Types of service animals
Restaurants must allow access to customers accompanied by service animals trained to assist disabled persons, regardless of any conflicting health regulations, local ordinances or internal policies. Both disabled persons and trainers are allowed access with their service animals. The disability can be mental or physical, obvious or undetectable.
Until recently, there was some confusion as to what types of animals had to be allowed access.
The regulations implementing the ADA offered the first official definition of service animal and identified a service animal broadly as “any … animal individually trained to do work or perform tasks for the benefit of an individual with a disability.” Under this definition, non-traditional animals could be granted the title of service animal and a business owner would have had to have granted access.
The Department of Justice amended ADA regulations in March 2011 to limit the definition of “service animal” to dogs. So, except in limited situations for miniature horses, dogs are the only types of service animals that must be allowed access to places of public accommodation, including restaurants.
As for the “service” provided by the dog, it may include, but is not limited to, guiding the blind, signaling the deaf, picking up objects for the physically impaired, alerting to seizures, reminding a mentally ill person to take medication, calming a person who has Post-Traumatic Stress Disorder (“PTSD”) during an anxiety attack, removing disoriented individuals from dangerous situations, etc. The recent Department of Justice amendments to the ADA regulations exclude from “service” those animals used solely for emotional support. Under California law, “service dog” includes “any dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair or fetching dropped items.”
How far does equal access extend?
Access to a restaurant must be equal to access afforded any other customer. So, a restaurant may not isolate all customers with service dogs by seating them all in a designated area, such as a patio or back corner. An exception to this rule exists where there is a legitimate safety concern about where the person and the service animal would be seated. For example, if the seat is next to a door and the only place for the animal to sit is in front of the door, then there may be a legitimate safety concern. Another exception to this rule exists where there is a legitimate health concern. For instance, service animals are only allowed in dining and sales areas “not used for food preparation.” While showing that health and safety will be jeopardized if an animal is present could serve as a basis for excluding a service animal, allegations of safety risk must be based on actual risks rather than on mere speculation, stereotypes, or generalizations about individuals with disabilities or about a dog’s breed.
Usually, service dogs are easily identified as such and appropriately allowed to enter the restaurant. Most everyone is familiar with the telltale signs, such as dogs with identifying vests, a harnessed dog guiding the visually impaired or a dog accompanying someone in a wheelchair. Difficulties arise, however, when a customer or patron has no apparent disability, or the dog appears to be a common house pet. Indeed, some people knowingly take advantage of disability rights laws to gain access for their pets.
Unfortunately, there is little that can be done in this situation. The customer is not required to prove a disability or present certification or licensing for the service animal. The ADA does not require the service animal to be identified by a vest, tag or license. Although California has a licensing law [Civil Code Section 54.2(b)1], which provides for local animal control departments to issue identification tags to people who use and train service animals, the tags are not required and do not establish that an animal is a service animal under the law. Also, the federal ADA trumps state law. Therefore, you should not rely upon the California licensing law for the position that the dog must be identified as a service animal.
When someone enters your restaurant with a service animal:
- You may ask the customer if the dog is required because of a disability but be careful not to ask about or discuss the customer’s disability.
- You may ask what tasks the dog is trained to perform.
- If the customer tells you the service provided by the dog is emotional support only, then you may deny access to the dog.
- You may deny access to animals other than dogs and miniature horses in limited situations.
In the unlikely event that the service dog becomes aggressive, uncontrollable or extremely disruptive, you may ask the customer to remove the animal from the restaurant. You may also ask a customer to remove the animal if it is not housebroken. However, an occasional accident is allowed, and a service dog is not automatically excluded if the dog has an “accident.” Make certain the incident is well-documented. However, you should make it clear that the disabled guest is still welcome if they wish to stay without their service animal. If a restaurant “normally” charges its guests for damage caused to the premises, it may charge the owner of a service animal if the animal causes damage.
More importantly, follow these quick steps to avoid violating disability rights laws:
- Don’t deny access to disabled persons, trainers and their service dogs.
- Don’t question the customer about his or her disability.
- Don’t request proof of disability or medical certification.
- Don’t request proof of certification, training or licensing of the service dog.
- Don’t request proof that the person with the dog is a trainer.
- Don’t restrict service dogs to a particular area in the restaurant; disabled persons must be provided equal access.
- Don’t charge a service fee to a person with a service animal even if you normally charge a service fee for patrons with pets.
- Above all else, make certain your staff understands that service dogs are guaranteed access to the restaurant, and that any questions are handled politely and respectfully. Problems can quickly escalate when management and staff are not adequately trained to address the situation. A well-intentioned employee may erroneously believe that health regulations apply to service animals or wrongly assume that the service animal must wear an identifying vest or tag.
- Special services for the service animal such as food or water are not required.
The law only requires that service animals and their owners are allowed access to any areas where customers are normally allowed. However, it is perfectly appropriate to ask disabled guests if they or their service animals have any special needs. The guests may ask you to point out a nearby patch of grass or blacktop area where their animals can relieve themselves, or they may ask to be seated at a table instead of a booth in a restaurant.
Troubleshooting animal issues
If other guests complain to you about a service animal, you must explain that the law requires you to allow service animals in your business, because unlike “pets,” these animals perform vital tasks for their disabled owners. You should also explain that these animals are highly trained to behave properly in public and are as clean and healthy as most people. Finally, you can offer to move the objecting guest, not the disabled guest, to another part of your establishment, if he or she would be more comfortable.
It is important that staff are trained how to handle these situations. All too often, a well-intentioned employee can run afoul of the law and subject you to costly fines and litigation.
In California, there are two types of remedies: penal and civil. Denying or interfering with a disabled person’s equal access rights constitutes a penal code violation and is a misdemeanor, punishable by a fine not to exceed $2,500 (Penal Code Section 365.5). If the court finds the interference was intentional and without legal justification, it is punishable by imprisonment in county jail for not more than six months or a fine of $1,500 to $2,500, or both (Penal Code Section 365.6). However, the damages don’t end there. A disabled person may also bring a civil action for monetary damages against the person and company that interfered with his/her rights, and they may recover their attorney fees for bringing such an action. The Disabled Persons Act and the Unruh Act carry penalties of up to $1,000 and $4,000 respectively. In addition, there are federal statutes that regulate and protect individuals with service animals, and the fines for such violations can be in the tens of thousands of dollars. In fact, under the ADA, the failure to make reasonable accommodations for service animals will result in fines of up to $55,000 for the first violation and $100,000 for subsequent violations.
In addition, certain local ordinances relating to animals carry separate violations and you should familiarize yourself with local laws.
However, a business owner is not without any protections. It is also a misdemeanor, punishable by imprisonment as long as six months and a fine not to exceed $1,000, for a person to fraudulently represent an animal as a service animal (Penal Code Section 365.7). However, proving or enforcing that law is nearly impossible. Restaurants encountering a suspicious situation may tactfully inform the customer that it is against the law to fraudulently represent the dog as a service animal, but little else can be done. Some restaurants prominently display a sign stating that service animals are welcome and citing the Penal Code provisions regarding violations of the law. If your restaurant is encountering a problem, consider seeking legal advice before denying access to service animals.
Christine H. Long is Partner, and Department Chair at Berliner Cohen, LLP. She maintains a diverse litigation practice in employment, hospitality, business litigation, and real estate. Ms. Long is the Chair of the Employment Law Practice Group and Hospitality Practice Group.
For questions on how these Law and Ordinances affect your work place contact Christine Long, Partner at Berliner Cohen at 408.286.5800 or by email at Christine.Long@berliner.com.