Animals Lions and tigers and bears OH MY
Animals! Lions and tigers and bears. OH MY! Lions, tigers, bears…Oh My! Copywrite 2016 CCDC 1
Agenda n n n Service Animals-who, what, where and how? Why? ADA – Service Animals FHA – Companion and Support Animals ACA – Travel Support Animals Copywrite 2016 CCDC 2
Applicable Laws n The ADA q n The FHA q n Regulations The ACA q n Regulations State Law Copywrite 2016 CCDC 3
n The ADA and the definition of disability Copywrite 2016 CCDC 4
The Americans with Disabilities Act n Disability 42 U. S. C. § 12101 et seq. n n n A physical or mental impairment that substantially limits one or more major life activities A record of such an impairment, or Being regarded as having such an impairment Copywrite 2016 CCDC 5
Major Life Activities Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Copywrite 2016 CCDC 6
Major bodily functions n Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. n It might be difficult to demonstrate how your service dog helps with your reproductive functions, but it is part of the statute. Copywrite 2016 CCDC 7
Ameliorating effects of mitigating measures n The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as: n Medication, medical supplies, equipment, or appliances, lowvision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and Copywrite 2016 CCDC 8
Ameliorative effects of mitigating measures (cont’d) Cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; n use of assistive technology; n reasonable accommodations or auxiliary aids or services; or n learned behavioral or adaptive neurological modifications. Copywrite 2016 CCDC 9
Where does this apply? n Title II State and local government facilities and Title III public accommodations: Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Copywrite 2016 CCDC
Where does this apply? (cont’d) n Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, Copywrite 2016 CCDC 11
Where does this apply? (cont’d) providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. Copywrite 2016 CCDC 12
What does not apply? n The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. 28 C. F. R. §§ 35. 104 (emphasis added). Copywrite 2016 CCDC 13
When allowed? n Title II: a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 28 C. F. R. § 35. 136. n Title III: a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability. 28 C. F. R. § 35. 136. Copywrite 2016 CCDC 14
When not allowed? n A public entity/place of public accommodation may ask an individual with a disability to remove a service animal from the premises if: Copywrite 2016 CCDC 15
When not allowed (cont’d) n n The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken. 28 C. F. R. § 35. 136 If a public entity properly excludes a service animal, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises. 28 C. F. R. § 35. 136. Copywrite 2016 CCDC 16
When not allowed (cont’d) n n A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e. g. , voice control, signals, or other effective means). 28 C. F. R. § 35. 136 (d). A public entity is not responsible for the care or supervision of a service animal. 28 C. F. R. § 35. 136(e). Copywrite 2016 CCDC 17
Inquiries Copywrite 2016 CCDC 18
Inquiries What can they/you ask? n n n What can they/you not ask? Is the animal a service animal required because of a disability? What work or task has the animal been trained to perform? NOTE: Not when it is readily apparent that an animal is trained to work or perform such tasks. n n What is the nature and extent of your disability? What documentation do you have that proves your animal has been certified, trained or licensed as a service animal? You cannot ask to take your animal to places the public is now allowed. No surcharges. Copywrite 2016 CCDC 19
WTF? (“F”) means formulation Copywrite 2016 CCDC 20
Miniature Horses n Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. 28 C. F. R. § 35. 136(1). Copywrite 2016 CCDC 21
Best Explanation for Miniature Horses n n Appendix A to Part 36 – Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities https: //www. ada. gov/regs 2010/title. III_2010/reg 3_201 0. html (<click F> and search “miniature horse”) Appendix A -- 35 Guidance to Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Service https: //www. ada. gov/regs 2010/title. II_201 0_regulations. htm Copywrite 2016 CCDC 22
Why? n A service animal is out in the community among people at all times in all places and, therefore, is expected to have a higher level of training than an emotional support animal which is found inside personal housing in which the animal only stays at home or within the housing community with the individual with a disability. Copywrite 2016 CCDC 23
Why restrict? n n 1991 definition said “or other animal. ” 2010 regulations took comments from 1991 forward and determined that only dogs should be included in service animal definition. n Based on minimal case law, DOJ also found miniature horses meet the definition of service animal if they meet all of the other requirements. Copywrite 2016 CCDC 24
Cases of note n Johnson v. Gambrinus Co. /Spoetzl Brewery, 116 F. 3 d 1052, 1064 (5 th Cir. 1997) (Defendant failed to make a showing that modifications to its policies practices and procedures would fundamentally alter the nature of the public accommodation or that such modifications would jeopardize the safety of the public accommodation. ) Copywrite 2016 CCDC 25
Cases of note (cont’d) n Rose v. Springfield-Greene County Health Department, 668 F. Supp. 2 d 1206 (8 th Cir. 2010) (Plaintiff failed to show that her monkey was a service animal, that she was disabled, and that the monkey performed tasks for her disability. ) Copywrite 2016 CCDC 26
Cases of note (cont’d) n Tamara v. El Camino Hospital, 964 F. Supp. 2 d 1077 (N. D. Cal. 2013) (Defendants failed to demonstrate that presence of a service dog would fundamentally alter nature of facility and be a direct thread to health or safety of others. ) Copywrite 2016 CCDC 27
Question and Answer Copywrite 2016 CCDC 28
Who Let the Dogs In? Copywrite 2016 CCDC 29
HOUSING n What is different between animals permitted in housing and service animals permitted in places of public accommodation? n n Why? Definition of disability is roughly the same, but it uses word “handicap. ” 42 U. S. C. § 3602(h). Copywrite 2016 CCDC 30
Emotional Support Animals in “No Pets” Housing n Just as we have long recognized the benefits of assistive animals for people physical disabilities including guide dogs for those with visual impairments, hearing dogs that are trained to perform tasks such as alerting their owners to oncoming traffic were someone at the door, people with psychiatric disabilities can benefit significantly from assistive animals, to. Emotional support animals have been proven extremely effective at ameliorating the symptoms of these disabilities, such as depression and posttraumatic stress the, by providing therapeutic nurture and support. See “HOD 2008 Pet Ownership for the Elderly and Persons With Disabilities; Final Rule. ” https: //www. hud. gov/offices/fheo/FINALRULE/Pet_Owner ship_Final_Rule. pdf Copywrite 2016 CCDC 31
FHA Regulation n Example (1): A blind applicant for rental housing wants live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation of § 100. 204 for the owner or manager of the apartment complex to refuse to permit the applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. 24 C. F. R. § 100. 204(b). Copywrite 2016 CCDC 32
Differences for Animals in Housing? n Discrimination under the FHA includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling. " 42 U. S. C. § 3604(f)(3)(B). A request for a reasonable modification for an emotional support animal may be just as reasonable as the request to use a wheelchair, Copywrite 2016 CCDC 33
Defenses and Outcomes n So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a "no pets" policy would qualify as a reasonable accommodation. Copywrite 2016 CCDC 34
Types of Animals n n No type of animal restricted “Companion animals, ” emotional support animals. ” Others? The animal must be ‘‘necessary as a reasonable accommodation to assist, support, or provide service to persons with disabilities’’ in order to qualify under the exclusion from pet ownership policies. 73 FR 63836. Focus on “reasonable accommodation. ” Copywrite 2016 CCDC 35
What is Needed n n A letter or prescription from a treating professional to the landlord can demonstrate the need for the emotional support animal. For those with chronic mental illness, this is usually not hard to do. Person must have a disability and there must be a reasonable need to modify the “no pets” policy. Copywrite 2016 CCDC 36
Service Animal and Animals Public Accommodation/Housing n n Privacy: with the service animal, one need only answer the two questions, and if they prove affirmative answers, they should be entitled to the service animal. “Direct threat, ” fundamental alteration” and undue burden” defenses apply to both. n n Service animals apply to places of public accommodation: emotional support animals apply to housing. Service animals are restricted to dogs and miniature horses; in housing, emotional support animals can be other animals, although reasonableness of the accommodation is a consideration. Copywrite 2016 CCDC 37
Requirements n n No vests No special harnesses No particular canes No marking of any kind necessary designating service dog or emotional support dog n n Self-training Rules of the past have disappeared. Your animal needs no marking to designated it as a service dog or emotional support dog. Copywrite 2016 CCDC 38
Distinctions n A companion animal or emotional support animal is not a service animal. Many people tried to treat their emotional service animal that is used for housing purposes as a service animal allowed to travel to public accommodations and facilities owned and operated by government entities. This is not the same thing, and is a violation of the law. Copywrite 2016 CCDC 39
Distinctions (cont’d) n The definition of service animal itself includes the requirement that the animal receive specialized training to provide a service that is necessary in order for the individual with a disability to be in a public place. No such requirement appears in the Fair Housing Act, and emotional support animals are designed to provide care and comfort, not specific services. Copywrite 2016 CCDC 40
Cases of Note n Association of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F. Supp 2 d 1268 (D. Haw. 2012) (Housing association cannot deny reasonable accommodation because emotional support animal has not received specialized training. ) Copywrite 2016 CCDC 41
Cases of Note (cont’d) n Bhogaita v. Alamonte Heights Condominium Ass’n, Inc. Condominium 765 F. 3 d 1277 (11 th Cir. 2014) (Resident who suffered from PTSD brought action against condominium association, alleging it violated the Federal Housing Act by enforcing its pet weight policy and demanding he remove his emotional support dog from his condominium. Court ruled in resident’s favor. ) Copywrite 2016 CCDC 42
Cases of Note (cont’d) n Overlook Mutual Homes, Inc, v. Spencer 666 F. Supp. 2 d 850 (S. D. Ohio 2009) (good distinction between ADA and FHA requirements. ) Copywrite 2016 CCDC 43
Question and Answer Copywrite 2016 CCDC 44
Come fly with me, let’s fly away! Copywrite 2016 CCDC 45
Air Carriers Access Act (‘ACAA”) Copywrite 2016 CCDC 46
49 U. S. C. § 41705 n n Does not provide much information specific to traveling with an animal. Defines disability in a similar way as the other statutes. n Several courts have said there is no private right of action, which means you cannot file a lawsuit for discrimination. You must file an administrative complaint. Copywrite 2016 CCDC 47
14 C. F. R. § 382. 117 Must carriers permit passengers with a disability to travel with service n Yes. Everything you need to know is animals? contained in this regulation. Copywrite 2016 CCDC 48
The airline regulation n n (a) As a carrier, you must permit a service animal to accompany a passenger with a disability. (1) You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft. (2) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger using the service animal to provide documentation that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight. (b) You must permit the service animal to accompany the passenger with a disability at any seat in which the passenger sits, unless the animal obstructs an aisle or other area that must remain unobstructed to facilitate an emergency evacuation. Copywrite 2016 CCDC 49
The airline regulation (cont’d) n n (c) If a service animal cannot be accommodated at the seat location of the passenger with a disability who is using the animal, you must offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated. (d) As evidence that an animal is a service animal, you must accept identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal. Copywrite 2016 CCDC 50
The airline regulation (cont’d) n The oddity of (d): Under no other section of any disability rights statutes, are identification cards, other written documentation, the presence of harnesses, tags required or needed, so it seems unlikely the owner of the animal would have such documentation for the rest. Nevertheless, when flying, it does not hurt, as always, to have a letter from a treating physician. Copywrite 2016 CCDC 51
The airline regulation (cont’d) n Under any circumstances, whether n documentation is needed or not, the CCDC Legal Program recommends a letter (“prescription”) from the treating physician explaining (1) the animal is a service animal, emotional support animal, etc. ; (2) the reason why the animal is needed under the particular circumstances; (3) what would happen if the animal was not present under the circumstances. Copywrite 2016 CCDC 52
The airline regulation (cont’d) n n It is best to carry a pocket-size or other small version of the airline statute with you so you can prepare the airline attendant for the exact requirement, if necessary. Under the airline statute, it is required that there be a Customer Services Officer *”CSO”) available to address disability-related complaints. Make sure to have that information prior to flying or that the individual with whom you are discussing the issue is aware to contact that person if there is a problem. Copywrite 2016 CCDC 53
The airline regulation (cont’d) n (e) If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i. e. , no older than one year from the date of the passenger's scheduled initial flight) on the letterhead of a licensed mental health professional (e. g. , psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger's mental or emotional disability) stating the following: (1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders--Fourth Edition (DSM IV); (2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination; (3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and (4) The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued. Copywrite 2016 CCDC 54
The airline regulation (cont’d) n (f) You are never required to accommodate certain unusual service animals (e. g. , snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e. g. , miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e. g. , whether the animal is too large or heavy to be accommodated in the cabin, n whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight's destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs. Copywrite 2016 CCDC 55
The airline regulations (cont’d) n n (h) You must promptly take all steps necessary to comply with foreign regulations (e. g. , animal health regulations) needed to permit the legal transportation of a passenger's service animal from the U. S. into a foreign airport. (i) Guidance concerning the carriage of service animals generally is found in the preamble of this rule. Guidance on the steps necessary to legally transport service animals on flights from the U. S. into the United Kingdom is found in 72 FR 8268– 8277, (February 26, 2007). Copywrite 2016 CCDC 56
Complaint Resolution Officials (“CRO”) n n n § 382. 151 What are the requirements for providing Complaints Resolution Officials? (a) As a carrier providing service using aircraft with 19 or more passenger seats, you must designate one or more CROs. (b) As a U. S. carrier, you must make a CRO available at each airport you serve during all times you are operating at that airport. As a foreign carrier, you must make a CRO available at each airport serving flights you operate that begin or end at a U. S. airport. n You may make the CRO available in person at the airport or via telephone, at no cost to the passenger. If a telephone link to the CRO is used, TTY service or a similarly effective technology must be available so that persons with hearing impairments may readily communicate with the CRO. You must make CRO service available in the language(s) in which you make your services available to the general public. 14 C. F. R. § 382. 151. Copywrite 2016 CCDC 57
Cases of Note n Anita Lee, Lawsuit: Airline tells veteran with PTSD, ‘You’re not flying with THAT!’, Sun Herald(Oct. 26, 2016), http: //www. sunherald. com/news/local/article 1 10557127. html. (Veteran with PTSD who is suing American Airlines for not allowing her to fly with her service dog. ) Copywrite 2016 CCDC 58
Questions? Copywrite 2016 CCDC 59
STATE LAW Copywrite 2016 CCDC 60
§ 24 -34 -803. Rights of individuals with service animals n (1) A qualified individual with a disability has the right to be accompanied by a service animal individually trained for that individual without being required to pay an extra charge for the service animal in or on the following places or during the following activities and subject to the conditions and limitations established by law and applicable alike to all individuals: Copywrite 2016 CCDC 61
State law (continued) n n (a) Any place of employment, housing, or public accommodation; (b) Any programs, services, or activities conducted by a public entity; (c) Any public transportation service; or (d) Any other place open to the public. Copywrite 2016 CCDC 62
State law allows for trainers n (2) A trainer of a service animal, or an individual with a disability accompanied by an animal that is being trained to be a service animal, has the right to be accompanied by the service animal in training without being required to pay an extra charge for the service animal in training in or on the following places or during the following activities: Copywrite 2016 CCDC 63
State law trainers (cont’d) n n (a) Any place of employment, housing, or public accommodation; (b) Any programs, services, or activities conducted by a public entity; (c) Any public transportation service; or (d) Any other place open to the public. Copywrite 2016 CCDC 64
Employers under state law n (3)(a) An employer shall allow an employee with a disability who is accompanied by a service animal to keep the employee's service animal with the employee at all times in the place of employment. An employer shall not fail or refuse to hire or discharge any individual with a disability, or otherwise discriminate against any individual with a disability, with respect to compensation, terms, conditions, or privileges of employment because that individual with a disability is accompanied by a service animal individually trained for that individual. Copywrite 2016 CCDC 65
n Employers under state law (b) An employer shall make reasonable accommodation to (cont’d) make the workplace accessible for an otherwise qualified individual with a disability who is an applicant or employee and who is accompanied by a service animal individually trained for that individual unless the employer can show that the accommodation would impose an undue hardship on the employer's business. For purposes of this paragraph (b), “undue hardship” and “reasonable accommodation” have the same meaning as set forth in Title I of the federal “Americans with Disabilities Act of 1990”, 42 U. S. C. sec 12101 et seq. , and its related amendments and implementing regulations. Copywrite 2016 CCDC 66
Duties of animal owner n (4) The owner or individual with a disability who has control or custody of a service animal or the trainer of a service animal is liable for any damage to persons, premises, or facilities, including places of housing, places of public accommodation, and places of employment, caused by that individual's service animal or service animal in training. The individual who has control or custody of a service animal or a service animal in training is subject to the provisions of section 18 -9 -204. 5, C. R. S. Copywrite 2016 CCDC 67
State law (final) n n (5) An individual with a disability who owns a service animal is exempt from any state or local licensing fees or charges that might otherwise apply in connection with owning a similar animal. (6) The mere presence of a service animal in a place of public accommodation is not grounds for any violation of a sanitary standard, rule, or regulation promulgated pursuant to section 25 -4 -1604, C. R. S. Copywrite 2016 CCDC 68
Damages an attorney's fees n Under all of these statutes, with the exception of Title III of the ADA, damages and attorneys fees are available. Title III of the ADA does not allow for monetary damages, but it does allow for attorneys fees. Under the state law, damages are either the actual damages suffered or limited up to $3500. Copywrite 2016 CCDC 69
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