Denied Access, Now What?
The most frequent questions received by Pet Partners are about the legal rights of individuals with disabilities who have service animals, especially whether service animals must be allowed in privately owned businesses that serve the public, such as:
• retail stores
• health clubs
• other places of public accommodation
The Americans With Disabilities Act (ADA, 1990) is a federal civil rights law that defines disability. The ADA protects the rights of people with disabilities so they may have equal access to goods and services that are available to the general public. A person who does not have a disability as defined by the ADA is not protected by the ADA. The ADA also defines service animal, and stipulates that individuals with disabilities may be accompanied by their service animals in places of public accommodation. The ADA does not offer protection for individuals with disabilities to be accompanied by animals that do not meet this definition of service animal. For the ADA definitions, please see Service Animal Basics.
Legally, a service animal is not considered a “pet.” In general, a place of public accommodation must modify its “no pets” or “no animals” policies to permit the use of a service animal by a person with a disability, unless it can show that the animal will cause a fundamental alteration or safety hazard. Permitting the use of a service animal is part of making a reasonable policy modification. Public accommodations are not obligated to provide for the stewardship (care and well-being) of the animal while the animal is on the premises.
Concern and confusion can result when state laws and public health codes conflict with the ADA’s public access provisions for people with disabilities who are accompanied by service animals. Some state/local laws provide only for access of guide dogs; some public health codes prohibit all animals from certain areas, like swimming pools or restaurants. In the cases where the state or local laws and public health codes do not agree with federal law, the law which is less restrictive for the person with the disability is the law that will take priority. If, for example, a state law allowed only “guide dogs in harness” in restaurants, the ADA would take priority and all service animals must be admitted (as described above) regardless of their type of work. Legally, a service animal cannot be required to wear equipment or special identifying “uniform.”
The ADA does not limit the type of disability for which a service animal can be used, but revisions that took effect in March of 2011 only recognize DOGS as service animals (and, in some cases, miniature horses). The ADA prohibits places of public accommodation from requiring proof or “certification” of the service animal’s training. State laws that require identification be shown are out of compliance with the ADA; the ADA provides greater protection and is the law that prevails. Conversely, a state law might permit access to public places by “approved trainers who are training service dogs.” In this case the ADA does not prevail over state law because the ADA does not cover service-animals-in-training. The trainer and animal must meet the requirements defined by the state in order to have legally protected public access.
Service dogs may be excluded or restricted by a place of public accommodation only when it can be demonstrated that the presence or behavior of the animal creates a safety hazard or a fundamental alteration to the facility. An example of a safety hazard is when a service dog growls or bites someone. A fundamental alteration example is when a service dog barks disruptively, and exceeds the tolerable level of noise made by other customers.
What Are Some Circumstances When Service Dogs Can Be Denied Access?
Hospitals, Medical or Dental Offices, and Other Healthcare Provider Sites
Hospitals, medical or dental offices, and other healthcare provider sites, as places of public accommodation, must permit the use of a service animal by an individual with a disability, as stated above. Like other places of public accommodation, they may enforce “no pets” policies in certain areas (such as operating rooms) if they can show that permitting service animals in would result in a fundamental alteration or safety hazard to those areas. For example, if appropriate medical personnel can show that the presence or use of a service animal would pose a significant health risk in certain designated areas of a hospital, then service animals may legally be excluded in those areas (ADA Title III Technical Assistance Manual, 4.2300). (See The Implications of Service Animals in Healthcare Facilities for more detailed information.)
Similarly, zoos must modify their policies to permit the use of a service animal by an individual with a disability unless the animal creates a fundamental alteration or safety hazard. Zoos have debated the effects of service dogs in particular being perceived as predators by the resident animals and stressing the animals. Exclusion of a service animal must be based on fact, not assumptions. Because zoo animals are exposed to multiple stressors (behavior of visitors, loud noises, etc.) the exclusion of a service animal from an area would have to be supported by evidence that the animal itself created a fundamental alteration or safety hazard.
Some of the confusion about service animals in zoos has arisen because zoos receive multiple directives from different federal agencies. Two federal laws that affect zoos are the Animal Welfare Act and the ADA. The Animal Welfare Act, administered by the US Department of Agriculture, places certain obligations on zoos to protect animals from harm and excludes pets from zoos. The ADA, administered by the US Department of Justice (DOJ), requires reasonable policy modifications and favors inclusion of service animals. When federal laws conflict, the ADA does not automatically prevail over other federal laws. For example, in 1993, a person with a disability was denied access with her service dog to a well-known zoo in California. She filed a complaint with the US Department of Justice (DOJ). The DOJ worked with the US Department of Agriculture to clarify the relationship between the ADA and the Animal Welfare Act. The zoo agreed to modify its total exclusion policy and designate only certain areas off-limits.
I was denied access with my trained service animal at the bank, at a retail store, and at a restaurant. It made me really mad, but I was too embarrassed to argue, so I left. What can I do if this happens again?
If you are illegally denied access to or otherwise discriminated against in a place of public accommodation because of your service animal, stay calm. Explain that the ADA (or state law if it provides greater protection) protects your right to be accompanied by your service animal in places of public accommodation. If that does not get you admitted, ask to speak to the manager or supervisor. Repeat the explanation. Pet Partners has developed a brochure that can help you to educate the person. If you are still not admitted, you can politely offer to call the police to have them explain the law.
Note: Some states still have statutes that are more restrictive than the ADA. The police are charged only with the enforcement of state, not federal law. Know what the law is in the state where you are. If the public accommodation refuses to admit you and the state law excludes you (e.g., if you have an owner-trained dog for mobility and the state law recognizes only “guide and hearing dogs from accredited training programs”), you can file a complaint with the US Department of Justice, or get a lawyer to file a suit in federal court.
Sometimes writing a letter to the person who owns the facility will result in an apology and a change in policy. Disability advocacy groups might be interested in pursuing the issue on your behalf.
Know Your Rights – and Your Responsibilities!
All service dog handlers must be aware of not only their rights, but of the rights of places of public accommodation as well. Each individual who depends on a service dog must ensure that the animal’s health and behavior do not contribute to a decision by the public accommodation that the animal is a hazard.
Originally published in Alert , National Service Dog Center® Newsletter Vol. 7, No. 4 1996. Edited for the web and updates.