The laws regarding service dogs in this country are neither numerous nor complicated. There are three federal laws that deal with service animals: the ADA, the Fair Housing Act, and the Air Carriers Access Act. I discuss each one of them below. (Every state has its own laws, and delving into all of them is beyond the scope of this blog, but federal law takes precedence.)
A "service dog" under the ADA is defined as a dog that has been individually trained to perform tasks for an individual with a disability (including physical, sensory, psychiatric, intellectual, or any other mental disabilities) that are directly related to the individual's disability. A handler of a service dog has the right to access, with the service dog, all places to which the public has access. (One important point here: it is the person who has the right of access, not the dog. The dog only has public access when it is functioning as a service dog for the handler with the disability. So when it's retired or if someone else is caring for it, the dog's right to be in public places doesn't exist.)
The ADA says that business owners are allowed to ask only two questions of a person who enters the place of business with a dog that is purportedly a service dog: "Is this a service dog required because of a disability?" and "What is this dog trained to do to assist you?" They are never allowed to ask what a person's disability is or where the dog has been trained. No law requires a service dog to wear any type of identifying vest or harness, and business owners are not allowed to ask for identification or certification and are not allowed to ask a service dog team to leave if the service dog handler cannot produce an ID card.
Business owners do have some rights, which I believe many business owners are unaware of. They can ask the service dog handler to remove the dog if the dog is ill-behaved, dangerous, or not house trained. In my experience, business owners are reluctant to do this, maybe because they are afraid of being sued, or maybe because they aren't sure that the dog's misbehavior is bad enough to justify asking the handler to remove the dog, or maybe because they feel sorry for the person with the disability and feel that he or she should be indulged despite the ill behavior of the service dog. (In all of my years in this business, I have never heard of a client who was asked to leave a business because the dog was out of control or not house trained. If anyone reading this has a story of being asked to leave for that reason, please let me know!)
There is a difference between a service dog, which has been individually trained for a person with a disability, and an emotional support dog (really an emotional support animal, or E.S.A., under the law, not necessarily a dog), which has not necessarily received individual training. The Fair Housing Act and the Air Carriers Access Act both grant access to both E.S.A.'s and service dogs, in rental housing and on planes respectively. If a doctor feels that the companionship of a dog would provide therapeutic benefit for an elderly person or a person with a disability, that doctor can write a "prescription" for an E.S.A. The owner of an E.S.A. does not have the right to be accompanied by the E.S.A. in public places, unlike the owner of a service dog.
Now that I have explained the laws, let's discuss the implications of these laws that could potentially result in the greatest conflict areas:
*Because E.S.A.'s are not required to have any training, the potential for them to have behavior problems such as barking, dog aggression, poor house behavior, et cetera is greater.
*Some business owners do not understand that E.S.A.'s do not have the same public access rights as service dogs, and therefore do not understand that they can ask a dog handler to leave if he or she cannot provide the "correct" answers to the two questions the business owner is allowed to ask.
*Some pet owners are willing to lie when asked those questions. They are educated enough to know that if they say the dog is trained for a task that is not obvious, such as alerting the handler to a low blood sugar episode or an impending seizure, there is no way for the business owner to prove it.
*Since a business owner is never allowed to ask for proof of a disability, it is completely possible for a person without a disability to pose as a person with a disability requiring a service dog.
Why are fake service dogs a problem? Several reasons:
*Ill-behaved fake service dogs (and "legitimate" service dogs trained by a professional organization, too!) can cause damage to a business if the business owner does not know his rights and does not know that he can ask the service dog handler to leave if the dog is not under control.
*Fake service dogs that do not behave in a professional manner in public can cause business owners to have negative feelings toward legitimate service dogs, and possibly to try to restrict access the next time a handler with a service dog tries to access the business.
*Fake service dogs with dog aggression issues can frighten or attack a legitimate service dog, thus endangering that dog's ability to continue working as a service dog.
What is the solution to this problem? I have no idea, to be perfectly honest. The most talked-about solutions seem to be A) adjusting the law to require some sort of I.D. to prove that the dog has had legitimate training and has met certain standards, and B) increase prosecution of and penalties for anyone who misrepresents his or her dog as a service dog when it is not.
I think that both of these potential solutions have big problems. I'll start with the first one, requiring that every handler of a service dog be able to produce an I.D. card. The most common argument for this solution is that people have to have I.D. to drive a car and to vote, so why is it unreasonable that they carry I.D. to prove that their service dogs are legitimate?
The most common argument against the I.D. solution is that not all dogs are program-trained. This is true. A small percentage of people with disabilities choose to train their own service dogs. In my experience, the work of these owner-trained service dogs, across the board, has been roughly equal to that of program-trained service dogs. Some have been top-notch, some have been atrocious, most have been adequate, the same as with program-trained dogs. People choose to train their own service dogs either because they can't afford a professionally trained dog (while guide dogs for blind people are nearly always obtained free of charge, this is not at all the case for many other disabilities), or because they are not considered good candidates by the schools, or because they disagree with training methods used by the schools, or because they want to choose the individual or breed they will work with and most schools use only a limited selection of breeds and do not give their clients any choice in which individual dog is assigned to them. In any case, people who train their own service dogs currently have the same access rights as people who acquire their service dogs from a professional organization.
Most if not all professional service dog schools issue an I.D. card to each graduating human/dog team, and this could be used as I.D. if the "I.D. solution" became reality, but where would the owners of owner-trained service dogs acquire an I.D.? "Some certifying agency would need to be created," say the proponents of the I.D. solution. But who would be the members of this agency? (Do we REALLY want the government to decide who they would be?) Would the membership include individuals experienced in all different types of service dog work? Where would the funding come from? Would recertification be required? Would owner-trained service dogs then be held to a higher standard than school-trained service dogs? (I cannot think of any type of test that could be passed by 100% of the teams that graduate from ANY of the three schools I've worked at, and it seems only fair that all service dogs should have to pass the same test, whether owner-trained or school-trained.) No one seems to have the answers to these questions.
On to the "severe consequences for misrepresentation" argument. I admit that I am not fully up to date on the laws that make it illegal to represent a dog as a service dog when it is not, or on the different penalties for doing so in different states. I do know that any attempt to prosecute is going to involve, to some extent, an invasion of privacy for some legitimate service dog handlers. Say a business owner spots what he believes to be a fake service dog. He approaches and asks the handler the two questions. The handler gives the right answers. "Yes, he's a service dog. He's trained to alert me when I'm about to have a seizure." Now what? Maybe the dog's a fake, maybe he's not. If he's under control and not a threat to the public, what does the business owner do? He can't ask for proof of disability -- no one can, according to the ADA. How do you find out whether someone has a disability or not, without invading the privacy of individuals who do have disabilities? I don't know. If anyone can come up with an ethical way of doing that, let me know.
How do I feel about it personally? Well, first of all, I would like to see more WELL-BEHAVED dogs in public any time. It seems that more and more businesses are opening up their establishments to well-behaved dogs. A well-behaved pet dog is not a threat in any way to service dogs or service dog users. (It could be a threat to anyone with severe dog allergies, but I am going to leave that argument completely alone.) I would not even really care whether a dog was a service dog or not as long as it was well-behaved. (Europe does it, why can't we?)
I think that, besides being able to demonstrate ability to perform a task to mitigate a disability, every service dog should be able to pass the Canine Good Citizen test. Even Leader Dogs, Seeing Eye Dogs, et cetera. The CGC requires a dog to pass a series of ten simple tests (accepting handling, behaving appropriately around strange dogs and people, maintaining control when distractions are present, et cetera). I really question how anyone could make an argument that a legitimate service dog could be excused from passing this test. IF the national certification I.D. card ever became a reality, let me propose that the criteria be demonstration of ability to perform a task that mitigates a disability PLUS ability to pass the CGC with the person with a disability handling. (This would require the schools to step up their training game as well -- which would be nothing but good for all clients in my opinion.) If there is anyone reading this who can think of a reason why this test could be considered too demanding for a legitimate service dog, I would sincerely like to know why.
Most of the time, businesses will not ask any questions beyond "Is this a service dog?" as long as the dog is well-behaved. There's something about a well-trained dog who is walking politely next to its handler, sitting when told to, minding its own business, and ignoring distractions that makes people feel good. And there is something unnerving and annoying about a dog, service dog or pet, that is lunging to the end of its leash, putting things in its mouth, burying its nose in the carpet, vocalizing or eliminating inappropriately that makes me, as a member of the public, want to go up to the manager and quietly inform him that he can ask that dog to leave whether it is a legit service dog or not.
I would also like the law to specify more clearly which undesirable dog behaviors can result in the person being asked to leave with the dog. The law says that the person may be asked to leave if the dog appears out of control and the handler does not do anything to control it or if the dog is not housebroken. The definition of "out of control" is not made clear. For one person, a dog who jumps up on someone is out of control, while for another person, that is just a dog being a dog. I believe business owners would have it easier if there were a list of "out of control" behaviors -- barking, damaging merchandise, having an accident, jumping on other customers, attempting to grab food, as a starting point.
But even if the law were rewritten to include specific behaviors that would exclude a service dog from a place of business, it would not help the business owners unless they are aware of the law. Yes, to an extent it is the business owner's responsibility to know all applicable laws, but come on. How many of us know all the applicable laws of the road, or even all the laws of our own community? I believe that all interested parties have an obligation to advance education -- that includes service dog users and service dog schools at a minimum.
That's what I think on that subject! What do you all think?