No Pets Allowed: the Need to Address Increasing Abuses of Assistance Animal Regulations Under Federal Law

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 36 No. 3

No Pets Allowed: The Need to Address Increasing Abuses of Assistance Animal Regulations Under Federal Law

Ansley Fantaski

Georgia State University College of Law, afantaski1@student.gsu.edu

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NO PETS ALLOWED: THE NEED TO ADDRESS INCREASING ABUSES OF ASSISTANCE ANIMAL REGULATIONS UNDER FEDERAL LAW


Ansley Fantaski*


Introduction

Peacocks in public, kangaroos in restaurants, and pigs on planes all have one thing in common: individuals trying to assert rights to which they are not entitled.1 Assistance animals are becoming increasingly more recognizable through their popularity in the media, with news

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channels, talk shows, and even sports teams sponsoring service animals in training.2 However, the number of individuals trying to take their companion pets wherever they go has also increased, resulting in consequences surrounding the laws granting rights to individuals requiring either service or emotional support animals for legitimate needs.3

The Americans with Disabilities Act (ADA) grants the most significant rights to individuals requiring service animals.4 Under this Act, individuals with disabilities have the right to bring qualified service animals into places of public accommodation such as hotels, restaurants, and stores.5 However, this right is not absolute.6 These access rights are only granted for qualifying service animals who perform work to aid their handler with their disability.7 Service animals must receive individualized training relating to their handler's

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particular disability.8 However, under the ADA, places of public accommodation are permitted only a limited inquiry if a person enters with a service animal.9 When it is not obvious what service an animal provides, personnel may only ask two specific questions: (1) is the animal required because of a disability, and (2) what work or task has it been trained to perform?10 These limited questions, however, can enable individuals to claim—either fraudulently or accidentally—that their companion or emotional support animals are "service animals" to gain access to places of public accommodation where companion or emotional support animals are not normally allowed.11

With increasing frequency, some individuals have begun to abuse the Airline Carrier Access Act (ACAA), which requires airlines to allow assistance animals to ride in the cabin of an airplane.12 The standard for assistance animals for airlines is far more lenient than the standard under the ADA because it provides travel rights. These traveling rights permit animals inside plane cabins at no additional cost. This is true for service animals and emotional support animals, which simply provide comfort and support through their presence with their owners and are not individually trained to provide any specific services to their owners.13 Although airlines have options in place to transport household pets, such as paying a fee to bring the animal as a carry-on or putting the animal in the cargo hold, flight attendants and passengers have reported an increase in emotional support animals as

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individuals attempt to avoid paying the costs associated with pet travel.14

Abuses can also occur under the Fair Housing Act (FHA) for similar reasons. Because the FHA also covers both service animals and emotional support animals, landlords face an increasing number of accommodation requests to either permit a companion pet or emotional support animal in "no pet housing" or to waive fees associated with having a pet in the home.15 However, because these abuses typically occur within the home, the effects are far more limited in scope than those involving public access.

The following Note discusses the nuances associated with assistance animal regulations. Part I provides an in-depth overview of the current laws in place permitting certain rights to handlers of assistance animals under a variety of circumstances. Part II analyzes the abuses of assistance animal regulations and discusses the distinctions between service animals and emotional support animals. Part III discusses proposed solutions to streamline the regulations, including establishing a national registration system and increasing educational efforts to help minimize abuses under federal law.

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I. Background

Traditionally, assistance animals worked as guides for individuals who were blind or visually impaired, but now, animals are assisting individuals with a variety of disabilities such as blindness, deafness, or diabetes.16 There are three sources of authority governing rights of assistance animals under federal law: the ADA, the FHA, and the ACAA.17 Each authority has different definitions, scopes of protection, and requirements for various levels of assistance animals.18

A. The Americans with Disabilities Act

Title III of the ADA establishes that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation."19 Further, the ADA defines "discrimination" to include failure to make reasonable modifications to facilitate full and equal enjoyment to disabled individuals.20 The Department of Justice (DOJ), which is charged with enforcing public accommodations under Title III, has interpreted the ADA to include permitting the use of service animals

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as a reasonable modification required in places of public accommodation.21

The definition of service animal is limited to dogs and miniature horses that are individually trained to do work or perform tasks for people with disabilities, whether physical or mental.22 The work required must be directly related to the individual's disability.23 Psychiatric service dogs that are trained to perform a variety of tasks related to detecting the onset of psychiatric episodes and ameliorating its effects are included under the ADA; however, animals that provide emotional support, well-being, comfort, or companionship are specifically excluded.24 Psychiatric service animals do more; for example, they may remind an individual to take their medicine, provide safety checks or room searches, interrupt self-mutilation, or remove disoriented individuals from dangerous situations.25

DOJ also provides a nonexhaustive list of work or tasks that would qualify an assistance animal as a service animal, but the key to qualification is individualized training.26 There is an increasing

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number of individuals who claim to be covered under the ADA who do not meet the legitimate regulatory criteria.27 However, places of public accommodation may only ask two specific questions to verify the legitimacy of an animal's presence: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform?28 In fact, places of public accommodation are not allowed to ask for any verification beyond the two permitted questions nor is any paperwork required to prove a service dog qualifies under the ADA, which gives rise to a large source of abuse.29 For example, numerous online resources exist for individuals to purchase "official" service dog registration and identification.30 DOJ has stated explicitly that these certifications do not convey rights under the ADA to the individuals or pets they claim to certify.31

B. Fair Housing Act

The FHA prohibits property owners from discriminating based on disability, race, color, national origin, religion, sex, and familial status.32 Under this Act, pet restrictions cannot be the basis for denying

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or limiting housing to individuals with disabilities who require an assistance animal, whether a service animal or an emotional support animal.33 In those instances, housing providers must grant reasonable accommodations, such as modifying their pet policies.34

The FHA defines assistance animals similarly to the ADA, though it expressly includes emotional support animals and is not limited specifically to dogs.35 Specifically, the FHA defines "assistance animal" within the scope of its protections as "an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability."36 Similar to the ADA, the FHA does not require an individual to provide registration or certification to comply.37 Although some individuals still struggle with obtaining accommodations under the FHA, the effects of abuses under the FHA are more limited than those under the ADA.38

C. Airline Carrier Access Act

The ACAA prohibits discrimination in air travel based on disability.39 Similar to both the ADA and the FHA, the ACAA includes

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provisions for assistance animals.40 The Department of Transportation, charged with enforcing the ACAA, defines "assistance animals" as "any animal that is individually trained or able to provide assistance to a person with a disability; or any animal that assists persons with disabilities by providing emotional support," but also provides limitations for size, weight, threat to health and safety, cabin disruption, and even species.41

The main difference between the ACAA and the ADA, other than the ACAA's inclusion of emotional support animals, is that airlines are permitted to request specific documentation forty-eight hours in advance of a passenger's flight for animals that are emotional support animals and psychiatric service animals.42 For example, Delta Air Lines permits boarding of trained service animals and emotional support animals, but requires submission of specific documentation for those seeking to fly with emotional support animals no later than forty-eight hours before a flight.43 Similarly, Southwest Airlines

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encourages advance notice from passengers traveling with trained service animals, but specifies that those...

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