Minimizing the Risks of Illegitimate Service Animals

Recently, I was in a restaurant enjoying a meal when a lady walked in holding a purse that had a little Shih Tzu dog wearing a tiny red vest with the words “service dog.” The dog was looking at a handsome German Shepherd seated near his owner at an adjacent table.  I noticed the German Shepherd was also wearing a vest, but this one was embroidered with “Emotional Support Dog.”  Then a cat enters the picture.

Yes, a cat wearing no outfit jumps out of its owner’s arms and runs across the room, drawing the attention of the German Shepherd. Chaos ensues, resulting in thousands of dollars in property damage, one digested Shih Tzu, and twenty-seven stiches among three human beings.

Now, most of the preceding paragraph didn’t actually happen.  But a lady did walk in to a restaurant where I was eating recently with a nervous Shih Tzu wearing vest labeled “Service Dog,” and my lawyer brain began to process various legal scenarios (as lawyers do).  So, what is the deal with service animals and these official looking vests?

A quick internet search yielded dozens (if not hundreds) of dog attire items on offer purporting to identify the wearer as a “Service Dog,” without the need to prove anything at all about the dog. I also found companies happy to accept money to “register” an animal as a service dog and provide official looking certificates and ID cards. Finally, and most interestingly, many of the customer reviews reported that these products greatly increased their ability to visit public places without questions or harassment about the legitimacy of their animals, including animals other than dogs.

My ten minutes of research raised more questions in my mind. What exactly is a “service animal”? Does the owner need to buy a special vest or “register” the animal? Can only dogs be “service animals”? Must restaurants and other public places allow in any animal claimed to be a “service animal.” Here’s some scoop:

  • “Service animals” are a creature of the federal Americans with Disabilities Act (ADA) and implementing regulations.
  • Under the ADA, “a service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.”
  • The ADA generally requires that businesses allow service animals to accompany people with disabilities into publicly-accessible areas.
  • As of 2011, only dogs are recognized as “service animals,” but ADA regulations also provide for miniature horses. The regulations require that places of public accommodation allow access to miniature horses if “reasonable,” based on a set of factors. The horse must still be individually trained to do work or perform tasks for a person with a disability.
  • The ADA does not require that service animals wear any specific vest or harness, be “certified” or “registered” as service animals, or even be professionally trained. There is no federal government-sanctioned registry for service animals, and it is the federal government’s position that no other governmental agency may require registration.
  • If someone brings an alleged service dog into a business, the business may ask only two questions about the dog: (a) is the dog a service animal required because of a disability? and (b) what work or task has the dog been trained to perform? The business is not allowed to inquire about the nature of the person’s disability, require any documentation, or ask that the animal demonstrate its training.

Where I live in Fort Collins, Colorado, people bring their dogs everywhere. It is not only common to see a dog water bowl outside of many downtown establishments, it is chic. But aside from the coolness factor, I wonder if these businesses realize the risk of encouraging (or at least putting up with) an assembly of animals and a concomitant hazard to purse-nestled Shih Tzus. Does a business owner have any tools to avoid a disaster that begins with the phrase “two pit bulls walk into a bar”?

The short answer: yes, except concerning dogs. The Colorado legislature tried to crack down on service animal fakers in 2016, making it a Class 2 Petty Offense to do so. However, this law is practically impossible to enforce, as least as to dogs. This is because (1) a faker need only answer the two permissible questions in a convincing fashion, and (2) it does not provide any legal cover to a suspicious shopkeeper. As far as a concerned business owner goes, the law is all bark and no bite.

The takaway here is that only dogs count as service animals under the ADA—no cats, snakes, peacocks, or grub worms. But note than an attentive business owner could probably identify a fake service dog that might pose a hazard. Legitimate service dogs are trained to be calm, alert, obedient, and stay on a leash. A dog that pulls on its leash, acts nervously, tries to sniff everything, or is aggressive is probably not a service dog. However, a businessowner would correctly hesitate to confront a faker, lest he/she be accused of violating the ADA or face a social media firestorm.

So, what about the purse-bound Shih Tzu situation? Do these animals hold some protected status as an “emotional support animal,” “therapy dog,” or “companion animal” that gets them entry into any public place, even restaurants? Sorry, but these dogs are not “service animals” under the ADA because they are not trained to do any specific task. Their job is provide comfort to someone by their mere presence. Under the ADA and Colorado law, emotional support animals are viewed simply as pets in most situations and they enjoy no protected status. The exceptions are in housing and commercial airline flights, which explains how people manage to get their peacocks and pot-bellied pigs onto airplanes.

Posted by Jeff Cullers

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