[NFBMT] HB 439 Misrepresenting a Service Animal

Thu Mar 28 12:21:18 UTC 2019

Here is the latest version of the bill.  I think there may be something in
JAWS that I need to turn on to indicate what is underlined and what is
stricken, but without that knowledge I don't know what has been changed or
deleted.

Montana HB0439

2019 Montana Legislature

HOUSE BILL NO. 439

INTRODUCED BY D. LOGE, F. ANDERSON, D. FERN, K. HOLMLUND, R. KNUDSEN, M.
NOLAND, S. VINTON, P. WEBB, M. DUNWELL

A BILL FOR AN ACT ENTITLED: "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; ALLOWING COMPLAINTS OF A MISREPRESENTED SERVICE ANIMAL TO BE FILED
WITH THE COMMISSION FOR HUMAN RIGHTS; CREATING A MISDEMEANOR OFFENSE FOR THE

MISREPRESENTATION OF A SERVICE ANIMAL; AND AMENDING 49-4-203 AND 49-4-214,
MCA."     

WHEREAS, instances of misrepresenting an animal as a service animal have
increased, which puts at risk those around the misrepresented service animal
and

also risks further discrimination against those with disabilities; and     

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:     

Section 1.  Section 

49-4-203, MCA, is amended to read:     

"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."     

Section 2.  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 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 or the handler is unable to answer the allowed questions
adequately

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 OFFER SERVICES

TO THE ANIMAL'S HANDLER AFTER THE ANIMAL IS REMOVED.

     (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."     

NEW SECTION.  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 a
complaint may be filed against the person as provided in subsection (3) 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 exhibits unwanted behaviors including:

     (a) barking inappropriately;

     (b) urinating or defecating inappropriately;

     (c) displaying unwanted attention toward other patrons;

     (d) eating off a floor, table, or other surface; or

     (e) displaying disruptive behavior that requires excessive efforts from
the handler to control 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) 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.     

(3)(4) (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 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
misrepresentation.

     (b) The commission shall investigate the complaint within 30 days of
receipt of the complaint.

     (c) If the commission concludes that a misrepresentation has not
occurred, the commission shall dismiss the complaint.

     (d) If the commission concludes that a misrepresentation has occurred,
the commission shall either provide the results of its investigation to the
local law enforcement entity having jurisdiction or may certify the complaint
for hearing pursuant to 49-2-505.     

(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 (4)(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.      

NEW SECTION.  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.     

(2)(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.     

NEW SECTION.  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.     

NEW SECTION.  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].

- END -

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Latest Version of HB 439 (HB0439.03)

Processed for the Web on March 27, 2019 (6:08pm)

New language in a bill appears underlined, deleted material appears stricken.

Sponsor names are handwritten on introduced bills, hence do not appear on the
bill until it is reprinted.

Prepared by Montana Legislative Services

Joy Breslauer, First Vice President and Public Policies Committee chair 

National Federation of the Blind of Montana 

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

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