Opponents say ‘fake’ emotional support animal crackdown bills could violate federal housing law

Image by Mircea Iancu from Pixabay

Is it time to crack down on tenants who misrepresent their pets as emotional support animals? A state Senate panel heard testimony this week that was split on this question.

Dale Zorn

The Senate Committee on Local Government met Thursday to consider Senate Bills 608-610, all introduced by Committee Chair Dale Zorn (R-Ida). During the meeting, Zorn described the bills as being necessary to prevent further “abuse” of the current regulations, which he says are too lax and allow many people to easily and falsely represent their pet as an emotional support animal (ESA) to their landlord or other housing provider.

In short:

  • SB 609 would specifically exclude emotional support animals within Michigan’s current definition of “service animals.”
  • SB 610 would establish the “Misrepresentation of Emotional Support Animals Act,” which would regulate requests for ESAs by: a) laying down much stricter documentation requirements from individuals and their health care providers and b) specifying penalties for individuals who knowingly violate the act. Penalties would include being guilty of a misdemeanor punishable by up to 90 days in jail and/or a $500 fine, and the ability of a housing provider to terminate an individual’s lease early if they are found to have misrepresented their ESA.
  • SB 608 would allow landlords to recover premises from a tenant after terminating their lease under the act established in SB 610.

Housing providers and owners of property rental businesses supported the package, alleging that the problem of ESA misrepresentation among their tenants is serious and has been growing over the last several years. 

Michigan Capitol | Susan J. Demas

Opponents of the bill package cited concerns about the chilling effect it could have on people who legitimately need emotional support animals, and how the bills could even be overstepping the federal Fair Housing Act.

Cheryl Wassa, who evaluates therapy and companion animals for programs including Pets for Vets and the American Kennel Club (AKC)’s Good Canine Citizen program, testified in support of Zorn’s bills. 

Wassa said there needs to be better clarification on the important differences between emotional support animals, service animals/assistance dogs and visiting therapy animals; and ambiguity in the current regulations is “a detriment to those people who actually have assistance dogs.”

Matt Hagan, lead contractor for the East Lansing-based Hagan Realty Inc., spoke in support of SB 608 and SB 610 on account of how they would affect his family’s home rental business. Hagan said his company now deals with issues related to ESAs on an almost-daily basis, since a number of individuals who have their ESA applications denied will subsequently file a civil rights complaint.

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There is “a lot of fraud that goes on” particularly with online ESA certification, Hagan said, emphasizing there’s a need for more regulation.

Karlene Lehman and Matthew Miller, representing the Property Management Association of Michigan, also testified in support of the bill package. Lehman said abuse of current ESA regulations has “reached epidemic levels,” and “delegitimizes the valid diagnosis by health care providers with an established patient-provider relationship.”

“The vast majority of applicants who are seeking an emotional support animal … are people who were caught with an animal that they did not have permission for,” Miller said. “And all of a sudden, what was a pet now became an emotional support animal.”

Jim Schaafsma, representing the Michigan Poverty Law Program, was the first to oppose the bills. Schaafsma said parts of SB 610, in particular, are “inconsistent with federal fair housing law, and are needlessly harsh and excessive.”

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“They simply go beyond what federal law requires in order to establish a reasonable accommodation,” Schaafsma said. He argued that one of the bill’s documentation requirements — that a health care provider signing off on the ESA request must have been treating the individual for at least six months prior to the request — is especially arbitrary and extreme.

“The enactment of these bills would create confusion and fear for the very vulnerable populations who make legitimate ESA accommodation requests, and would have a deterrent effect on their making those legitimate and meritorious requests,” Schaafsma said.

He contends that instead of just targeting fraudulent online applications, Zorn’s bills would “unjustifiably interfere with the lawful and proper exercise of the Fair Housing Rights of Persons with Disabilities.” This federal act provides individuals with the right to choose housing free from unlawful discrimination, including discrimination based on disability.

Schaafsma recommended better legislation to follow the example of other states like Illinois that better conform to federal fair housing laws.

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Steve Tomowiak, executive director of the Fair Housing Center of Metropolitan Detroit, also spoke in opposition of all three bills. Tomowiak echoed Schaafsma’s praise of the Illinois law, saying that it rightly “gives guidance to everybody involved as to what the law requires. That needs to be done, and there’s no opposition [to doing that in Michigan].”

However, Tomowiak said, the proposed legislation would just add another confusing layer of regulation on top of laws that simply need to be clarified and improved.

Illinois state Capitol | Daniel Schwen, Wikimedia Commons

“The problem we face is if it conflicts with the fair housing law, it’s going to be void. The other part of it is, it’s going to be confusing to people. Because you’re using different definitions and different standards,” he said.

Nancy Haynes of the Fair Housing Center of West Michigan also testified in opposition, citing similar reasons.

Two more organizations, the Michigan Academy of Family Physicians and Mental Health Association, did not offer testimony but put in cards of opposition against the bill package.

Over two dozen businesses and groups, including Lansing-based Gillespie Group and a number of housing associations, apartment associations and leasing companies, did not testify but put in cards of support for all three of Zorn’s bills.

No committee action was taken on the bills Thursday.