“Fake” Service Animal law does not give license to violate the ADA’s service animal protections

ACDL News, Disability Law No comments

Joining at least 20 other states, a new provision in Arizona’s service animal law makes it illegal to “fraudulently misrepresent” any animal as a service animal to a public place or business. The law carries a civil penalty of up to $250 for each violation.

A service animal is a dog or miniature horse that is trained (or being trained) to perform work for someone with a disability. Animals that provide only emotional support do not qualify as service animals. If an animal does not qualify as a service animal, it is now illegal for a handler to claim that it does.

However, it also remains a violation of the Americans with Disabilities Act (ADA) and Arizonans with Disabilities Act (AzDA) to exclude service animals from a public place or business, or to ask individuals with disabilities invasive questions about their service animal.  So, when enforcing this new provision, Arizona’s businesses and public places, law enforcement officers, and courts should act with caution to avoid interfering with the rights of people with disabilities.

None of the following situations necessarily signals a fake service animal:

The handler does not have an obvious disability.

  • Why? The ADA and AzDA equally applies to people with obvious disabilities, like blindness or mobility impairments, and people with non-obvious disabilities, like epilepsy, diabetes, and PTSD. Arizona law also protects handlers with service animals in training.

The service animal is not performing a task you generally associate with service animals.

  • Why? The ADA and AzDA only require that the service animal perform a task directly related to the person’s disability.  Sure, service animals guide people who are blind and retrieve items for people using wheelchairs.  But, service animals can also alert and protect a person with seizures, warn a person who is deaf about sounds in the environment, remind a person with mental illness to take prescribed medications, forewarn a person with diabetes to check their insulin, intervene to calm a person with PTSD during an anxiety attack, and perform other disability-related tasks.

The service animal is not the breed or size of a dog you think of when you think of service animals.

  • Why? Service dogs come in all sizes, weights, and breeds. Not all service dogs are German Shepherds. For example, a person with diabetes who has a glucose alert dog may carry a small dog in a chest pack close to his face so the dog can smell his breath to alert him of a change in glucose levels.  Courts have ruled that cities with breed restrictions must make reasonable accommodations under the ADA to allow service animals of the restricted breed.

The handler cannot produce the service animal’s registration or certification.

  • Why? Under the ADA and AzDA, businesses and public places may condition entry on an individual producing documentation to prove that their service animal has been certified, trained, or licensed.

The dog or miniature horse is not wearing a service animal vest or an emblem indicating it is a service animal.

  • Why? Under the ADA, handlers are not required to purchase a service animal vest or patch. Often, companies that sell service animal vests or emblems do not have any method of verifying that the individual buying them has a service animal

The handler cannot verify that the service animal has undergone professional training.  

  • Why? There is no requirement under the ADA or AzDA that the service animal receive professional training. While some service animal handlers arrange for professional training, other handlers provide individual training.

The handler is training a dog or miniature horse to be a service animal.

  • Why? Arizona law defines “service animal” to include dogs or miniature horses that are in training to become service animals. A handler is responsible for any damage done by a service animal in training.

 The handler has two service animals. 

  • Why? Some people with disabilities may use more than one service animal to perform different tasks.  A person who has a visual disability and a seizure disorder may use one service animal as a guide dog and the other as a seizure alert dog. Other people may need two service animals for the same task, such as a two dogs to brace themselves or add stability when walking.

The handler brought an emotional support dog or miniature horse to a public place. 

  • Why? The new state provision requires the individual to “fraudulently misrepresent” the dog or miniature horse as a service animal.  Often, people with mental health disabilities who use emotional support animals may be unclear about the difference between an emotional support and service animal and do not intend to mislead public places.

For more information about service animals, check out the Department of Justice’s FAQ about service animals.

 

10 Tips for People with Disabilities with Service Animals

  1. The ADA and AzDA still prohibits public places from denying you access to any place where the general public travels with your service animal.
  2. Public places may still only ask two questions to determine whether to allow you access: 1) is your service animal required because of a disability? and (2) what work or task has your service animal been trained to perform?
  3. Service animals in training are not “fake service animals” because Arizona law defines service animals to include service dogs and miniature horses in training.
  4. Service animals must be trained to perform task(s) directly related to your disability, but can be trained by you or a professional trainer.
  5. Service animals can be trained to perform tasks related to psychiatric disabilities. These are different from emotional support animals, who are not trained and whose mere presence provides support.
  6. The fake service animal provision does not mean that you must buy your service animal a vest or badge.
  7. Even service animals can be removed from a public place if they become too disruptive or act aggressively and the handler does not take effective action to control the service animal.
  8. Know your responsibilities as a handler of a service animal. Go to the DOJ’s FAQ on service animals for more information about your responsibilities.
  9. Know the limits on a service dog access in public places. For example, DOJ states that a service dog may generally travel in an ambulance with the handler unless it would interfere with emergency personnel performing their duties.  DOJ also states that  places that serve food or drink are not required to  allow service animals to be seated on chairs or allow the animal to be fed at the table.
  10. Arizona law makes it a class 3 misdemeanor, which carries a maximum fine of $350/violation, for a public place to unlawfully deny access of a service animal or service animal in training.

 

About the author: Rose Daly Rooney is the Legal Director for ACDL.  She represents all Arizonans with disabilities and works to ensure everyone knows about their rights.

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