ADA and FHA Defense

I am belatedly blogging about two recent decisions that have already been discussed elsewhere.¹ The legal issues presented are interesting,² but for businesses concerned with service animals the practical lessons are, I think, more important.

In Mission Working Dogs a group of disabled individuals took their service dogs in training to a local mall where they would both practice good behavior around strangers and practice doing the things they were supposed to do as service dogs. The legal question was whether the ADA protects service animals that are being trained but have not yet been trained. The answer from the Court was yes, it does.

Putting aside that legal holding it is worthwhile to look little more carefully at how the ADA applies to this situation. Nothing in the ADA simply says that public businesses must allow service dogs. Instead the ADA and its regulations say that if a business has a rule, policy, or procedure that would interfere with the equal use and enjoyment of the business by a disabled person then the business must make reasonable changes to that rule unless there is a direct threat to persons or property. Applied to a fully trained service dog the analysis goes like this:

1. The mall has a rule against animals in the mall.
2. A disabled individual with a service dog can’t go anywhere without their dog.
3. The no animal rule makes it impossible for the disabled person to use and enjoy the mall.
4. A trained dog on a leash isn’t likely to cause any real trouble.
5. Therefore the mall has to waive the no animals rule to permit the disabled person to bring their dog into the mall.

The key part of this analysis is item 4 – a trained dog on a leash isn’t likely to cause any real trouble. Item 4 makes it reasonable to ask the mall owner to waive the no animal rule and, at the same time, implies the dog won’t be a threat to anyone.

Now let’s substitute a pack of trained service dogs with their owners traveling in a group around the mall. No matter how well behaved the dogs are, ten owners plus ten dogs in a group are far more likely to cause problems than one dog and its owner, if for no other reason than crowding in merchandise aisles. If the dogs are untrained and possibly not well-behaved the problem is worse. It isn’t hard to see why a mall owner might object to their property being used as a training ground under these circumstances.

And that is exactly what happened. After some back and forth the dogs and owners were kicked out of the mall. They sued and the owner’s defense was that untrained dogs are not covered. The district judge disagreed. Could the owner have won the case if it had done something other than just allowing the dogs and owners to do whatever they wanted? I’ll answer that question after considering the second case, Reeves v. Immediate Medical Care.

In Reeves a disabled patient with a service dog went to see a doctor in a local clinic. The service dog was trained to help his owner, who suffered from PTSD and anxiety, avoid “self harming” behaviors. When Reeves went in with his dog the the patient was told the doctor had severe allergies to dogs and could not be in the same room as the dog.  The allergies were in fact severe and could cause the doctor to have trouble breathing. The doctor then offered to see the patient without the dog or to have the patient see another doctor. The patient insisted on his right under the ADA to see the original doctor with his dog because allergies could not override the ADA. After that things pretty quickly escalated to the point the police were called and the patient and dog were expelled.

In this case the clinic won because the doctor did everything right. There was a real threat to health because the doctor’s allergies were severe.  The doctor gave the patient alternatives that would have permitted the patient to get medical treatment without any delay or real inconvenience. And it was the patient, not the doctor, that escalated the situation by making the unreasonable demand to see the doctor despite the threat to the doctor’s health.

What does this tell us about where the shopping mall went wrong? The mall did exactly what the patient in Reeves did. The mall relied on some bit of advice from the internet about service dogs in training not being covered by the ADA the same way the patient in Reeves relied on some supposed rule that allergies don’t trump the need for a service animal.

The difference was that in Reeves the doctor and clinic correctly looked at the situation as problem to be solved rather than some law or legal principle to be enforced. Because the patient’s need could be met by another doctor or by leaving the dog in the lobby the clinic presented a solution that should have satisfied everyone. The patient lost because he wanted to stand on his rights under the law instead of trying to figure out how to get medical treatment.

The mall, and any other business faced with a problem from a service animal, needs to take the same approach. For the mall it was unlikely that any one or even two dogs together would be disruptive; the problem was a pack of dogs. The obvious solution would have been to offer to let the group stay in the mall if they dispersed so there wasn’t any large crowd of dogs. If one of the owners was letting their dog off leash and the dog did not behave the mall could have insisted the dog be kept on leash.  The key is looking for solutions to the problem caused by the dogs instead of standing on a supposed legal principle.

There are black and white legal issues, of course. A dog that is threatening (because it strains at its leash, barks or snaps at strangers) can be excluded as a threat.  The same with a dog that isn’t trained and defecates or urinates in the mall. But where the problem is just too many dogs in one place at one time there is a solution; asking the dogs and owners to disperse.

This specific situation may not come up very often, but the principle applies to every problem created by a service animal in a public place. Business owners should ask themselves “what can I do to allow this disabled person to use and enjoy this business while mitigating the problem they are causing.” This may require some thought, but thinking is unavoidable if a business wants to avoid ADA problems. At the end of the day the side that tries hardest to find a solution to the problem is likely to end up on the right side of a lawsuit under the ADA because at the heart of the obligation to accommodate service animals is the requirement that it be “reasonable.” Being and making a record of reasonableness is the best way to handle service animal issues.

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¹ You can read about Mission Working Dogs v. Brookfield Props. Retail, Inc., 2025 U.S. Dist. LEXIS 41134) at William Goren’s blog: Surprise Surprise: Service Dogs in Training Are Covered by the ADA you can read about Reeves v. Immediate Medical Care, P.A., in Seyfarth Shaw’s blog at Can Businesses Exclude Service Animals Based on the Allergies of Others? 

² It is important to be careful when reading cases like these that are decided by a single federal district judge. No matter how interesting the legal principles are the decision of a district judge is not binding on any other judge. In fact, the judge who announces a legal principle can change their mind about it later. I think it is likely that a court of appeals would disagree with the district court in Mission Working Dogs because an untrained dog does not provide any benefit to the disabled handler and thus excluding it does not interfere with the handler’s use and enjoyment of the business. I suspect, however, there will be no appeal and we will never know for sure.