This guide will be referring to the American Code of Federal Regulations (CFR) along with other very important Service Dog laws contained in the Americans with Disabilities Act (ADA), Fair Housing Amendments Act (FHAA), the Air Carrier Access Act (ACAA) and the major Federal cases governing the subject of Service Animals.
Quick Reference Chart: http://www.anythingpawsable.com/federal-service-dog-law-in-plain-english/#.Vbl2ivkxdvU
| What Is It? | Why Do We Care? | |
| CFR | Code of Federal Regulations American federal law |
Provides the meat and bones of federal Service Dog law |
| ADA | Americans with Disabilities Act A civil rights law |
Bestows public access rights to disabled individuals with a Service Animal |
| FHAA | Fair Housing Ammedments Act A civil rights law amendment |
Extends ADA protection to disabled individuals with a Service Animal who are seeking housing in the public sector |
| ACAA | Air Carrier Access Act Specific section of the CFR |
Ensures access to air transportation on all carriers for all individuals with a Service Animal |
The Americans with Disabilities Act (ADA) serves the important function of ensuring that people with disabilities are given the same opportunities and are able to enjoy the same benefits as other Americans. The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled; it does not authorize a preference for disabled people generally. The sections of the federal regulations applying to service animals for public entities and for places of public accommodations (Title II and Title III of the ADA, which can be found at 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104, respectively) both define service animal in the same way.
Title III is the big player within the the Americans with Disabilities Act (ADA), 42 U.S.C.S. §§ 12181-12189. At its' core it prohibits the discrimination against any individual on the basis of them having a disability - hidden or apparent - from participating in society's full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of PUBLIC accommodation by any person who owns, leases, or operates a place of PUBLIC accommodation, 42 U.S.C.S. § 12182(a). The main issue disabled persons have with service animals is uninformed restaurant entities serving food or drink which are required to allow a service animal to accompany its handler, 42 U.S.C.S. § 12181(7)(B). Again, this does not pertain to emotional support animals. The ADA considers an act to be discriminating when there is a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods and services to individuals with disabilities. However, the exception is if such modifications would fundamentally alter the nature of such goods and services. 42 U.S.C.S. § 12182(b)(2)(A)(ii). Pay important attention to the fundamentally alter language. This is considered on a case by case basis. Before attempting to alter a business' practices, decide whether or not it may be easier and more beneficial for the service animal and the disabled person alike to privately discuss the situation instead of the ridiculous "public explosion strategy" that seems to be occurring on the internet. Stay calm, the law is on your side. If you have been confronted and prevented from entering lawfully simply document the occasion and file a complaint with an attorney's help. Forms have been provided on the FORMS and procedures tabs of this guide to provide to your attorney for clarification on the law and procedure.
The Department of Justice published revised final regulations, and a FAQ sheet, implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) in the Federal Register. These rules, clarify and contain new, and updated, requirements, including the 2010 Standards for Accessible Design (2010 Standards). Regulations issued under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C.S. §§ 12181-12189, by the Department of Justice shortly after the ADA provided that generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 28 C.F.R. § 36.302(c)(1) (1992); 28 C.F.R. § 36.302(c) (2011).
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
Detailed information on service dogs can be found in CFR Title 28 §35.136 (this is within Title II of the ADA, pertaining to state and local government services):
As well as part (c) of CFR Title 28 §36.302 (in Title III of the ADA, pertaining to places of public accommodation):
Airlines may also require documentation including the date, type, and state of the mental health professional's license so it may be wise to just have them include that from the start so you don't have to go back and ask for it later.
Some airlines do call the professional's office to verify the contents of the letter.
"The purpose of this provision is to prevent abuse by passengers that do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their service animals on the aircraft."
Effective May 13, 2009:
"[U]nder section 382.117(e), airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation. This information is not a medical certificate in the sense articulated in section 382.23, but airlines are entitled to obtain this documentation as a condition of permitting the emotional support or psychiatric service animal to travel in the cabin with the passenger."
and
"The final rule limits use of emotional support animals to persons with a diagnosed mental or emotional disorder, and the rule permits carriers to insist on recent documentation from a licensed mental health professional to support the passenger’s desire to travel with such an animal. In order to permit the assessment of the passenger’s documentation, the rule permits carriers to require 48 hours’ advance notice of a passenger’s wish to travel with an emotional support animal."
http://airconsumer.ost.dot.gov/rules/Part%20382-2008.pdf
Full Text of 14 CFR Part 382
or http://airconsumer.dot.gov/rules/382short.pdf
Excerpts from 14 CFR Part 382:
§ 382.5 Definitions.
As used in this Part --
Air Carrier or carrier means any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation.
Air carrier airport means a public, commercial service airport which enplanes annually 2,500 or more passengers and receives scheduled air service.
Air transportation means interstate, overseas, or foreign air transportation, or the transportation of mail by aircraft, as defined in the Federal Aviation Act.
Department or DOT means the United States Department of Transportation.
FAA means the Federal Aviation Administration, an operating administration of the Department.
Facility means all or any portion of aircraft, buildings, structures, equipment, roads, walks, parking lots, and any other real or personal property, normally used by passengers or prospective passengers visiting or using the airport, to the extent the carrier exercises control over the selection, design, construction, or alteration of the property.
Individual with a disability means any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. As used in this definition, the phrase:
(a) Physical or mental impairment means:
(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardio-vascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction, and alcoholism.
(b) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(c) Has a record of such impairment means has a history of, or has been classified, or misclassified, as having a mental or physical impairment that substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by an air carrier as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others toward such an impairment; or
(3) Has none of the impairments set forth in this definition but is treated by an air carrier as having such an impairment.
Indirect air carrier means a person not directly involved in the operation of an aircraft who sells air transportation services to the general public other than as an authorized agent of an air carrier.
Qualified individual with a disability means a individual with a disability who --
(a) With respect to accompanying or meeting a traveler, use of ground transportation, using terminal facilities, or obtaining information about schedules, fares or policies, takes those actions necessary to avail himself or herself of facilities or services offered by an air carrier to the general public, with reasonable accommodations, as needed, provided by the carrier;
(b) With respect to obtaining a ticket for air transportation on an air carrier, offers, or makes a good faith attempt to offer, to purchase or otherwise validly to obtain such a ticket;
(c) With respect to obtaining air transportation, or other services or accommodations required by this part:
(1) Purchases or possesses a valid ticket for air transportation on an air carrier and presents himself or herself at the airport for the purpose of traveling on the flight for which the ticket has been purchased or obtained; and
(2) Meets reasonable, nondiscriminatory contract of carriage requirements applicable to all passengers;
Scheduled air service means any flight scheduled in the current edition of the Official Airline Guide, the carrier’s published schedule, or the computer reservation system used by the carrier.
§ 382.37 Seat assignments.
(c) If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying (see § 382.55(a)(2)), the carrier shall offer the passenger the opportunity to move with the animal to a seat location, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel with checked baggage.
§ 382.38 Seating accommodations.
(3) For an individual traveling with a service animal, the carrier shall provide, as the individual requests, either a bulkhead seat or a seat other than a bulkhead seat.
§ 382.55 Miscellaneous provisions.
(a) Carriers shall permit dogs and other service animals used by persons with a disability to accompany the persons on a flight.
(1) Carriers shall accept as evidence that an animal is a service animal identification cards, other written documentation, presence of harnesses or markings on harnesses, tags, or the credible verbal assurances of the qualified individual with a disability using the animal.
(2) Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation.
(3) In the event that special information concerning the transportation of animals outside the continental United States is either required to be or is provided by the carrier, the information shall be provided to all passengers traveling with animals outside the continental United States with the carrier, including those traveling with service animals.
(b) Carriers shall not require qualified individuals with a disability to sit on blankets.
(c) Carriers shall not restrict the movements of persons with a disability in terminals or require them to remain in a holding area or other location in order to be provided transportation, to receive assistance, or for other purposes, or otherwise mandate separate treatment for persons with a disability, except as permitted or required in this part.
§ 382.70 Disability-related complaints
received by carriers.
(a) For the purposes of this section, a disability-related complaint means a specific written expression of dissatisfaction received from, or submitted on behalf, of an individual with a disability concerning a difficulty associated with the person’s disability, which the person experienced when using or attempting to use an air carrier’s or foreign air carrier’s services.
(b) This section applies to certificated U.S. carriers and foreign air carriers operating to, from, and in the United States, conducting passenger operations with at least one aircraft having a designed seating capacity of more than 60 passengers. Foreign air carriers are covered by this section only with respect to disability-related complaints associated with any flight segment originating or terminating in the United States.
(c) Carriers shall categorize disability-related complaints that they receive according to the type of disability and nature of complaint. Data concerning a passenger’s disability must be recorded separately in the following areas: vision impaired, hearing impaired, vision and hearing impaired, mentally impaired, communicable disease, allergies (e.g., food allergies, chemical sensitivity), paraplegic, quadriplegic, other wheelchair, oxygen, stretcher, other assistive device (cane, respirator, etc.), and other disability. Data concerning the alleged discrimination or service problem related to the disability must be separately recorded in the following areas: refusal to board, refusal to board without an attendant, security issues concerning disability, aircraft not accessible, airport not accessible, advance notice dispute, seating accommodation, failure to provide adequate or timely assistance, damage to assistive device, storage and delay of assistive device, service animal problem, unsatisfactory information, and other.
Source: http://www.servicedogcentral.org/content/node/63
servicedogcentral.org has been a pioneer in providing laws to the Service Animal trainers and handlers. Thank you for all your work over the years!
Title: General prohibitions against discrimination:28 CFR 35.130,
The Americans with Disabilities Act (ADA) does not define "major life activities" or "substantial limitation." However, regulations promulgated by the Equal Employment Opportunity Commission (EEOC), which is under the ADA, does define them. These regulations are not binding, but the United States Court of Appeals for the Second Circuit defines the term "substantially limits" to mean basically that the disabled person requiring a service animal is currently unable to perform a major life activity that the average person in the general population can perform; OR that that the disabled person requiring a service animal is currently "significantly restricted" by their disability in the condition, manner, or duration as compared to the average person in the general populations ability to perform the same major life activity. 29 C.F.R. § 1630.2(j)(1). The service animal is only necessary and permitted when it meets the "substantially limits" or "significantly restricted" qualifications. Major life activities that have been considered in a non-exhaustive, illustrative list including functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R.§ 1630.2(i). The Second Circuit has further identified other major life activities, including, but not limited to, sitting, standing, lifting, or reaching.
THE ISSUE WITH "EMOTIONAL SUPPORT" ANIMALS IN PUBLIC: The ADA says that a service animal must be allowed into the place of public accommodation or into the public entity. However, dogs, not service animals, that are either not at the moment working or not performing a task but are simply in public to keep the person with a disability at ease and comfortable are NOT protected by these ADA regulations. THESE ARE NOT SERVICE ANIMALS! These dogs are not granted the ADA public accommodation. Even though these dogs are providing a sense of: emotional support, well-being, comfort, or companionship they are still not working or performing a task for the handler and therefore should be removed from a setting in which only an actual service animal is permitted to enter and remain. These animals are not performing “recognition and response” as required referred to by the U.S. Department of Justice. However, it is important to remember that the ADA, the public accommodation statute for service animals, is not the only law in which provides dogs privileges. Under the Fair Housing Act regulations have been implemented to allow DISABLED PERSONS the use of emotional support animals. Remember though, this guide is a discussion and reference point to federal law, and a dog owner should look into the various states and the numerous different approaches for dealing with service animals and emotional support animals. A link to search the various state laws and statutes has been provided in this guide again below.
Search Animal Laws: http://www.animallaw.com/Laws.cfm
SERVICE DOG DOUBTERS & DOWNERS AT DINNER DON'T EQUAL DISCRIMINATION-
Krist v. Kolombos Rest., Inc., 688 F.3d 89
Here a customer failed to establish by a preponderance of the evidence that the formerly happy and greeting facility staff members changed to doubter and downer on her substantial need of a service animal. The court here held for the defendant even though she felt a change in the atmosphere and was treated differently than before because; (1) she was not excluded from the restaurant after she acquired her service dog, (2) her service dog was not excluded, or (3) her access to the restaurant, with or without the dog, was not restricted. The customer and her service animal were neither actually nor constructively excluded from the restaurant and that she was not denied any of its goods or services.
http://law.justia.com/cases/federal/appellate-courts/ca2/11-1263/11-1263-2012-07-24.html
FAIR HOUSING ACT FAILURE TO FORECAST DISABILITY AND FORWARD FACTUAL PROOF
Hawn v. Shoreline Towers Phase 1 Condo. Ass'n, 347 Fed. Appx. 464
In this case a condo owner complained of an alleged violation of 42 U.S.C.S. § 3604 and the Florida Fair Housing Act, Fla. Stat. § 760.23 for not allowing him to keep his alleged service animal. The court held that the condo association was not required to make the accommodation when the owner had not given the association sufficient information, knowledge, or time for a meaningful review of his disability accommodation request. Here in this case the owner purchased a condominium unit and agreed to comply with the association's by-laws, which included a no pets policy. When the owner acquired a dog, he asked the association to allow his pet, and did not call him a service animal. Without response the owner sent a second letter now claiming he had a physical and psychiatric disability and alleged the dog was now a service animal. The association asked for more information, which the owner did not provide along with the owner's insufficient original information -calling his dog a pet- furthered the association's lack knowledge of the owner's disability and the necessity of an accommodation. Also, the court held that the association's posted sign that there were "no animals allowed" did not create discrimination under § 3604(c) or § 760.23(3).
https://casetext.com/case/hawn-v-shoreline-towers-phase-i-condominium-assoc-2
SUBSTANTIALLY LIMITED IN DAILY ACTIVITIES WITHOUT SERVICE DOG
Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973, 980 (E.D. Tenn. 2003)
In this particular case the animal was a mini horse and the court concluded that the horse was not a service animal. Not because of the species, but because the owner is not disabled within the meaning of the ADA because she is not substantially limited without the the horse nor does this particular animal perform any tasks for the benefit directly to the individual with a disability. Id. at 973, 980.
KNOWLEDGE OF HANDICAP AND NECESSITY OF SERVICE ANIMAL
SERVICE ANIMALS STUDYING WITH STUDENTS IN SCHOOL SUCCESSFULLY RECEIVING SIMILAR TREATMENT
Alboniga v. Sch. Bd. of Broward County Fla., 2015 U.S. Dist. LEXIS 15832 (S.D. Fla. Feb. 10, 2015)
This case involves Defendant's alleged violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq. ("Tittle II" and the "ADA") by implementing practices, policies, and procedures that have subjected the minor plaintiff to discrimination based on his disability, and violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504") by failing to provide the plaintiff with a reasonable accommodation through its' initial denial of the child's service animal access to his school and then by implementing procedural barriers to the use of that service animal in school. This six year-old child has multiple disabilities including cerebral palsy, spastic quadreparesis, and a seizure disorder; is non-verbal and confined to a wheelchair; and needs care and support for all aspects of daily living and education. The School Board's policies and procedures requested liability insurance for the service animal and vaccinations not corresponding with the required vaccinations, which exceeded those related to the regulation of animals permitted in schools in the School Board's policies and procedures. The court held for the student allowing the service animal in the school and preventing the school from implementing burdensome requirements.
TASK OR FUNCTION
Here, the disabled guest who used a service animal had to be prepared to reasonably establish that the animal did, in fact, perform a function or task that the member or guest could not otherwise perform. The court found that the Department of Justice had determined that a business owner could ask the "task or function" question so long as the question could be answered without divulging the specifics of the individual's disability. The court reasoned that a corporation should be allowed some way of determining which animal was in fact a service animal.
WARNING: This video contains footage of an actual seizure.
On April 8, 2014, this is the first time Dozer has experienced a seizure with his human, Khadijah. They are training together for the next few months so that Dozer can assist her in everyday activities.
