Fido Can’t Help Ring in the New Year (Unless He’s a True Service Animal)
Authors: James M. Paul (St Louis), René L. Duckworth (Kansas City)
Published Date: January 3, 2017
Individuals wishing to begin the new year by taking a beloved pet or emotional support animal out to a restaurant may run into new legal deterrents in some states. While the Americans with Disabilities Act (ADA) entitles people with disabilities to bring “service animals” into public places such as restaurants and stores, many individuals do not realize which animals the law covers.
The ADA defines “service animals” to include only those dogs or miniature horses that are individually trained to do work or perform tasks for people with disabilities. Pets, comfort animals, and emotional support animals are not included in this “service animal” definition. On the other hand, some state laws still protect individuals’ rights to bring emotional support animals into public places. Consequently, there has been confusion as to what constitutes a true “service animal” that an individual would be entitled to bring into public places, in addition to numerous instances in which individuals who do not have a disability (or at least do not have a disability for which a service dog assists them) have taken advantage of the confusion by misrepresenting a pet or emotional support animal to be a “service animal” in order to bring the animal into a public place. As concerns rise over individuals taking advantage of laws meant to protect people with disabilities, we’re seeing a trend in state laws looking to curb misuse of the “service animal” title by enacting legislation making such a misrepresentation a criminal act.
Beginning January 1, 2017, for example, it is now a crime in Colorado to intentionally misrepresent that an animal is a service animal for a person with a disability. That means a person who misrepresents a pet or emotional support animal as being a true service animal, as defined by the ADA, in order to get some related privilege (e.g., entering a public place with the animal) could find him or herself paying a fine of up to $500. Notably, the Colorado legislature, while recognizing the vital role that properly trained service animals play in assisting people with disabilities, was concerned that individuals might pass off a pet or emotional support animal as a service animal in order to bring that animal into a place where it would not otherwise be allowed.
The Colorado legislature is not alone. Indeed, over the course of 2016, several other states tackled the problem of fraudulent service animals by passing legislation levying varying degrees of penalties. Michigan, for example, made the false representation of a service animal into a misdemeanor now punishable by up to 90 days’ imprisonment, up to a $500 fine, and/or up to 30 days of community service. Virginia made it a class four misdemeanor punishable by fine up to $250 to knowingly fit a dog with a harness, collar, vest, or sign commonly used by a person with a disability in order to represent the dog as a service dog or hearing dog to fraudulently gain public access for the dog. Similarly, Maine made it a civil violation punishable by a fine of up to $1,000 for a person to knowingly misrepresent an animal as being a service animal by dressing the animal with a harness, collar, vest, or sign of the type used by service animals, or by otherwise falsely representing the animal as being a service animal. And last year, Florida made it a second degree misdemeanor for someone to knowingly misrepresent themselves as using a service animal, which may be punishable by a $500 fine or up to 60 days’ imprisonment and requires 30 hours of community service for an organization that serves individuals with disabilities (or another court-approved organization).
For businesses, these laws are a welcomed deterrent to nondisabled patrons who were abusing the confusion surrounding service animals to gain entry of their pets or emotional support animals who would not otherwise be allowed into certain spaces under federal or state law. Watch for this trend to continue, as you may soon see similar legislation in your state cracking down on service animal misrepresentations in everyday visits to restaurants and stores.
Jim has extensive trial and appellate experiencewith labor and employment law litigation in federal and state courts, and before the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, the Occupational Safety and Health Administration, and several state agencies. He also regularly advises employers on all labor and human resource management issues in an effort to prevent or resolve employee issues before they escalate into legal disputes. As Co-Chair of...
Since joining Ogletree Deakins in 2011, Ms. Duckworth has represented national and local employers from a variety of industries in multiple aspects of employment law. Ms. Duckworth’s primary focus is litigating discrimination, retaliation, and harassment cases in state and federal courts, as well as defending claims before, and investigations by, state and federal administrative agencies such as the Missouri Commission on Human Rights, the EEOC, DOL, and OSHA. Ms. Duckworth also partners...