s_scout_guidingReading the daily update I get on disability law issues I was struck by this sentence from an article published on August 8 in the Daily Courier from Prescott Arizona:

“The Arizona Legislature altered laws this year that govern those service animals, specifically allowing businesses, especially restaurants, to tell an owner the animal must be removed if it is out of control or not housebroken.”

(Click here for complete article). This is interesting because the “altered law” does not appear to change anything. Under both the ADA and its Arizona equivalent businesses have always been entitled to exclude service animals that are out of control or not housebroken. Other details in the new law are also consistent with existing federal regulations concerning service animals.

Local outrage over serial lawsuits has resulted in a number of state legislatures attempting to find ways to limit business liability under the ADA,  but of course all such efforts are ultimately stymied by the fact that the ADA, as a federal statute, pre-empts any state effort to limit it.** At first blush the Arizona effort, which only amends Arizona’s own state equivalent of the ADA, seems similarly meaningless. I believe, however, that this effort will have positive effects, and that the Department of Justice could learn from the example about what is needed to improve ADA compliance.

The reason the Arizona statute can improve compliance and reduce litigation is that it lays out, in language any business or disabled person can understand, a set of rules concerning service animals in places of public accommodation that are specific to the problems businesses face. Let’s consider how this differs from the ADA.

First, the Arizona statute specifically tells businesses that they may not discriminate against individuals with service animals. The ADA has no such specific prohibition. The requirement that businesses allow service dogs is a regulatory elaboration on the requirement to make reasonable modifications in policies (such as a no pets policy). A business wanting to understand its obligations vis-a-vis service animals must go to the Code of Federal Regulations. The published Title III regulations on the DOJ’s ADA website run 266 pages, most of which is actually commentary and discussion. If you don’t know about service animals already the regulations are not likely to help.

Next, the Arizona statute defines what constitutes a “service animal” to include miniature horses. For reasons that are not clear the regulations under Title III of the ADA specify that a “service animal” is always a dog and that no other animal can qualify. You find out about miniature horses only by looking beyond the definitions to the provisions concerning modification of policies, where miniature horses are given special and slightly different treatment.

Discovering that miniature horses must be accommodated by businesses is difficult using DOJ materials.  The ADA Business Brief on service animals (https://www.ada.gov/svcanimb.htm) never mentions miniature horses because it was published in 2002, before the current regulations were written. The Department’s 2015 FAQ (https://www.ada.gov/regs2010/service_animal_qa.html) has the same gap – no mention of miniature horses. The most recent resource for small businesses, the “2010 ADA Update, Small Business Primer” (https://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm) has no mention at all of miniature horses. Miniature horses are mentioned in one publication available at the business connections page (https://www.ada.gov/service_animals_2010.pdf), but the inconsistency in the published materials is a part of the problem. It is unlikely any business will think that if it reads one or two papers on service animals it still needs to find a third paper because the other materials were out-of-date or incomplete. If DOJ really wants to help business, part of its effort must be to present only materials that are complete and up-to-date.

And this is what businesses need: clear up-to-date guidance in plain language.  The Arizona statute does that directly by putting into the statute much of what the ADA buries in regulatory material. Changing the structure of the ADA is likely to be impossible, but the Department of Justice could surely recognize that since the regulations are obscure its educational materials must be especially clear and complete.

This problem is not limited to service animals and miniature horses. The ADA.gov website is titled “Information and Technical Assistance on the Americans with Disabilities Act,” but the most prominent materials are self-congratulatory press releases on new lawsuits or settlements. It is telling that the “business connection” page (https://www.ada.gov/business.htm) continues to list more publications issued under the 1991 regulations than the 2010 regulations. It is true that in many cases neither the law nor the regulations have changed, but a business might be excused for wondering whether publications that are specifically listed under out-of-date regulations will be useful. A business interested in the most prominent ADA issue today; that is, internet accessibility, will find nothing at all. That is because the DOJ made a political decision to pursue internet accessibility before it was prepared to issue regulations and at a time when there is nothing in the statute suggesting that Title III covers the internet.

The lesson that might be learned from the Arizona statute is that effective legislation and regulation must be understandable and well explained. We continue to see thousands of ADA lawsuits filed every year, and constant complaints that businesses are still not complying with the ADA. One of the most important reasons for continued non-compliance with the ADA is that its requirements are entombed in complex regulations, while supposedly understandable guides for business are buried in mountains of out-of-date or irrelevant materials. ADA compliance will improve only when the Department of Justice commits to providing businesses with plain, up-to-date and easy to find information; the kind of plain information found in the Arizona statute.

*It is not, but it must be accommodated as explained above.

*This is not true in California, where serial litigation is driven by California’s state law damage provision. In California efforts to limit the amount and application of that damage provision might effect the rate of filing of new lawsuits, although this has not been shown to be true.