By Chris Smith
Individuals with disabilities use service animals for many different reasons. The federal Americans with Disabilities Act (ADA) requires that service animals be allowed in public facilities.
The ADA defines a “service animal” as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Examples of work or tasks include assisting individuals who are blind with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, pulling a wheelchair, and assisting an individual during a seizure.
Although service animals are limited to dogs, cities must make reasonable modifications in policies to allow individuals with disabilities to use miniature horses.
Dogs and other animals whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA. Emotional support animals may relieve loneliness and anxiety, but they do not have special training to perform tasks that assist people with disabilities.
It doesn’t matter if a person has a note from a doctor that states the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.
However, emotional support animals may qualify as reasonable accommodations under the federal Fair Housing Act (FHA), which protects a person with a disability from discrimination in obtaining housing. Under this law, a landlord must provide reasonable accommodations to people with disabilities. This may include allowing tenants to have emotional support animals.
Under the ADA, a service animal must be allowed to accompany the handler to any place in the building where members of the public, program participants, or customers are allowed. If the city sells or prepares food, it must allow service animals in public areas even if state or local health codes prohibit animals from the premises.
The ADA requires the animal to be under the control of the handler—usually with a harness or leash. However, if the handler is unable to hold a tether because of a disability or because its use would interfere with the service animal’s performance of work, the service animal must be under the handler’s control by some other means, such as voice control.
If a service animal behaves in an unacceptable way, such as uncontrolled barking or jumping on people, a city does not have to allow the animal onto its premises. Also, the animal must be housebroken.
Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. If another person is at risk of a significant allergic reaction to an animal, it is the city’s responsibility to find a way to accommodate both the individual using the service animal and the individual with the allergy.
When people with a service animal enter a city facility, they cannot be asked about the nature or extent of their disability. Only two questions may be asked: (1) Is the animal required because of a disability? And (2) What work or task has the animal been trained to perform?
These questions should not be asked if the animal’s service tasks are obvious. The city may not ask for documentation or proof that the animal has been certified, trained, or licensed as a service animal.
The Minnesota Legislature passed a new law, effective Aug. 1, 2018, that makes it illegal to “intentionally misrepresent an animal in that person’s possession as a service animal in any place of public accommodation.” (See Minnesota Statutes, section 609.833.) A person who violates this statute the first time is guilty of a petty misdemeanor. A second or subsequent offense is a misdemeanor.
The new statute also provides that a city “may” post a conspicuous sign in a location accessible to public view in a place of public accommodation that contains the following language or something substantially similar: “Notice: Service Animals Welcome. It is illegal for a person to misrepresent an animal in that person’s possession as a service animal.”
Since the questions a city may ask are limited, it may be difficult to enforce this new statute. The state Council on Disability is expected to release a brochure detailing how entities may determine whether an animal is a service animal. For more information, visit www.ada.gov/regs2010/service_animal_qa.html.
Chris Smith is a risk management attorney with the League of Minnesota Cities. Contact: email@example.com or (651) 281-1269.
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