July 26, 2015, marked the 25th anniversary of the Americans with Disabilities Act (“ADA”). Unfortunately for those who own, operate, lease, or control places of hospitality and/or lodging (e.g., a hotel, restaurant/bar, cruise line, or casino), the ADA’s anniversary has not only been marked with celebrations, but also a stark increase in government investigations and enforcement actions, advocacy group initiatives, and private plaintiff litigations. One topic that has gained renewed attention as part of this swell of activity is service animals.

As discussed below, the ADA’s coverage of service animals is fairly straight forward in the abstract and has not significantly changed since the adoption of revised regulations in 2010. Therefore, many wonder why service animals remain such a common source of complaints of discrimination. While one cannot say for sure, there are several factors that may all contribute to service animals remaining a considerable source of liability.

First, service animals are synonymous with access and, therefore, when a potential visitor is told that he or she cannot bring an animal into a place of hospitality and/or lodging, it is perceived as a denial of access that, if on the basis of someone’s disability, could be considered blatant discrimination.

Second, service animal issues are often emotionally charged. This is not only because such exchanges can be interpreted as a denial of access but also because people often have strong attachments to their animals and take great offense to any suggestion that an animal should not be allowed to accompany the guest wherever he or she wishes to go, even if the law does not require it.

Finally, because service animal issues involve access, any disputes regarding whether an animal can enter a place of hospitality and/or lodging ordinarily occurs in public at the entrance to the location. This means that these disputes will involve front-line employees who may struggle with some of the nuances involved in determining whether or not to allow an animal into a location and also draw unwanted attention for all parties involved.

General Background

Under Title III of the ADA (“Title III”), a place of hospitality and/or lodging does not have to permit animals that are only pets inside. However, service animals must be permitted to accompany people with disabilities in all public areas of the place of hospitality and/or lodging, where other visitors are allowed to go. “Service animals” are defined as dogs that are individually trained to do work or perform tasks for the benefit of an individual with a disability. While the most commonly recognized type of service animal is a guide dog, many others exist, such as hearing dogs and psychiatric service dogs.

If it is not readily apparent that a dog is a service animal, a visitor seeking to bring a service animal into a place of hospitality and/or lodging may be asked by staff the appropriate qualifying questions: “Is the dog required because of a disability?”and “What task/work has the dog been trained to perform/do?”

Regardless of the answers, a place of hospitality and/or lodging may not request that the visitor provide any sort of license or certification papers corroborating the dog’s status as a service animal. Indeed, there is no official license, certification, or “uniform” for service animals (and such “credentials” can be readily purchased on the Internet without any verification that the dog is truly a service animal).

Obligations of the Service Animal Handler

Once a place of hospitality and/or lodging allows a service animal onto the premises, the individual with the disability then bears a variety of burdens in order for the service animal to remain, as he or she is responsible for caring for the service animal for the entirety of his or her stay. The individual must ensure that the service animal:

• is housebroken (taking the service animal to the designated “parking/relief area” when the dog needs to relieve itself);

• is under control at all times and not adversely affecting the comfort and enjoyment of other visitors (e.g., not incessantly barking at others or running away from the handler);

• does not pose a threat to the health or safety of others (e.g., properly vaccinated and not biting people); and

• does not cause property damage.

To the extent it is reasonable, when a service animal is exhibiting any behaviors contrary to these requirements, the place of hospitality and/or lodging should warn its handler that, unless the behavior stops, the service animal must vacate the premises. (Of course, certain circumstances—such as biting someone—would be grounds for the instantaneous removal of the service animal.) When removing a service animal from the premises, the visitor with the disability must be given the option of remaining at the place of hospitality and/or lodging.

Additionally, the reasons for removing the service animal from the premises should be contemporaneously documented (e.g., by security or customer relations) in a report that includes:

• the time,

• the date,

• the name of the service animal handler (if available),

• the type of animal,

• the nature of the task/work that the animal purportedly performs,

• details about the nature of the threat posed and/or inappropriate behavior demonstrated,

• the name of any employees involved in the situation, and

• specifics of any conversations with the handler about the issue.

This documentation should be provided to the appropriate members of management and/or the legal department.

Emotional Support Animals

There is one more nuanced issue that can create a greater risk of exposure in this context—distinguishing between psychiatric service animals and emotional support animals.

As noted above, Title III only covers service animals, which include psychiatric service animals trained to perform tasks or do work for an individual with a disability (e.g., guide a disoriented handler, get help at the onset of an episode, or remind the handler to take medication). An emotional support animal is not trained. Instead, individuals with certain disabilities (e.g., anxiety or depression) are instructed by their treating health care provider that the company of the dog (or actively petting or holding the dog) may alleviate symptoms of their condition. In essence, the person with the disability is trained to utilize the emotional support animal and, therefore, the emotional support animal is not a service animal and thus not protected by Title III.

Of course, given the limited inquiries that places of hospitality and/or lodging are permitted to make of the dog’s handler when he or she seeks to bring a dog onto the premises, ascertaining whether a dog is a service animal (to be granted access under Title III) or an emotional support animal (which can be denied access) is, admittedly, easier said than done. This is particularly the case when an individual might be less than truthful about their dog or begins to rapidly escalate the encounter into a heated confrontation.^[7] Thus, rather than risk a front-line employee making a mistake that results in an improper denial of access, many places of hospitality and/or lodging have taken to allowing most dogs onto the premises with the understanding that, if the dog is not truly a service animal, it will likely run afoul of the various conduct/behavior requirements and quickly create a clear reason for its lawful exclusion.

DOJ’s FAQ

In light of the number of ongoing complaints that still persist regarding issues relating to service animals, the U.S. Department of Justice recently issued a new guidance document, “ Frequently Asked Questions about Service Animals and the ADA,” as part of its many activities surrounding the ADA’s 25th anniversary. While the majority of the guidance simply discusses well-tread issues in a user-friendly question and answer format, it does address the following points, which are of particular interest to places of hospitality and/or lodging:

• Service animals must be allowed to accompany their handlers to and through self-service food lines. (However, the ADA does not override any applicable public health rules that might prohibit a dog in a specific area.).

• Places of hospitality are not required to allow an animal to sit or be fed at the table with its handler. Similarly, the place of hospitality need not provide food and drink for the service animal.

• Individuals using service animals cannot be restricted to “pet friendly” rooms in a place of lodging; they must be permitted to reserve any available room.

• Places of lodging cannot charge guests for cleaning the hair or dander shed by a service animal (but can charge for property damage).

• Guests of places of lodging cannot leave their service animal alone in their room.