Douglas A. Turner, P.C.

Federal and state laws protect the rights of disabled individuals who need a service dog or other service animal in places of public accommodation. Unfortunately, some individuals take advantage of this federal law to allow their pet to accompany them. Business persons who operate places of public accommodation face the challenge of determining which dog is a service dog without violating the rights of the disabled.

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination by businesses offering public accommodations. No 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 by any person who owns, leases, or operates a place of public accommodation. To prevail on a Title III discrimination claim, a person must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) she was denied public accommodations by the defendant because of the disability.

To make out a case of disability discrimination under federal law, a person must show that she is “disabled” as that word is defined under the law. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. A major life activity is substantially limited if the individual cannot perform the activity that the average person in the general population can perform or if the manner in which the individual can perform the activity is significantly restricted as to the condition, manner or duration as compared to an average person in the general population. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This illustrative list of major life activities requires the activity only to be of comparative importance and central to the life process itself, and it need not have a public, economic, or daily character.

For ADA purposes, a service animal is defined as any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability. Federal regulations do not set forth any standards or requirements specifying the amount or type of training that an animal must receive to qualify as a service animal, nor the type or amount of work a service animal must provide for the disabled person. The relevant question is whether the animal helps the disabled person perform tasks to ameliorate the ADA disability. If that standard sounds just a little bit fuzzy, you understand the standard, perfectly.
So, let’s assume a hotel guest wants to check in with their “service dog”, but the hotel proprietor’s suspects that this 12 week old puppy wriggling in the owner’s arms and dribbling a little excitement is not looking like a service dog. What should the hotel proprietor do?

If the hotel proprietor chooses to challenge the guest’s assertion, he is taking some risk in doing so. The safest course is to smile, say great, glad to have you here, tonight, and let the guest check in without issue and without any special conditions, like an additional damage/pet deposit, for example.

So, the word gets out that all one has to do is chant “service dog” and the no pet policy is out the window. The hotel proprietor feels like he must do something to protect his guests with allergies and other issues. Can the hotel operator verify the guest’s claim? Maybe, but he must be very careful. Inquiring about the legitimacy of a service dog can result in a lawsuit even if the dog turns out not to be a service dog.

The hotel proprietor has the right to inquire whether or not the dog is a service dog. The hotel proprietor has the authority to exclude ordinary pets from its facilities, and yet must also comply with federal anti-discrimination law, which under most circumstances includes permitting service dogs in places of public accommodation. The hotel proprietor may ask if a dog is a service animal and ask what tasks the service animal has been trained to perform. However, he cannot require special ID cards for the service dog or ask about the person’s disability. This is referred to as a task or function inquiry and is the key method for distinguishing a service dog from a pet. The proprietor can probably ask whose service dog it is, what tasks the service dog performs and what training the service dog has received.

An inquiry ceases to be legitimate if it is used to harass or discourage people with disabilities from availing themselves of public accommodation. In this way, unduly repetitive questioning, after an adequate answer has been given, could suggest a pretext for discrimination, constituting an illegitimate inquiry. If the visual evidence clearly indicates that it is a service dog, even the above questions can put the proprietor at risk.

While the law seems very one-sided against businesses offering public accommodations, the law is written to protect the rights of the disabled. Hopefully, the actions of individuals who are traveling with pets will not impact the ability of a disabled person to travel freely and be accompanied by a service dog.