodation mentioned in 49-4-211 posts a notice that dogs or other animals are prohibited on the premises, the place or accommodation must also indicate that a person may be accompanied by a service animal subject to the provisions of this chapter."
Section 3. Misrepresentation of a service animal -- complaint -- investigation. (1) A person who knowingly and willfully represents that an animal is a trained service animal by fitting the animal with a leash, collar, cape, harness, backpack, or sign that identifies the animal as a service animal or claims verbally or in writing that the animal is a service animal in order to access the places and accommodations mentioned in 49-4-211 with the animal, and it is found that the animal is not properly trained to provide services required of a service animal, the person may be asked to remove the animal from a place or accommodation as mentioned in 49-4-211 and local law enforcement may be called to investigate.
(2) An animal may be determined to lack the proper training required of a service animal if the animal is not housebroken or the animal is not under the control of the handler and the animal's handler does not take effective action to control the animal.
(3) (a) A representative of a place or accommodation mentioned in 49-4-211 who suspects that an animal is being misrepresented as a service animal to gain entry to the place or accommodation may file a complaint with local law enforcement. The complaint must be written and must state the particulars of the alleged misrepresentation.
(b) A representative may not file a complaint unless the place or accommodation has posted conspicuous public notice that the place or accommodation:
(i) does not allow animals other than service animals; and
(ii) reserves the right to file complaints alleging the misrepresentation of service animals under this section.
(c) The notice required in subsection (3)(b) may include notice of the questions allowed under [section 2(5)(b)] and that the animal must be housebroken and under the handler's control.
(4) If local law enforcement is called to investigate as provided in subsection (1), written results of the investigation must be provided to the place or accommodation where the instance occurred and to the handler of the animal in question.
Section 4. Misrepresentation of a service animal -- misdemeanor -- penalty. (1) A person who misrepresents a service animal as provided in [section 3] may be found guilty of a misdemeanor if:
(a) the person was previously given a written warning regarding the fact that it is illegal to intentionally misrepresent a service animal; and
(b) the person continued to misrepresent the animal as a service animal in order to gain any of the rights or privileges afforded to a service animal.
(2) A person who violates subsection (1) shall be punished as follows:
(a) for a first offense, a fine of $50;
(b) for a second offense, a fine of not less than $75 or more than $200; and
(c) for a third or subsequent offense, a fine of not less than $100 or more than $1,000.
(3) In addition to the penalty provided in subsection (1), a person convicted of the offense of misrepresentation of a service animal under subsection (1) may be required to perform community service for an organization that advocates on the behalf of persons with disabilities.
Section 5. Legislative intent. It is the intent of the legislature that the department of labor and industry implement and comply with [this act] within existing resources.
Section 6. Codification instruction. [Sections 3 and 4] are intended to be codified as an integral part of Title 49, chapter 4, part 2, and the provisions of Title 49, chapter 4, part 2, apply to [sections 3 and 4].
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Prepared by Montana Legislative Services