March 27, 2019

Service Animals and the ADA

It is a sunny summer afternoon at the local city-owned ball field. The park manager hears a commotion and is gobsmacked by the sight of a woman causing quite the disturbance as her therapy peacock becomes enraged over the crack of an aluminum bat. What can he do? Granted, the peacock might be an outlier, but pigs, goats and any manner of other creatures are common therapy animals. The little vests stating “therapy animal” can be bought for a few bucks on the internet
and make the distinction even harder to determine if you do not know the law. However, there is a world of difference between an animal used as a “therapy animal” and one that is used as a “service animal.”

The key distinction is that a “service animal” is recognized and protected by the Americans with Disabilities Act (ADA), while “therapy animals” are not.

The U.S. Department of Justice Civil Rights Division provides specific guidance as to what a “service animal” is. Currently, only dogs (and one other special animal — very popular in our Commonwealth — more on that later) are recognized as service animals under Titles II (state and local government services) and III (public accommodations and commercial facilities) of the ADA. A service animal is a dog that is individually trained to do work or perform tasks for a person with a disability. Generally, service animals must be permitted to accompany people with disabilities in all areas where the public is permitted to go.

Service animals are not pets. These are dogs that have specific training to perform work or tasks for a person with a disability, and the work or task must be directly related to the person’s disability. Examples provided by the Department of Justice are guide dogs for the blind, pulling a wheelchair or calming a person with post-traumatic stress disorder during an anxiety attack. Currently, dogs whose only function is to provide comfort or emotional support do not qualify as service animals under the ADA Kentucky state law mirrors the federal requirements. For service animals, a “person with a disability” is defined as “someone with a physical or mental impairment and includes individuals who have a record or history of an impairment, or are regarded as having a physical or mental impairment that substantially limits one (1) or more major life activities” (KRS 210.770(2)). KRS 258.500 is entitled “Persons with assistance dogs not to be denied accommodations, transportation, or elevator service; conditions; exemption from licensing fees; denial of emergency medical treatment for assistance dog prohibited” and has the following requirements:

1. A person is defined in this statute as a person with a disability or a trainer of an assistance dog. KRS258.500(1).
2. If a person is accompanied by an assistance dog, neither the person nor the dog shall be denied admittance to any hotel, motel, restaurant or eating establishment, nor shall the person be denied full and equal accommodations, facilities and privileges of all public places of amusement, theater or resort when accompanied by an assistance dog. KRS 258.500(2).
3. Any person accompanied by an assistance dog shall be entitled to full and equal accommodations on all public transportation, if the dog does not occupy a seat in any public conveyance, nor endanger the public safety. KRS 258.500(3).
4. No person shall be required to pay additional charges or fare for the transportation of any accompanying assistance dog. KRS 258.500(4).
5. No person accompanied by an assistance dog shall be denied admittance and use of any public building, nor denied the use of any elevator operated for public use. KRS 258.500 (5) 
6. Any person accompanied by an assistance dog may keep the dog in his immediate custody while a tenant in any apartment, or building used as a public lodging. KRS 258.500(6).
7. All trainers accompanied by an assistance dog shall have in their personal possession identification verifying that they are trainers of assistance dogs. KRS 258.500(7).
8. The assistance dog must be vaccinated. KRS 258.500(8).
9. Assistance dogs are exempt from all state and local licensing fees. KRS 258.500(9).
10. Licensing authorities shall accept that the dog for which the license is sought is an assistance dog if the person requesting the license is a person with a disability or the trainer of the dog. KRS 258.500(10).
11. Emergency medical treatment shall not be denied to an assistance dog assigned to a person regardless of the person’s ability to pay prior to treatment. KRS 258.500(11).
12. No person shall willfully or maliciously interfere with an assistance dog or the dog’s user. KRS 258.500(12).

So, if someone brings a peacock, teacup pig, iguana, chinchilla or other creature to a city park or city hall, claiming that the animal is a service or therapy animal, you now know that no matter how fancy the red jacket is on the animal that states it to be a therapy or service animal — unless it barks, it is not a service animal. And no, teaching a parrot how to bark will not overcome this requirement. However, there is one big, or I should say — miniature — exception.  The Justice Department has revised the ADA regulations to cover miniature horses that have been individually trained to work or perform tasks for people with disabilities. These horses are generally 24- to 34-inches tall at the shoulder and weigh between 70 to 100 pounds. Thankfully, the accommodation for a miniature horse is a reasonable standard with four factors to consider:

1. Is the miniature horse housebroken? (I am not joking).
2. Is the miniature horse under the owner’s control?
3. Can the facility accommodate the miniature horse’s type, size and weight?
4. Will the miniature horse’s presence compromise the legitimate safety requirements for the safe
operation of the facility?

Should your city need to determine if it can reasonably accommodate a miniature horse in city hall using these four factors, please contact me at KLC. Not that I can help, but I would just love to hear that story. On a more serious note, even though service animals are permitted, there are some requirements as to their control, and a city does have some leeway in determining if a dog is a legitimate service animal. The Justice Department states that under the ADA service animals must be harnessed, leashed or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents the use of these devices.  Should you suspect that a service animal is illegitimate or it is not obvious as to the service it provides, you can only ask two questions under the law:

1. Is the dog a service animal required because of a disability?
2. What work or task has the dog been trained to perform?

There can be no inquiry into a person’s disability, you may not require medical documentation or training documentation for the dog, or ask the dog to demonstrate its ability like you would ask your own dog to fetch or roll-over. If a sufficient answer is given to both inquiries, the city cannot treat the dog as anything but a service animal under the law.  Allergies or fear of dogs cannot be the basis to deny access or refuse service to people with service animals.  A service animal may only be asked to leave if the dog is out of control and the handler cannot regain control, or if the dog is not housebroken. If this becomes necessary, the person with the disability must still be given the opportunity to obtain the goods or services without the dog being present. Businesses are subject to the same requirements for service animals. Establishments that sell or prepare food must allow service animals, even if local or state health codes prohibit animals. If the facility requires a pet deposit, it must waive this fee for a service animal. However, any damage caused by Fido chewing up hotel pillows may still be charged to the owner.

Please feel free to contact Chris Johnson, KLC’s municipal law attorney, at 859.977.3709 with any questions.