The Confusion Over Service vs. Emotional-Support Animals

I have mentioned in the past that my wife and I volunteer between 20-25 hours per week at a South Florida-based, not-for-profit pet rescue. It started as a way for me to regain strength after chemotherapy, but became a labor of love for us to help protect the unwanted and abandoned animals in our “pet-disposable” society. Last year, the organization I volunteer with successfully completed the adoption of more than 350 pets into forever homes.

A national controversy has arisen over the last several years regarding where and under what circumstances an animal may accompany its owners. Many people believe that if they purchase a “service animal” vest on the Internet and strap it on their pet, they can take this animal with them wherever they go with impunity. This is patently incorrect and clearly creates confusion for small businesses, perhaps including your school.

There are very strict federal and state laws regarding the use of animals for support and/or therapy purposes. Service animals and emotional-support animals differ in purpose, training and public access. Should you deny access adverse to the law or grant access when access is not required, legal problems can arise.

Marcus Luttrell was the keynote speaker at the 2010 SuperShow (a more emotional and poignant speech I have never heard!). Following the convention, I penned a column in this publication regarding service dogs, as Marcus was accompanied by his service dog at all times.

In that column, I explained that service dogs are specially trained to provide physical or mental assistance to a person diagnosed with a disability who can’t perform a specific task or group of tasks absent the assistance of the service animal. A service animal is a “survival tool,” not a pet. Conversely, an emotional- support animal is simply a pet that has been designated as such due to its perceived ability to provide comfort and affection to its owner.

A service animal (a designation limited to dogs and miniature horses only) receives specific and intensive training. Once certified as a service animal, it and its owner have almost carte-blanch access to all public accommodations and businesses. Such access is protected under the Americans with Disabilities Act. I

If someone with a purported service animal seeks access to a business, the business representative’s inquiry is limited to if the animal is a service animal. Requesting evidence of training or details of the owner’s disability is forbidden. The only way to deny access would be if the animal is not a service animal, or aggressive and potentially posed a threat to the business’s patrons. If you make that determination, you better have “litigation-level facts” to support your decision.

Emotional-support designation is gained by the person obtaining a letter from a designated healthcare provider that such animal (which can be almost be any type of animal) is required by the owner for therapeutic reasons. No training is required and access to public businesses is limited.

Neither service nor emotional-support animals can be denied access to airline travel or to public housing, even if the premises are designated “pet restricted.” Here in Miami-Dade County, for instance, an ordnance precluding ownership of “pit-bull”-type dogs is on the books. Under federal law and under specific circumstances, a pit-bull breed would be allowed to be an emotional support and/or service dog in my home county.

Finally, no pet deposit can be required for either an emotional-support

or service animal.

A cottage industry now exists around this controversy. For a fee, ethically challenged, Internet-based healthcare providers will provide the necessary letter designating pets as emotional-support animals.

How does all of this affect your school? Without exception, should a service animal darken your doorway (and a vest designating the animal as such is not required), you have the right to ask if the animal is a “service animal.” If so, and unless you have real and verifiable concerns for safety, it and its owner must be granted access.

An emotional-support animal, however, is not granted such protections and you have the right to deny access. If a service animal bites someone in your school, and you didn’t have a reasonable concern that this was a possibility based upon its behavior or history, you have a valid affirmative defense to the soon-to-be-filed lawsuit. If you granted an emotional support dog access to your premises and it bites someone, your defense is negated.

This is a confusing area of the law so, if in doubt, confer with your lawyer.

Attorney Phil Goss, Jr. welcomes any email comments or questions at [email protected] and will attempt to respond personally, time permitting.