Beachcombing

Last week I encountered a man inside Smart and Final with a small dog on a retractable leash. Obviously he was not blind in need of a guide dog and that long leash was inappropriate for those of us wanting to pass through. I pondered the situation and – with impeccable timing on his part – friend and attorney Matt Kinley shared an email with me on that exact topic:

Restaurants, medical offices, hospitals, airplanes, grocery stores: dogs seem to be a growing presence in our world. Many businesses are making accommodations for pets, like the now-common sight of a dog leisurely enjoying brunch with its owners. I was recently asked: when must a food establishment allow a dog into their establishment?

Here’s what happened: a customer walked into a grocery/prepared food store. The dog had no vest or indication that it was a service animal. When the manager asked the customer if the dog was a service animal, the customer told him: you can’t ask me if it is a service animal and you have to let me in. What to do?

The Americans with Disabilities Act (ADA) requires that privately owned businesses serving the public, such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities, must not discriminate against individuals with disabilities. Simply put: people with disabilities must be allowed to bring their service animals onto business premises in whatever areas customers are generally allowed.

The definition of a service animal is: any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

Service animals perform some of the functions and tasks that the individual with a disability cannot perform for him or herself. Guide dogs are one type of service animal, used by some individuals who are blind. This is the type of service animal with which most people are familiar. But there are service animals that assist persons with other kinds of disabilities in their day-to-day activities. Some examples include:

Alerting persons with hearing impairments to sounds.

Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.

Assisting persons with mobility impairments with balance.

Animals who provide emotional support to their owners.

A service animal is not a pet.

Note that the definition of a service animal does not include just dogs. Small horses have been considered service animals.

It would be nice if the ADA required that service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers.

If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability.

The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers.

Should You Abandon Your “No Pets” Policy? No.

You must make an exception to your general rule for service animals. Businesses still have obligations to all other customers to provide a clean and safe environment.

The owner must provide all care or supervision of a service animal You are not required to provide care or food or a special location for the animal.

You may exclude any animal, including a service animal, from your facility when that animal’s behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.

Businesses should be careful when excluding any service animal. It should document the situation carefully, and it should give the individual with a disability who uses the service animal the option of continuing to enjoy its goods and services without having the service animal on the premises.

There may be a few circumstances when a public accommodation is not required to accommodate a service animal--that is, when doing so would result in a fundamental alteration to the nature of the business. Generally, this is not likely to occur in restaurants, hotels, retail stores, theaters, concert halls, and sports facilities. But when it does, for example, when a dog barks during a movie, the animal can be excluded.

Thanks to Matt Kinley, Long Beach Attorney, for his perspective and knowledge on this topic.