As the weather in South Florida turns cooler and the snow birds start flying south, there is a remarkable increase in the number of little dogs (and other animals) one sees in their local Publix grocery stores and favorite cafes. Even off season, I recently spied a bunny rabbit at one of the restaurants I frequent on a regular basis.
This is my dog Simon.
That bunny encounter spurred my curiosity regarding whether anyone had been prosecuted under the Florida Law passed in 2015 making it a second degree misdemeanor to misrepresent an animal as a service animal. The answer, at least as of last year, is no. No one has been criminally charged in Florida under the fake service dog law.
And in the bunny instance, it is clear that Bugs Bunny was in violation of Florida law and the Americans with Disabilities Act (“ADA”). Additionally, the restaurant owner could have gotten in trouble with Department of Health or put its business license at risk. Florida law doesn’t permit bunnies or kitty-cats or monkeys, or parrots (there is one I’ve seen dining out regularly in my local down town) at restaurants inside or outside (outside means within designated outdoor portions of a public food service establishments). Once, I even dined next to a kitty-cat in a stroller while in Key West (only in Key West).
Key West kitty in a stroller.
Its quite confusing for business owners when it comes to which animals can accompany customers into their businesses. Many business owners are afraid of ADA Title III litigation so they don’t do anything when people bring animals into their stores or restaurants, but that may open them up to other types of litigation. For example a few years ago a Publix employee in Palm Beach was bitten by an emotional support animal (“ESA”).
The first thing to understand is there is a big difference, under the law, between a service animal and an emotional support animal.
Service animal under the ADA:
- Almost always a dog (sometimes a miniature pony but no other kind of animal);
- Individually trained to assist a person with a disability;
- Generally, businesses must permit a service dog anywhere the public is permitted.
- Service dogs must be harnessed, leashed, or tethered, unless these devices interfere with the service dog’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.
When it is not obvious what service a dog provides, only limited questions are permitted. A business’ staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform.
Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.
A person with a disability cannot be asked to remove his or her service dog from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service dog be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the dog’s presence. Businesses that kick out customers with service dogs (or what they suspect as fake service dogs) should consider recording the dog and customer in case they are later sued under the ADA Title III.
Establishments that sell or prepare food must allow service dogs in public areas even if state or local health codes prohibit animals on the premises.
Here in Florida there are lot of people carrying around purse dogs and other pets that enter businesses and claim they can do so because the dog or animal is an emotional support animal (“ESA”). Emotional support animals are not afforded the same access as service dogs. So if a customer brings in a bunny or cat or snake into your business establishment they can be shown the door even if they claim that the animal is a service animal (remember that service animals under the ADA can only be dogs or miniature ponies) or ESA. If someone claims their dog is an ESA that can be a murkier situation for a business owner, but dog ESAs are also not protected under the ADA.
An ESA is not a pet, rather it is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability. The person seeking the emotional support animal under fair housing laws must have a verifiable disability (the reason cannot just be a need for companionship). The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule.
ESAs are also provided protection under the Air Carrier Access Act which is why you see so many dogs (and other animals) on planes these days. Airlines are somewhat stuck and many people are gaming the system to avoid having to pay to fly their dogs and other pets and to get around other rules for pets on planes. There have been all kinds of incidents including dog attacks and planes having to be diverted due to pet poop such that many in the airline community are lobbying for new rules on pets on planes.
Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.