ADA Compliance and Defense Blog
The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title III (public accommodations and commercial facilities) on September 15, 2010. Certain of these amendments became effective as of March 15, 2011, including revisions to the provisions of the ADA governing service animals.
Rules Relating to Service Animals
First and foremost…according to federal law, service animals are not pets. For example, health codes that prohibit animals in restaurants do not apply to service animals. Your hotel may be “pet free” for some purposes, but that policy cannot apply to service animals. The law says that service animals are working animals that have been trained to perform tasks for disabled persons such as guiding the blind, alerting the deaf, pulling wheelchairs, providing seizure alerts, and calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack (which must be distinguished from a “comfort” animal, as discussed below).
Dogs and Miniature Horses as Service Animals
In the new provisions, the federal law was changed to more narrowly define “service animals” to include individually trained dogs which assist their owners with physical impairments. Under the ADA, as revised, “comfort animals” (whose sole function is to provide comfort or emotional support) are no longer considered service animals.
In addition to the provisions about dogs as service animals, the revised ADA regulations now have a provision about miniature horses (which generally weigh between 70 and 100 pounds) that have been individually trained to do work or perform tasks for people with disabilities. Entities covered by the ADA must now also modify their policies to permit miniature horses where reasonable. The revised regulations provide for the weighing of certain factors to determine if miniature horses can be accommodated in a facility: “(1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.”
Impermissable exclusion of a service animal or other inappropriate action is a violation of the ADA, which applies in all 50 states and to all types of public accommodations, including all “places of lodging.” The definitions of these properties was expanded as of March 15, 2011 to cover many timeshare and other vacation ownership properties and also includes most hotels, motels, inns, restaurants, sports facilities, stadiums, wineries, retail stores, apartment houses and senior living facilities. Improper application of the ADA can put you in a court defending an expensive lawsuit. Note however, that compliance with federal law does not mean that you are free of liability; state and local laws may differ from the ADA, and these accessibility laws may still prohibit a public accommodation from restricting access to animals that are not considered “service animals” under the ADA.
Limitations Relating to Service Animals
Under the ADA, hotels and all other public accommodations are required to treat disabled guests with service animals like all other guests. Specifically, they are to be provided the same services and access to all areas of the property where other guests are generally allowed. If other guests complain of the mere presence of the service animal, the business’ staff should explain that the law requires “places of public accommodation” to let disabled guests have service animals.
A business may ask only if an animal is a service animal and what tasks the animal has been trained to perform. It is not permissible to require a special ID card or certification for the animal or any proof of the person’s disability. Furthermore, disabled persons cannot be charged extra fees or deposits based on the presence of the service animal (even if such a fee is generally charged for pets), including any clean-up charges (unless due to damages caused by the animal).
Under the ADA, service animals must be harnessed, leashed, or tethered, unless such restraints interfere with the service animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the service animal through voice or other controls. The owner/handler of a service animal is responsible for controlling the service animal and paying to repair any damage caused by the service animal. If the animal does become unreasonably disruptive or threatening, the owner is responsible for controlling it. If it cannot be controlled, the animal may be excluded, but the guest should be welcome to stay without the animal. Courts have made it clear that unless a service animal is disruptive (in a manner unrelated to its service function) or dangerous, it may not be removed or excluded. In any event, most service animals are particularly trained to be around people and are not dangerous.
The property owner and operator are not required to provide special services for service animals like food, water, doggy bags, leashes, or to clean a service animal’s “accidents.” However, the legislative history of the ADA indicates that if the staff cleans the rooms generally and puts guests’ items away, then the staff should do the same with the animal’s accoutrements.
Establishing Legal Policies is Critical
There were a host of other changes in the 2010 amendments to the ADA (some of which became effective on March 15, 2011 and some of which will become effective on March 15, 2012). Contact us to learn more or to have us prepare a written policy for your property with respect to service animals.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.