The ADA and Service Animals

Service animals in your vacation rental

At some point you will probably be required to host a disabled person with a service animal. This can be a sensitive issue that causes emotional turmoil for handler or host. If you are a handler being told you “cannot have pets” in a particular home or are a host that does not allow pets, and believe a service animal is being misrepresented, read on.

A service animal has a very specific definition that has nothing to do with being a pet. The Handler of the animal, who is generally provided the service, has very specific requirements they must adhere to.  Just as you, a covered entity, must abide by specific regulations dictating what you can ask, when an SA can be excluded (or disallowed), and what you must provide.

The idea behind this blog was to answer the most common questions while providing information directly from federally regulated sources, which are cited at the end. It was written primarily for hosts that do not allow pets and for handlers that may not understand why the folks on the other side could be upset about hosting service animals.

Defining Service Animals

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Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities.  That is, a dog trained to DO WORK, work that is directly related to a disability. This makes that dog a piece of medical equipment, not a pet.  Title III of the ADA specifically excludes Emotional Support Animals and Therapy Dogs from being considered Service Animals. 

Title III, ADA section 36.104 reads:

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. 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, 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. 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.”

(https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#a104)

Some ESA owners are aware of this and instead will quote the definition provided by HUD under the Fair Housing Act which expands the definition to INCLUDE emotional support animals.  Generally, the FHA does not apply to you unless you allow longer stays which are generally considered longer than 29 days.

“An animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. An assistance animal is not a pet.” (https://www.hud.gov/program_offices/fair_housing_equal_opp/assistance_animals)

Yes, mini horses can be service animals as well but only as an exception. A dog is the only defined service animal under Title II and Title III of the 2010 ADA modification.

Why all the confusion?

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Okay, so are you talking to the owner of an ESA or an SA? To figure that out, ask the following two questions. (The ONLY legally allowed questions under the ADA to determine service dog status)

  1. Is the dog required as a service animal because of a disability?
  2. What work or task has the dog been trained to perform?

The owner of an SA is accustomed to this and will answer without difficulty.  Yes, it does XYZ.  Brace yourself, this is going to trigger some people…the reason SA owners struggle is because of ESA owners.  Anything can qualify as an ESA, even pigs and birds, but dogs are the common denominator. When a person has an ESA, it does make sense that they want to bring them along where-ever they go. The easiest way to do that is to lie. Sure, my dog is a service animal…and you can’t ask me much and could face legal trouble if I am NOT lying. You are now in a pickle.

When people lie, they tend to oversell the truth to solidify the lie.  The owner of an ESA may provide too much information as a result of this desire to “prove” legitimacy.  They may say “yes, it carries my stuff because I can’t and is licensed on the national registry”.  Except, there is no national, regional, county, state or local SA registry recognized by any government entity, period.  The ESA owner may give up information about training received without even being asked. They will often ensure their animal is wearing something identifying them as a service dog.  But again, there is no legal requirement for legit SAs to wear anything that identifies them as such.

Animal behavior is going to be the biggest tell, more on that in a bit.

Additional Information

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Those two questions above are the only two you can ask to determine status of the animal. That does NOT mean you can’t ask other questions. In fact, you can ask whatever else you want provided it does not refer to SA status or disability.  Does the dog have current vaccinations and a local license?  (To be given a “dog tag” most municipalities require vaccinations be up to date).  Is it house trained?  At any time will the dog be left alone?  Those answers should be yes, yes, and no.  Dog licensing at local levels is still a legal requirement as a dog owner.  All Service Animals must be house trained and because they must remain under the control of their owner/handler at all times, they cannot be left alone in your home for any reason for any length of time.

You may ask questions born from genuine interest “Okay, so you do in fact have a service dog…that is pretty cool. Did you train it or did you need to have someone else do it for you? What was that process like? How long has he/she been assisting you?” Etc etc etc. If you are genuine, a conversation isn’t that difficult. This conversation can happen during the initial inquiry if you present an opportunity for the guest to tell you. For more on that, read this.

Misrepresentation

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We have defined what a Service Animal is, but is misrepresentation really that big a problem? Yes. If you are have some extra time, this article by Adrienne Matei does a brilliant job discussing the main problem. Read the first five paragraphs about a man that knowingly misrepresented his dog as an SA for years, then jump down to the next section describing the apprehension of allowing legitimate service dogs because of all the fakes. The fakes have created a stigma.

It is such a significant problem that it is now AGAINST THE LAW in 32 states to misrepresent a dog as a service animal. These states in Alabama, Arizona, Arkansas, California, Colorado, Florida, Hawaii, Idaho, Iowa, Kansas, Maine, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, sort of in New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming (Table of State…). Some of the fines for doing it are so small, it is painful to read, but at least they have something on the books.

An SA is working at all times. It is highly inappropriate to touch or pet a legitimate service animal. If the owner/handler of such an animal invites you to touch, pet, or even implies that giving the dog attention is authorized, it is EXTREMELY LIKELY that you are interacting with an ESA or therapy dog.

Your responsibilities as host

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You don’t need to do anything special for the dog nor must you provide anything for it.  Care items such as a bed, kennel, or food, are the responsibility of the owner/handler. To make a good impression, even in a home that does not allow pets, amenities win favor. Having a few simple things to help make their stay easier will go a long way.  Of course, your only legal obligation is to allow the animal to stay, whether you were told it was coming or not.  You cannot charge a pet fee, a separate deposit, additional cleaning fees to remove normally expected hair, or any charge a typical pet owner may find themselves paying. 

Service Animals are an extension of the human being they are assisting and as such CAN perform their duties wherever and whenever they need to.  However, that does not mean the service animal is allowed on beds, couches, chairs, or any other furniture with the exception of actively doing work (it’s job).  In fact, if a service animal is the cause of any damage to your home, you can still charge for that damage.

Kickin’ ’em out

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You can exclude a service animal from entry or disallow a service animal post entry if the dog is not under the control, is being aggressive, or if it is not housebroken.  There exist zero other reasons to ask them to leave, including your own allergy to dogs. You cannot deny a dog based on breed.  Charging a deposit or pet fee because you were not told the dog was coming would be a violation of the ADA. You CAN try to assess whether it is a legitimate service animal by asking the questions above. A Service animal and/or it’s owner can still be held liable for any damages done by the dog or it’s owner. Let’s look at a few scenarios…this gets hairy, ooh you’ll see what I did there in a second.

  • Say a disabled person answered your questions and you determine that their dog is in fact an SA. The task it performs has nothing to do with getting on furniture and you do not normally allow other animals. The stay goes fine but you notice dog hair on your furniture including the upper back cushions of two different couches after checkout. The best course of action would be to ask the handler if the dog was performing work while on any furniture. This is a reasonable question and as such could incur an added cleaning fee depending on how it is answered.
  • An SA urinates on a rug, causing the necessity of professional cleaning. While it is possible the dog had an ‘accident’ you can charge for it anyway as SA must be housebroken and it is the duty of the handler to get them opportunities to do their business outside.
  • You happen to bump into your guest at a restaurant and notice that their SA is not with them. Rather than become intrusive, you gently ask “is your dog okay?” Perhaps they reply with “yes, we left her in the house, but she is kenneled”. You now have grounds to disallow the dog because an SA must remain with it’s owner at all times. However, you cannot “kick out” or end the stay of it’s owner. The ADA is very clear on this. If a service animal is disallowed for any reason, the owner/handler/disabled party must be offered the service you provide without the dog. Of course, generally, if a service animal becomes disallowed for any reason, the owner is going with it.

Special Note: In Arizona, the state has broadened the definition of service dogs to include those that are still in training.  In most other states, this is not the case.

Kicking a dog or a guest out of your home is a good way to get a negative review too, but negative reviews are not the end of the world either. If you DO receive a negative review, follow this guide.

Violations

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If you do determine that a service animal is not a service animal and live in a state where it is illegal to misrepresent a pet as such, you have legal recourse. The person doing the misrepresenting could be fined and you do NOT have to honor their stay. Of course, if you allow pets you could just ask that they pay the pet fee, etc.

If you are wrong, they will very likely at least attempt to bring some charges against you because it costs them nothing to do so. The ADA makes it surprisingly simple to begin this process which gets handed off to a U.S. Attorney. Yeah, think unlimited budget, resources, and droves of paralegals working for a seasoned U.S. Attorney looking to smash you to bits. If this happens, you have confirmation that you violated the rights of an ACTUAL service animal and/or it’s owner. You can do what countless others have done and make a deal, apologize publicly, and maybe pay a fine. You could reach some un-publicized settlement agreement, or you could fight and maybe even win if the law reads for your argument.

The point here is, if you DO decide to stand any ground against someone that is representing their dog as being an SA, you face the possibility that it is and you could end up paying…a lot. The maximum fine under the ADA is 75,000 dollars for a first incident and 150,000 for additional violations (Inflation Adjustment). So, be careful.

SUMMARY

Let’s review. A service dog does work specifically related to a disability. You can ask TWO questions to try and determine if the dog you are seeing IS a service dog or not. You can dig a little bit…carefully…into local dog licensing, house-training status, etc. Then, you can mimic ADA service animal rules within your own house rules. It may be prudent to reiterate SAs cannot be left alone, must be under control, housebroken, and owners can be cited for damage.

People can and WILL misrepresent Service Animals. Remember, ESA owners are determined to prove their dog belongs so they will often say far more than they need to, which may be a sign to exclude them. But, tread carefully because action can come easy when you have the power of the federal government on your side. You don’t have to do anything special beyond allowing the dog into your home. Treat them the same as you would an oxygen tank or wheelchair.

You CAN exclude them if you have valid reason. This will probably get you a negative review as a start. If you incorrectly determine a service animal to be an ESA and exclude/disallow them, or charge fees associated with being a pet, prepare for a legal battle. Fines can be very high. Behavior is the number one tell for determining ESA vs SA and house-training is solid ground on which to make a stand.

CITATIONS

ADA, 1990, as amended. https://www.ada.gov/pubs/adastatute08.htm, accessed June 2022
ADA, Title II. https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm, accessed June 2022
ADA, Title III. https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm, accessed July 2022
ADA, Inflation Adjustment Under Title III. https://www.ada.gov/civil_penalties_2014.htm, , accessed July 2022
HUD, FHA, Assistance Animals. https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf, , accessed June 2022
HUD, FHA, Reasonable Accommodations. https://www.hud.gov/program_offices/fair_housing_equal_opp/reasonable_accommodations_and_modifications, accessed July 2022
HUD, DOJ, Joint Statement. https://www.hud.gov/sites/documents/huddojstatement.pdf, , accessed July 2022
Table of State Animal Service Laws, https://www.animallaw.info/topic/table-state-assistance-animal-laws, accessed July 2022

2 thoughts on “The ADA and Service Animals

  1. Not all of this is correct please talk to an actual service dog handler before posting articles with blatant misinformation

    1. Unfortunately, talking to a service dog handler would result in their opinion and their interpretation of a set of regulations few have actually read. Citing the regulations as we have done here and extrapolating on those regs is the most accurate way to disseminate information.

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