HOUSE DOCKET, NO. 3524        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3657

The Commonwealth of Massachusetts

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PRESENTED BY:

Kimberly N. Ferguson

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the misrepresentation of a service animal.

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PETITION OF:

HOUSE DOCKET, NO. 3524        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3657

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to the misrepresentation of a service animal.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

Chapter 272 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after section 98A the following:-

Section 98A ½ . (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Disability” has the same meaning as set forth in the deferral “Americans with Disabilities Act of 1990”, 42 U.S.C. Sec. 12101 et seq., and its related amendments implementing regulations.

“Service dog” has the same meaning as set forth in the implementing regulations of Title II and Title III of the federal “Americans with Disabilities Act of 1990”, 42 U.S.C. Sec. 12101 et seq.

“Service-dog-in-training” means a dog or puppy that has been selected for service dog work and is being handled by a service-dog trainer .

“Service-dog trainer” means a competent dog trainer who is providing individual training of a dog or puppy with the intention of having the dog or puppy become a working service dog that will perform tasks for a disabled person.

(b) Business owners and individuals will continue to be protected under the Americans with Disabilities Act of 1990.

(c) The Massachusetts Office on Disability shall prepare and make available to businesses upon request, (i) a decal suitable for posting in a front window or door, stating that service dogs are welcome and that misrepresentation of a service dog is a violation of Massachusetts law, (ii) a brochure detailing permissible questions a business owner may ask in order to determine whether a dog is a service dog, proper answers to those questions, and guidelines defining unacceptable behavior.

(d) The Massachusetts Office on Disability in conjunction with a nationally accredited service dog organization will develop training and guidelines for law enforcement and animal control personnel regarding implementation and enforcement of this law.

(e) (1) An individual (i) who expressly or impliedly represents that a dog in his or her possession is a service dog or a service-dog-in-training for the purpose of obtaining any rights or privileges afforded to a person with a disability requiring the assistance of a service dog and (ii) who knew or should have known that the dog in his or her possession was not a service dog or service-dog-in-training, shall have committed a civil infraction, punishable: (i) for a first offense, by 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months, or by a civil fine of not more than $500, or both such community service and fine; and (ii) for any subsequent offenses, by 60 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months, or by a civil fine of not more than $1,000, or both such community service and fine.

(2) An individual who takes a dog, which the individual knows not to be a service dog or service-dog-in-training, into a place of public accommodation where pets are not permitted, and the dog is wearing a cape, vest, special leash, or other form of identification that states or implies that the dog is a service dog entitled to be present, even if the individual makes no affirmative statements, shall be considered to have violated this subsection.

(3) Any police or animal control officer may investigate and enforce this section by making inquiry of the individual accompanied by the dog in question and issuing a civil citation.  Refusal by the individual to answer the permissible questions shall create a presumption that the dog is not a service dog and the officer may issue the citation and require the individual to remove the dog from the place of public accommodation.

(f) (1) A violator who receives a citation requiring the payment of a civil fine pursuant to subsection (e) shall within 20 days: (i) pay the civil fine to the municipality in which the violation took place; or (ii) contest responsibility for the violation by sending a signed request for a noncriminal hearing, together with a copy of the citation, a verification of the violator’s mailing address and a $25 court filing fee, to the clerk-magistrate of the district court for the judicial district in which the violation occurred.  The citation shall notify the violator of these obligations and provide detailed instructions on how to pay the civil fine or contest responsibility, including the address where payment is to be submitted and the address where a request for a noncriminal hearing is to be submitted.  If payment is not made within 20 days, the clerk of the municipality in which the violation took place shall notify the magistrate of the district court that payment of the civil fine was not made. 

(2) A violator who receives a citation requiring the violator to complete community service shall within 20 days: (i) submit, by mail or in person, a signed letter to the clerk of the municipality in which the violation occurred and a signed letter to the clerk-magistrate of the district court for the judicial district in which the violation occurred verifying the violator’s intention to complete such community service and identifying the name of the organization for which the violator would like to complete the community service; or (ii) contest responsibility for the violation by sending a signed request for a noncriminal hearing, together with a copy of the citation, a verification of the violator’s mailing address and a $25 court filing fee, to the clerk-magistrate.  The citation shall notify the violator of these obligations and provide the violator with instructions, including the addresses where the letters are to be submitted and the address where a request for a noncriminal hearing is to be submitted.  If a citation requires the violator to complete community service and pay a fine, the violator need only send 1 signed request for a noncriminal hearing to contest responsibility under this paragraph and paragraph (1).

Upon receiving a signed letter pursuant to clause (i) of the preceding paragraph, the clerk-magistrate shall mail to the violator written instructions and a form to be completed and sent back to the clerk-magistrate to verify the completion of the required community service.     

(3) Upon receiving a timely request for a noncriminal hearing pursuant to this subsection, the clerk-magistrate shall mail a copy of the request to the municipality in which the violation occurred and schedule a hearing to be held before a magistrate or justice of the district court.  The clerk-magistrate shall promptly notify the police agency concerned and the violator of the date and time of the hearing.

A violator who does not, within 20 days of the date of the citation, request a noncriminal hearing shall not thereafter be given such a hearing, unless the clerk-magistrate determines that the failure to make such a timely request was for good cause that was not within the control of the violator. The clerk-magistrate’s determination of such issue shall be final.

If the hearing is conducted by a magistrate other than a justice, either the violator or the police agency concerned may appeal the decision of the magistrate to a justice, who shall hear the case de novo. Any violator so appealing the decision of a magistrate shall be responsible for paying a fee of $50 prior to the scheduling of the appeal hearing before a justice. There shall be no right of jury trial for a violation of this section. 

In any such hearing before a magistrate or justice, the citation shall be admissible and shall be prima facie evidence of the facts stated therein. Compulsory process for witnesses may be had by either party in the same manner as in criminal cases. On a showing of need in advance of such hearing, the magistrate or justice may direct that the violator be permitted to inspect specific written documents or materials in the possession of the police officer or agency concerned that are essential to the violator's defense.

At the conclusion of the hearing, the magistrate or justice shall announce a finding of responsible or not responsible. The magistrate or justice shall enter a finding of responsible if it was shown by a preponderance of the credible evidence that the violator committed the infraction alleged; otherwise the magistrate or justice shall enter a finding of not responsible.

(4) If the violator is found responsible after a noncriminal hearing pursuant to paragraph (3), the magistrate or justice shall order the violator to pay any fine that was directed by the citation within 20 days of the order and complete any community service that was directed by the citation within 180 days of the order. 

(5) A violator who: (i) fails, pursuant to paragraph (1), to either pay the full amount of the civil fine to the municipality within 20 days of the date of the citation or to request a noncriminal hearing within 20 days of the date of the citation plus such grace period as the clerk-magistrate may allow; (ii) fails, pursuant to paragraph (2), to either submit the signed letters within 20 days of the date of the citation or request a noncriminal hearing within 20 days of the date of the citation plus such grace period as the clerk-magistrate may allow; (iii) fails to complete required community service in a timely manner; (iv) fails to appear for a noncriminal hearing before a magistrate or a justice at the time required after having been given notice of such hearing either personally or by first class mail directed to such violator's mail address as reported by the violator; or (v) fails to comply with an order issued pursuant to paragraph 4, shall be punished by a criminal fine of not more than $1,000, imprisonment in a jail or house of correction for not more than 6 months, or both such fine and imprisonment.