In the 2019 legislative session, the Utah legislature is considering House Bill 43 (HB 43) that would make certain actions involving emotional support animals (also known as support animals, companion animals, or comfort animals) a class C misdemeanor. HB 43 has passed the house and is under consideration in the senate. By all indications, this bill is set to sail through the legislature and to be signed by the governor. HB 43 is sponsored by Representative Dunnigan and Senator Bramble, both of whom sponsored the bills that formed the original laws that this is bill is modifying and expanding.

The existing statute, Utah Code Ann.  § 62A-5b-106, already made it a crime to interfere with the exercise of a disabled person’s right to a service animal. The existing statute also made it a crime for someone to “intentionally and knowingly” represent to another that an animal is a service animal when the animal is not. It also made it a crime to misrepresent facts to a health care provider for the purpose of obtaining a service animal. H.B. 43 would modify the existing law to, for the first time, included emotional support animals along with service animals. The distinction is important because service animals are a carefully prescribed and easily identified category of animals that are typically trained and certified to provide very specific services to a disabled owner. Emotional support animals, on the other hand, have no specialized training or certifications because that is not necessary for their function. Although the benefit of emotional support animals can vary among their disabled owners, the typical benefit is a therapeutic and helpful calming of the symptoms of certain mental conditions, such as extreme anxiety and PTSD. In short, the presence and companionship of the animal provides the benefit.

In the world of condominiums, PUDs, Townhomes, HOAs, homeowners’ associations, and other community associations, this is a critically important issue. The federal Fair Housing Act and the Utah state Fair Housing Act both provide that owners and community associations must make reasonable accommodations for both service animals and emotional support animals. This means if an HOA has rules or covenants that prohibit animals or proscribe limitations on animals (such as their size or where they may go in the project), the owner or homeowners’ association may have to make exceptions to those rules under circumstances where a disabled individual needs the animal to assist with one or more of the disabled person’s major life activities. A common example of this type of situation is a veteran who suffers from Post-Traumatic Stress Syndrome and has a dog who helps minimize the symptoms of that condition. That veteran may have the right to move into a condominium project that does not allow animals, and nonetheless keep her dog.

The big question for HOAs is how H.B. 43 will impact requests for accommodation and the responses of HOAs to those requests. If a condominium board of directors believes a request to keep an emotional support animal is not genuine, could they and should they file a criminal complaint? What is “enough” information to support the filing of a criminal complaint? Is the filing retaliation that is prohibited under federal law? Also, what about people who complain about an emotional support animal in a project or harass the owner who has one? Have they now violated a criminal law? What about Boards who deny a request for accommodation, are they now potentially liable criminally? Do the criminal provisions apply at all to an HOA board of trustees or an HOA board of directors?

As other states have passed similar laws, the lawyers at Morris DeVoe have been carefully watching this issue. They are prepared to assist their clients (owners requesting accommodations and HOAs responding to requests) with answers to the hard questions above. No firm in Utah has more experience with Fair Housing laws in homeowners’ associations. The lawyers at Morris DeVoe will continue to monitor HB 43 in the 2019 Utah legislature and will be prepared to assist their clients with the nuances of this law and other Fair Housing laws.