[NFBMT] An interesting email exchange between me and Nagdu President Marion Gwizdala

Sat Mar 25 09:49:09 UTC 2017

From: Bruce&Joy Breslauer [mailto:breslauerj at gmail.com] 
Sent: Monday, March 6, 2017 3:17 PM
To: President at nagdu.org
Subject: I was asleep at the wheel

Hi, Marion.

Apparently I was asleep at the wheel.  

I think I am against this bill currently in the Montana legislature.  It
seems to me that the current ADA law is sufficient if it is just enforced.
Opinion?

This has currently passed the House and is headed for the Senate.

It was introduced in December, 2016, had a hearing on February 14, and passed
the house on third reading on February 23, 2017, none of which I was
previously aware of.

Montana 65th Legislature HB0364.02

HOUSE BILL NO. 364

INTRODUCED BY D. LOGE, R. COOK, R. FITZGERALD, B. GRUBBS, W. MCKAMEY, W.
SALES,

D. SKEES, S. STAFFANSON, J. TREBAS, B. USHER, P. WEBB, R. WEBB

A BILL FOR AN ACT ENTITLED: 

"AN ACT REVISING LAWS GOVERNING 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 DOG; 

REQUIRING THAT THE DOG BE UNDER THE HANDLER'S CONTROL; 

REQUIRING CERTAIN POSTING PROVISIONS; 

CREATING THE OFFENSE OF FRAUDULENT REPRESENTATION OF A SERVICE DOG; PROVIDING
PENALTIES; 

AND AMENDING SECTION 49-4-214, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 49-4-214, MCA, is amended to read:

"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 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 who has a service animal that is a dog represents that the
person has a disability for which the dog provides assistance and the person
wishes to access the places and accommodations mentioned in 49-4-211
accompanied by the dog in its capacity as a service animal:

(a) the person may be asked:

(i) whether the dog is a service animal that is required because of a
disability; and

(ii) to describe the work or task the dog is trained to perform; and

(b) the dog must be under the handler's control as required under 28 CFR
35.136.

(6) A notice posted at a place or accommodation mentioned in 49-4-211 that
dogs or other animals are prohibited on the premises must also indicate that
a person may be accompanied by a service animal subject to the provisions of
this section and [section 2]."

NEW SECTION. Section 2. Fraudulent representation of service dog -- penalty
-- COMPLAINT -- INVESTIGATION. 

(1) A person who knowingly and willfully represents that a dog is a service
animal by fitting the dog with a leash, collar, cape, harness, backpack, or
sign that identifies the dog as a service animal, by using an identification
card commonly used by a person with a disability, or by claiming verbally or
in writing that the dog is a service dog in order to fraudulently access the
places and accommodations mentioned in 49-4-211 with the dog is guilty of a
misdemeanor and upon conviction shall be punished by a fine of not less than
$50 and not more than $500.

(2) In addition to the penalty provided in subsection (1), a person convicted
of the offense of fraudulent representation of a service dog under subsection
(1) may be required to perform community service for an organization that
advocates on behalf of persons with disabilities.

(3) (A) A PERSON WHO SUSPECTS FRAUDULENT REPRESENTATION OF A SERVICE DOG MAY
FILE A COMPLAINT WITH THE COMMISSION FOR HUMAN RIGHTS ESTABLISHED UNDER
2-15-1706. THE COMPLAINT MUST BE WRITTEN AND VERIFIED AND MUST STATE THE
PARTICULARS OF THE ALLEGED FRAUDULENT REPRESENTATION.

(B) THE COMMISSION SHALL INVESTIGATE THE COMPLAINT WITHIN 30 DAYS OF RECEIPT
OF THE COMPLAINT.

(C) IF THE COMMISSION CONCLUDES THAT FRAUDULENT REPRESENTATION HAS NOT
OCCURRED, THE COMMISSION SHALL DISMISS THE COMPLAINT.

(D) IF THE COMMISSION CONCLUDES THAT FRAUDULENT REPRESENTATION HAS OCCURRED,
THE DEPARTMENT SHALL EITHER COMMENCE AN ACTION FOR A VIOLATION OF THIS
SECTION OR PROVIDE THE RESULTS OF ITS INVESTIGATION TO THE LOCAL LAW
ENFORCEMENT ENTITY HAVING JURISDICTION.

NEW SECTION. Section 3. Codification instruction. [Section 2] is 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 [section 2].

-     - Authorized Print Version - HB 364

65th Legislature 

HB0364.02

From: NAGDU President

Sent: Tuesday, March 07, 2017 4:04 AM
To: 'Bruce&Joy Breslauer'; President at nagdu.org
Subject: RE: I was asleep at the wheel

Joy,

                The challenge I see with this bill is the subsection stating

(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.

I think this could be construed to mean that the service animal user must
have identification. If you can get the sponsor to amend the bill to remove
this phrasing from this subsection to the subsection that defines a service
animal in training, this would clear up any future confusion as to whether or
not a service animal user must present identification. Otherwise, I think
this bill is okay. Now, if the sponsor is willing to make this amendment,
perhaps the amendment might also specifically state that identification may
not be required by a service animal user.

                If you have any questions, please do not hesitate to get in
touch with me.

Fraternally yours,

Marion Gwizdala, President

National Association of Guide Dog Users Inc. (NAGDU)

National Federation of the Blind

From: Bruce&Joy Breslauer [mailto:breslauerj at gmail.com] 
Sent: Tuesday, March 07, 2017 7:54 AM
To: 'NAGDU President'
Subject: RE: I was asleep at the wheel

I think that is the crux of the bill.  To me, this bill is trying to solve a
problem that they think is rampant but isn't, although it does exist.  I
think they want true service dogs and their owners to be identified in some
way to distinguish them from their false counterparts. The part that actually
bugs me is what they want to do if someone has doubts about whether a service
dog is real or not.  If it is required that a service animal or a service
animal in training be identified with a collar, leash, harness, or backpack,
or some other written statement visible from at least twenty feet away, and
someone fraudulently represents their animal as a service animal with such
identification, you're stuck with the same problem of how to identify the
real service animals from the fraudulent ones.  So this bill doesn't really
solve anything.  So in Section 3 it tries to say what will happen if someone
suspects another person of representing their service dog fraudulently.  The
complaint is filed and investigated, and a determination is made as to
whether the complaint is valid, and if it is, the person is fined or does
community service.  Who does the investigating and with what credentials?
How many times can the legitimacy of a service animal be called into
question?  What an ordeal this would be for someone who really does have a
disability and a service animal.  How would this be proven if someone doesn't
have an obvious disability?  How is this better than laws that are already on
the books?  I have a lot of questions about it.

I like the conciseness of the service dog policy of the intercity bus service
we have in Montana.  It says: 

Snip snip 

Customers with disabilities accompanied by a service animal are welcome on
Jefferson Lines. The service animal is the responsibility of its owner and
must

be under the control of its owner at all times (i.e., leash, harness or
carrier). The service animal must ride in the bus within the customer's
space.

Service animals may not travel in the aisle or occupy a seat, but the service
animal may sit on the customers lap. Jefferson Lines pet policy reserves

the right to refuse passage to any animal that poses a direct threat to the
health and safety of other customers, Jefferson Lines personnel or
contractors.

Drivers are permitted to ask if the animal is required because of a
disability and what type of work or task the animal has been trained to
perform before

admitting the customer for bus travel with service animals. Comfort or
companionship does not qualify as the work or task of a service animal.

Snip snip 

I continued: While traveling, if the animal is clean and well mannered, and
under the handler's control at all times, it theoretically shouldn't matter
to anyone whether it is a certified or certifiable service animal.  It might
in housing situations, though.  If a service animal which is identified as a
service animal is unruly or unkempt, it can be banned from a premises or a
public place.  There are some people who have trained their own service
animals and don't have certification from an accredited training facility.
It's easy to get a real guide dog harness on EBay or to have a fake one made.
These facts would still be true no matter what the current law is.    

From: NAGDU President 

Sent: Tuesday, March 07, 2017 8:44 AM
To: 'Bruce&Joy Breslauer'
Subject: RE: I was asleep at the wheel

Joy,

                I don't have an opinion about such laws one way or another.
Florida passed such a measure a couple years ago and our affiliate NAGDU
division neither supported nor opposed it. I think that it at least offers a
bit of a deterrent to those who might pass their pets off as service dogs. My
message, though, is that it would be a good idea to clear up the ambiguous
language in subsection (1) so that it doesn't get misconstrued as a
requirement for service dog users to present documentation. My understanding
is that requirement applies to the trainer not the user. If that were removed
from the subsection and put with the trainer subsection, it would be much
clearer.

Fraternally yours,

Marion

Joy Breslauer, President

National Federation of the Blind of Montana 

Web Site: http://www.nfbofmt.org <http://www.nfbofmt.org/> 

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