Additional Regulation Isn’t Necessary to Resolve the Issue of Fake Service Animals
James A. Kutsch, Jr. PhD
President and CEO, The Seeing Eye
October 5, 2016
News stories across the nation continue to report an increase in the number of people who pretend that their pet dog is a service animal. The major concern stems from the unruly behavior of these supposed “service animals”, and how their presence jeopardizes the safety and access rights of legitimate service animal teams. Most of these stories lead the reader to believe that existing federal laws make it impossible for businesses to identify and take action against these imposters. As a result, some individuals and groups have focused their efforts on creating new regulations to differentiate legitimate service animals from those whose owners make false claims. These proposals fall into three broad categories: mandatory identification cards, identification equipment or tags on the animal, and national or state registries. This article will discuss how these solutions are not only flawed, but moreover, aren’t needed. Existing federal laws already make provisions for the exclusion of misbehaved or poorly controlled animals – regardless of whether the animal is a legitimate service animal or not.
One of the most commonly proposed solutions is to require disabled people to show an identification card before being allowed entry with their service animal. Before implementation, any ID system proposal would need to answer the questions of who would issue the ID cards (remember owner-trained service animals are permitted by the ADA), how the system is funded (this burden shouldn’t be an extra tax on a disabled person whose independence is achieved through their service animal), how international visitors with service animals obtain temporary IDs, and how counterfeiting of cards is prevented. Assuming those questions can be addressed, an ID scheme would still require disabled people to prove they have the right to enter an establishment. This is an “extra” step that a non-disabled individual would not have to take, thus it can be viewed as discriminatory. But, the single, largest issue with this solution centers on protecting the privacy of the disabled person. This is particularly important when the disabled service animal user is blind or visually impaired. A blind person cannot verify the authenticity of the person asking for the ID. There would be no way to know if it’s a legitimate request or if the person requesting the ID is attempting to obtain personal information (name, address, etc.) with criminal intent.
Another proposed solution is to require that the service animal wear something that clearly identifies that animal as a legitimate service animal. Various proposals suggest that such items could include a vest with text stating it was a service animal, a highly visible tag placed on the collar or other item the dog is wearing, or some type of “special” equipment worn by the animal. At present, any and all such identifying equipment can easily be obtained by any person attempting to fraudulently pass their pet off as a legitimate service animal. Controlling the manufacturing or sale of such items is not only impractical, it borders on absurd. Society does not depend on tight control of who can purchase white lab coats and stethoscopes to validate who is a legitimate medical professional versus who is faking it. Finally, there is an issue of personal dignity with this solution. Highly noticeable equipment on the animal can draw undesired attention to the service animal and the disabled person. Furthermore, such equipment blatantly identifies the person as an individual with a disability, potentially making him or her more vulnerable to harm
The third commonly proposed solution to the problem of distinguishing legitimate from fake service animals is the implementation of a national or state registry. A registry would have to answer the same questions noted earlier for an ID card scheme regarding what animals get included and how temporary registration of service animals used by foreign visitors is handled. In addition, a system whereby business establishments, transportation providers, and lodging establishments could access the database would need to be developed. It’s important to remember that it’s the specific animal that would be registered. Thus, some way of linking a particular animal with an entry in the registry would be necessary. To be fully operational, that might require all service animals to be microchipped and for all businesses to have chip readers. Even if those issues could be addressed satisfactorily, a national registry would not only impose eligibility requirements that would segregate individuals with disabilities, but also subject the disabled person to the indignity of waiting for store personnel to identify the animal and perform the registry lookup.
As detailed above, all three categories of the proposed solutions are plagued with a variety of significant problems that range across a continuum of expense and complexity. Further, all three depend on accurate identification of the disabled person and/or animal in the first place. No universal method of identifying a disabled person with his/her associated disability-related need for the service animal currently exists.
The good news is that these costly, complicated and discriminatory programs are not needed. Public accommodations already have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal’s actual behavior or history. In other words, the problems attributed to fake service animals can be addressed within existing legislation. The Americans with Disabilities Act already contains language regarding a behavior standard. Specifically, in “28 C.F.R. § 36.302(c) – Service animals,” the Act states:
(2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal’s handler does not take effective action to control it; or
(ii) The animal is not housebroken.
So now the focus moves to how a business can determine when a service animal’s behavior warrants removal. According to the supplemental information accompanying the 2010 Revised ADA Regulations Implementing Title III, the DOJ maintains that “the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal.” Common sense tells us that the standard of behavior for a child in a family diner is very different than that in an exclusive restaurant. These same types of measures could be applied when evaluating a service animal’s questionable behavior. For instance, while it might be acceptable for a service animal to bark in an environment where loud cheering or applause was taking place, it would be inappropriate for a service animal to bark repeatedly in a lecture hall, theatre, library or other quiet place. However, if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog should be removed. In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public accommodation must give the handler a reasonable opportunity to gain control of the animal but if necessary, take effective steps to prevent further provocation or injury. Such steps may include asking the provocateur to leave.
Further guidance on behavior appears in the DOJ’s 2015 publication titled Frequently Asked Questions about Service Animals and the ADA. The document clearly states that Handler’s must maintain control of the animal at all times, and may not allow the animal to freely wander about the business. It also states that stores are not required to allow service animals to be placed in shopping carts, and those restaurants, bars, and other places that serve food or drink are not required to allow service animals to be seated on chairs or fed at the table.
It appears that the primary complaint of business owners and patrons is that the fake service animals are misbehaved in the business establishment. As stated above, the handler of any misbehaved animal may be required to take their animal out. This applies equally to fake or valid service animals. This is as intended. The Act specifies that even valid service animals, when not behaving appropriately, are not granted access rights. As for the question of fake service animals interfering with the effective use of legitimate service animals, no properly trained service animal should fail to behave and function appropriately when in the presence of other well-behaved, under control animals. Thus, for the service animal handler, encountering a well-behaved, under control fake service animal should be no different than encountering another legitimate service animal in a place of business.
Rather than placing a focus on additional regulation or legislation, the focus should be on educating businesses and the public on the existing regulation. All businesses should be comfortable requiring that misbehaved or out of control dogs leave without fearing a violation of the ADA or damaging social media notoriety. If the fakers invest in training such that their animals meet the required behavior standards, then, admittedly, a few more dogs might illegally be present in businesses. But, if their behavior meets the standard, they would be doing no harm to the legitimate service animal users and, one has to wonder what harm they would be doing at all. So let’s stop trying to create identification schemes that are unnecessary, burdensome, and contrary to the spirit, intent, and mandates of the ADA. Instead, let’s welcome disabled people who seek to engage in ordinary activities of daily life and start making use of existing legislation to stop the disreputable actions of others