A common concern of businesses is what to do about the surge in service animals entering their premises. Many managers understand the federal laws but aren’t quite sure about California or San Francisco laws. It’s understandably confusing because it continues to be a gray area in need of legal clarification.
Do therapy or emotional support animals qualify as service animals? What about dangerous dog breeds? Or even turkeys? I’ve gathered as many resources as I could find to provide answers to these questions. Because these laws are still fluid, I’d strongly recommend consulting a San Francisco lawyer about any specific aspect of these laws before implementing changes at your business. The first time penalty for denying access to someone with a disability can be $75,000.
The federal laws regarding service animals are fairly clear. Only dogs and miniature horses qualify, and the animal has to be trained to perform a task. For example, a seeing eye dog would qualify because it’s trained to assist a person who has difficulty seeing. Other tasks include searching rooms prior to a person with PTSD entering them, for the purpose of reducing the anxiety of that person. This second case is important because the dog demonstrates “recognition and response.” The dog knows, or is instructed, to search a new room before its owner walks in. This is contrasted with emotional support animals, whose mere presence likely doesn’t constitute a trained response.
Vests, Tags, and Licenses
Another important element of the federal Americans with Disabilities Act (ADA) is that service animals don’t need to have any indication that they are trained service animals. This means the animals are not required to wear vests or tags, and that the owners aren’t required to carry documentation. In fact, although some states offer licensing for service animals, federal law says that animals can be trained by their owner and therefore don’t require official documentation.
So, how do you know if a service animal is legitimate? ADA is explicit that you’re only allowed to ask two questions: (1) “Is the dog a service animal required because of a disability?” and (2) “What work or task has the dog been trained to perform?” It’s against the law to ask what a person’s disability is or to demand proof that the animal is licensed.
It’s also a violation to charge extra for the animal, or to deny the person and animal access to areas normally accessible to customers or members of the public. This includes areas where animals are off-limits due to health codes, such as restaurants. I’ve been asked whether it’s permissible for a restaurant to set aside a section for people with service animals, but the law seems clear that any change in treatment would violate a disabled person’s rights.
So what if people lie? It turns out there’s not much a business owner can do. The penalty for misrepresenting a pet as a service animal is up to six months in jail and a $1000 fine, but the definitions of disability and training are so general as to make enforcement almost impossible. And if a person seeks to certify an animal as a service animal, there are any number of websites that will provide a certification without an in-person consultation.
Although the federal ADA sets minimum protections throughout the country, individual states, cities, and other federal agencies can choose to allow a wider range of animals. For example, in one California town, the city council chose to keep the old federal guidelines in order to let a resident continue using a rat that could alert her to spasms.
The U.S. DOT allows a variety of animals on flights, including emotional support animals; so, yes, pigs can fly as long as they’re housebroken, and so can turkeys, but this may be ending soon. The U.S. Housing and Urban Development (HUD) chose to restrict animals to be closer to ADA guidelines, but the Fair Housing Act still allows various animals, including emotional support animals. HUD has said housing providers who fall under both jurisdictions must meet both guidelines and therefore allow the wider definition.
California follows the federal standard of requiring an animal to perform a trained task directly related to a person’s disability, but there appears to be more wiggle room in the state law. As San Francisco’s Mayor’s Office on Disability states on its website, “When it comes to private businesses or establishments that sell or prepare food, the state law is unclear; you may be denied access if you have a support animal.”
San Francisco Law
San Francisco follows California law, but places emphasis on the “reasonable accommodation” clause surrounding emotional support animals. This states that a landlord must make a reasonable attempt to accommodate animals that offer support for a person with a disability, even if the support isn’t a trained response. According to Building Owners and Managers (BOMA) of San Francisco, all types of emotional support animals are allowed in public buildings and private housing but might be restricted from entering hotels, restaurants, and other private businesses.
All breeds are allowed under federal law, and therefore can’t be restricted. However, the dog must be under the owner’s control or put back under control when asked. While barking in a movie theater might be cause for a dog to leave, other businesses could have a harder time proving that barking negatively affects their business.
There are still plenty of legal questions largely unanswered regarding service animals. For example, if a landlord must allow service dogs, does that include multiple dogs? Does each animal have to offer a distinct benefit, such as a monkey to pick up items and a dog to alert of hazards, or can a person have two dogs that perform the same task?
What determines if an animal poses a threat to safety? The U.S. DOT has decided that snakes and spiders shouldn’t be allowed on airplanes, but what about other places? These questions don’t have clear answers at this time and will likely be decided in court. Either way, there are many undecided aspects that are far outside this layperson’s understanding.
The Good News
Although there may not be any way to distinguish actual service animals, there are some restrictions that can benefit businesses. Businesses can insist that service animals stay on the floor and that dogs be kept on leashes at all times as long as the person’s disability allows for leashes. The San Francisco public library lists these rules on their website. If the animal causes damage to property, the business can charge the owner as long as it would also charge the owner of a non-service animal the same amount for damage. The business can also bar an animal if it creates a legitimate safety concern or disrupts business operations, such as a dog growling at customers or barking during a movie. A service animal also needs to be housebroken to qualify. Even if these things happen, the customer should be allowed back on property once the animal is removed. Allergies and fear of dogs alone aren’t enough to constitute safety concerns.
Businesses don’t need to provide special accommodation for service animals, such as food or a place to relieve themselves. If an employee needs a service animal, it might be permissible to ask for a doctor’s note if the animal is going to be at work every day, but again, seeking a lawyer’s opinion should precede any potential ADA conflict.
There are a few other times when service animals can be restricted from businesses, but many of these were only settled by lawsuits, such as a hospital that prohibited dogs due to fears of spreading infection. To be safe, I almost always advise business owners to let service dogs onto property as long as they don’t pose an immediate risk. If the animal is entering a restaurant, asking the two permitted questions under ADA of all dog owners who enter could help prevent health code concerns if someone complains.
While the law in California is unclear about emotional support animals, an untrained animal can still provide assistance to someone who would otherwise have a major life restriction, such as an autistic child who is comforted by the family dog. Even if a business determines it can prohibit emotional support animals, it might be beneficial to allow these animals to enter unless they cause significant problems.
The important thing throughout all this is consistency. If a business allows small service dogs, it should allow big service dogs as well. For someone with a disability, being treated the same as anyone else is often all they want.
“Americans with Disabilities Act Questions and Answers: Service Animals.” ADA.gov Homepage, www.ada.gov/regs2010/service_animal_qa.html.
“California Laws on Psychiatric Service Dogs and Emotional Support Animals in Public Places.” Nolo.com, www.nolo.com/legal-encyclopedia/california-laws-psychiatric-service-dogs-emotional-support-animals-public-places.html.
“Clearing Up the Law on Service Animals.” DFEH – Home, www.dfeh.ca.gov/res/docs/Publications/Articles/Clearing%20up%20the%20law%20on%20service%20animals%20(DJ-12%203%2013).pdf.
“Emotional Support Animal.” Wikipedia, the Free Encyclopedia, Wikimedia Foundation, Inc, en.wikipedia.org/wiki/Emotional_support_animal. Accessed 3 Oct. 2016.
“Revised ADA Requirements: Service Animals.” ADA.gov Homepage, www.ada.gov/service_animals_2010.htm.
“Service and Support Animals in Housing Law.” American Bar Association, www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/servicesupportanimals.html.
“Service and Support Animals | Mayor’s Office on Disability.” SFGOV, sfgov.org/mod/service-and-support-animals-1.
“Service Animals and Emotional Support Animals | ADA National Network.” ADA National Network | Information, Guidance and Training on the Americans with Disabilities Act, adata.org/publication/service-animals-booklet.
“Service Dog/Assistance Dog/USDOJ Addendum to Final ADA Rule on Service Dogs.”Wikiversity, en.wikiversity.org/wiki/Service_Dog/Assistance_Dog/USDOJ_Addendum_to_Final_ADA_Rule_on_Service_Dogs. Accessed 3 Oct. 2016.
“When Pigs Fly.” Nelson Law Group, www.rnelsonlawgroup.com/Articles/When-Pigs-Fly-Accommodating-Service-and-Comfort-Animals-in-the-Workplace.shtml.