What is a “service animal”?
Current Regulations, that went into effect in 2011, define a “service animal” as either a dog or a miniature horse. NO OTHER ANIMALS QUALIFY AS “SERVICE ANIMALS.” However, there are no laws that restrict what kinds of animals can be used to provide support or assistance. Other kinds of animals simply cannot be called “service animals.”
What is the source of service animal “rights”?
There are four federal laws that mainly impact service animal rights. Under the American’s with Disabilities Act, 42 U.S.C. ?? 12101 et seq, businesses and organizations that serve the public must allow people with disabilities to bring their service animals into all areas of the facility where customers are normally allowed to go. This federal law applies to all businesses open to the public, including restaurants, hotels, taxis and shuttles, grocery and department stores, hospitals and medical offices, theaters, health clubs, parks and zoos. The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs conducted by Federal agencies, program receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The Fair Housing Amendments Act prohibits discrimination in housing. The Air Carrier Access Act of 1986 prohibits discrimination in air carrier transportation. Most states have some law that either tracks the rights and privileges afforded by the ADA or expands on them.
Knowing your rights
Although the law creates and protects the rights of disabled persons to be attended by a service animal, the law does not guarantee that a disabled person will be able to exercise that right without occasional conflict or confrontation. There are things that a disabled person with a service animal should know in order to position themselves to avoid or minimize conflict and maximize their right of access. If you are a disabled person with a service animal: you can take that service animal with you anywhere you are authorized to go. That service animal is “legally” the equivalent of a wheelchair, a cane, crutches, a walker or an oxygen tank. No one can take it away from you or ask that you not bring it with you. You cannot be segregated from other people. This is true even if someone else is scared of or allergic to animals. You cannot be charged a fee for any reason related to the service animal. An example of an illegal “fee” is a service fee for cleaning up after the animal. Even if the business has a “pet” fee, this does not apply to you. Your service animal is not a “pet.” You cannot be asked about your disability. You can be asked what tasks your animal performs. You cannot be asked for identification or proof that your animal is a service animal. BUT your rights may not be absolute: some states may require your animal to wear an identifying vest or harness; if your animal misbehaves (is disruptive or ill-mannered or out of control) and you don’t bring it under control, then you may be asked to leave or be turned away; if your animal damages property, there are circumstances where you can be asked to pay for the damage; if you refuse to respond to a “task or function” inquiry about your animal; quarantine laws may trump your right to have your animal with you – so beware when travelling! Certain places may have a legitimate interest in restricting animal access. For example, hospitals and schools. However, the law recognizes the difference between the public waiting/reception area, and the ICU or a classroom. KEEP IN MIND, If a law enforcement officer threatens to arrest you or charge you with criminal trespass, then throw in the towel. You can file a complaint later on, but being in the right is not an absolute defense to defying the direct order of a law enforcement officer, even if you believe that order effects a violation of your civil rights.
Act the part
Most cases in which access is denied to a qualified individual are fueled by the individual’s own behavior, response to questioning, or presentation. Avoiding conflicts and denial of access can be mitigated to a great degree by making sure you “act the part.” In other words: Describe your service animal as a “service animal.” Say things like “This is my service dog.” DO NOT downplay the animal’s job. DO NOT say things like “having the dog with me makes me feel better.” Downplaying the animal’s job invites inquiries that may question the dog’s legitimacy. Be prepared to respond to the question “What tasks has your animal been trained to perform?” Tell; don’t ask. Do not ask permission to bring your service animal somewhere you are legally entitled to bring it. However, it may be a good idea to disclose your use of a service animal in advance. For example, if you are making hotel reservations, DO NOT ask about a pet policy or inquire “is it OK if I bring my dog…. It’s a service dog.” Instead, use assertive language like “I will have a service dog with me,” or “I am travelling with a service dog.”
It would be nice if everyone knew the law, but they don’t. You will encounter people who do not know anything about service animals and do not know anything about your rights or their obligations under the law. While people who challenge your right of access may be less than polite, the best response is a calm and polite response aimed at educating them as to the error of their ways. Some ways to do this are:
- Carry information about your rights and share it with them;
- Carry the phone number for the US Department of Justice ADA Information hotline (800-514-0301) and suggest that they place a call to the hotline so that someone at the Department of Justice can answer their questions.
- Ask to speak to their manager. For example, “I know that you are just trying to do your job, but the law gives me the right to be here with my service animal and I think it would be helpful if you call (your manager or the Department of Justice service animal hotline) so that we can straighten this out before things get out of hand.”
If all else fails, file a complaint
If persuasive rhetoric is unsuccessful and you are denied access, then filing a complaint with the relevant state or federal authorities may be your only option to protect your rights and those of other disabled individuals in the future. Whether you complain to a state or federal authority will depend on what law governs the place from which you were denied access. For example, if your problem was with a restaurant, your right to be there falls under the ADA and you may complain to the U.S. Department of Justice. But if your problem was with your landlord, then your rights fall under the Fair Housing Act and you may complain to the Office of Fair Housing and Equal Opportunity. States will also have specific complaint processes for violations of their disabilities law.
This article was originally published in Avvo.
©2021 by Krysia Carmel Nelson, Esq.