By: Christopher Vrountas, Esq. and Allison Ayer, Esq., Vrountas, Ayer & Chandler, P.C.
Animals might not be people, but you may need to treat them like any customer in the event they appear in your establishment as a “service animal”. This article covers some of the issues and the laws concerning that increasingly occurring situation.
The Americans with Disabilities Act (“ADA”) prohibits private businesses who serve the public, for example restaurants and bars, from excluding people with disabilities from bringing in their service animals onto the premises of a public accommodation. Briefly, the ADA outlaws discrimination against people with disabilities. The ADA also requires public accommodations like restaurants and bars to allow people with disabilities equivalent access to the goods and services they offer to the general public. This means that restaurants must allow service animals onto their premises and that they also must allow people with disabilities to bring their service animals into any areas of the restaurant that other customers are similarly allowed. This is true even if state or local health codes prohibit animals on the premises.
The challenge restaurants face is figuring out: What is a service animal? When must you permit one into your restaurant with its handler? Which animals are mere pets that the restaurant may lawfully exclude?
What is a service animal verses a pet or emotional support animal?
A “service animal” is more than just a guide dog for the visually impaired. There are several kinds of service animals that must be permitted into restaurants or bars.
A service animal is defined as any dog and some miniature horses who have been individually trained to provide assistance to an individual with a disability. They perform the functions and tasks that the individual with a disability cannot perform him or herself because of a disability. The tasks that a service animal may perform vary widely and are unique to the person who has a disability. Some examples include:
A pet is not a service animal. An emotional support animal also is not a service animal. While an emotional support animal may provide generalized mental support, comfort, or companionship for a disabled customer, service animals are specially trained to perform specific tasks to assist an individual with a disability. This training to perform specific tasks for the disabled forms the legal reason for the elevated status a service animal has over pets and emotional support animals under the ADA.
So, for example, a dog that has been trained to sense an anxiety attack or lessen its impact for a customer with a mental disability would constitute a service animal that must allowed into a restaurant. On other hand, if a dog’s presence simply provides comfort to a customer it would not be considered a service animal under the ADA.
But be careful! While emotional support animals are not service animals that the ADA requires be permitted into a restaurant or bar, other laws may require you to let them in for other reasons. Do not think you can always exclude all animals that are not service animals. Some state or local laws allow emotional support animals in public places. The existence of these laws in your particular area should be evaluated before turning away an emotional support animal.
Furthermore, restaurants have a general obligation under the ADA to modify their policies and practices when necessary to ensure equal access to a person with a disability. In some cases, this could mean an obligation to modify a policy to allow for an emotional support animal in your restaurant, even though the ADA does not require all emotional support animals to have access to public accommodations. Thus, the specific circumstances are always important, and a restaurant nevertheless may be able to place greater restrictions on the emotional support animals given that such animals do not qualify as service animals.
What are the rules for miniature horses?
Only dogs and miniature horses may qualify as a support animal. Don’t be surprised, therefore, when a customer arrives with a miniature horse and asks to be seated. Restaurant operators must accommodate use of a miniature horse to the extent it is truly a service animal. To assess whether it’s reasonable for you to accommodate a miniature horse, you must consider:
These horses generally are 24 to 34 inches in height and weigh 70 to 100 pounds. They are not much different in size from a large dog, but they are sturdier and much better suited for pulling a wheelchair than a dog of the same size or weight.
What can a restaurant or bar do to figure out if a customer has a service animal?
There are only two questions a restaurant can ask about the service animal: “Is this a service animal required because of a disability?” and “What tasks is the animal trained to perform?” And these questions can only be posed if it is not readily apparent that the animal is a service animal for the customer.
Importantly, if the customer responds that his or her animal is a service animal and is able to articulate what the animal is trained to do to assist the customer, a restaurant should take the customer at his or her word. A restaurant should NOT ask that the animal demonstrate its training or require the customer to provide any additional information. A restaurant also cannot ask about the nature or extent of the customer’s disability. A restaurant should also never say, “You don’t look like you have disability” or ask what the disability is. The customer does not have to state what the disability is. In fact, to even inquire may be a violation of the ADA.
Service animals also are not required to wears vests, collars, backpacks or other identifying features. There is no special license or certification that a handler needs to have for a service animal. This means that restaurants cannot require a customer to produce paperwork, identifying gear, or other evidence to establish that a dog or miniature horse is a legitimate service animal before permitting the animal to accompany a customer with a disability into the restaurant. So long as the animal is individually trained to do specific tasks related to a person’s disability, then it is a service animal that must be allowed into a restaurant with a disabled customer.
Yes, that means you never know for sure whether the customer is telling you the truth or whether the animal is truly a service animal. Just ask the right questions and accept the answers at face value. If the animal (or the customer) becomes disruptive, you can treat either of them like any other customer and ask them to leave. Otherwise, it’s all about hospitality.
Where should a restaurant or bar seat a customer with a service animal, and what if other guests complain?
You, as a place of public accommodation, must allow customers with disabilities and their service animals to be served like other non-disabled customers. This means that service animals must be allowed to accompany their handlers anywhere in the restaurant that any other customer is generally permitted, including self-service lines.
Restaurants do not have to sit the customer and his or her service animal next to other guests at the same table if another customer objects. Generally, however, customers with service animals cannot be isolated from other customers (e.g., separate room) or seated in less desirable parts of the restaurant, treated less favorably or charged higher prices or fees not charged to other customers without service animals. If another customer objects to the animal or perhaps is allergic or afraid of animals, try to accommodate that customer by moving the objecting customer and his or her party to a different location.
Are there rules about a service animal’s behavior in the restaurant?
Everybody needs to play by the rules. While individuals with disabilities have significant rights to bring service animals into restaurants (as they should), these rights are not unlimited. There are certain expectations of good behavior that a service animal must satisfy in order to be allowed access to a restaurant.
The ADA requires that service animals be under the control of the handler at all times. Generally, this means that service animals must be harnessed, leashed or tethered, unless such devices interfere with the animal’s work or the customer’s disability. So, for example, an individual with PTSD may have difficulty entering unfamiliar spaces, and therefore has a service dog trained to enter a space to check to see if no threats are there, then come back and signal that it is safe. Or a person in a wheelchair may use a long, retractable leash, or briefly take a dog off a leash, to retrieve an object. In these cases, the disabled customer is permitted to allow the animal off the leash, but he or she must maintain control of the animal through voice, signal or other effective controls.
A restaurant may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others, for example because it is growling or nipping at other customers or staff. But a restaurant operator cannot make assumptions in that regard based for example on past experience with another dog of the same type or stereotypes of a particular dog breed. Each situation must be considered individually on the particular facts and circumstances.
A restaurant may also ask the customer with a disability to remove the service animal if (1) it is out of control and the customer does not take effective control of it, or (2) it is not housebroken. Keep in mind, however, that if a dog barks just once, or barks because something has provoked it, it probably would not mean that the dog is out of control. In order to exclude a service animal on the basis that it is out of control, the dog would have to bark repeatedly including after being ordered to stop.
The following are examples of out of control behavior that may permit a restaurant to exclude a service animal:
Importantly, if a restaurant asks a customer to remove a service animal in these circumstances, it must allow the customer the opportunity to obtain the services without the animal. This means that the animal can leave and the restaurant must let the guest return and access the restaurant’s services without its service animal.
Does a Restaurant have to provide care, supervision or food or water for the animal?
No. These matters are the handler’s/owner’s responsibility. Restaurants are also not obligated to supervise or care for a service animal. Restaurant staff and customers should also avoid petting service animals. As discussed above, service animals are not pets – they perform specific jobs for individuals with disabilities and they should never be distracted from their work.
What if a person falsely claims that their pet is a service animal so that they can bring the pet into the restaurant?
Lawmakers are increasingly realizing the difficulty for restaurant operators to determine whether a particular animal is legitimately a service animal that must be allowed into a restaurant with its disabled handler. Lawmakers also seem to understand that some people are taking advantage of the ADA’s requirement that service animals be allowed into restaurants. They recognize that certain people are using the rules about service animals so that they can bring their pets into restaurants. As a result, several states, including New Hampshire and Massachusetts, have passed laws or are in the process of passing laws that make it a crime (typically a misdemeanor) to mispresent an animal as a service animal.
In New Hampshire it is unlawful for any person to impersonate, by word or action, a person with a disability for the purpose of receiving service dog accommodations or service animal accessories such as a collar, leash, vest, sign, harness, or service animal tag, which represents that the animal is a service animal. A person who violates the statute is guilty of a misdemeanor.
The Massachusetts legislature is considering passing a similar law. The bill makes it a civil infraction for an individual to expressly or impliedly represent that a dog in his or her possession is his or her service dog or a service-dog-in-training for the purpose of obtaining any rights or privileges afforded disabled persons accompanied by service dogs. A violation of the proposed law would be punishable by 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months. The bill called “An Act relative to the misrepresentation of a service animal” is currently pending in committee.
While these laws may well provide some basis to discourage customers from falsely claiming that a mere pet is a service animal, it is important to remember that even the passage of these types of laws does not insulate restaurants from liability to the extent they discriminate against individuals with a disability by asking improper questions or refusing to allow into their restaurant a legitimate service animal trained to assist a person with a disability.
Moreover, even with these laws, restaurant operators should never say anything to a customer that might indicate a view that the customer is not actually disabled or that the animal is just a pet. It is also important that restaurant operators are at all times courteous and respectful when seeking information from a customer so that the customer understands that you are not trying to exclude anyone from the restaurant, but rather evaluate whether the animal is a service animal for which you must modify the general policy against having animals in the restaurant.
There is no substitute for courtesy and common sense.
While this article is intended to provide guidance for handling situations where customers seek to enter a restaurant with an animal, the fact is that a restaurant cannot plan ahead for every possible scenario. Every situation is different and restaurants will have to exercise their best judgment in evaluating when to allow animals into the restaurant. The practical issues surrounding communication and, on the spot problem solving when a customer wants to bring an animal into the restaurant still allow for significant risk that a customer with a legitimate issue might be offended or even be treated improperly under the statute.
Remember, it’s about hospitality! Be clear and respectful in your communications, treat the guest as you would any guest in our restaurants, and rely on managers, human resources or legal counsel for assistance.