Tiny dogs riding in shopping carts. Peacocks boarding airplanes. Service animals and emotional support animals have become more common in today’s world and make for intriguing news headlines, but few truly understand the laws surrounding these animals. What is legally mandated? The answer turns on where the individual and the animal are located.
There are three federal laws that could be applicable: the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA) or the Air Carrier Access Act (ACAA). The confusion surrounding these animals has resulted in inadvertent liability and substantial litigation that could be mitigated with a better understanding of the law.
Animals in Places of Public Accommodation
Two individuals walk into a coffee shop. One is blind and has a dog on a leash wearing an official looking “service animal” vest, and the other has a small dog on a leash and has no visibly obvious disability. Which has a lawful service animal under the ADA? Potentially both.
A service animal can be any dog or miniature horse trained to do work or perform tasks for the benefit of a person with a disability. It can be any breed or size. Pet-related rules do not apply to service animals because they are not considered pets.
The work or tasks performed by a service animal must be directly related to the individual’s disability and can include assisting visually impaired persons, alerting individuals with hearing impairments, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items (i.e., medicine, telephone), providing physical support and assistance to individuals with mobility disabilities, and helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.
Under the ADA, there is no special certification or registration requirement for a service animal, and places of public accommodation cannot require proof that the animal has been certified, trained or licensed.
Business owners’ line of inquiry is rather limited. They neither ask about the nature or extent of a person’s disability nor ask for a demonstration of how the service animal is trained. If the customer’s disability is not obvious, allowed questions are very limited: Is the animal required because of a disability? What work or task has the animal been trained to perform?
However, if the service animal is not housebroken, is out of control, or is a threat to the health or safety of others, a business owner may ask for it to be removed from the premises. The determination of a threat to others should be rooted in the particular animal’s behavior, not on other factors such as breed or size. Business owners asking for an animal’s removal should explain that the animal’s owner is welcome without the animal.
Animals in the Housing Sphere
The FHA governs the law on assistance (emotional support) animals. A common misconception is that one can take an emotional support rabbit or hamster into a shopping plaza. While the ADA governs the law on service animals, the FHA applies to almost all types of dwellings, residential common areas and certain programs receiving federal funding.
Emotional support animals under the FHA can be any species, breed or size and do not need to be trained to perform a specific task. While a shopping plaza would be a place of public accommodation under the ADA, it would not be subject to the FHA and would not need to allow emotional support animals on the premises.
Animals on Airplanes
Under the ACAA, a service animal is one that is individually trained to assist a person with a disability or is necessary for a passenger’s emotional well-being. Airlines are never required to accept unusual service animals such as snakes, reptiles, ferrets, rodents and spiders. Airlines may exclude service animals that are too large or heavy to be accommodated, pose a direct threat to the health or safety of others, cause a significant disruption of cabin service or are prohibited from entering a foreign country. Passengers wanting to travel with an emotional support animal must provide proper documentation from a licensed mental health professional to the airline.
When in doubt as to whether a purported service or emotional support animal is lawfully present, business owners, landlords, airlines and employers should consult legal counsel.
Deedee Bitran is an associate at Shutts & Bowen in Fort Lauderdale.