Service Dogs in Asheville: Legal & Public Access Rights
Since the European Ice Age, dogs have been used as herding animals, livestock guardians, home protection, and even transportation. Today, dogs fill one of two roles: companion or worker. Individuals who are hard of hearing, have seizure disorders, vision issues, diabetes, or even psychiatric issues can benefit from service dogs.
There is a difference, however, between a service dogs, therapy dogs, and emotional support dogs. Each designation comes with a set of laws and accommodations that benefit the handler/owner. Since there is much misinformation about working dog teams and the legalities surrounding public access and housing laws, this article will examine both working dog teams and business owners in North Carolina, so that both parties may know and fully understand their legal rights.
The Codes of Federal Regulation for the Americans with Disabilities Act (ADA) defines service dogs as: “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.”
Service dogs are trained to accompany their disabled handler. The ADA says: “An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. “
Service dogs and their handlers may commonly be introduced into situations where the legal rights of the dog are questioned. Most people assume that a dog is simply a pet. But service animals are more – they are an integral part of daily life, helping their owners carry out or cope with day-to-day tasks. As a result, once a dog is designated a service dog, it is no longer viewed as a pet, but rather is given the legal designation of medical equipment. To help clarify this, consider a person in a wheelchair. The wheelchair is an assistive device used to support and enable the user to successfully function within the normal regimen of their daily life. A service dog performs the same task for its handler.
Legal Rights of a Service Dog
Service dogs have a different set of legal rights then the average pet canine. Under the Fair Housing Act of 1988, service dogs have legal rights in “no pet” housing situations. Additionally, because service dogs are not legally pets, service dog handlers cannot be charged a pet fee or deposit. If the dog does damage to the property, however, the dog owner is still responsible for the cost of repairs.
Service animals are allowed public access laws. If you are familiar with Asheville, you will recognize that a large number of businesses are dog-friendly, offering water and even treats for four-legged patrons. Businesses that are dog-friendly must follow state and city health code regulations, meaning that pet dogs are not allowed in facilities that prepare or serve food, or businesses that have additional health code requirements, like tattoo or piercing shops. Unlike pets, service animals have Public Access Rights. They are legally allowed to accompany their handler into a business, whether or not that business has a pet-friendly designation.
When a service dog and its handler enter a business that is not pet-friendly, the business owner can legally ask two questions according to the ADA. These questions are:
Is this dog a service animal required because of a disability?
What work or task has the dog been trained to perform?
The business owner cannot ask for any kind of physical evidence that the dog is trained, as there currently is no governing body that defines or oversees service dog training. Questions about the handler’s disability cannot be asked, and medical documentation as a proof of disability is not required. Allergies and fear of canines are not valid reasons to deny access or refuse service to the handlers. Additionally, a service dog does not have to be marked as such, although handlers can use their discretion in outfitting their canine in a vest, cape, or other gear that clearly marks the dog as a service animal.
Business owners are legally allowed to deny access or remove a service dog from their establishment if the dog is not housebroken, or is out of control of the handler and the handler is not taking proper steps to control the dog. If the business owner requests the dog to be removed from the premises, reasonable accommodations must be made for the handler.
Public Access Rights deem that any breed of dog is accepted as a service animal and cannot be discriminated against based on breed alone. Even if a municipality has a ban that prohibits certain breeds of dogs, an exception must be made for a service dog unless that particular dog poses a direct threat based on that dog’s actual behavior or behavioral history. This cannot be based on breed, fears, or generalizations of how said dog might behave.
Service dogs must adhere to vaccination rules and city licensing regulations. 168-4.2 North Carolina General Statues: § 168-4.2. states: “Every person with a disability has the right to be accompanied by a service animal trained to assist the person with his or her specific disability in any of the places listed in G.S. 168-3, and has the right to keep the service animal on any premises the person leases, rents, or uses. The person qualifies for these rights upon the showing of a tag, issued by the Department of Health and Human Services, under G.S. 168-4.3, stamped “NORTH CAROLINA SERVICE ANIMAL PERMANENT REGISTRATION” and stamped with a registration number, or upon a showing that the animal is being trained or has been trained as a service animal. The service animal may accompany a person in any of the places listed in G.S. 168-3.”
In general terms, this statute states that service dogs must be registered with the Department of Health and Human Services, and are issued a tag designating the dog as a service animal. However, ADA laws trump state laws, except when state laws give the handler more rights. In this particular instance, ADA law trumps North Carolina state law; meaning that service dog handlers are not legally required to register their animal with the Department of Health and Human Services, nor are they required to wear or show any registration tag designating their dog as a service dog.
A therapy dog is a pet that provides affection and comfort to any number of people. The primary job of a therapy dog is to allow unfamiliar people to make physical contact with it. Therapy dogs are commonly encountered at hospitals, nursing facilities, schools, and after school programs. Facilities such as these generally require proof of training and certification with a verified therapy animal program such as Therapy Dogs International. Therapy dogs are also routinely required to pass a Canine Good Citizen test.
Legal Rights of a Therapy Dog
Unlike service dogs, therapy dogs have no additional legal rights outside of their designation as a pet. Therapy dogs must be invited into a facility to perform their service. Additionally, therapy dog handlers gain no public access rights with their canine companion. Businesses, hotels, airlines, housing, and other service providers deem therapy dogs as pets and treat them as such. Therapy dogs have no rights to the Fair Housing Act.
Other animals such as cats, horses, pigs, birds, rabbits, and a other myriad of domesticated animals can be used and recognized as a therapy animal provided they meet the requirements of the therapy animal certification program.
Emotional Support Dogs
An emotional support dog (also referred to as an ESD or ESA) provides therapeutic support to a person with a mental health related disability. ESD’s have limited additional legal rights of which their owners can take advantage.
Legal Rights of An Emotional Support Dog
Emotional support dogs are basically household pets, and as a result require no special training or certification, nor are they required to carry identification or wear vests. While all dogs provide love and emotional support to their owners, the designation of an animal as an ESA is only applicable to dogs that have been prescribed by a licensed medical professional. The mental health professional must document the client’s need for their ESD, typically done in the form of a letter. Certain mental health professionals may go so far as to write a prescription or script for their client’s ESA.
Like therapy animals, an emotional support dog has no legal public access rights, except within businesses that have a pet-friendly policy. Businesses, and hotels deem emotional support animals as pets and treat them as such. Unlike therapy dogs however, ESAs are supported under the Fair Housing Act, with proper documentation. This means that housing that typically has a no pets policy must provide reasonable accommodations for an emotional support animal and its handler.
As with service dogs, the Air Carrier Access Act allows that an emotional support dog may travel with its owner on an airplane, without additional fees. Emotional support animals as well as service animals are allowed cabin access.
Fake Service Animals
Unfortunately, people try to cheat the system and take advantage of public access right and fair housing laws by claiming that their pet is a service animal. Attempting to pass off a regular pet as a service animal is illegal. The North Carolina General Statute 168-4.5 addresses this issue:
It is unlawful to disguise an animal as a service animal or service animal in training. It is unlawful to deprive a person with a disability or a person training a service animal of any rights granted the person pursuant to G.S. 168?4.2 through G.S. 168?4.4, or of any rights or privileges granted the general public with respect to being accompanied by animals or to charge any fee for the use of the service animal. Violation of this section shall be a Class 3 misdemeanor. (1985, c. 514, s. 1; 1987, ch. 401, s. 3; 1993, c. 539, s. 1120; 1994, Ex. Sess., c. 24, s. 14(c); 2005?450, s. 1.)
Not only is falsely claiming to have a service animal a misdemeanor, but such an action is detrimental to legitimate service dogs and their handlers. Poorly educated business owners and patrons that are not aware of service animal rights are something that service animal teams encounter on a regular basis. Business owners that are not aware of ADA laws can make things unnecessarily difficult for service dog teams, and some business owners may be unknowingly violating ADA. This is why education on service dogs, and differentiation between service, therapy, and emotional support animals is of utmost importance.
Photo by Lisa Norwood | Flickr