Balancing Service Animal Users’ and Businesses’ Rights and Responsibilities

Balancing Service Animal Users’ and Businesses’ Rights and Responsibilities

Braille Monitor
June 2016

(back) (contents) (next)

Balancing Service Animal Users’ and Businesses’ Rights and Responsibilities
by Marion Gwizdala
From the Editor: In the May 2015 issue of the Braille Monitor, the president of the National Association of Guide Dog Users discusses the problem caused when members of the public pretend to have service animals in order to take advantage of civil rights legislation implemented to allow people with disabilities to be accompanied by specially trained animals. In the article Marion Gwizdala questions whether the problem is of sufficient urgency to warrant legislation and opines that the promoters of standards for service dogs are motivated more by the desire to become the be-all and end-all of service dogs than by the desire to protect the public from those who would fraudulently call their pets service animals. In this article he discusses the definition of a service dog in the Americans with Disabilities Act and its accompanying regulations, argues that existing regulations are sufficient, and argues that many state laws and proposals are in violation of federal law. He also spells out the rights of businesses to question those accompanied by an animal to determine whether it is indeed a service animal as defined by the ADA. Here is what he says:
Immanuel Kant wrote, “In law a man is guilty when he violates the rights of others; in ethics he is guilty if he only thinks of doing so.” In my previous article I shared my contention that Assistance Dogs International (ADI) seems to be positioning itself as the sole authority for all things service animal related and is manipulating the public to believe that prohibiting the sale of service animal gear over the internet and more restrictive regulations are beneficial and necessary to protect the rights of service dog users. In support of its assertions, ADI enlisted consumers of Canine Companions for Independence (CCI) to be the subjects of a number of articles about the problem of fake service dogs. My contention is that ADI has created the perception of a problem where none exists in order to shore up their position as the certifying body of all things service animal; however, the created perception is false propaganda.
A number of cases have come to our attention in which the remedies available to a guide dog user in a particular state were not pursued because of the conflicts between state and federal laws. In Michigan when a guide dog user who was denied access to a nationally-recognized sandwich shop filed a criminal complaint against the company, the state attorney refused to pursue the case because Michigan law requires the presentation of documentation as a condition of access, and the guide dog user refused to comply with the manager’s request for identification. In North Carolina a guide dog user who was denied medical treatment by his physician because of the presence of his guide dog was unable to pursue charges because his guide dog was not listed on a state registry. Many other states have provisions incongruent with the ADA, and the National Association of Guide Dog Users, through our affiliates, is working diligently to bring all state statutes into congruency with the ADA.
I believe the best approach is to educate ourselves about the mutual rights and responsibilities of service dog users and to empower businesses by having this dialogue with them. So, let’s examine the implementing regulations of the Americans with Disabilities Act found in the Code of Federal Regulations (CFR) to find out for ourselves if the regulations are inadequate to prevent owners of untrained pets from manipulating the law. We will also examine how these regulations protect the rights of places of public accommodation when an animal behaves in a manner that compromises the rights of the business. Those interested in reading the entire text of these regulations can do so by visiting <http://www.nagdu.org>.
The implementing regulations of the Americans with Disabilities Act define a service animal as, “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability” (28 CFR Section 35.104 & 28 CFR Section 36.104). Though this definition only mentions dogs as service animals, miniature horses are also included through other regulations (28 CFR Section 35.136(i) & 28 CFR Section 36.302(c)(9)). The DOJ states that the work or tasks must be directly related to an individual’s disability but do not include “the crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship.”

The most important element in defining a service animal is found in the tasks the dog has been trained to perform. It is not sufficient that a dog is trained in basic obedience; rather, the regulations clearly state the tasks the dog performs must be directly related to the mitigation of the disability. Furthermore, it is not sufficient that the mere presence of the dog has a calming effect, plainly stating that the innate ability of a dog to calm someone or react in a manner in which it has not been trained does not qualify a dog as a service dog under the ADA. This leads us to the question of how a public entity or place of public accommodation can determine if a dog is a service dog and the businesses’ rights under the ADA.

Because the implementing regulations of the Americans with Disabilities Act provide for access to disabled individuals accompanied by a service animal and the definition is clear about what constitutes a service animal, a business has the right to ask questions to determine if a dog meets the definition of “service animal.” And the person has the obligation to answer the questions, known as “credible assurance.” Because the Act applies to individuals who are disabled, a business may ask if the dog is a service animal required because of a disability. The type and extent of the disability is irrelevant and, for this reason, no inquiries about the nature or extent of the disability may be made. A business may also ask what work or task the animal has been trained to perform (28 CFR Section 35. & 28 CFR Section 36.302(c)(6)). These regulations also provide that even “these inquiries may not be made when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability, e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability” (28 CFR Section 35.136(f) & 28 CFR 36.302(c)(6)). The regulations do not allow businesses to require documentation to prove that the animal has been certified, trained, or licensed as a service animal as a condition of access. A service dog is not required to wear any special harnesses, coats, or other gear identifying it as a service animal. Businesses may observe the animal working but may not interfere with the animal or its use.

I regularly hear from businesses who call the NAGDU Information & Advocacy Hotline telling me about someone who refused to answer these questions, claiming it was a violation of their privacy and that they were not required to answer them. My best guidance is that, should a person choose to use a service dog, they accept the responsibilities outlined by the law and its regulations. If a person refuses to answer these questions, a business is fully justified in refusing access to the dog.

We want businesses to know that the rights of disabled individuals accompanied by service animals are not absolute. With every right there are responsibilities, including

The animal must be kept on a leash, harness, or tether unless doing so interferes with the work or tasks the animal is trained to perform. If the harness, leash, or tether interferes with the work of the animal, it must be kept under control by voice, signals, or other methods (28 CFR Section 35.136(d) & 28 CFR Section 302(c)(4));
The animal must not pose a “direct threat,” defined as “a significant risk to the health or safety of others that cannot be eliminated by a reasonable modification of policies, practices, or procedures” (42 USC 12182(b)(3));
The animal must be housebroken. (28 CFR Section 35.136(b)(2) & 28 CFR Section 36.302(c)(2)(ii))

If a business appropriately excludes an animal, it must still allow the individual the right to access the business without the animal being present. I also suggest that a business document the reasons for the exclusion. Should a lawsuit be filed, it will be up to the business to demonstrate that it properly denied the access, and it will be up to the individual to demonstrate that he or she is a person with a disability and that his or her dog meets the definition of a service animal.

A business may not restrict the access of an individual with a disability accompanied by a service dog. Individuals accompanied by service animals are allowed to access all areas of the business where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go (28 CFR Section 35.136(g) & 28 CFR Section 36.302(c)(7)).

Businesses are not required to provide care or supervision for the animal. This is not to say that a business may not choose to do so, only that they are not required to do so. Some businesses, such as amusement parks and zoos, provide portable crates for service dogs so that their customers who use service dogs can fully enjoy themselves when it is not feasible to allow the service dog. Such would be the case on certain amusement rides or in the close contact areas of zoos.

A business may not impose any fees or charges due to the presence of the service dog even if they charge such fees to those who bring pets; however, the service dog user is responsible for any damage caused by the dog if it is the policy of the business to charge for such damage. So a hotel, taxicab, or other business that allows pets may not impose a pet deposit, cleaning fee, or other surcharge to a person who uses a service dog. If the service dog causes damage over and above normal wear and tear, and it is the customary policy of that business to charge for damage caused by pets or patrons, the business may charge the individual for the damage caused.

Businesses often ask what they should do if they have reason to suspect a dog is not a service dog. I generally suggest they start by asking the above questions. Most of us who use service dogs do not mind answering them. Those who may be imposters may wrongly assert they do not need to answer these inquiries. If they cannot or will not give credible assurance that the dog is a service dog, a business has the right to refuse admittance. If a business follows the rules and is threatened with a lawsuit, the threat is likely an attempt to intimidate. If a business knows its rights and follows these guidelines, it is protecting itself from such lawsuits. If the business doubts the credibility of the person seeking access after asking these questions and getting the right answers, I suggest businesses err on the side of permissiveness. It is far better to allow a well-behaved pet access than to deny a legitimate service dog team and face legal action. After all, if the dog is not well-behaved—service dog or not—a business has the right to ask that the dog be removed.

As the leading membership and advocacy organization for guide and other service dog users, it is up to us to educate businesses about our rights and responsibilities. The National Association of Guide Dog Users has many tools to help initiate this dialogue. Our newly edited “Meeting a Working Guide Dog Team” brochure is an impressive piece, complete with pictures of guide dog teams in action. Our latest addition to the Independence Market is our 4-inch x 6-inch “Service Animals Welcome” decal. These decals require prior authorization for receipt due to the expense involved in creating them, so please send an email message to <[email protected]> to get your authorization. We are also producing video programs about guide dogs and will pass the word around when they are available. Our first video program, “Service Animals in Zoos,” will be screened during our annual meeting in Orlando on July 2 at 7:00 p.m.
If you would like to be a part of the most dynamic organization of guide dog users in the country and shape public policy concerning guide dogs and other service dogs, becoming a member of the National Association of Guide Dog Users is easy. If there is an affiliate NAGDU division in your state, joining that division makes you a member of NAGDU. If there is no division in your affiliate and you would like to create one, please get in touch with us. You can check out our affiliate division contact list by visiting our website. You can also join NAGDU by going to our website. While you are there, check out the new design and features of the site. We know you will like what we have done! The command we give our dogs is the movement we share: Forward!

Media Share

// maxLength) {
twtTitle = twtTitle.substr(0, (maxLength - 3)) + '...';
}
var twtLink = 'http://twitter.com/home?status=' + encodeURIComponent(twtTitle + ' ' + twtUrl);
document.write('');
// ]]>

function fbs_click()
{
u=location.href;
t=document.title;
window.open('http://www.facebook.com/sharer.php?url=http%3A%2F%2Fdev.twitter.com%2Fp…;);
return false;
}

(back) (contents) (next)