Jack Russell Terrier SnarlingWith widespread media coverage of disputes about service dogs in bars and restaurants disability advocates, real and self proclaimed, are predicting an explosion of litigation about service dogs under the Americans with Disabilities Act. There has been no change in the statute itself, and the Department of Justice regulations for service dogs went into effect in 2011. However, as with other kinds of ADA litigation, it has taken some time for the implications of the law to work their way into the popular consciousness.

The easy situation for any business is a person with an obvious disability who comes to a business with a well behaved service dog wearing a vest or other identification. The ADA is clear – the dog and owner must be allowed in the store or restaurant even if there is a “no pets” policy in place. The harder situation, and the one that leads to media coverage and lawsuits, occurs when a person who has no obvious disability arrives with an unmarked dog and a bad attitude. Dealing with this situation, and any resulting problems, requires careful thought about just how service dogs fit into the ADA’s scheme of disability rights.

The applicable provision of the ADA is 42 U.S.C. §12182(b)(2)(A)(ii). It says that a business must make “reasonable” modifications to its policies when the modification is “necessary” for a disabled person to take advantage of the goods and services sold. A blind person with a guide dog can’t shop or get around without the dog, and a “no pets” policy keeps out the dog, so a “reasonable” modification – an exception for guide dogs – is necessary for the blind person to take advantage of the goods and services.

When things get more complicated the Department of Justice ADA regulations put some meat on the bare bones of the statute. 32 CFR Part 36 contains the ADA regulations that attempt to make it clear what kind of policy modification is “reasonable” for a service dog and when that modification is “necessary.” Most of it is common sense. It isn’t “reasonable” to allow a dog that is out of control or filthy. It isn’t “necessary” to modify the “no pets” policy if the dog isn’t trained to help with whatever disability makes it hard for the person to shop, or eat out, or otherwise take advantage of goods and services.

However, what the regulations do not do is provide any adequate way for businesses to deal with cheaters or suspected cheaters. The 2008 amendments to the ADA vastly expanded the number of people who qualify as disabled, and now there are many disabilities that are simply not obvious. Post traumatic stress disorder, major depression, diabetes and many other invisible diseases are now disabilities even when they are controlled and have no symptoms. Prescribing a service dog to assist those with these invisible disabilities is increasingly common. The DOJ regulations do not require identification or certification of service dogs, and they forbid any requirement that a person prove a disability. It is no coincidence that reported cases all seem to involve a person with PTSD and a dog with no obvious training. When the disability is invisible and the training impossible to see it is hard to tell a cheater from a truly disabled person who truly needs a service dog.

At the same time, allowing dogs for those with invisible disabilities creates immediate problems for any business. At worst allowing the dog will drive out patrons who have allergies to dogs and offend patrons concerned about cleanliness. Patrons who have been required to leave a pet outside will be upset because it appears someone else has been allowed to bring in a pet. None of these things were significant problems when most service dogs assisted the blind or those in wheelchairs, but they are now.

What can a business do? The first thing is to make sure the staff knows what questions they can ask. The Department of Justice authorizes only two questions that can be asked when a patron wants to bring a dog into the business: “Is this a service dog required because of a disability?” and “what work or task has the dog been trained to perform?” Every cheater will know to say “yes” to the first question, but casual cheaters, at least, probably won’t know how to answer the second question. Unless the dog is trained to perform a task that requires his owner to have him in the store or restaurant it is reasonable to ask that the dog remain outside. Equally important, the answer may prove the dog is not a service dog at all. Dogs that only provide emotional support or comfort do not qualify as service dogs. Neither do dogs that only deter crime. The difference between true service dogs and mere “therapy” or “comfort” dogs prescribed for mental illness is a difference that neither the public nor the media seem to understand, and cheaters are likely to give answers that show the dog isn’t really a service dog.

However, even if the patron can’t answer the second question, or problems arise later, the business owner must remember that it is the dog, not the patron, who can be excluded. “You’ll have to take the dog outside” is not the same thing as “get out of my store.” One is a reasonable response to a problem; the other is an attack on a person who may really be disabled. Of course if the dog owner himself becomes abusive or disorderly there is little choice but to require that he leave. Once again, however, the focus should be on the problem. Demanding that an angry dog owner “prove” the animal is a service animal misses the point that it is the dog owner’s behavior that is the problem.

Unfortunately there is no magic formula that will exclude cheaters but allow legitimate service dogs to give their owners the assistance they need. While it appears that present service dog lawsuits are individual claims arising out of individual incidents, there are certainly already plaintiff’s lawyers lining up individuals with disabilities who will be going from one business to another hoping to be excluded so they can file a lawsuit and make some money. The best bet for any business is to err on the side of allowing a claimed service dog unless there is a real health or safety concern based on the dog’s observed behavior. If there is a real concern, focus on that concern rather than suspicions that the dog owner is a cheater. Allowing a few people to cheat is certainly better than being sued because a person with a disability and a needed service dog was excluded based on just a suspicion that he was cheating.