Avoiding the Bite of ADA Violations: Service Animals and Business Owners

by Michelle Ferber and Ben McDonald

Most business owners are familiar with the Americans with Disabilities Act (ADA) which authorizes disabled persons to be accompanied by service animals in public places where animals are usually prohibited. However, how would you react to finding a horse in your restaurant? Or to encountering a seemingly unencumbered person asking you to provide water for his Chihuahua during a visit to your business? Though these seem like bizarre circumstances, these very scenarios are contemplated by law and what business owners don’t know about service animals can hurt them.

The ADA requires that state and local governments, businesses, and nonprofit organizations that serve the public allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. The ADA defines a service animal as a dog that has been individually trained to do work or perform tasks directly related to the person’s disability. While these tasks include aiding the blind and deaf, also included are dogs that can anticipate and mitigate the strength of epileptic seizures, dogs that calm a post-traumatic stress sufferer during an anxiety attack, and even dogs that remind the person to take required medications.
A service dog must be permitted to go anywhere the public is normally allowed to go. While this doesn’t provide much guidance, the illustration of a restaurant and hospital serve to demonstrate this rule. While a person is obviously allowed to be in a dining room or an examination room, a person is not generally allowed to be in the kitchen or an operating room. Within these boundaries, it must be stressed that businesses that sell or prepare food must allow service animals even if state and local health codes prohibit animals on the premises.

The right to be accompanied by a service animal is not unrestricted nor is it absolute. The dog must be on a leash or somehow tethered unless it would interfere with the service animal’s work or the person’s disability prevents the use of a leash or tether. If that is the case, the person must be able to maintain control of the animal through voice, signal, or other effective controls. Furthermore, if the business normally charges guests for the damage they cause, a customer with a service dog can be charged for damage caused by the service dog.

How should a business owner react to having a service animal on her premises? The person with the service animal has to be treated the same as all other customers, meaning that they cannot be treated any differently or isolate that person from other customers. Businesses cannot charge a fee that isn’t imposed on persons without service animals, and even if you do charge a fee to the general public for bringing an animal onto the premises, the fee must we waived for a service animal.

What rights does a business owner have to protect her legitimate business interests? There are only two inquiries a business owner can make in regard to a service animal: 1) Is the dog a service animal required because of a disability? And 2) What work has the dog been trained to do? That’s it. Business owners cannot inquire about the person’s disability; ask to see any kind of proof regarding the dog’s status as a service animal, or anything other than the two questions above. However, if the service dog is either out of control and the handler does not take effective action to control it, or if the dog is not house broken, a business owner can ask the service animal to be removed. In this case, the business owner has an affirmative obligation to offer the disabled person the opportunity to obtain the goods or services with the animal’s presence. If the inquiry above results in the person telling the business owner that the dog’s purpose is to provide emotional support, the business owner may ask that the dog be removed as the ADA does not recognize emotional support as a legitimate purpose of a service animal.

What about the horse and the thirsty Chihuahua? Believe it or not, the ADA revised its regulations to address miniature horses that have been individually trained to do work or perform tasks for people with disabilities. Business owners must permit miniature horses where reasonable. Whether a business owner has to permit a miniature horse on her premises depends on: 1) whether it is housebroken, 2) whether it is under the owner’s control, 3) whether the facility can accommodate the horse’s type, size, and weight, and 4) whether its presence will compromise legitimate safety requirements necessary for the safe operation of the facility. In regard to the Chihuahua, business owners are under no duty or obligation to provide care or food for service animals.

If all of this wasn’t confusing and murky enough, California has its own laws regarding service animals. Under the Disabled Persons Act (DPA), a disabled person has the right to be accompanied by a guide dog, signal dog, or service dog in any of the places covered by the ADA, as well as in almost every kind of housing. The DPA also provides that a violation of the ADA is also a violation of the DPA and the Unruh Civil Rights Act (UCRA). The UCRA guarantees the right of full and equal access to places of public accommodation and the right of disabled people to be accompanied by a trained service dog. The penalties for violations of both the ADA and California laws are steep and harsh. California even provides for criminal penalties for interfering with these rights.

The laws of service animals are anything but clear. Not only are the federal and state laws individually confusing, but their interaction with one another is uncertain even to experts in the field. As the penalties for even the most benign of violations are more than significant, business owners must attempt to understand the basics of these laws and how these issues might arise in the context of their own businesses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.