By Alison Daniels, Esq. and Emily Harvey, Esq.
We’ve all seen it – a fluffy little white dog wearing a bow and riding in the cart at the grocery store with a pink “Service Dog” vest. The dog owner does not have an obvious disability and appears to be doting on the dog far more than the dog seems to be assisting the owner. Scenarios like these have prompted legislators to write laws seeking to criminalize people with disabilities who violate the law. Sounds reasonable, right? After all, how difficult is it to understand the law? Unfortunately, the law is very complex in this area and very few people understand all the nuances.
Specifically, recent legislation in Colorado has sought to criminalize people who violate the Americans with Disabilities Act and the Fair Housing Act in order to have pets with them in housing and places of public accommodation, such as businesses. However, because there are multiple different classifications of animals, each with different legal rights that attach to a person depending on the type of animal, many people do not understand these differences. This lack of knowledge and understanding has created the opportunity for people to inadvertently violate the law and others to outwardly abuse the system. Disability Law Colorado believes that if more people, including business owners, landlords, tenants, and the general public, understood these laws, we would not see the violations or abuse that the current legislation has been attempting to curb.
There are basically four classifications of animals under current disability rights law: service animals, assistance/companion animals, therapy animals, and pets.
Service Animals are defined by the Americans with Disabilities Act and Colorado state law as a dog (or miniature horse) that has been individually trained to perform a specific task or service for a person with a disability. A service animal is considered an extension of a person with a disability and is allowed in any business that is open to the public. In Colorado, service animals who are in training are treated the same as service animals. By definition, any animal other than a dog or miniature horse is NOT a service animal, and therefore a business open to the public can ask that animal to be removed from the premises. This means that if someone attempts to bring their “service kangaroo,” “service duck” or “service cat” with them to a business that is open to the public, that animal can be turned away immediately because it cannot possibly be a service animal that is covered under the ADA.
When a business owner observes a patron who does not have an obvious disability or need for a service animal bring a dog (or miniature horse) into the business, the business owner can ask two questions: (1) Is the dog required because of your disability? and (2) What task does it perform? The person with a service animal cannot be asked any other questions, such as what their disability is, nor can they be asked to show the dog performing the task. Business owners should keep in mind that many disabilities are hidden disabilities and though the need for the dog may not be obvious, that does not mean that it is not a service dog.
With that said, an animal – even a qualified service animal – can be excluded from a business open to the public if it is acting aggressively or causing a nuisance. This means that if a dog is defecating in the aisle of a grocery store or sitting on the table in a restaurant to eat off of a plate, staff at the business can ask that the animal be removed (though they still must offer their services to the person with a disability). If the owner refuses, the staff can call the police on the basis of trespass. This is allowed under current law.
Assistance and companion animals are defined by the Fair Housing Act and Colorado state law as animals that help a person with a disability alleviate one or more symptoms of their disability while in their home. Assistance and companion animals can be many different types of animals, and are not limited to just dogs and miniature horses. Examples of assistance or companion animals include a dog that barks when the doorbell rings to assist a person who has a hearing impairment or a cat that provides a person with bipolar disorder a reason to get up in the morning, take her medicine and go to work. Emotional support animals fall within this classification of animals as a subset of companion animals.
Only people with disabilities are entitled to have companion animals and even then, companion animals are only allowed in a person’s home (and, with proper documentation, on airplanes). Landlords cannot charge pet fees for animals that are assistance or companion animals because they are not considered “pets” under the law. Business owners are not required to allow assistance or companion animals into their businesses. If a person brings an assistance or companion animal into a business, the business owner can ask the person to remove the animal.
Housing providers can ask for documentation to provide evidence of a person’s disability if the disability is not obvious. This evidence typically comes from a medical provider. Housing providers can also ask for documentation to show the disability-related need for the animal if the disability-related need is not readily apparent (this is referred to as the “nexus”). Regarding the nexus, this evidence can come from anyone “in the know” about the tenant’s need for the animal – meaning it does not have to come from a doctor. The reason that federal regulations are more lenient in regards to animals in the home is because the law recognizes that we want people to be safe and comfortable in their homes and for many people with disabilities, this comfort comes from an animal.
Therapy animals are those animals that are taken to hospitals, schools and other facilities to provide therapy to the people there. For example, a therapy dog may visit patients at a children’s hospital. The major difference with therapy animals is that their owners do not necessarily have disabilities. Instead, therapy animals visit people with disabilities to provide them a form of therapy. Though well-behaved, therapy animals are not service animals and are not required to be allowed into places of public accommodation. Unless the person who owns the therapy animal also has a disability and a disability-related need for the animal, therapy animals are not required to be allowed in housing, either.
Pets are the final catch-all classification and include all animals that any person, with or without a disability, may have if they do not fall into one of the other categories. Pets do not have to be allowed in public accommodations or housing; admittance is based on the business or housing provider’s rules on pets.
These examples illustrate that there are many nuances to the different laws affecting the rights of people with disabilities to keep or bring with them different types of animals who help, in one way or another, with the effect of a person’s disability. This is a complex area of the law and we hope you will visit the service animal page on our website for additional information – /issues/category/service-assistance-animals.