This discussion examines the federal service animal provisions under the Americans with Disabilities Act (ADA) and the relevant states. In doing so, states' equal access, criminal interference, and white cane laws are examined in addition to other laws.
I. The History of Guide Dogs
Dogs are believed to have become part of human history some 12,000 years ago. Whether domestication was a happenstance event or a concerted effort to provide a warning system to human tribes, the result was that dogs soon achieved companion status. (For more on the history of dog domestication, see Professor Rebecca Huss’ article entitled, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals , 74 Univ. Colo. L. R. 181 (2003 )). Ancient murals and plaques further suggest that dogs may have been used to assist blind individuals as far back as the first century AD. But the first recognized attempt to truly train dogs to assist blind persons began in the 20th Century following World War I. In Germany, Dr. Gerhard Stalling began training dogs to assist soldiers who were blinded, mainly by poison gas, during the war. In 1916, the effort began in earnest when Dr. Stalling opened the first guide dog school for the blind in Oldenburg. While the school ceased function in 1926, other operations followed in Germany, training dogs for veterans and other blind citizens. (For more on this amazing history of guide dogs, see the International Guide Dog Federation at http://www.ifgdsb.org.uk/page.asp?code=00010018 ).
An American woman named Dorothy Harrison Eustis, who was abroad in Switzerland training dogs for the military and police, heard about the efforts in Germany and wrote an article about it for the Saturday Evening Post . A blind man in the United States read the article, and then contacted Ms. Eustis about setting up a guide dog school in the U.S. After successfully helping this man to train his dog, Ms. Eustis was encouraged to establish her own guide dog school in Switzerland and later in the United States. This effort in the U.S. and abroad led many others to train canine leaders for the blind. (See the International Guide Dog Federation at http://www.ifgdsb.org.uk/page.asp?code=00010018 ).
II. The Laws Follow the Lead
Where guide dogs led, the laws followed not far behind. During the next decades, most states enacted accommodation or equal access laws, which gave blind individuals the right to enter public establishments with their seeing-eye dogs. These laws prohibited establishments or common carriers from collecting additional fare for the dogs, and levied fines for such violations. Most significantly, these laws embodied the public policy that blind individuals who use dog guides should be given the same right to access as sighted people.
Even the terminology soon expanded to reflect the new roles of canines. In later years, the term “seeing-eye dog” gave way to “guide dog,” “signal dog,” and finally the all-encompassing “service” or “assistance animal.” This change recognized that dogs were being trained not just to lead the blind, but to also signal sounds for the deaf, retrieve items for those who are physically handicapped, and even alert others when the dog’s owner has a seizure. Today, the term “assistance animal” has further expanded to include those animals who, by their very nature, assist individuals with mental or emotional impairments. (For more on this rapidly growing area of the law, see the Emotional Support Animals Topic Page ).
Most assistance animal legislation occurs at the state level simply because states are better suited to determine what type of laws should be enacted to protect their citizens and what enforcement mechanisms should be in place. However, the Americans with Disabilities Act (ADA) enacted in 1990, created a federal cause of action for persons who are subjected to discrimination based on their disabilities. Both state and federal laws prohibit disability discrimination including discrimination based the use of an assistance animal.
This overview will discuss the federal and state laws addressing service and assistance animals. In doing so, the varying definition of “service” or “assistance” animal will be discussed as well as what individuals are covered under state statutes. State laws addressing service animals are analyzed, including accommodation laws, criminal interference laws, blind pedestrian laws (also know as “white cane laws), and those laws that prohibit the use of assistance dogs by non-disabled persons. The discussion first begins with an examination of the definition of "service animal" under the Americans with Disabilities Act (the ADA) and parallel definitions under various state laws.
III. The Federal Americans with Disabilities Act (ADA) and Current State Service Animal Laws
A. Definition of Service Animal in the Federal Arena
The federal ADA does not define “service animal” in its text. Like many federal laws, the terms and application of the acts are defined in the relevant federal regulations, called the Code of Federal Regulations. The federal government works by delegating the duties under most of its statutes to its administrative agencies and departments; these specialized agencies determine what rules and regulations are needed to carry out their functions. These regulations are contained in the expansive CFR, and contain the nuts and bolts of federal government functioning. As a result, the term “service animal” is defined not by statute, but in the CFR:
Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.
The definition is purposefully broad and inclusive. The phrase “including, but not limited to” reflects this attempt to give examples of service dog uses, but not exclude any future applications of the term. Should a conflict arise in its application, a federal court can then determine whether it applies to a specific factual situation. States, on the other hand, usually define their legislative terms by statute.
B. State Definitions of Service Animals
States too have volumes of administrative regulations that govern their day to day operations of agencies. But, placing a definition in a statute makes it enforceable by law, whether civil or criminal, and more accessible to the average citizen. That being said, not every state with an accommodation law or criminal interference law will define assistance animal or service animal in its text. These states then rely on an administrative regulation or even the ordinary definition of the word accepted by those who use assistance animals.
An examination of several states’ definitions is instructive. Colorado defines "assistance dog" as a dog who has been or is being trained as a guide dog, hearing dog, or service dog. Those terms are then further broken down, with a guide dog being a dog trained for blind persons, a hearing dog being trained to assist hearing impaired individuals, and a service dog being trained to assist physically handicapped persons other than sight or hearing impaired. CO ST 24-34-803(a) . Texas’ definition is more expansive, defining an assistance animal as one who is specially trained or equipped to help a person with a disability. TX HUM RES § 121.002 . A person with a disability is then further defined as a person who has a mental or physical disability, including mental retardation, hearing impairment, deafness, speech impairment, visual impairment, or any health impairment that requires special ambulatory devices or services. Id . Finally, Washington’s definition includes both a dog guide (a dog specially trained to assist blind or hearing impaired persons) and service dog (an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability). WA ST 70.84.020 and 70.84.021.
The above statutes reflect two things. First, the ADA and most state statutes expanded their definitions to indicate the growing roles of service animals beyond helping the blind and hearing impaired. Second, there is reluctance on the part of many states’ to include mental or emotional impairments in the definition of disabilities for which a dog can provide assistance. This may reflect an overall lack of appreciation for mental and emotional disabilities in this country since they are often not necessarily manifested physically. Or, i t may instead reflect a legislative concern, valid or not, that people would take advantage of assistance animal laws as means to bring their companion animals with them wherever they go.
C. Pets and Service Animals: A Critical Distinction
Assistance animals, after all, are working animals and not just companions. States may be concerned that far too many people with emotional impairments would request access for assistance animals whose main role would be companionship rather than guiding a physical task. Indeed, Florida specifically provides by statute that a service animal is not a companion animal:
(d) "Service animal" means an animal that is trained to perform tasks for an individual with a disability. The tasks may include, but are not limited to, guiding a person who is visually impaired or blind, alerting a person who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting a person who is having a seizure, retrieving objects, or performing other special tasks. A service animal is not a pet.
[emphasis added] FL ST § 413.08(d).
Similarly, North Dakota also excludes a dog whose purpose is to comfort a person:
1. "Assistance dog" includes a dog that has been specially trained to assist an individual with a disability. The term includes guide dogs that guide individuals who are legally blind, hearing dogs that alert individuals who are hard of hearing to specific sounds, and service dogs for individuals with disabilities other than blindness or deafness. The term does not include a dog that is not trained to mitigate an individual's disability, but the presence of which is to provide for the comfort, protection, or personal defense of an individual.
ND ST 25-13-01.1 . By this statutory definition, an emotional assistance animal would be excluded from the provisions of this chapter.
While considerable scientific studies have shown the positive effects assistance animals have with persons suffering from emotional disabilities, states seem concerned about distinguishing between a mere companion animal and an assistance animal for emotional impairments. Perhaps part of this concern stems from laws that do not require a person using an assistance animal to declare or demonstrate his or her disability. And, with medical privacy moving to the forefront of legal concerns, it is unlikely this requirement will change. In fact, under the ADA, businesses may ask if the animal is a service animal or inquire about what tasks the service animal has been trained to perform, but may not require special ID cards or may not ask about the person’s disability. (For more on this, see the ADA's Buiness Brief on Service Animals available at http://www.ada.gov/svcanimb.htm ). Regardless of the definition of assistance animal under state law, the ADA prevails as the law of the land and does not limit the activities for which a service animal may be employed. State laws that provide otherwise may be in conflict with the federal law, or may simply cover areas that the federal law does not apply. As with many areas of the law, however, the needs and application of assistance animals often changes before the law does.
D. Who Qualifies under Law to Use a Service Animal
The ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. 12102(2)(A ). Again, the definition is purposely broad to encompass a broad array of impairments or disabilities. Under the law, individuals with disabilities may be accompanied by a service animal in place of public accommodation (i.e., private businesses that serve the public such as restaurants, hotels, stores, etc.) without a requirement to show that the dog has been “certified” or proof of a disability. (Again, see the ADA Business Brief: Service Animals , available at http://www.ada.gov/svcanimb.htm ).
In contrast, many state laws concerning assistance animals are limited solely to “guide dogs,” or those dogs who assist the blind. This does not mean that only blind individuals can use assistance animals in places of public accommodation in those states. Rather, the federal ADA would apply, and an individual who qualifies as “disabled” under the federal law would be allowed to use his or her assistance animal. Violation would incur penalties under the federal scheme.
Despite this, states vary on how they define disability for purposes of using a service animal. Montana briefly defines “service animal” under its section covering the rights of the physically disabled:
(2) "Service animal" means a dog or other animal individually trained to provide assistance to an individual with a disability.
MT ST 49-4-203(2 ). Likewise, Wyoming also expands use of a service dog to an individual who is “blind, visually impaired, deaf, hearing impaired person or other person with a disability.” WY ST 35-13-201 . Oregon uses the term “physically disabled person” to differentiate between a mental or emotional impairment:
"Physically impaired person" means any person who is permanently physically impaired, whose physical impairment limits one or more of daily life activities and who has a record of impairment and is regarded by health care practitioners as having such an impairment, requiring the use of an assistance animal including but not limited to blindness, deafness and complete or partial paralysis.
Notably, many states changed their definitional section for assistance animals during the late eighties and nineties to encompass a broader scope of disabilities. “Guide dog” became “service animal” or “assistance animal” to encompass those dogs trained to assist the physically handicapped and hearing impaired. California, not surprisingly, takes the progressive step to define “disability” as either a mental or physical disability. See CA Civil § 54 (1) . Other uses of service animals are also separately defined:
(C)(i) As used in this subdivision, "guide dog" means any guide dog that was trained by a person licensed under Chapter 9.5 (commencing with Section 7200) of Division 3 of the Business and Professions Code or as defined in the regulations implementing Title III of the Americans with Disabilities Act of 1990 (Public Law 101-336).
(ii) As used in this subdivision, "signal dog" means any dog trained to alert an individual who is deaf or hearing impaired to intruders or sounds.
(iii) As used in this subdivision, "service dog" means 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.
Regardless of how limited or limitless a state defines disability, the end result is that the state laws cannot diminish the protection a disabled person has under the federal ADA. The state laws that define both assistance animal and disability are intended to reflect a state’s own commitment to prevent discrimination of disabled citizens. Most importantly, the state laws add layers of protection to certain disabled individuals and to create additional criminal penalties for those actions the federal law does not touch.
E. But How Can You Tell...?
Again, states may circumscribe the definition of "disabled" for purposes of their state laws. However, this in no way diminishes the protection disabled individuals receive under the ADA. In particular, the ADA protects individuals who use service animals from extensive inquiries into the animals' training or the nature of the disability for which the animal provides assistance.
An ADA violation in this context centers around "whether Defendant exceeded the parameters of a legitimate inquiry" about the service dog's qualifications. Dilorenzo v. Costco Wholesale Corp ., --- F.Supp.2d ----, 2007 WL 2852380 (W.D.Wash.). In Delorenzo, the court found that a Costco store did not exceed the bounds of the ADA by approaching plaintiff on her second visit with her service animal to inquire about the animal's training and provide the plaintiff with a copy of the store's policy on service animals. While Costco cannot, under law, require a special identification card or ask the person about her disability, "[t]hat Costco had a right to make an inquiry in the first place cannot seriously be questioned." Id. at *4.
The court noted that legitimate inquiry ceases if a business' purpose in questioning a person with a service animal is to harass or discourage that person from patronizing the business; such conduct becomes a pretext for discrimination. Id . On the other hand, an individual's refusal to answer questions concerning his dog's training as an assistance animal does not itself create a claim for pretextual discrimination. In Thompson v. Dover Downs, Inc ., 887 A.2d 458, 31 NDLR P 135 (Del.Supr.,2005.), the Delaware Supreme Court found that a casino was entitled to inquire about a dog's training to determine if the dog was a “support animal” for purposes of Delaware Equal Accommodations Act (DEAL), especially considering the dog's young age (only four months) and the "uncommon method of affixing its service vest." Id . at 466.
While a person is not required to explain his or her need for a service animal, a state court may require some evidence of training to prevail on a state law claim of discrimination. In Washington, for instance, the Court of Appeals has stated that "that there be some evidence of individual training that sets the animal apart from the ordinary pet." Storms v. Fred Meyer Stores, Inc. , 129 Wash.App. 820, 828, 120 P.3d 126 (Wash.App. Div. 1,2005). In Storms' case, plaintiff needed an assistance animal to help her with psychiatric disorders. When plaintiff entered the Fred Meyer Store, an employee asked her to leave even after she showed him a laminated card as proof of the dog's training. This specialized training was corroborated at trial by testimony about the dog's certification and evidence that the dog exhibited its training by "circling" around plaintiff while at the store. These factors "meet the test as some evidence of individual training to set Brandy apart from the ordinary pet." Id.
The impetus behind a requirement of proof of training is to eliminate an abuse of the system by owners of "ordinary pets." One thing remains clear in all these situations: the ADA does not require a disabled person to disclose the nature of his or her disability to a business owner. A permissible inquiry starts and ends with the dog's qualifications. The goal of such laws is to make equal access to public places a reality for all individuals. The job of a state is to ensure this access for those who use service animals by enacting laws.
IV. State Equal Accommodation Laws
State laws covering service animals and their guardians address five general subjects: accommodation or equal access laws; intentional interference/harm to a service animal; driving laws; licensing laws for service animals; and wrongful impersonation of a person needing a service animal. Usually, these laws are not consolidated as one code, but rather exist in different areas of state law. This is significant because it determines what type of enforcement exists in addition to the penalty one faces for violating the law. Many of the laws affecting service animals and their owners are civil in nature, meaning that violation does not result in a criminal penalty. That is not to say that a violator does not face severe repercussions; in fact, many of the civil accommodation laws levy hefty fines.
A. What is "Equal Access?"
Most states provide by statute that every visually handicapped, hearing impaired, or physically disabled person has the right to be accompanied by a service animal in a public place (restaurant, motel, elevator, store, walkway, etc.). Several states go further to provide that such places of public accommodation shall not charge extra fees to an individual who uses a service animal. However, many states do provide that those individuals using service animals are still liable to those establishments for any damages caused by the service animal. (See Arkansas for example). Such a statute attempts to balance the interests of the person needing a service animal with the interests of the public place not expending greater costs for damage caused by the dog. This is a fine line, as businesses in these states may not collect these costs in advance when a person enters with a service animal. They can, however, collect money for the damages a service dog has done after entering the establishment.
A typical accommodation statute does two things: it first provides an absolute right to blind or disabled persons to be accompanied by an assistance animal in places of public accommodation or public conveyances (modes of transportation); it then provides some sort of penalty against the owner of the establishment for refusing to let a person enter with an assistance animal. Oklahoma’s law provides a good example:
A. Any blind, physically handicapped, deaf or hard-of-hearing person who is a passenger on any common carrier, airplane, motor vehicle, railroad train, motorbus, streetcar, boat, or any other public conveyance or mode of transportation operating within this state or any dog trainer from a recognized training center when in the act of training guide, signal, or service dogs shall be entitled to have with him or her a guide, signal, or service dog specially trained or being trained for that purpose, without being required to pay an additional charge therefor, but shall be liable as hereafter set forth in subsection B of this section.
B. A blind, physically handicapped, deaf or hard-of-hearing person and his or her guide, signal, or service dog or a dog trainer from a recognized training center in the act of training guide, signal, or service dogs shall not be denied admittance to or refused access to any of the following because of such dog: Any street, highway, sidewalk, walkway, any common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat, or any other public conveyance or mode of transportation, hotel, motel, or other place of lodging, public building maintained by any unit or subdivision of government, building to which the general public is invited, college dormitory and other educational facility, restaurant or other place where food is offered for sale to the public, or any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited within the State of Oklahoma. Such blind, physically handicapped, deaf or hard-of-hearing person or dog trainer from a recognized training center in the act of training guide, signal, or service dogs shall not be required to pay any additional charges for his or her guide, signal, or service dog, but shall be liable for any damage done to the premises by such dog.
* * *
Any person, or persons, firm, association, or corporation, or the agent of any person, firm, association, or corporation, who shall violate the provisions of Section 19.1 of this title shall be guilty of a misdemeanor.
7 OK ST T. 7 § 19.1 - 19.2 . Other states may also provide a specific statute relating to denial of housing that mirrors the public accommodation statute. (See Virginia’s for example). These laws may also make a statement about the public policy behind the enactment of these laws that reflects the state’s commitment to equal access under law. The true impact of these laws is not the laudable policy articulated by statute, but the deterrent effect of the remedies available to a person denied access the able-bodied take for granted.
B. Denial of Equal Access – Civil and Criminal Penalties
States have two different approaches for violations of their accommodation laws. They may either impose a civil fine or make such violations criminal infractions. The implications of such a distinction are obvious; not only does a criminal violation involve the potentiality of jail time, but it also produces a criminal record for the violator. Under the federal law, the penalties are civil nature, and any remedial action would be limited to forcing the violator through a court action to change his or her behavior or recovery of monetary damages. In contrast , where a state has made the violation a penal offense, the police can enforce the statute and the perpetrator faces the full force of the criminal justice system.
An examination of a typical penal law is instructive. Alabama includes a punitive section under both Chapter 7, Rights of Blind and Otherwise Physically Disabled Persons , and its Dog Law . The provision under Chapter 7, originally enacted in 1975, applies only to guide dogs used by blind individuals and hearing-ear dogs. Violation of this law by refusing or interfering with admittance to public facilities or otherwise interfering with one’s rights results in a misdemeanor. The Dog Law provision, enacted in 1967, states that no place of public accommodation shall:
. . . refuse to permit a guide dog to accompany a blind person entering the place or making use of the accommodations available when the blind person is being led by the guide dog; if the guide dog is wearing a harness; and the blind person presents for inspection credentials issued by an accredited school for training guide dogs or the dog is being trained by a person employed by an accredited school for training guide dogs. Any person who violates this section shall be guilty of a misdemeanor and, upon conviction shall be fined an amount not to exceed fifty dollars ($50).
AL ST 3-1-7 . Ostensibly, both criminal penalties could be enforced without offending the rule against double jeopardy even where the conduct results from the same events. Each law reflects a different legislative purpose meant to address separate purposes under the law.
Connecticut also makes denial of public services or accommodations a criminal offense Violators who do so engage in a “discriminatory practice” and face a fine of $25 to $100 dollars and a possible 30 days in jail. While it is not labeled as "misdemeanor," the penalty clearly contemplates a criminal prosecution. Similarly, a common carrier, airplane, bus, train, or any other mode of conveyance in Wyoming faces a $750 violation if it does not comply with the Wyoming law that allows a person with a disability to have a service dog. WY ST 35-13-204 . While Iowa also makes it a criminal offense to knowingly deny or interfere with the rights of disabled person, a person only faces a simple misdemeanor with no explicit penalty. IA ST 216C.11 .
For a person who denies equal access to an individual using a service dog, there are huge differences in whether he or she is simply issued a civil fine or ends up in criminal court. Legally, the distinction between a civil and criminal violation rests on the burden of proof for each action. In a civil action, a plaintiff must generally only prove his or her case by a preponderance of evidence – that is, he or she must only show the actor is more than 50% liable. In a criminal action, the burden of proof is beyond a reasonable doubt, which is difficult to quantify in numeric terms. Suffice to say this level of proof is much higher than in a civil case and requires the elements of the crime to be proven without reasonable question to a reasonable person. Moreover, the aggrieved person must also depend on the local prosecutor’s office to charge the case and prove intent on the part of the actor. Maine’s accommodation law obviates at least the need to prove intent since denial of rights is a strict liability crime. See ME ST T.17 1314 . Thus, a person is not required to prove intent on the part of the person who denies rights to a disabled person.
The bottom line is that while a disabled person denied the right to enter a public place may hope for the stigma of criminal prosecution, a civil action is often easier to prove. And, in some states, it results in a larger fine considering how unlikely jail time would be for a first time offender. Such a distinction in trial proofs is outlined specifically in Idaho’s relevant statute:
Civil action may be brought against any person intentionally violating the provisions of section 18-5811, 18-5811A, 18-5812 or 18-5812A, Idaho Code, with judgment awarded upon proof of the elements to a preponderance of the evidence. As a part of any such civil judgment, a successful plaintiff shall be awarded punitive damages in an amount equal to all other damages suffered by the plaintiff, but in no event less than five hundred dollars ($500). The failure of a disabled person to use an assistance device or assistance dog shall not be held to constitute nor be evidence of contributory negligence in any civil action.
[emphasis added] ID ST 56-705 . Idaho’s law is unique in that it provides a high, mandatory monetary award. The elements must still be proven at trial, including disproving any defenses an establishment may raise with respect to the assistance animal’s behavior. These defenses not only operate to exculpate a person or business at a criminal trial, but also operate in advance to exclude dogs at a place of business.
C. When Can a Place of Business Legally Exclude a Service Animal?
Under the federal ADA, a service animal may be excluded or asked to leave if it poses a direct health or safety risk to others or if the animal is out of the owner’s control and the owner cannot take effective action to control it. Allergies or fear of animals by a business owner are not valid reasons to exclude an animal under the ADA. Likewise, an animal cannot be excluded due to the very nature of the business, such as a hospital, funeral home, zoo, or park. (See the ADA Business Brief: Service Animals , available at http://www.ada.gov/svcanimb.htm ) .
States too have attempted to set in place legal limitations on the presence of assistance animals. Most laws mirror the stipulations seen under the ADA. Clearly, those statutes that allow places of public accommodation to remove or exclude a service animal who poses a risk to the health and safety of others would withstand preemption scrutiny. Delaware, for example, allows a business to exclude a guide dog if “the admission of such dog would create the clear danger of a disturbance or physical harm to other persons in such place.” DE ST TI 16 § 9502(c). Wisconsin’s law provides a similar exception:
3. A person may exclude a service animal from a public place of accommodation or amusement if accommodation of the service animal would result in a fundamental alteration in the nature of the accommodations, amusement, goods, or services provided or would jeopardize the safe operation of the public place of accommodation or amusement. If a service animal must be separated from the person whom the service animal is accompanying, it is the responsibility of that person to arrange for the care and supervision of the service animal during the period of separation.
WI ST 106.52 . The phrase “a fundamental alteration in the nature of accommodations” follows the language of the federal ADA and reflects the case-by-case determination inherent in the federal law.
Of course, there are those public places that do not seem to lend themselves to the presence of assistance animals. California has a unique statute that sets out provisions for those zoos that do not keep the animals in the zoo separated from members of the public by a physical barrier. Such zoos are exempt from the laws requiring equal access to disabled individuals using assistance animals. They must have adequate kennel facilities to house the guide dogs while the owner is visiting and must provide either a mode of transportation for a person in a wheelchair to carry the disabled person or a sighted individual to escort a blind person. CA CIVIL § 54.7 .
Regardless of whether a state law provides exceptions under which a service animal can be excluded or is silent on that issue, the ADA’s command of equal access prevails. Remember though that states can only enforce their own laws and not the provisions of the ADA. To pursue a claim under the ADA, one must file a complaint with the appropriate agency or file a lawsuit in federal court. But it should be noted that equal access laws contemplate only the ability to use public places or businesses like able-bodied individuals; these laws do not speak to the issue of safety when using a service animal.
V. Harm to Service Animals and Criminal Interference Laws
In the past decade, the biggest change to state service animal laws has been the enactment of criminal laws prohibiting intentional harm to service animals. To date, approximately 40 states have laws that make it either a misdemeanor or felony to intentionally, knowingly, or even negligently harm an assistance animal. (It does not appear that Alabama, Alaska, Iowa, Maryland, Montana, North Dakota, Vermont, West Virginia, or Wisconsin have adopted such laws as yet). Many states include harm or interference with service animal provisions under their cruelty chapters while others have them in separate statutes under their penal codes. Arkansas, interestingly, places it under its Disability Rights Law. This difference stems from the fact there are different purposes behind the statutes. Statutes appearing in states’ cruelty laws aim to protect this certain class of animals from attack or malicious beatings. The statutes that prohibit other dogs from attacking or injuring service animals may be part of states’ dog law schema directed at preventing unrestrained dogs. Finally, discrete laws in the penal code may be aimed at protecting the disabled person and his or her team from harassment and interference.
The recurring theme in nearly each of these statutes is that they provide restitution to the human victim, above and beyond that which could easily be recovered in a civil or criminal suit. This obviates a need to pursue a civil suit even after a successful criminal prosecution. According to one article, the average cost of training a guide dog can range from $20,000 to 60,000. (See, Sandra D. Dawson's article entitled, Protecting a Special Class of Animals: An Examination of and Recommendation for Enacting Dog Guide Protection Statutes , 37 Conn. L. Rev. 569, 574 (Winter, 2004)). Moreover, the person who depends on a guide or service animal must wait for a new dog to be trained and incur additional expenses in the interim for human assistance. Finally, as Ms. Dawson notes, the emotional impact of losing one’s guide or service animal cannot be overstated: “The dog guide does more than assist a person, as a white cane would--the dog guide is a sentient being that replaces a blind person's sense of vision.” 37 Conn. L. Rev. 569, 571. The loss of which is often like losing one’s vision again. Id.
Even the language of the statutes reflects a change in attitude toward the importance service these animals provide. Kentucky refers to such a crime as an “assault” on a service animal, similar to a human victim provision. KY ST 525.200 . Nebraska refers to its whole package of interference and harm laws as “Violence on a Service Dog.” The usual distinction in these types of laws is whether the prohibited behavior involves simple interference with a service animal or some type of injury inflicted upon a service animal. As a result, these statutes fall into three basic categories: (1) interference with a service animal; (2) harm to a service animal by a human; and (3) harm to a service animal by another dog.
A. Interference with a Service Animal
Just over twenty states have laws that prohibit interference with a service animal. Nebraska’s law provides a typical criminal interference statute:
2) A person commits the offense of interference with a service dog when he or she (a) intentionally impedes, interferes, or threatens to impede or interfere or (b) attempts to intentionally impede, interfere, or threaten to impede or interfere with a dog that he or she knows or has reason to believe is a dog guide for a blind or visually impaired person, a hearing aid dog for a deaf or hearing-impaired person, or a service dog for a physically limited person.
NE ST § 28-1009.01 . Most states appear to rely on a common sense definition of interference, or, as one author put it, “any action that prevents the dog guide from completing its duties or denies the team free mobility.” 37 Conn. L. Rev. 569, 578. Some states, however, do provide some specificity by law. Colorado describes interference as the act of beating, harassing, intimidating, enticing, distracting, or otherwise interfering with blaze orange leash or accompanying a person with a white cane. CO ST 18-13-107 . Delaware also defines interference as “obstructing, intimidating, or otherwise jeopardizing the safety of the user or animal.” 7 Del. § 1717 . Georgia’s definition again reflects common sense, in that a person can be found to harass a dog if his or her conduct directed toward an assistance dog that is knowingly likely to impede or interfere with the assistance dog's performance of its duties or that places the blind, deaf, or physically limited person being served or assisted by the dog in danger of injury. GA ST § 16-11-107.1 . And, some states place a rebuttable presumption of notice in their statues, whereby knowledge is imputed to the actor if the disabled person asked the actor to cease bothering the dog and the person continued the action. (See South Dakota for an example of this type of provision).
While the definition of interference may be subject to interpretation, several states are explicit in that a dog must be on-duty or in the performance of its duties. Indiana, for example, makes it unlawful for a person to knowingly or intentionally interfere with the actions of a service animal if the dog is engaged in assisting an impaired person. IN ST 35-46-11.5 . Likewise, South Dakota makes it illegal to maliciously harass a service animal if the animal is being controlled by the person with a disability and is wearing a harness. Generally, about half of the states with laws have a requirement that the dog actually be “on duty” or with the person it guides at the time. One author described the difficulty in this statutory requirement for a person who relies on a dog guide:
Although it is logical to infer that interference can only occur when the dog guide is performing its duties as a guide, it is possible for an obstruction or hindrance to occur when the dog guide is not actively working. For example, if a handler receives threats of harm or interference, that handler may become afraid to venture out; thus, the team has become a victim of "interference."
37 Conn. L. Rev. 569, 579. While one may argue that requiring the dog to be on duty defeats obvious problems of proof at prosecution, it does create yet another statutory element the prosecution must prove at trial.
Criminal interference with an assistance or service animal is almost always a misdemeanor offense where the animal is not injured (except in Arizona intentionally interfering with a service dog is a class 6 felony). Notably, interference statutes illustrate the heightened duty the non-handicapped person has toward the individual using an assistance animal. As such, a person who acts even knowingly or recklessly faces potential criminal charges just like one who would intentionally harass a guide dog. When the action involves another dog attacking a service animal, the mental state required is lessened further.
B. Killing or Injuring a Service Animal by Another Dog
Almost half the states with criminal interference statutes have a provision that specifically mentions attacks by other dogs upon service animals. While nearly all of these laws are misdemeanors, even where the service dog is killed, the requisite state of mind on the part of the offending dog’s owner may be lessened. In many states like Florida and Arizona the prosecution must only show a “reckless disregard” on the part of the dog’s owner.
Arizona not only classifies the intentional interference, harming, or killing of a service animal as animal cruelty, but also prohibits a person from intentionally or recklessly allowing a dog in his or her custody or control to do so. Thus, under the statute, if a person was walking his or her dog without a leash in a public area and that dog then attacked a guide dog, this could constitute a violation. A court could view the act of allowing a dog (especially if the dog had a history of aggression toward other dogs) to roam unrestrained in a public area as “reckless” under the statute. Arizona is also unique in that it not only makes it a felony to kill or harm a service animal, but also to take control of a service animal with the intent to deprive the owner of the animal. AZ ST § 13-2910 .
Connecticut law concerns only to injury by other dogs and does not address injury done by person. CT ST 22-364b . Connecticut’s law reflects more of a dog control issue, recognizing a heightened standard when in proximity to a guide dog. Missouri’s law also phrases its law in terms of control – a person who either knowingly or intentionally fails to exercise sufficient control over a dog to prevent it from causing substantial physical injury or death to a service dog is guilty of a misdemeanor. MO ST 209.202(4 ).
So why is there so much concern over dogs interfering with service or assistance animals? One author states that compelling data show that most disabled persons using assistance animals have experienced an animal-based attack.
Almost all dog guide teams have or will experience interference of some kind from another dog, and many will be attacked. According to a recent study, 89% of the respondents reported having fallen victim to interference by a dog and 42% experienced an attack. Of those experiencing interference, almost 51% were interfered with by the same dog more than once, 47% planned alternate routes to avoid known problem dogs, and almost 4% of the dog guides necessitated retirement as a result of the interference. Of those experiencing an attack, 22% were attacked by the same dog more than once, 48% planned alternate routes, and 6% of the dog guides required retirement as a result of the attack.
[footnotes omitted] 37 Conn. L. Rev. at 575. As difficult as it is for a sighted or able-bodied person to fend off a dog attack, a person who depends on his or her assistance animal for guidance is even more vulnerable.
Some states do not distinguish between acts done by a person or acts done by his or her dog. In Florida, it is a misdemeanor of the first degree if a person with reckless disregard kills or injures a service animal, or allows a dog in his or her control to kill or injure the service animal. If that person intentionally kills the service animals or allows his or her dog to kill it, the offense rises to a felony of the third degree. FL ST 413.081 . The offending dog is seen more or less as an instrumentality of the person in the crime. Many states do view attacks by dogs and humans differently, perhaps because when a human attacks a service animal, it constitutes a violent, intimate act.
C. Killing or Injuring a Service Animal by a Person
State laws provide little leeway for people who intentionally injure service animals. This may reflect in part the recent upgrading in overall state cruelty laws for the intentionally killing of any animal. Of the approximately 29 states with laws that specifically prohibit a person injuring a service animal, more than half of those make it a felony offense.
Arkansas is one state that does not provide a separate provision for killing of a service animal by another dog. Instead, it makes the purposeful injuring or killing of a service animal, without just cause, a Class D felony. AR ST § 20-14-304 . A malicious state of mind is not necessarily required by many of the statutes; rather, proof of intention suffices for conviction. Louisiana, for instance, requires only a showing that a person was negligent in causing injury to a service animal. LA R.S. 46:1956 . In 2006, Kansas amended its state law to make it a nonperson felony with a mandatory 30 days jail to inflict harm, disability, or death upon a service animal. In Kentucky , the difference between a misdemeanor and felony depends on whether a person physically injures or kills the service animal. And, in Minnesota, if a person causes great bodily harm or death to a companion animal, the penalty is increased to a four year jail term, and a record $10,000 , or both. MN ST 343.01(g ).
D. Stealing or Wrongfully Taking a Service Animal
While it is understandable to most that purposely killing a guide dog constitutes felony behavior, it may be surprising that many state even make the theft of a guide dog a felony as well. Delaware, for example, makes the intentional stealing or wrongful taking of a service dog a class E felony (intentional injury is only a class A misdemeanor). 7 Del. § 1717 . Arizona also makes the act of taking control of a service dog a felony. In fact, the statute does not specify that one has to actually transport the dog from any location, but only has to unlawfully obtain control of the service animal. AZ ST 13-2910(13 ). Washington recognizes the act of unlawfully taking a service animal as a theft in the first degree. WA ST 9.91.170(6 ). Assistance animals have value far beyond the traditional market value of a companion animal. As such, these laws recognize that having one’s eyes, ears, and mobility in dog form taken away constitutes a serious offense.
E. Penalties and Restitution under Harm and Interference Statutes
As noted previously, many states have felony provisions for harm causing injury or death to an assistance animal. Perhaps the biggest change showing how seriously states now take these acts is that many of these state laws now include some sort of incarceration in addition to fines and restitution. Kansas’ law , amended in 2006 makes it a nonperson felony with a sentence of not less than 30 days (and up to one year) and a fine of not less than $500 (up to $5000) for inflicting harm, disability or death to a service, police, or assistance animal. During the mandatory 30 days jail, the perpetrator must have a psychological evaluation. KS ST 21-4318 . Pennsylvania also mandates a presentence mental evaluation in addition to a fine or possible jail time. PA ST 18 Pa.C.S.A. § 5511(2.1ii) . Georgia too has a mandatory jail term:
c) Any person who has received notice that his or her behavior is interfering with the use of an assistance dog who continues to knowingly and intentionally harass an assistance dog, knowing the dog to be an assistance dog, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than 90 days or a fine not to exceed $500.00, or both, provided that any person who is convicted of a second or subsequent violation of this subsection shall be punished as for a misdemeanor of a high and aggravated nature.
GA ST § 16-11-107.1 . This mandatory jail term also applies if a person knowingly allows his or her dog to harass an assistance animal. Texas law states that one commits a “state jail felony” if he or she or his or her dog injures an assistance animal, or a felony of a third degree if the assistance animal is killed . TX PENAL § 42.091(2) & (3 ).
Restitution that includes complete compensation for loss of the dog or training of a replacement dog is now standard under most laws. Of the forty states with statutes, only six or so do not explicitly mention restitution in their criminal harassment statutes (See Michigan and Mississippi for examples). Some states are specific in their orders of restitution, while other states are not. Arkansas simply provides that a person who kills or injures any service animal shall make restitution to its owner. AR ST § 20-14-304 . While Connecticut only makes the actual offense of a dog injuring a service animal an infraction, it does provide for restitution that includes veterinary care, rehabilitation or replacement, and attorney fees. CT ST 364b . Missouri also adds restitution in addition to the criminal penalties. The person causing harm to the service animal must not only pay the replacement value of the service animal, but also any other expenses incurred, including a temporary replacement dog, veterinary fees, court costs, and attorney fees. MO ST 209.202 . Nevada law adds that no less than $750 in punitive damages must be assessed in addition to a civil claim with actual damages. NV ST 426.820 .
Several states also have graduating offense schemes, meaning that subsequent convictions of harassing or harming an assistance animal results in enhanced penalties by statute. Hawaii increases its fine from $2000 to $5000 for a second or subsequent conviction, with up to thirty days jail. HI ST § 711-1109.4 . Illinois has an enhanced penalty provision for subsequent offenses with the first offense comprising a Class A misdemeanor and subsequent violations becoming Class 4 felonies. 510 ILCS 70/4.03 .
These laws do not provide greater benefits to disabled persons; rather they serve to put people who depend on dogs to guide their everyday lives in the same position as able-bodied individuals. “A sight-impaired person can travel freely and with little more risk than any other person, so long as the dog guide remains focused on its duties. The dog guide is not a pet out for a walk with its human companion; when the harness is on, the dog guide is at work and needs to be free from interference.” 37 Conn. L. Rev. at 573. Essentially, a heightened duty has been legally created , whether it is when one is walking with his or her dog or driving his or her car.
VI. Proceed with Caution - Service Animals and “White Cane” Laws
Many states have provisions that mandate that drivers yield to persons with obvious physical disabilities. This includes individuals who are using guide dogs or service dogs. While one may say such statutes are legislating common sense, they do serve to provide additional statutory protections for those pedestrians who use assistance animals.
A typical white cane law is illustrated by New Jersey’s law:
Any blind person using as a guide a walking cane, predominantly white or metallic in color or any blind person using as a guide a seeing-eye dog or other dog trained as a guide for the blind, equipped with a rigid "U"-shaped harness such as customarily used on dog guides or any guide dog instructor engaged in instructing a guide dog shall have the right-of-way in crossing any highway or any intersection thereof, and all drivers of vehicles shall yield the right-of-way to such blind person or guide dog instructor engaged in instructing a guide dog although traffic on said highway or intersection thereof is controlled by traffic signals, anything in the motor vehicle and traffic laws of this State to the contrary notwithstanding. The failure of a blind person or guide dog instructor to comply with the provisions of this act shall not give rise to a conclusive presumption of contributory negligence by such person. The provisions of this section shall not apply where traffic is specially directed by a traffic or police officer.
NJ ST 39:4-37.1 . This law, as with most White Cane Laws, protects blind pedestrians who are using either a guide dog or cane. Under the law, the blind pedestrian has the right-of-way, regardless of traffic signals, or laws to the contrary.
The main difference in any of these statutes is whether they require that the blind or disabled pedestrian has the right-of-way. Colorado, however, does not use the term “right-of-way” in its relevant statute. Instead, the burden is on the driver “to immediately come to a full stop and take such precautions before proceeding as are necessary to avoid an accident or injury to said person . . .” CO ST 42-4-808 . This includes a person who is using an assistance animal or otherwise has a noticeable or apparent disability. In Oklahoma, a driver must yield within 15 feet when approaching a vision impaired person using a cane or a person using service animal in a harness. OK ST T. 7 § 12 . Utah, however, states that traffic must right-of-way to a blind pedestrian, but the blind pedestrian is also commanded by statute to “ exercise due care in approaching and crossing roadways.” UT ST 41-6a-1007(B).
The second type of driving law covering assistance animals are those that assign liability to a driver who fails to drive more cautiously when near a blind pedestrian. These statutes are both preventative and remedial, in that they mandate that drivers take extra precautions around blind pedestrians and make those drivers who fail to do so liable for any damages. Arizona even states in its statute that the negligent driver is liable for damages due to any injury to the pedestrian or the service animal . AZ ST 11-1024(G).
California has one of the stricter driving laws, making it a high misdemeanor:
A totally or partially blind pedestrian who is carrying a predominantly white cane (with or without a red tip), or using a guide dog, shall have the right-of-way, and the driver of any vehicle approaching this pedestrian, who fails to yield the right-of-way, or to take all reasonably necessary precautions to avoid injury to this blind pedestrian, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or both. This section shall not preclude prosecution under any other applicable provision of law.
CA VEHICLE § 21963 . Likewise, Idaho makes it a crime for a driver or pedestrian to intentionally startle or frighten a service animal. Violation of this provision can incur up to six months in jail. ID ST § 18-5811(b).
It should be noted that many states use the term “duty” in these statutes. This is a legally significant term in that it enhances the traditional course of action a driver must take. In other words, a driver is legally required to take extra precautions under these laws when he or she sees someone who is obviously blind. Should the driver not take these extra precautions and behaves as if the person were a non-blind pedestrian, he or she is liable under the statute.
Despite this duty drivers have when they see a person using a cane or a service animal, many state laws provide that blind pedestrians who do not use a metal tipped or white canes, or do not walk with guide dogs wearing the recognizable harness, are not contributorily negligent. In Iowa for example:
A blind or partially blind pedestrian not carrying a cane or using a guide dog in any place shall have all of the rights and privileges conferred by law upon other persons, and the failure of a blind or partially blind pedestrian to carry a cane or to use a guide dog in any place shall not be held to constitute or be evidence of contributory negligence.
IA ST 216C.6 . Similarly, a blind pedestrian who fails to use a cane or guide dog is also not barred by contributory negligence in an action for damages. MT ST 49-4-216 . This may reflect an understanding by legislators that vision impaired individuals deal with their disability in a multitude of ways that are not limited to white canes and guide dogs. Further, it shows a shifting of burden to the driver who is under a heightened duty with pedestrians anyway. This humanistic tone of white cane laws is in stark contrast to those laws regarding the false use of a cane or service animal to receive special treatment.
VII. Wrongful Impersonation of a Person Needing a Service Animal
Several states add further penalties for wrongfully impersonating someone who needs accommodations for a service animal. Missouri, for example, makes this a class C misdemeanor and makes the wrongdoer civilly liable for any damages. Should a person commit this same act again, he or she faces a class B misdemeanor for subsequent violations. MO ST 209.204 .
In a similar vein in Colorado, a person faces a class 1 petty misdemeanor for using a blaze orange leash on a non-assistance animal. Texas also prohibits a person from using a harness or leash the type of which used by an assistance animal in order to represent that his or her dog is an assistance animal. V. T. C. A., Human Resources Code § 121.006 .
The intent of these laws is clear: it is at the very least criminal to attempt to gain access and advantage by impersonating someone who relies on dog guides for his or her daily life. States are not necessarily providing benefits when they enact White Cane Laws or accommodation laws, but rather are putting someone with a disability in the position of a freely mobile person. One who takes advantage of this gains little sympathy in the eyes of the law.
VIII. Exemption from State Dog Licensing Fees
Just as equal access is a right, not a benefit, many may argue the same of licenses for assistance animals. Assistance animals are recognized as a necessary tool like a wheelchair or a cane to help disabled individuals lead a normal life. As such, states often either reduce or eliminate traditional dog licensing fees. In Colorado, for example, "[a] person with a disability is exempt from any state or local licensing fees or charges that might otherwise apply in connection with owning an assistance dog." CO ST 24-34-803(5 ). Michigan also eliminates licensing fees for any dog used as guide or leader dog for a blind person, a hearing dog for a deaf or audibly impaired person, or a service dog for a physically limited person. MCL 287.291 .
In Connecticut the task of proving one is exempt from licensing fees due to blindness or deafness proves to be more difficult.
Any blind, deaf or mobility impaired person who is the owner or keeper of a dog which has been trained and educated to guide and assist such person in traveling upon the public streets or highways or otherwise shall receive a license and tag for such dog from the town clerk of the town where such dog is owned or kept. Such license and tag shall be issued in accordance with the provisions of section 22-340, and no fee shall be required of the owner or keeper of any such dog. When any such dog has not been previously licensed by the town clerk to whom application is being made, such town clerk shall not license such dog or issue to the owner a license and tag unless written evidence is exhibited to such clerk that the dog is trained and educated and intended in fact to perform such guide service for such applicant. . .
CT ST § 22-345 . Regardless of the complexity of each statute, the intent is to reduce or eliminate the fees a disabled person pays for the dog that allows him or her to have the mobility an able-bodied person takes for granted. Again, the purpose of all the service animal related laws is to put those who rely on these well-trained leader dogs in a position equal to those who do not canine assistance.
Through these laws, states legislated both access and protection for those who rely on dog guides for mobility. While equal access laws have been around for some time, only recently have states begun to recognize the training, cost, and trust invested in these animals by adding protections against interference and harm. As the need for these animals expands beyond the traditional roles of guide and hearing ear dogs, the laws are apt to change as well, perhaps protecting those with disabilities less apparent to the general population. Until then, awareness and education are the only way to truly provide a world of equal access for all, both able-bodied and disabled.