by Derek J. Dittmar, Lewis Brisbois
My life changed forever on the afternoon of November 10, 2014, when I met Howard. Howard, for those who haven’t had the pleasure, is a sweet-eyed black Labrador retriever with a giant head and a tail that can clear a coffee table with one mighty swipe. He is also my guide dog, and the reason I became a lawyer.
Working with a guide dog, as compared to using a white cane, feels like riding a motorcycle. The cane allows you to identify obstacles and safely navigate them. A guide dog skips the obstacles entirely, focusing instead on maintaining its straight line of travel. The feel of freedom is, however, met with challenges and obligations. Many business owners and members of the public do not understand the important job that guide dogs have and are unaware of the federal and state laws that protect service animals and their partners. Working as a guide dog handler is, more often than not, an exercise of advocacy, patience, and education. I undertook these exercises in college, and the ability to advocate for someone important to me pushed me to attend law school.
Unfortunately, guide dogs do not work forever, and it eventually comes time to retire them. Howard has seen me through nine years, two graduations, four countries, three legal jobs, and my wedding. He has seen me home through countless safe street crossings, public transportation trips, and unfamiliar areas. He has more than earned his rest and retirement. As he prepares to go to his new home at the beginning of the year, I have been reflecting, in part, on the network of federal and state laws that have protected our partnership.
While most people know that guide dogs are permitted in public places, the actual network of laws and interpretive guidance is more nuanced. As a defense attorney, I recognize that my clients want to be accommodating to dog-human teams while protecting themselves, and other patrons, from the risk of litigation or the dangers associated with fake service animals. It appears prudent, in other words, for a quick refresher on service animal law, particularly as it affects our clients.
First, we need to get the terminology right. Service animals are specifically defined under the ADA as dogs (or miniature horses) that are individually trained to do work or perform tasks for the benefit of an individual with a disability where the tasks are directly related to the individual’s disability. This definition is contrasted with an emotional support animal (ESA) that may benefit an individual, but (1) that individual does not have to be disabled as that term is defined in the ADA; and (2) the animal does not have to bely individual trained to do work to benefit that disability. This distinction is important because service animals are protected under the ADA and state law while ESAs only receive protection under housing law.
In order to determine whether an animal is a service animal, members of the public may only ask the handler two questions. First, they may ask if the service animal is required because of a disability. Note that they may not ask the nature of the disability. Second, they may ask what work or tasks the animal has been trained to perform. They may not ask the individual to demonstrate these tasks, nor may they ask for an identification card or certification. In fact, there is no such thing as a federal certification for service animals recognized under law. If the answer to these questions demonstrates that the animal is a service animal, then places of public accommodation (such as restaurants, stores, and attorneys’ offices) and governmental entities (such as jails, courthouses, and offices) must allow the service animal and its handler inside. I recognize the risk that unscrupulous persons may bluff their way through these questions in order to bring their pets inside animal-free zones. However, sticking to these questions will likely help our clients limit litigation risk, and they always have the right to ask that the human remove the service animal if it is out of control and the handler cannot or will not control it or the animal is not housebroken. Employers should also note that allowing a service animal as an modification to a no pets at work policy has been repeatedly recognized as a reasonable accommodation. Violations of the service animal portions of the ADA can result in governmental investigation and fine, as well as civil action where the plaintiff may be entitled to injunctive relief and an award of attorney’s fees. Unfortunately, drive-by ADA litigation has seen an exponential increase in the past six years, so this is a very real risk to any public-facing entity.
The above definitions and guidance come from the Americans with Disabilities Act and its interpretive guidance from the Department of Justice. In contrast, a recent amendment to the Air Carrier Access Act, arising out of several well-publicized incidents of fake service animals, allows airline personnel to identify proper service animals “by observation” and to require service animal teams to file paperwork 48 hours before their flight attesting to their service animal’s behavior. Failure to file this paperwork could result in the team being prevented from flying. While this change was brought in response to fake service animal teams, its actual impact has chilled the travel ability of many service animal teams.
In North Carolina, our general statutes provide more robust protection for service animal teams. First, N.C.G.S. § 168-4.2 protects both service animals and service animals in training. Second, N.C.G.S. § 168-4.5 makes it unlawful to falsely claim that a pet is a service animal, to prevent service animal teams from enjoying equal goods and services, or to charge a service animal fee. Finally, N.C.G.S. § 14-163.1 criminalizes the killing, hurting, or intentional distracting of service animals. While law enforcement personnel are often not aware of these laws, they do exist and violations can range from misdemeanor to low-level felony. These benefits work together to provide a robust set of protections for service animals in our state, and they are greatly appreciated.
Service animals change lives, but they are only able to do their jobs when people understand the ways in which the law protects, and limits, working animals. Howard and I benefitted from our understanding of these laws, and I hope that my brief reflection and overview will be of use to you and your clients.
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Derek Dittmar is an attorney in the Raleigh office of Lewis Brisbois Bisgaard & Smith. He focusses his practice on civil litigation, disability accessibility/accommodation, and administrative occupational licensing law. He can be contacted at derek.dittmar@lewisbrisbois.com or at (919) 459-6150.
Howard Dittmar began serving as a guide dog on November 10, 2014, and will officially retire on January 6, 2024. Howard was raised in the central valley region of California and trained at Guide Dogs for the Blind (“GDB,”) the second oldest dog guide training school in the United States. Each guide dog costs roughly $50,000.00 to breed, train, and support, and GDB provides its guide dogs, as well as post-graduation training and medical support, to its clients free of charge. Learn more at https://www.guidedogs.com/.
