Whiskey for My Men, Beer for My (Service) Horse – A Business Owner’s Primer on Service Animals and the ADA

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May 10, 2017
SmithAmundsen Commercial Litigation Alert

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A guy and his horse walk into a bar…

This could be the start of a funny joke, or the beginning of an American with Disabilities Act (ADA) complaint that can cost your business thousands of dollars in defense costs and damages. People have attempted to bring rather exotic animals into businesses, claiming it was a service animal protected by the ADA. A Missouri man brought a snake to a restaurant, telling workers it was his service animal. As customers complained, management refused to tell the man to remove the snake for fear of violating the ADA. So what should you do when a customer comes into your business with a “service” snake, monkey, ferret, or horse?    

Under the ADA, privately owned businesses that serve the public, such as restaurants, bars, retail stores, hotels, theaters and sporting facilities, are required to allow individuals with disabilities to bring their service animals onto the premises in whatever areas customers are generally allowed. The ADA defines a service animal as a dog individually trained to do work or perform a task for the benefit of an individual with a disability. The ADA also allows for miniature horses as service animals. Yes – miniature horses! Who knew? But these are the only two types of animals that are allowed under the ADA. 

Service animals can perform any number of tasks, include pulling wheelchairs, carrying items, assisting with balance, and alerting their owners of impending seizures or attacks. Emotional support or comfort animals whose sole function is to provide comfort or similar benefits to individuals with disabilities are not considered service animals. The dog must be trained to perform a task to benefit the person with a mental or physical disability.

A business cannot apply its “no pets” policy to refuse a service animal. A service animal is not a pet. The animal does not need to have a collar, tag, vest, card, or any other documentation of its training. A business owner may only ask 1) if the person has a disability and 2) what task the animal performs. That is it. Nothing more. Period. And no questions if the disability and task are obvious. For example, do not question someone who is blind about his or her need for a seeing-eye dog.  

The ADA takes priority over any local health or safety law that may seem to prohibit dogs in certain businesses. A business owner who refuses to allow a disabled patron to bring his or her service dog onto the premises on a good faith belief that the owner is complying with local health or safety laws will still be in violation of the ADA. Some states, including Missouri, also require businesses to allow trainers from recognized training centers to enter the premises when they are engaged in the act of training a service dog.

What if the dog causes damage? A business owner can charge a disabled patron for damage caused by the service animal only if it is the business owner’s regular practice to charge non-disabled customers for similar damage. For example, if a service dog knocks over and breaks a glass display shelf, the business owner could charge the dog’s owner for the cost of the damage, but only if it is business policy to charge non-disabled patron’s for similar accidents.

The animal should be harnessed, leashed, or tethered, unless these devices interfere with the animal’s work or the individual’s disability. The owner must still maintain control of the animal at all times. A business owner can exclude a service animal if it poses a direct threat to the health or safety of others. However, this determination must be made on actual, objective, individual evidence. That means that a shop owner’s subjective fear of dogs, speculation about allergies, or a blanket breed ban is insufficient. The individual dog must be assessed for its own behavior.  If it lunges, growls, nips, or otherwise is out of control, it may properly be excluded. If a service dog must be excluded, the individual should be invited to enjoy the goods and services without having the animal on the premises.   

So if a guy and his miniature horse walk into your bar, you know what to do.