Planes, Trains, and Automobiles

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Dog on Train

There are many of us out there who regularly forego the opportunity to take a vacation because we cannot bear the thought of leaving our animal companions behind.  We either do not own an automobile or the destination is too far to drive, a plane ticket is outside the scope of our budget or riding the train is a non-starter since Amtrak does not allow pets on their trains.  Alternatively, there are also those among us that have animal companions on the smaller side that are quite familiar with what it is like to take them on vacation.  Taking an animal companion of any size in an automobile is clearly not an issue and most airlines have policies in place that allow passengers to bring their animal companions in the cabin and accompany them on their journey.

H.R. 674, while being unable to provide individuals with an automobile to drive places with their animal companion, and also unable to help those of limited financial means fly places with their animal companion, does offer a possible solution that could open the door to more individuals having the means to travel with their animal companion.  H.R. 674 otherwise known as the “Pets on Trains Act of 2015” has the potential if signed into law, “to require Amtrak to propose a pet policy that allows passengers to transport domesticated cats and dogs on certain Amtrak trains…”  The original bill H.R. 2066 was introduced by Rep. Jeff Denham (R-CA) back on May 21, 2013 but lost steam in Congress.  The new bill, also introduced by Rep. Denham, currently has twenty-four lawmakers on board from both sides of the aisle.  Rep. Denham currently serves as the Chairman of the Subcommittee on Railroads, Pipelines, and Hazardous Materials, a subcommittee that has jurisdiction over Amtrak.

The Pets on Trains Act of 2015 (the “Act”) would require that Amtrak, within 90 days of enactment of this Act, propose a pet policy to transport dogs and cats.  The Act would require Amtrak to designate one car of each passenger train (assuming the train is more than one car long) where a ticketed passenger could transport a dog or cat if:

  1. The cat or dog is contained in a pet kennel;
  2. The pet kennel can be stowed in accordance with Amtrak size requirements for carry-on luggage;
  3. The distance the passenger is ticketed for traveling is less than 750 miles; and
  4. The passenger pays a fee.

Similar provisions would need to be set forth in order to transport the cat or dog as cargo.  The Act would be completely separate from any pre-existing obligations Amtrak has to accommodate service dogs.  The Act also does not require Amtrak to add additional train cars or modify existing cars.

Rep. Denham has been working to change Amtrak’s policy ever since he was unable to take his 15-pound French bulldog Lily on a train a few years ago.  Rep. Denham believes changing the policy has a number of important benefits including:

  1. Encouraging people to travel by train instead of on congested roads; and
  2. Bring revenue to a business that relies on taxpayer support for survival.

Amtrak has already begun test runs for pets on two routes in Illinois.  In 2014, an estimated 145 passengers took advantage of the new service.  Participation steadily increased as more passengers became aware of the change in policy.  For the routes currently being tested out in Illinois, Amtrak is requiring passengers to make a reservation, pay a $25 surcharge, have the animal weigh 20 pounds or less, and check-in a minimum of 30 minutes before departure.  Amtrak has retained the right to remove any pet from the train that smells bad or is disruptive.  A spokesman for Amtrak said that “the experiment has gone well and the lack of any negative feedback from customers or crewmembers is heartening.”


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

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#28 Ohio Seizes Opportunity and Stuns #5 Michigan-First of the Bitter Rivals to Provide PPOs for Animal Companions

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(image from remarkableohio.org)

Ohio’s legislators have read the pregame report; they have seen the statistics.  Michigan has been a perennial Top 5 state in each of the Animal Legal Defense Fund’s polls.  Ohio knows that Michigan, like any opponent, has a weakness.  A member of their team, Senator Michael Skindell, D-Lakewood, comes up with their gameplan.  It is known as Senate Bill 177.  With the precision of a sniper, the state of Ohio strikes, sending a shot across the bow of their rival to the north.  On Friday, December 19, Ohio’s leader, Governor John Kasich, declares victory as Senate Bill 177 becomes the law of the land.  While this author may be prone to hyperbole, making it sound like this could be something straight out of the USA Today/AP Top 25 College Football polls, it seems around these parts that anytime a lower ranked Ohio or Michigan (as the case has unfortunately been for some time, at least with regards to football) beats their neighbor at anything, it is newsworthy.

As you probably deduced by now, the state of Ohio passed a law this month, Senate Bill 177, which authorizes judges to include animal companions in personal protection orders (PPOs) they issue.  Specifically, the bill states that “[t]he court may include within a protection order issued under this section a term requiring that the respondent not remove, damage, hide, harm, or dispose of any companion animal owned or possessed by the person to be protected by the order, and may include within the order a term authorizing the person to be protected by the order to remove a companion animal owned by the person to be protected by the order from the possession of the respondent.”  By Governor Kasich signing Senate Bill 177 into law, Ohio became the 24th state to make PPOs available to animal companions.

In 2006, Maine passed what at the time was a first of its kind statute in the United States that amended its protective order statute to expressly allow a court to enter “an order concerning the care, custody, or control of any companion animal or companion livestock owned, possessed, leased, kept or held by either party or a minor child residing in the household.”  Many states have cross reporting requirements and as noted above, almost half of the fifty states now have provisions that allow animal companions to be included in personal protection orders.  Cross-reporting requires law enforcement and social agencies to report abuse and collaborate so that for example an animal protection agency must report suspected child abuse and child protective services would be required to report suspected animal abuse.  Most states require a showing of good cause before allowing the animal to be included in a protective order.  For example, in Simmons v. Dixon, 240 S.W.3d 608 (Ark. Ct. App. 2006), the court granted a protective order to a woman and her dog after the appellant threatened to kill or beat both of them.

It has been recognized and known for some time now that there is a link between individuals who abuse humans and individuals who abuse animals.  A quick look back in time reveals that some of the most infamous serial killers, David Berkowitz, Ted Bundy, Jeffrey Dahmer, and others, all had a prior history of abusing or torturing animals.  In a 1997 study conducted by the Massachusetts SPCA and Northeastern University, the criminal records of 153 people charged with intentional cruelty to animals were reviewed for the period ten years before and after the abuse.  According to the study, 70 percent of the abusers also committed violent, property, drug, or disorderly crimes compared to 22 percent of the control group.  In a New Jersey study of 53 families referred to youth and family services for child abuse, a staggering 88 percent of the families had a least one family member who physically abused animals.  In a Utah study of women seeking shelter from domestic violence, 71 percent of those women who shared their homes with animal companions reported their abusers had threatened to harm or kill their animal companion.  A more recent study conducted by the Chicago Police Department that examined crimes against companion animals between July 2001 and July 2004 showed that of the 322 animal cruelty arrests, more than 70 percent of those arrested had other felony charges, including homicides.

There are additional measures that can be taken by both animal shelters and humane organizations, as well as by domestic violence shelters and victim advocates.  Victim advocates can work with domestic violence victims to help them include their animal companions in their safety plans.  Towards this end, victim advocates may include questions on their intake questionnaires about any threats or actual injuries inflicted upon animal companions.  Victim advocates and animal rescue organizations/animal shelters should also work together to help establish programs for emergency housing for animal companions who are the victims of or are coming from the homes of domestic violence.  The emergency housing can either be at one of the shelters or a network of homes that volunteer to care for these animal companions in these extreme circumstances.

Additionally, states such as Michigan and the remaining 25 states that do not currently have PPO laws that include animal companions need to act now.  Victims should not have to go before a judge and demonstrate a showing of good cause before allowing the animal to be included in a protective order.  Legislators should follow the example of those in Ohio and elsewhere and should be working proactively to ensure that pets can be included in PPOs and that judges are informed as to why this is the right thing to do.

Please know that if you or your animal companion are the victim of domestic violence there are resources available.

Locally, in western Michigan, the following resources are available to animal victims of domestic violence:

  • In Kalamazoo at the Kalamazoo Humane Society in collaboration with the YWCA of Kalamazoo Domestic Assault Program
  • In Battle Creek at the Humane Society of South Central Michigan in collaboration with S.A.F.E. Place: Animal Victims of Domestic Violence (AVDV) Foster Care Program
  • In Allegan at Wishbone Pet Rescue Alliance in conjunction with Sylvia’s Place: Protecting Animals and Women in Shelters (PAWS) Program

Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

And at the Time of My Death, I Direct that my Animal Companion Be Destroyed in a Humane Manner

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Kolby

On November 25, an Aurora, Indiana woman named Connie Lay passed away.  If your immediate response to this news is, “so what”, I would not fault you.  People pass away every day in this country, so what makes Ms. Lay’s passing special or noteworthy?  What if I told you that in her last will and testament she stipulated that her dog Bela be buried with her?  What if I went on to tell you that Bela, a German shepherd, is still alive and well?

Ms. Lay made provisions that in the event of her death, she wanted her friend to take charge of her dog and have Bela euthanized, cremated and buried with her, or sent to an animal shelter in Utah called Best Friends Animal Society.  If the option of sending Bela to Utah is too expensive or not possible, then Bela is to be euthanized.  Bela is temporarily being housed at PAWS of Dearborn County Humane Center in Lawrenceburg, Indiana while a decision is made.  Ms. Lay reportedly was concerned about Bela being around others due to the dog’s aggressive behavior. (http://www.newsnet5.com/news/bella-bequest-connie-lays-will-asks-for-still-living-dog-to-be-euthanized-buried-with-her)

As stated on a few occasions now by her lawyer, the request in and of itself, is a legal one.  Even though Bela is housed at PAWS, Bela is part of Ms. Lay’s estate and PAWS has no legal right or control over Bela.  This is not the first time an issue such as this has arisen.  In a 1964 Pennsylvania case in Alleghany County, In re Capers’ Estate, 34 Pa. D. & C.2d 121 (1964), Ms. Capers, the owner of two Irish Setters named Brickland and Sunny Birch, passed away.  In her will she stated that “I direct that any dog which I may own at the time of my death be destroyed in a humane manner and I give and grant unto my Executors hereinafter named full and complete power and discretion necessary to carry out the same.”  In placing such a provision in her will, that court analyzed Ms. Capers’s intent and determined that she was “deeply interested in the humane care and treatment of animals” and “feared that either would grieve for her or that no one would afford them the same affection and kindness that they received during her life.”  The court found no reason for carrying out the literal provision in the will and instead thought Ms. Capers’s intent would be best served by finding the dogs a good home.  The court went on to find that the pet-destruction provision was against public policy and that it “would be an act of cruelty that is not sanctioned by the traditions and purposes of this court, and would conflict with its established public policy.”

Other cases over the years have also found it to be against public policy to honor a provision in an individual’s last will and testament that called for the destruction of their animal companion or livestock.  In re Estate of Hack, No. 97-P-274 (3d Jud. Cir., Madison County, Ill. 1998), the court found that a will provision ordering the testator’s dog to be killed was against public policy.  In the case In re Estate of Howard H. Brand, an unpublished 1999 case out of the probate court in Vermont, the court refused to order the destruction of the horses owned by Mr. Brand at his death as against public policy.  In Smith v. Avanzino, No. 225698 (Cal. Super. Ct., San Francisco County, June 17, 1980), the testatrix’s will provided for the immediate destruction of her dog Sido upon her death.  The San Francisco Society for the Prevention of Cruelty to Animals obtained custody of the dog, and after much publicity and public outcry, the California legislature unanimously passed a statute, California Senate Bill 2509, that was signed into law one day before the court hearing, sparing Sido.  The court still proceeded to resolve the issue on the record stating that “to permit the direction of the decedent here to be carried out would, again, violate existing statute and be contrary to public policy.”

I think there are few among us that would be willing to say that the correct result was not reached in these cases.  As the court in Capers stated, “[m]an has come to realize that he has an ethical duty to preserve all life, human or not, unless the destruction of such other life is an absolute necessity.”  Unfortunately, regardless of public policy, in cases where the will is uncontested or any disagreements are resolved between the parties, there may not be an opening for the court to jump in to save the life of the animal.  As hard as it is for many of us to believe, there are also courts that feel the testator’s intent trumps competing interests vis-à-vis public policy.  For many animals, it is when and only when, public outcry and publicity reach a fever pitch, that their lives are spared.  A Twitter campaign #SaveBela has been started in an attempt to save Bela’s life.

A better option may be to avoid this situation altogether and to educate animal guardians as to the various options that they may have, such as a pet trust, for protecting and safeguarding their faithful companions after they have passed.

“If fortune drives the master forth an outcast into the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him, to guard him against danger, to fight his enemies, and when the last scene of all comes, and death takes his master in its embrace and his body is laid in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open, in alert watchfulness, faithful and true, even unto death.” – the late Sen. George G. Vest of Missouri


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

A Closer Look at Michigan’s Ranking in the Animal Legal Defense Fund’s 2014 U.S. Animal Protection Laws & Rankings

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map-michigan

Since 2006 the Animal Legal Defense Fund (ALDF) has published an annual report that ranks all U.S. states and territories on their animal protection laws.  These rankings are based on 15 categories, which include: (1) general prohibitions, (2) penalties, (3) exemptions, (4) mental health evaluations and counseling, (5) protective orders, (6) cost mitigation & recovery, (7) seizure/impoundment, (8) forfeiture and post-conviction possession, (9) non-animal agency reporting of suspected animal cruelty, (10) veterinarian reporting of suspected animal cruelty, (11) law enforcement policies, (12) sexual assault, (13) fighting, (14) offender registration, and (15) “ag gag” (anti-whistleblower) legislation.  Over the past five years, nearly 75% of all states and territories experienced what was categorized as a significant improvement in their animal protection laws.  For the past seven years, the top 5 states have remained the same (Illinois, Maine, Oregon, California and Michigan).  Illinois continued to hold the top spot that it held in 2013 and Michigan slipped slightly in the rankings from third to fifth.  The worst five states as ranked by ALDF were Wyoming (46th), Utah (47th), New Mexico (48th), Iowa (49th) and Kentucky (50th).

Achieving a ranking in the Top 5 of the ALDF’s annual report demonstrates that while there are certain changes or upgrades that could be made to strengthen areas of the law as they relate to animal protection or welfare, there are also many areas that are already strong.  For Michigan, the ALDF lists as its existing strengths:

  1. Felony penalties for cruelty, neglect, fighting, abandonment, and sexual assault
  2. Adequate definitions/standards of basic care
  3. Principal protections apply to most animals
  4. Full range of statutory protections
  5. Increased penalties for repeat animal abusers
  6. Increased penalties for cases involving multiple animals
  7. Pre-sentence mental health evaluations
  8. Permissive court order for counseling/anger management
  9. Permissive cost mitigation measures for impounded animals
  10. Pre-conviction forfeiture allowed
  11. Court may order forfeiture on conviction
  12. Court may order restrictions on future ownership or possession of animals upon conviction
  13. Peace officers have an affirmative duty to enforce animal protection laws
  14. Humane agents have broad law enforcement authority
  15. Strong animal fighting provisions
  16. Animal fighting as RICO predicate offense

Out of the five states ranked in the Top 5, only Illinois, Maine, and Michigan are currently listed as having felony penalties available for cases of cruelty, neglect, fighting, abandonment, and sexual assault.  Michigan’s laws as they relate to cruelty, neglect, and abandonment can be found in MCL 750.50 (http://legislature.mi.gov/doc.aspx?mcl-750-50) with additional information contained in subparts (a) through (c).   Michigan’s law as it relates to fighting can be found in MCL 750.49 (http://legislature.mi.gov/doc.aspx?mcl-750-49).  Lastly, Michigan’s law as it relates to sexual assault can be found in MCL 750.158 (http://legislature.mi.gov/doc.aspx?mcl-750-158).  Depending on the specific crime and the level it rises to based upon a variety of factors and circumstances, the State of Michigan has the ability to sentence an individual to life in prison for their crimes.

In the tables that were included in the ALDF report for the Top 5 states, 14 selected provisions were mentioned.  Of the 14 selected provisions, Michigan was noted as having 10 of the 14 provisions.  The provisions that Michigan did not have checked off were (1) increased penalties when abuse is committed in the presence of a minor; (2) mandatory forfeiture of animals upon conviction; (3) mandatory reporting of suspected cruelty by veterinarians and/or select non-animal-related agencies/professionals; and (4) animals may be included in domestic violence protective orders.

In cases of animal fighting, Michigan does have a mandatory five year ban on owning or possessing an animal but for cases of cruelty, neglect, or abandonment, it is in the court’s discretion whether or not to ban possession or ownership of an animal.  The issue here is that the forfeiture provisions are not mandatory for cases of cruelty, neglect, or abandonment and are instead at the discretion of the court.  As the law currently stands in Michigan, an individual who is found guilty under MCL 750.50(2) for cruelty, neglect, or abandonment may be ordered by the court under MCL 750.50(9) during the term of their probation, to not own or possess an animal for a period of time not to exceed their probation.  It they commit a subsequent violation of MCL 750.50 the court could then order them to not own or possess an animal for any period of time, including permanent relinquishment of animal ownership.  Someone who is found guilty under MCL 750.49, the fighting provision, is by law prohibited from owning or possessing an animal of the same species involved in the violation for five years after the date of sentencing.

MCL 333.18827 protects a veterinarian or veterinary technician from civil or criminal liability for making a report in good faith if they know or reasonably believe that an animal has been abandoned, neglected or abused.  This provision of Michigan law is obviously different than an affirmative duty to report suspected abuse, neglect, or abandonment.  As an example, in Massachusetts, a recently passed law known as the “PAWS Act” (Protecting Animal Welfare and Safety) includes a provision that provides that “[a]ny veterinarian who fails to report such an act of animal cruelty shall be reported to the board of registration in veterinary medicine.”

Michigan has been listed in the Top 5 of the ALDF’s annual report each year that it has been published.  Even though this is a noteworthy achievement, it does not mean that Michigan is without areas for improvement.  The areas that the ALDF listed as having room for potential improvements include:

  1. Increased penalties for offenders with prior domestic violence offenses
  2. Increased penalties when abuse is committed in the presence of a minor
  3. Mandatory terms of incarceration
  4. Protective orders to include animals
  5. Mandatory restitution
  6. Mandatory cost mitigation measures for impounded animals
  7. Mandatory forfeiture of animals on conviction
  8. Mandatory restrictions on future ownership or possession of animals following a conviction
  9. Mandatory reporting of suspected animal cruelty by select non-animal-related agencies and veterinarians
  10. Court-calendared priority when animals are in custody
  11. Animal abuser registry

As one can discern by reading through the list for improvement, there are many provisions that Michigan already has on its books.  The issue from the perspective of the ALDF is that not all of the provisions contained in Michigan’s laws are “mandatory”.  Given the strong correlation between domestic violence and animal abuse, it would make a great deal of sense to include animals under personal protection orders (PPOs).  Likewise, having a registry of animal abusers would greatly assist rescue organizations and shelters in ferreting out any potential adoption applicants that clearly should not be given an animal companion.  It goes without saying that someone who has been convicted of a crime against animals should automatically forfeit his or her right to ever own or possess an animal ever again.  While one would hope that someone charged with caring for animals such as a veterinarian would of his own volition report suspected animal abuse, passing a law to make that an affirmative obligation is the right thing to do.

If you would like to read the ALDF report in its entirety, you can find the report here: http://aldf.org/staterankings/


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

A Brief Follow-Up to Protecting our Unsung Four-Legged Heroes

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Police Dog

On October 30 we published a blog post entitled “Protecting our Unsung Four-Legged Heroes” (http://wp.me/p5cvax-z).   If you had the opportunity to read that post, you’ll remember that K-9 dogs face incredible dangers each and every day to protect us but we as a society do not necessarily do everything we can do to protect them.  The criminal justice laws in most jurisdictions fail to adequately address (i.e. punish) those who commit heinous crimes against these animals.  Today, we have some promising news to report out of Oregon and Pennsylvania, the sites of two of this year’s tragedies.

Back in April, Mick, a K-9 dog out of Portland, Oregon was killed in the line of duty.  He sustained fatal gunshot wounds while trying to stop a suspect wanted in connection with a burglary.  His handler, Officer Jeffrey Dorn, suffered wounds to both legs in a shootout with the suspect and credits Mick with saving his life that day.  The individual arrested for killing Mick faced a multi-count indictment, including assault of a law enforcement animal and first-degree aggravated animal abuse, amongst other charges.  The crime of killing an animal working in an official law enforcement capacity is a felony, albeit only a Class C felony, punishable by a maximum of five years in prison.  For a bit of perspective, it is also a Class C felony in the State of Oregon to steal a chicken.  Following the death of Mick, two women in Oregon have been working tirelessly to get support for a bill through a petition they created (https://www.facebook.com/pages/Paws-People-for-Micks-Law/1484425531771536).  The bill that is expected to be introduced to a legislative committee this week by State Sen. Arnie Roblan, would increase the punishment for killing an animal working in an official law enforcement capacity to a Class B felony, punishable by a maximum of ten years in prison and/or a $250,000 fine.  The proposal has been dubbed “Mick’s Law.”  In related news, this past Friday, the man who murdered Mick was sentenced to 30 years in prison for his crimes (http://www.oregonlive.com/portland/index.ssf/2014/12/man_who_shot_portland_cop_with.html).

Meanwhile, in Pittsburgh, Pennsylvania, the trial of the man who killed Pittsburgh police K-9 Rocco back in January 2014 is set to begin.  Rocco died after suffering a 3-inch-deep stab wound that lacerated his muscle and kidney.  The individual being charged for Rocco’s death also faces a litany of charges stemming from the attack including the felony of abusing a police animal and a charge of misdemeanor animal cruelty.  The felony count carries a fine of up to $15,000 or up to seven years in prison, regardless of whether or not Rocco died.  Following Rocco’s tragic death, a bipartisan state legislative effort strengthened those penalties.  In July, Pennsylvania Governor Tom Corbett signed “Rocco’s Law” that makes torturing or killing a police animal a second degree felony, punishable by a $25,000 fine and up to ten years imprisonment.

As the law currently stands in Michigan, under Section 750.50c of the Michigan Penal Code (http://legislature.mi.gov/doc.aspx?mcl-750-50c), a person who kills or causes serious physical harm to a police dog can be convicted of a felony.  The punishment associated with being convicted of that felony is no more than 5 years in prison and a fine of no more than $10,000.  For those who feel this is insufficient, please take the time to lobby your state representatives, circulate a petition, and urge the State of Michigan to take a look at the changes being made in places such as Pennsylvania and demand that they follow suit.  K-9s deserve better.


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Family Law, Probate/Estate Planning, Business Law, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

Minimum Standards of Care for Our Animal Companions and the Crossroads Between Legal & Moral Obligations

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(from Kalamazoo Gazette)

(from Kalamazoo Gazette)

Anyone who watches the news or reads the local paper in western Michigan is probably already familiar with the story of Chewy, a Corgi-Chocolate Lab mix from Gobles, who was part of a social media firestorm last month.  For those who are not familiar, following a fairly healthy amount of snow in mid-November in western Michigan, a neighbor who lives near Chewy, called the Van Buren County Sheriff’s Office complaining of alleged animal abuse by Chewy’s owner.  The neighbor snapped photos of Chewy being tied to a tree and left outside during the snowstorms and claimed he was left without food, water, or adequate shelter.  Sheriff deputies investigated and found the dog to be in good health and displaying no signs of distress or mistreatment.  The director of the SPCA of Southwest Michigan also drove to the house and left straw, a dog house, food, and a heated water dish as part of its “Cold nose warm hearts” program.  Despite the assurances of sheriff deputies and the kind acts of the SPCA, the neighbor continued to phone complaints into the Sheriff’s Office.  Over 200 calls from other concerned individuals were routed to the county’s animal shelter, the Kalamazoo Gazette received emails and calls from as far away as Australia and South Africa, and a Facebook posting on a site called Dogs Deserve Better generated nearly 2,000 likes.  Tragically, a short time after this firestorm began, Chewy died, not from neglect, but from escaping from his home and being struck by a vehicle.

Section 750.50 of the Michigan Compiled Laws sets forth the minimum standard of care for animals in Michigan.  In Michigan, adequate care is defined as “the provision of sufficient food, water, shelter, sanitary conditions, exercise, and veterinary medical attention in order to maintain an animal in a state of good health.”  It further defines shelter as: adequate protection from the elements and weather conditions suitable for the age, species, and physical condition of the animal so as to maintain the animal in a state of good health.  Shelter, for a dog, includes 1 or more of the following:

  1. The residence of the dog’s owner or other individual.
  2. A doghouse that is an enclosed structure with a roof…dry bedding when the outdoor temperature is or is predicted to drop below freezing.
  3. A structure, including a garage, barn, or shed…to protect the dog from exposure to extreme temperatures.

Given that most states at a minimum require necessary sustenance and shelter and, at a maximum, may impose an affirmative duty to provide veterinary care or shelter from inclement weather, Michigan’s laws meet and exceed the minimum expectations nationally.

The case of Chewy has generated renewed debate in that community regarding the minimum standard of care that should be owed to animal companions.  Typically, failing to provide a minimum standard of care for animals constitutes neglect or animal cruelty.  Cases of neglect can impose a high degree of suffering upon an animal not only due to the fact that these cases sometimes are not uncovered for months or years but also because the animal is often times suffering from chronic pain and disease.  State anti-cruelty statutes often establish what the minimum standard of care includes.  While many defendants in cases of criminal neglect of an animal often challenge the statutes as being overbroad and unconstitutionally vague, courts have repeatedly rejected these arguments.

When an animal has been starved to death or has died of exposure, the evidence makes it easier to show that the owner acted recklessly or breached the standard of care it owed to its animal companion.  In cases such as Chewy’s however, where there is a less prominent breach of the standard of care, expert testimony may be required to demonstrate there was a breach.  In Jordan v. United States, (269 A.2d 848 (D.C. App. 1970)), three witnesses, including a physician, police officer, and the president of the Washington Humane Society, all testified that they witnessed a full-grown German Shepherd on a three foot chain on the defendant’s back porch.  The physician in particular testified that from a distance of 40 yards he thought the dog looked undernourished, had no visible shelter and the temperature that day was below freezing (27 degrees).  In finding the owner guilty, the trial court made no mention as to whether the dog had adequate food or water and instead focused on the dog being left on the porch in unusually cold weather.  The appeals court reversed the decision of the trial court and ordered that a judgment of acquittal be entered for the defendant.  The specific reasoning for the appeals court’s decision was that “[i]n the absence of testimony by someone experienced in the care of a dog of this type, not necessarily a veterinarian, that the shelter or protection from the weather supplied this dog on this occasion would to cause the dog to suffer, the evidence was insufficient to sustain the conviction.”

A southwest Michigan veterinarian, who was not involved in the case with Chewy, echoed the opinion expressed by the appeals court in Washington D.C. stating that the needs of dogs can vary based on many factors and an examination can provide authorities with a clearer picture as to how the animal is doing.  The veterinarian also provided important considerations for animal companion owners to contemplate regarding their dog and the elements:

  1. “Is this a dog that has lived in a house all its life or one that has lived outside?”
  2. “Even with a thick coat, animals need shelter from the wind and a place to curl up and conserve heat.”
  3. “Calories need to increase as temperatures decrease.”
  4. “Animals need constant access to clean water that is not frozen over.”

Out of all the types of animal cruelty cases, animal neglect cases are sometimes the trickiest to prosecute as evidenced by the Jordan case above.  After the death of Chewy, a necropsy was performed that revealed that Chewy was healthy and slightly overweight.  A doctor with the ASPCA said that “the dog had no frostbite and that he understood this was an outside dog but a cared-for dog.”    A few days after Chewy tragically died, the neighbor appeared before the Van Buren County commissioners asking them to enact what would be known as “Chewy’s Law.”  Amongst other requirements, she wants to see the law changed to require owners to bring their animal companions indoors when the temperature drops below 32 degrees and require owners to provide a heated water bowl.  While no action was taken by the Van Buren County commissioners, a second proposal was introduced by another citizen seeking to impose penalties on individuals who continually call animal control when complaints remain unsubstantiated.

As we evolve as a society and many of us continue to view our animal companions as members of the family as opposed to pets, our feelings towards them naturally change.  If we would not leave one of our children outdoors without adequate winter clothing and protection from the elements, it is inconceivable that we would do something similar to an animal companion.  Just as many of us may disagree as to how others raise their children, and if given the opportunity would raise those children differently, many of us feel similarly about how others raise and treat their animals.  Unfortunately, just because we disagree with someone’s actions because they conflict with our own sense of right and wrong, it does not make them illegal.  While there are arguments to be made on both sides as to whether Chewy was or was not a victim of neglect, lost in all the commotion is the impact that this series of unfortunate events had on Chewy’s owners, specifically, their children.  The owner who was never publicly identified stated that his children were afraid someone would come and steal their dog and therefore did not leave Chewy outside after the story broke.  People were showing up at the owner’s house and making threats via email and phone.  The owner stated that the family was basically forced into hiding as a result of the social media campaign launched against them by their neighbor.

All of us who advocate for the rights of animals and who are passionate about our animal companions want what is best for them.  We should never lose our perspective though that there is a right and wrong way to effectuate change.  If we disagree with the current state of animal cruelty laws then we should lobby our legislature to make the changes we desire.  Animal rescue organizations and humane societies can put language in their adoption contracts asking if the adoptable animal will be indoor only to weed out applicants planning on leaving the dog or cat outdoors and seek to enforce violations of the agreement should they come to light.  Further, just because one may disagree with another person’s standard of care and would not choose to act in a similar manner, would the person still feel as strongly and self-righteous if the animal were seized by animal control, thrown into a kennel, and euthanized because the shelter was full or they weren’t adopted?  I know my answer to that question, do you know your answer?


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

Lost, Found, and Adopted Out

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lost_pet_cartoon

The Supreme Court in Maine in a recent ruling declared that the Humane Society of the Waterville Area was not subject to state laws governing the release of public records.  Gina Turcotte had filed suit against the Humane Society claiming she had a right to inspect the society’s records relating to her missing cat.  Ms. Turcotte claimed that the Humane Society had adopted out her cat and refused to disclose to her any information relating to the adoption when Ms. Turcotte demanded the return of her cat.  In her suit, Ms. Turcotte claimed that because the Humane Society had contracts with area communities to collect and care for stray animals they were subject to the state’s public records law.  The court rejected that argument saying that although the society does perform a governmental function, it receives the bulk of its funding from private donations, it was privately created, and its operations are under no significant government control.  As such, the court determined that the Humane Society did not have to provide Ms. Turcotte with its records regarding her cat.

In this instance, the Humane Society was not forced to identify the new cat guardian, and in a previous companion case, won a lawsuit filed by Ms. Turcotte attempting to have the cat returned.  However, there may be other instances where the Humane Society or other rescue organization might be forced to disclose the identity of the new owner or worse, be found liable for conversion.  This case also highlights the limited protections afforded to someone whose cat or dog is rehomed by a shelter or rescue organization.  The resolutions to these issues are not always simple and can depend greatly on the state in which the adoption takes place, the local rules relating to lost or abandoned animals, and the language in the rescue organization’s adoption contracts.

Most jurisdictions have periods of impoundment that can vary from three to six days where they are required by law to hold onto an animal before adopting it out or euthanizing it.  This period of impoundment is designed to give the owner of the animal an opportunity to reclaim their missing pet.  The owner reclaiming his or her animal would typically be required to show proof of ownership, provide proof of rabies vaccinations, and in some cases pay a fine.  The problems arise when the owner comes back to claim their animal after the mandatory waiting period has ended.

In the case of Thomas v. City of Minneapolis & Sharon Keller/Underdog Rescue 2007 WL 1121465 (Minn. Ct. App.), a lost dog that was placed by Underdog Rescue after being received from local animal control was returned to its former owner because animal control failed to post the required notices.  Animal control and Underdog Rescue also had to reimburse the adopter for the costs involved with the failed adoption.  In comparison, in two cases, both out of Vermont that are the minority view, Morgan v. Kroupa (167 Vt. 99, 702 A.2d 630 (1997)) and Lamare v. North Country Animal League (170 Vt. 115, 743 A.2d 598 (1999)), the court extinguished the rights of the original owner in favor of the second owner.  In Morgan, the owner’s dog broke away from its collar and ran away.  Despite efforts to locate the dog and despite the person who found the dog also posting signs, the original owner was never reunited with his dog.  A year later the original owner tracked down his dog and when the new owner refused to return the dog, the dog jumped in the back of the truck of the original owner and he drove off.  The new owner sued and was awarded the dog since she had cared for it for a year and made efforts to return it to the original owner.  In Lamare, only a month had passed when the original owners found their dog, but the Animal League refused to return it, demanded the owners fill out an adoption application, and ultimately declined to adopt the dog out to them in favor of other owners.  Since the Animal League abided by the notice requirements for lost pets, the court held in its favor.

Woods v. KittyKind, Inc. (2005 WL 1404712, 2005 N.Y. Slip Op. 50911(U) (N.Y.Sup.Ct.)) is an unpublished New York case that elucidates how the law can favor the owner and how these issues arise in the first place.  After returning from a weekend trip, Woods found that her cat had gone missing.  She posted signs and contacted shelters and approximately two to three weeks later found out that her cat had been taken in by KittyKind, Inc., a rescue organization for cats.  KittyKind informed Woods that her cat had been adopted and refused to disclose the name of the adopter.  Woods alleged that KittyKind failed to take proper steps to locate the original owner including waiting five days, which is the local waiting period for impounded animals.  The court stated that “[t]here is a distinction between allowing a shelter to make a lost animal available for adoption and extinguishing the original owner’s rights to the animal.  One does not necessarily follow from the other.”  The court ultimately ordered KittyKind to divulge the name, address, and phone number of the adopter so the original owner could get her cat back.

Despite it appearing as though the courts are at odds with how to treat owners when dealing with lost companion animals that are subsequently adopted out, there are some general best practices for animal owners and shelters alike.

For Owners

  1. Even if your pet has been adopted out, you can still assert your rights provided that local statutes did not clearly extinguish them.
  2. Take steps now to help establish the identity of your companion animal and you as its guardian. This includes getting your companion microchipped, having your animal companion wear a visible collar with ID tags, having photos taken of your animal companion, etc.
  3. If your companion animal and you become separated from one another, remember, extra effort counts. Courts will take the effort expounded by each party into consideration to the benefit or detriment of their case.
  4. Contact local shelters and rescues, provide your contact information, post pictures and other general information about your animal companion on Facebook, Twitter, and other online sites. Be persistent!

For Shelters and Rescues

  1. It is important to pay close attention to local statutes that may govern how long a shelter must hold an animal before adopting it out.
  2. You should bear in mind that just because an animal has been adopted out that it does not necessarily mean that the original owner’s rights to their companion animal have been extinguished. Courts generally are not looking to dispossess original owners of their pets.
  3. Just like with animal companion owners, extra effort counts! It is critical that the rescue organization put forth their best efforts in trying to track down the owner. Courts will take the effort expounded by each party into consideration to the benefit or detriment of their case.
  4. Rescue organizations may want to consider taking the extra step of including a clause in their adoption contracts stating the adopter agrees to relinquish the animal back to the rescue organization should the original owner claim the animal companion within a certain timeframe. Organizations should be aware that while it may be prudent to include such a clause, including a clause with a lengthy timeframe allowing for original owners to reclaim their animal companions may have a chilling effect on adoptions.
  5. Shelters and rescues should always, as part of their intake procedures for new animals, check for the existence of a microchip and ID tags.

Humane societies, SPCAs, and rescue organizations should consult with a local attorney to see if their organization and adoption contracts are following “best practices”.  Should a dispute arise between animal companion owners and rescue/shelter organizations or if initial conversations between the parties fail to produce the desired results for either the animal companion owner or rescue/shelter organization, parties may wish to consider animal companion mediation as an alternative to litigation.


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

How Much is Your Animal Companion Worth? Using Mediation to Develop Equitable Solutions to Difficult Pet Issues

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Dog 

Animal Companions as Property

As much as animal lovers may view, and may wish that others view, their animal companions as members of their families, the fact remains that pets continue to be characterized under the law primarily as property. As such, during a divorce, a court may look to award a beloved pet in the same manner as the television or grandma’s china, or in a claim against a third party for critically injuring the animal companion, a court may award an animal guardian only the assessed fair value of their companion, which may be minimal and in no way compensate for the animal guardian’s loss of companionship.

Although there has been a shift in some courts to recharacterize pets as something other than property (see, e.g., Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d (182 N.Y.City.Civ.Ct., 1979), holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property”), change has been slow and inconsistent among jurisdictions.  In contrast to the Corso court, other courts have declined to look beyond the traditional classification of animal companions as property, arguing that doing so effectively would require the courts to undertake the same level of responsibility for animal companions as they do for people, thereby increasing the burden on already overwhelmed courts (see Bennett v. Bennett, 655 So.2d 109 (Fla.App. 1 Dist., 1995)). Additionally, even those courts agreeing with a different characterization have struggled with its application.  For example, recently a New York court applying Corso in an animal custody matter determined to utilize a “best for all concerned” standard, which would allow each animal guardian in a pet custody matter to prove why the guardian would benefit from having the pet in the guardian’s life and why the pet “has a better chance of living, prospering, loving and being loved in the care of one [guardian] as opposed to the other,” rather than a traditional property distribution analysis (Travis v. Murray, 42 Misc.3d 447 (Sup. Ct., N.Y. County, 2013).  However, despite using such a standard, the court in Travis determined that the animal companion should be awarded solely to one guardian, noting that “[a]lthough regrettably a harsh and seemingly unfeeling outcome … our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings.”

In light of the philosophical change from a traditional property analysis in some courts to a more “best for all concerned” approach, this may leave animal guardians uncertain as to how their beloved companion will be treated by a court. In addition, with respect to companion custody matters, it still remains a zero sum game.  The losing guardian, unless an alternative agreement is reached, is stripped of any right to joint custody or visitation.  A potential solution, as noted in Travis, is for the parties to arrive at some form of agreement outside of the courtroom.  One way for disputing parties to reach agreement may be to engage in mediation. Parties may agree to mediation without court involvement or a court may recommend or order mediation.

Mediation vs. Litigation

Mediation is a voluntary process in which a neutral third-party facilitates communication between the parties to determine if a mutually agreeable solution can be reached. The mediator may or may not be an attorney, but, regardless, does not counsel or give advice to the parties.  Unlike litigation, which is adversarial in nature and results in a win/lose outcome, mediation allows the parties to arrive at a shared middle ground that is acceptable to both parties.  In animal law matters, including pet custody, landlord/tenant issues, neighbor disputes and animal injury matters, mediation may be particularly useful to arrive at creative solutions that litigation does not permit.

Mediation may not be appropriate or useful in all animal law matters, as mediation depends on the cooperation of the parties. If the parties are focused solely on determining a “winner” as opposed to finding a solution that the parties find acceptable, mediation will fail.  Likewise, mediation depends on having appropriate parties participate in the mediation–if a party sends a relative or some other third party to mediation in his or place, no agreement may be reached.

If, on the other hand, all involved parties are willing to mediate, the process may offer many benefits. First, litigation is typically an expensive and time consuming process.  Beyond court fees, costs and time constraints, parties rarely communicate directly, which decreases the parties’ opportunity for quickly and satisfactorily resolving the issue.  In contrast, mediation usually involves splitting the cost of a mediator’s hourly rate, which can vary depending on the jurisdiction, between the parties.  Depending on the parties’ preferences, attorneys may or may not be involved in the mediation process.  Even if attorneys are involved in the mediation, the parties are the primary communicators, which allows for more meaningful, direct, and honest communication.  Also, because mediation does not involve a court docket, it can occur based on the parties’ schedules and the duration depends on the parties and may be as little as two hours.

Another benefit of mediation is that the parties control the outcome. Unlike litigation where a judge determines the outcome, in mediation, both parties determine if a resolution is to be reached and the content of any such resolution.  A party cannot unilaterally resolve a conflict in mediation.  Additionally, where, as in animal custody matters, the law and application thereof varies from court to court, mediation provides predictability.

Third, and potentially the most beneficial, mediation allows for more creative solutions. Whereas courts are constrained by rules and regulations, the parties in mediation are free to resolve their dispute in any way the parties agree within their power.  In an animal custody dispute, for example, this would allow the parties to potentially devise a joint custody/visitation agreement.  Through communication, the parties may learn that their schedules allow for shared visitation that benefits both parties.  Whereas, during litigation, the parties are focused on attaining sole possession, as dictated by current law and practice, during mediation the parties may instead focus on what is in the best interests of their beloved companion, something the courts have declined to do.

Finally, although courts may decline to enforce a joint custody or visitation agreement litigated in family court, a court may enforce a provision in a mediated agreement against a party that violates such agreement. For example, if parties agree in mediation that any further disputes resulting from the mediated agreement will be submitted to a neutral arbitrator, the courts may enforce such provision.

Conclusion

Until the laws catches up to the expectations and emotional needs of animal guardians, mediation, rather than litigation, may prove the more prudent option to resolving issues. With respect to animal custody matters where both animal guardians have a vested interest in continuing their relationship with their animal companion, mediation may allow both parties continued association with their animal companion, something that is unlikely to happen if the parties try to resolve the custody matter in court.  As stated by one court addressing an animal companion matter, “[l]ove is not a commodity that can be bought and sold—or decreed.  It should be shared and not argued about.”  Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App., 1981).


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

 

Protecting our Unsung Four-Legged Heroes

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Police Dog

What do drugs, bombs, arson, and missing persons all have in common? They are all areas of law enforcement that can be masterfully handled by none other than our four-legged friends.  With roots dating back as far as the Middle Ages, dogs have been an integral part of law enforcement agencies both large and small, worldwide.  Dogs accompany our soldiers on the battlefields of Iraq and Afghanistan and dogs accompany our local police as they administer their daily duties.  Although other breeds may be utilized, the most common dog breeds used for K-9 work include German Shepherds, Belgian Shepherds, Belgian Malinois, Labrador Retrievers, Bloodhounds, Rottweilers, Australian Cattle Dogs, and Dutch Shepherds.

Each time a dog accompanies his handler in the administration of his/her law enforcement duties that dog is exposed to the same dangers and same threats of bodily harm as his human handler. One need not look any further than our national news to see what a service dog does to protect our nation each and every day (http://abcnews.go.com/US/secret-service-dogs-battling-white-house-fence-jumper/story?id=26399761).  In 2013, 17 K-9 dogs were slain in the line of duty.  Through the first 10 months of 2014, that number has risen to 20.  While some of these dogs perished through unfortunate and unnecessary circumstances such as in auto accidents or being left in a hot car, five dogs in 2013 and seven dogs so far in 2014 have died as the result of gunshot or stab wounds sustained in the line of duty.  These numbers do not account for the loyal service dogs that train and accompany our brave soldiers on the fields of battle.

Though many individuals would argue that dogs are not humans and cannot be placed on the same level as humans, those in law enforcement and the armed forces who work as dog handlers would most likely argue differently (http://nypost.com/2014/10/05/how-4-dogs-helped-protect-their-masters-in-war/).  Many police agencies across the country have resorted to giving the K-9s that serve their communities badges and making them full-fledged members of the force (http://www.azcentral.com/story/news/local/arizona/2014/09/03/12news-prescott-k-9s-get-badges/15048335/).    Many others, including national law enforcement agencies such as the Federal Bureau of Investigation give their service dogs formal memorial services when they are slain in the line of duty (http://www.syracuse.com/news/index.ssf/2013/03/fbi_police_dog_ape_killed_in_h.html).

When a law enforcement officer is killed in the line of duty, the response is swift and exacting. Fellow officers doggedly pursue all leads and prosecutors work tirelessly to see that justice is served.  Punishments for those who kill law enforcement officers can be severe, as many states have the option of pursuing the death penalty for killing a law enforcement officer.  Punishments for those who kill a police dog or police horse for that matter, are nowhere near as severe.  As the law currently stands in Michigan, under Section 750.50c of the Michigan Penal Code, a person who kills or causes serious physical harm to a police dog can be convicted of a felony.  The punishment that comes along with being convicted of that felony-no more than 5 years in prison and a fine of no more than $10,000.

Absent the Michigan Legislature taking any action, there is little that police, prosecutors, and judges can do under the current law to punish these criminals any further. Despite there being little that can be done on the criminal justice front, there are things that communities here in Michigan and across the United States can do to ensure that our brave K-9s are afforded the most care and protection during their career and after.  Kennel clubs, such as the one in Battle Creek, Michigan, have donated bulletproof vests to protect that community’s police dogs (http://woodtv.com/2014/09/16/kennel-club-donates-vests-for-bcpd-k-9s/).  States, such as Massachusetts, have charitable organizations dedicated solely to raising money for vests for police dogs (http://www.mavestadog.org/ws/pages/home.php).  In other communities such as Pittsburgh, Pennsylvania, retirement funds are being setup to make sure that police dogs are cared for long after their service to the community has ended (http://www.post-gazette.com/news/2014/10/28/Pittsburgh-approves-more-money-for-anti-violence-program/stories/201410280178).

If the U.S., state and local governments had approved the additional approximately $1,000 per dog to purchase body armor, there is a chance that the five dogs from 2013 and seven dogs from 2014 might still be serving their communities today. It is hard to fathom that with all the time and money that is invested in training these brave dogs that governments would scoff at providing law enforcement with the additional funds to purchase protective armor.  If dogs are willing to risk their lives to protect all of us, don’t we owe them something more in return?

Dedicated to Koda, Kody, Ape, Ronin, Kilo, Gorky, Rocco, Maros, Mick, Tanja, Tracker, Kye and all the other brave law enforcement dogs who in service to our communities gave the ultimate sacrifice.

Tracker Tanja Ronin Rocco Mick Maros Kye Kody Koda Kilo Gorky Ape


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

Pet Owners Who Rent May Soon be California Dreamin’

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California

Federal law, specifically, the Americans with Disabilities Act (“ADA”) is designed to prevent disparate treatment of disabled individuals in employment and the receipt of government services. One element of the ADA governs the use of service animals, dogs that are individually trained to do work or perform tasks for a person with a disability.  With respect to the use of service animals, under the ADA, service animals generally are allowed to accompany their persons with disabilities in government facilities and privately owned businesses and non-profit organizations that serve the public (see http://www.ada.gov/service_animals_2010.htm).  The Fair Housing Act (“FHA”) provides similar protections as the ADA with respect to housing choices, but does not limit service animals to dogs.  The FHA generally gives qualified disabled individuals the right to have “therapy” or “service” animals live with them despite “no pet” restrictions.  Most states have laws in place that are similar to the ADA and FHA and in many cases provide even greater protections to disabled individuals, including a bar on any housing discrimination based on ownership of a service animal.  Several courts and administrative rulings have extended the protections afforded disabled individuals with service animals to those who have emotional support animals (ESAs).  In many cases to qualify for such protections, a physician certifies that the therapy or service animal provides the disabled individual with valuable support or assistance with regards to that individual’s physical or mental health.

Despite these protections, ongoing confusion about rights and obligations persist, resulting in discrimination. Given the limited questions that landlords are legally allowed to ask, the potential for the landlord to get sued, and the potential bad publicity that could be generated, landlords are sometimes put in an untenable position.  To avoid such issues, in just a few short months, the city council in Berkley, California could approve a first in the nation law that will effectively ban landlords from including “no pet” restrictions in their residential leases.  Jesse Arreguin, a city councilmember, proposed the legislation at a city council meeting on Tuesday (October 21) to deal with the confusion many landlords and tenants face regarding exemptions for service animals and ESAs.  If the proposal were to be enacted into law, all landlords would be required to accept cats, dogs and other small house pets “regardless of whether or not they are identified as assistance animals or ESAs” with the caveat that they can be “reasonably accommodated.”

One could probably find a number of reasons motivating the Berkley city council for wanting to make a change to their law in addition to protecting landlords and the disabled, including, for example, simplifying the law, encouraging animal adoptions and discouraging animal abandonment. Councilmember Arreguin cites a number of benefits of having such a law including (1) cutting down on abandoned animals by allowing pet owners to keep their animals while seeking housing; (2) reducing the amount of shelter and care services Berkley Animal Care Services (BACS) would need to provide due to the reduced number of abandoned animals; (3) increasing the number of adopted animals since tenants would universally be allowed to have them in their rentals; (4) increasing city revenue through the additional registration fees generated through the increased number of adoptions; and (5) allowing BACS to redirect their money and energy to the animals that truly need their assistance.  Landlords in Berkley have expressed concerns with the proposal, citing public health issues, such as asthma.  Likewise, some other city council members feel that this is an issue that is best left to be negotiated between tenants and landlords.  Regardless of the proposal passing, landlords would retain some ability under the law to ban animals, if, for instance, the animals posed a danger to other tenants or if the tenant failed to maintain their premises in a sanitary manner.

In Michigan, landlords are not required to allow tenants to have pets. If a landlord allows a tenant to have a pet, it is important for both the tenant and landlord to include appropriate provisions in the lease.  Generally, the parties will want to specify the type, number, and size of pets allowed.  Landlords in Michigan are allowed to ask for a pet deposit, but the total amount of all deposits (including security) cannot exceed one and a half months’ rent.  In Michigan, guide, hearing, leader, or service dogs are not considered pets and accordingly individuals possessing them may not be illegally discriminated against.

In most towns and cities throughout Michigan and across the U.S., there is a notable disparity between rental units that are generally available and those units designated as “pet friendly” accommodations. However, renters are cautioned against inappropriately identifying their animals as service animals.  Under the ADA, it is a federal crime to possess a fake service dog and nearly ¼ of the states possess similar laws.  Despite these laws, a growing and continuing problem for the disabled community and public venues involves people trying to scam their way into places they normally would not be allowed to go with their dogs (http://www.nbcnews.com/health/health-news/fake-service-dogs-growing-problem-f8C11366537) (http://chicago.cbslocal.com/2013/08/21/despicable-epidemic-people-using-fake-service-dogs/) .

Perhaps, at least with respect to housing, one way to address the problem is to take the Berkley approach and ban the use of “no pet” restrictions in residential leases. Whether states such as Michigan, or cities such as Kalamazoo amend their laws to mirror what is going on in Berkley probably won’t be determined for quite some time.


Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.