Going to the Dogs: Keeping Your Liability on a Leash

Oct 11, 2019 | ADA

Why You May Have to Accommodate Service Dogs at Your Sporting Events
 
By Carla Varriale, of Havkins, Rosenfeld, Ritzert & Varriale
 
People with disabilities have the right to use (and do use) the same facilities and services as individuals without disabilities. That premise is not a confusing one. However the questions of what types of facilities are considered “places of public accommodation” pursuant to the anti-discrimination laws and the types of reasonable accommodations that are required by federal, state and local laws often prove confusing to premises owners. The overarching objective of the anti-discrimination laws is to permit people with disabilities to fully participate in everyday life and that includes the right to equal use and enjoyment in housing, transportation, and goods and services offered at places pf public accommodation. The focus of this article is on a topic that inspires confusion to premises owners and operators in lights of these laws: the requirement that “places of public accommodation” must allow “service animals” on the premises in order to assist disabled patrons with particular tasks that are related to his or her disability. It is against the law to discriminate against a person who is availing themselves (or trying to) of a place of public accommodation because that person is accompanied by a guide dog, hearing dog, or service animal (and a “service animal”, to make matters more confusing, is defined depending on the Federal, State, City or local law(s) that are applied).
 
What is a Place of “Public Accommodation”
 
Places of public accommodation are broadly defined (and include a private entity that owns, leases or operates a place of public accommodation). In New York, an owner, lessor, lessee or operator of a “place of public accommodation” is subject to Federal (the Americans with Disabilities Act, or “the ADA”), State (the New York State Human Rights Law) and City (the New York City Human Rights Law found in the New York City Admin. Code Sections 8-102(4) and (18) and 8-107.4 and 8-107.155) laws. There are also local laws in Westchester and Nassau counties, for example, that should be consulted as applicable in order to assess what laws apply to the premises in question. Generally speaking, the term “public accommodation” encompasses pools, restaurants, gyms, hotels, school, theaters, stores, and sports facilities. In short, the statutes cover most commercial premises where the public is a business invitee.
 
Not All Animals are Equal: “Service” Versus “Support” or “Therapy”
 
As an initial matter, not all animals are equal under the laws.[1] The types of animals that are encompassed within the law can vary depending on whether federal, state or local law is applied, particularly if within New York City (which views the federal and state laws as a “floor” and not “ceiling” for protection and typically offers greater protection to people with disabilities). The location of the premises and the accommodation sought is an important factor. There is an important distinction between a “service animal” versus an “emotional support” or a “comfort” animal.[2] A service animal, simply put, is a working animal that has been trained to do work or to perform tasks for an individual with a disability and the tasks must be directly related to the individual’s disability. There is no requirement that the animal wear a particular collar or vest (in fact, that is not dispositive of anything, other than the owner’s ability to purchase such a collar or leash.)[3] There is no certificate or paperwork that is required to identify the animal as a service animal (and, as discussed below, the owner or operator of the premises cannot request the same be produced before permitting the animal on the premises). Service animals are animals that have been trained to assist with a specific disability.[4] Animals that a person finds comforting or use for companionship are not “service” animals and there is no legal requirement to accommodate a “comfort” or emotional support” animal in a place of public accommodation. Rather, the question of permitting a therapy animal to the premises may present a customer service and management issue and a judgment call on the part of the establishment, but federal. State, and local laws on the subject should be consulted in order to avoid a complaint.
 
Some federal courts have ruled that dogs that calm their companions during Post Traumatic Stress Disorder (“PTSD”) episodes are not service animals. Riley v. Bd. Of Comm’rs, 2017 US Dist. LEXIS 153737 at 17 (N.D. Indiana 2017) (citing 28 C.F.R. 104); Lerma v. California Exposition and State Fair Police, 2:12-cv-1363, 2014 U.S. Dist. LEXIS 285 (E.D. Cal. 2014); Rose v. Springfield-Green Cnty. Health Dep’ t, 668 F. Supp.2d 1206 (W.D. Mo. 2009) (internal citations omitted). In fact, the Riley Court went even further and found that, despite plaintiff claiming to suffer from seizures, loss of balance, and mobility issues, because there is nothing to support a finding of a relationship between those issues and plaintiff’s purported PTSD, the dog’s purported ability to assist in these issues did not qualify it as a service animal under the ADA. Riley, at 16-17. Specifically, the ADA makes a clear distinction between “service animal” and “emotional support animals.” Service animals are trained to help their companions with specific jobs, and are covered under the ADA. Emotional support dogs, on the other hand, are not covered under the ADA. Revised ADA Regulations Implementing Title II and Title III (2010). To be a service dog, the animal must take a specific action to help with panic/anxiety attacks. If the dog’s mere presence provides comfort, it is not considered a service animal under the ADA. Id. Therefore, depending on which law applies, a trained service animal is accorded different treatment that a “comfort” or support animals.
 
Two Permissible Questions
 
There are two permissible avenues of inquiry that do not run afoul of the discrimination laws for the owner or operator of a place of public accommodation to rely upon. They are: 1) whether the animal is required because of a disability[5] and 2) what work is the animal trained to perform. Service animals are trained to assist with an array of functions, including assisting with navigation, stability, or balance, carrying and retrieving items, seizure assistance, and alerting their owner to sounds or allergens, according to New York’s Attorney General’s recent brochure. In other words, the service animal’s “work” does not have to be related to mobility issues. See also Revised ADA Regulations Implementing Title II and Title III (2010). No other questions are permitted, including questions regarding the nature of the patron’s alleged disability, the animal’s certification or lack thereof, or a request that the animal demonstrate its training. Even dogs trained at home to perform certain tasks have been held to be service animals. See, Vaughn v. Rent-A-Center, Inc., 2009 US Dist. LEXIS 20747 (S.D. Ohio, 2009).
 
Keeping Liability on a Leash: Some Practical Suggestions
 
Simply put, the best way to “keep your liability on a leash” is to know what is required of you (keeping in mind that the federal law provides a baseline and that New York State and New York City and local laws can, and often do, provide even greater protection to the disabled patron seeking an accommodation). There is no substitute for education and legal advice.[6] There are also numerous websites, including government websites, that offer a wealth of information and guidance so that you do not run afoul of legal requirements.
 
Also, educate your employees about what is expected of them with respect to service (and other) animals. Compliance Training is also available at a fee but can assist in both avoiding and defending a potential action. Educate your customers or patrons as well-many places of public accommodation post the law or a policy and what it entails and this includes on websites and appropriate signage.[7]
 
A good rule of thumb to keep in mind is that, generally, service animals are allowed where the public is allowed. You are required to permit such an animal on the premises of a place of public accommodation, even if there is a “No Pets “ policy because service animals are not considered pets. The service animals’ entry on the premises cannot be conditioned upon charging a fee. There is no requirement that the service animal receive its own “accommodation” at the premises, such as food or water, or toileting facilities, and it does not need to be permitted to remain on the premises if it is a danger and poses a threat to health or safety of other patrons. A muzzle is not required, however, under New York law, a service dog must be “controlled” on a leash or in a harness. See NY Civil Rights Law 47-b(4). The control of the service animal is the responsibility of its owner, not (the premises) owner or manager.
 
A discrimination complaint is a legal and a customer service issue, and it can carry significant fines and liabilities, especially if a pattern if or practice of discrimination is found. The ADA, and the State and City Human Rights Law, and applicable local laws provide remedies, and depending on the applicable law, injunctive relief, compensatory and punitive damages, and an award of attorney’s fees to the complaint are within the array of potential remedies available to a person who has been discriminated against. It’s a liability issue for premises owners and operators that should be muzzled through education and careful consideration of the legal requirements.
 
[1] The ADA for example, contemplates dogs and even miniature horses as service animals.
 
[2] As noted above, places of public accommodation within New York City should be mindful that the City Human Rights Law does not define or provide limitations concerning service animals. Rather, it puts the burden on the entity seeking to exclude the service animal to prove that the person using one could not benefit from its use, or that the animal would meet the City of New York Human Right Laws high “undue hardship test. See NYC Admin. Code Section 8-102 (18).
 
[3] New York’s Governor has signed a bill into law to punish people who “knowingly affix to any dog any false or improper tag identifying the dog as a guide, service, therapy or hearing dog.” See https://legislation.nysenate.gov/pdf/bills/2017/S6565. New York joined states such as New Jersey, New Mexico, Virginia and Maine to punish and deter abuse.
 
[4] To further complicate matters, the disability may not be readily apparent and the types of disability contemplated under the law can be intellectual or psychiatric and, therefore, may not be readily apparent to the owner or operator of a place of public accommodation.
 
[5] This is not to be confused with asking the patron seeking an accommodation to describe or confirm his or her purported disability. This line of inquiry is not permitted.
 
[6] See http://www.ada.gov for ADA compliance information and informal guidance about its regulations. The New York State Attorney General also provides guidance on her website. See https://ag.ny.gov/sites/default/files/service_animals_brochure for resources and information.
 
[7] For example, some sports and entertainment venues post the service dog policy on the website and at the premises and invites patrons to communicate with guest services personnel regarding accommodations needed before they visit the facility.


 

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