Service Dogs and Other Animals

Service Dogs, Colorado Emotional Support Animals, and HOAs

Federal and state laws protect the rights of disabled individuals who need service dogs in places of public accommodation. Unfortunately, some individuals took advantage of the service animal laws to allow their pet to accompany them. As of March 15, 2011, only dogs (and miniature horses in rare situations) qualify as service animals under the Americans with Disabilities Act (ADA).  An ADA service dog is narrow in scope.  Other animals and dogs may still qualify as emotional support, therapy, or companion animals under Colorado law.

Title III of the ADA prohibits discrimination by businesses offering public accommodations. No individual shall be discriminated against based on 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 way 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 dog is one trained to do work or perform a specific task for the benefit of an individual with a disability. The task performed must be directly related to the person’s disability.  While an emotional support dog does not qualify as a service dog, the ADA distinguished between psychiatric service dogs and emotional support dogs.  If the dog is trained to sense an impending anxiety attack and take specific action, that dog would qualify as a service dog under the ADA.  Federal regulations do not set forth any standards or requirements specifying the amount or type of training that a dog must receive to qualify as a service dog.

Places of public accommodation may inquire whether the dog is a service dog when it is not obvious. They may ask if the dog is a service dog required because of a disability and what work or task the dog has been trained to perform.  The dog is not required to wear a vest, ID tag, or specific harness.  Service dogs must be allowed to accompany their handlers through self-service food lines and may not be prohibited from communal food preparation areas like in shelters and dormitories.  Service dogs are not restricted to pet-friendly rooms.  A hotel is not permitted to charge an additional cleaning fee.

This issue regarding service dogs and other animals also comes up in the context of homeowner associations (“HOA”). Many HOAs include prohibitions within their governing documents regarding animals.  The federal Fair Housing Act protects the right of a disabled individual to request an accommodation from their housing authority for an emotional support animal. 42 U.S.C. §3601, Notice FHEO-2013-01, Issued April 25, 2013. Both the federal Fair Housing Act and Colorado statute prohibit unfair discriminatory housing practices including a refusal to make reasonable accommodations in rules or policies when such accommodations may be necessary to afford the individual with a disability equal opportunity to use and enjoy a dwelling. C.R.S. § 24-34-502.2(2).

To make a request for a reasonable accommodation, a homeowner should have all necessary paperwork to prove to the HOA the following:

1. The person seeking to use and live with the animal has a disability – i.e. “behavioral, mental, or psychological disorder, such as an intellectual and developmental disability, organic brain syndrome, behavioral or mental health disorder, or specific learning disability.” C.R.S. § 24-34-501 (1.3); and
2. The person making the request has a disability-related need for an assistance animal. In other words, the animal works, aids, performs tasks or services for the benefit of a person with a disability, or provides emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.

Additionally, Colorado statute requires certain prerequisites for a licensed medical professional to identify an assistance animal as a reasonable accommodation in housing. C.R.S. § 12-36-142. The licensed medical professional must make a written finding regarding whether the patient has a disability and, if a disability is found, a separate written finding regarding whether the need for the animal is related to that disability.  A licensee shall not make that determination unless the licensee has met with the patient in person or by telemedicine, is sufficiently familiar with the patient and the disability, and is legally and professionally qualified to make the determination.  If all of the above requirements are met, the request for an accommodation can still be denied if the specific assistance animal in question is a threat to the health or safety of others, or damages another’s property.

Owners who misrepresent their pet as a service dog or emotional support animal are subject to criminal penalties under Colorado law. Intentionally misrepresenting that your animal is a service animal for the purposes of obtaining a reasonable accommodation for housing or bringing the pet into an area of public accommodation is a criminal offense. C.R.S. 18-13-107.3 & -107.7. At present, the penalty for violating this law is light with a fine of $25.00 for the first offense and increasing amounts up to $500.00 for repeat offenses. However, the law has only been in effect for about a year and a half. As time passes and more convictions are made under this law, penalties may become more stringent, like those of neighboring states. In California, pretending to be an owner of a service dog is a criminal misdemeanor punishable by a fine of up to $1,000.00 and/or up to six months imprisonment.