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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.