Service Animals Bill: Could a Legal Decision Arrive in Florida as Soon as Tomorrow?

There are two bills which have been wending their way through the Florida House of Representatives which deal with what are defined as service animals; and one of those bills — which could mean that owners of dogs could face time in jail for passing off their pet as a service dog — received unanimous votes from both the House Government Operations Subcommittee and House Judiciary Committee and has one more hurdle in the House State Affairs Committee before it could become law on Wednesday, July 1, 2015.

Bill CS/HB 71 — which as of yesterday, Tuesday, March 24, 2015 at 3:13 in the afternoon was added to Special Order Calendar for tomorrow, March 26, 2015 — is worded as follows:

Requires public accommodation to permit use of service animal by individual with disability; provides conditions for public accommodation to exclude or remove service animal; revises penalties for certain persons or entities who interfere with use of service animal; provides penalty for knowing & willful misrepresentation with respect to use or training of service animal.

A similar bill pertaining to service animals — SB 414, which has not had the traction and momentum of CS/HB 71 — is worded as follows:

Requiring a public accommodation to permit use of a service animal by an individual with a disability under certain circumstances; prohibiting a public accommodation from inquiring about the nature or extent of an individual’s disability; providing conditions for a public accommodation to exclude or remove a service animal; revising penalties for certain persons or entities who interfere with use of a service animal in specified circumstances; providing a penalty for knowing and willful misrepresentation with respect to use or training of a service animal, etc.

If either of these bills became law, would it prevent people from claiming various animals — such as pigs, for example — as “emotional support” animals for their benefit?

It is important to reiterate that there are distinct differences between service animals and animals used to provide their owners “emotional support” — to which one anonymous person reportedly confessed that “‘emotional support’ dogs are B.S.” as confirmation to what many people seem to suspect. Those distinctions are listed below.

Service Animal

The official definition of a service animal — according to the Disability Rights Section of the Civil Rights Division of the Department of Justice of the United States pertaining to the Americans with Disabilities Act, or ADA — is as follows:

Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

This definition does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act or the broader definition of “service animal” under the Air Carrier Access Act.

Some State and local laws also define service animal more broadly than the ADA does. Information about such laws can be obtained from the State attorney general’s office.

Additionally, service animals must be harnessed, leashed, or tethered — unless these devices interfere with the intended work of the service animal or the disability of the individual prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

Unfortunately, only two questions may be asked by employees of an airline — or of any other company, for that matter:

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

 

When it is not obvious what service an animal provides, an employee of an airline or other company cannot do the following actions without violating federal law:

• Ask about the nature of the disability of the person
• Require medical documentation
• Require a special identification card or training documentation for the dog; or
• Ask that the dog demonstrate its ability to perform the work or task

 

…but the two permitted questions may be more than enough in some cases to have determined whether or not a dog is a legitimate service animal.

Even if a dog is considered a legitimate service animal, an employee of an airline or other company could still have it removed from the premises if the dog is considered:

1. Out of control and the handler does not take effective action to control it; or
2. Not housebroken

 

While not every bullet point found on the following list may apply to airlines, they do apply to such travel establishments as airport lounges and hotel properties:

• Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility — such as an airport lounge or a hotel lobby, for example — they both should be accommodated by assigning them to different locations within the room or different rooms in the facility, if it is at all possible.
• Establishments which sell or prepare food must allow service animals in public areas — even if state or local health codes prohibit animals on the premises.
• People with disabilities who use service animals cannot be isolated from other patrons; treated less favorably than other patrons; or charged fees that are not charged to other patrons without animals. Additionally, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.
• If a business — such as a hotel property — normally charges guests for damage that they cause, a customer with a disability may also be charged for damage caused by himself or his service animal.
• Staff are not required to provide care or food for a service animal.

 

Emotional Support Animal

An emotional support animal is a companion animal which provides therapeutic benefit to an individual designated with a disability — such as depression, bipolar disorder, panic attacks or anxiety as only a few of many examples. While only dogs — and, in a separate provision which need not be discussed here, miniature horses — can be officially designated as service animals, emotional support animals can also be cats and other animals as prescribed by a physician or other medical professional if the owner of the animal has a verifiable disability in accordance with federal law of the United States.

A commercial airline is permitted to require a passenger traveling with an emotional support animal provide written documentation that the animal is an emotional support animal — unlike for a service animal. A fee does not apply to service animals of passengers with disabilities — not even on airlines such as Spirit Airlines and Allegiant Air, which are known for their proliferation of ancillary fees. Here is a list of airlines with links to their official policies pertaining to animals:

• Air Canada
• Alaska Airlines
• Allegiant Air
• American Airlines
• Delta Air Lines
• Frontier Airlines
• Hawaiian Airlines
• JetBlue Airways
• Southwest Airlines
• Spirit Airlines
• Sun Country Airlines
• United Airlines

 

Emotional support animals are not subject to the same training requirements as service animals; nor are they required to be caged — meaning that the policies and requirements for the designation of emotional support animals are more lax than those for service animals. There have been reports of passengers who have not been officially diagnosed with a disability and have allegedly attempted to bring their animals aboard an airplane — falsely passing them off as emotional support animals.

Although that statement could be considered harsh, it is not that simple, as passengers who are officially diagnosed as disabled in some way or can provide proof that their animals were prescribed to them by a physician or other medical professional have a right to travel freely; and if they decide to travel, no one can discriminate against them.

In order to prevent discrimination by commercial airlines — based both within and outside of the United States — against passengers on the basis of physical or mental disability, the Air Carrier Access Act was passed by the Congress of the United States in 1986; and here are where complaints may be registered against an airline via the official Internet web site of the Aviation Consumer Protection and Enforcement division of the Department of Transportation of the United States…

…but despite the airlines specifically having their own rules pertaining to service animals, are passengers taking unfair advantage of the Air Carrier Access Act, as rules imposed by the federal government of the United States trump those by airlines? Are pet owners exploiting the service animal provisions of the Air Carrier Access Act so that they can take their animals to places which normally do not allow them? How can anyone tell whether a service animal is legitimate — especially when it is not wearing a vest or other form of identification? Could a dog be trained in detecting epilepsy seizures? If no epileptic seizure had been experienced by the passenger, could it appear as though the dog is not a real service animal?

The distinction becomes even more blurry when the animal is used for “emotional support.” Although a dog wears a vest which designates it as a service animal, it is anyone’s guess as to whether or not it is legitimate. You can purchase a service dog or emotional support animal kit for as little as $49.00 — cheaper than just about any airfare for the animal.

The controversy regarding emotional support animals aboard commercial aircraft was significant enough to be the subject of an article on November 15, 2013 written for The New York Times by Billy Witz.

There is another side to this conundrum, as illustrated by Sarah Steegar who — as a flight attendant — opined in this article pertaining to emotional support animals for the Crewed Talk weblog at FlyerTalk in response to this article authored by me:

Here’s where the airlines come in – and the reason my opinion on ESAs has evolved a bit over the years. I have developed a spot of empathy, too, for certain cases. For the last 12 years, a dear friend who lives far away has been wanting to spend a holiday with my family. She never has, all down to the problems of traveling with her sweet, quiet, tiny little Shih Tzu. The fees for his carry-on can be so high that the dog’s ticket turns out more than her own! On top of that, like many dogs, he doesn’t fly well and tranquilizers are not recommended. Even a friendly stroke inside his bag helps, but she’s had problems with crew members for doing that (as they are instructed). The dog is not allowed on Amtrak, nor on buses and she doesn’t own a car. All she wants is to not have to kennel her dog every time she travels, yet also not pay what feels like an extortionate fee for the honor of giving him a heart attack being disallowed to physically console him.

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I can’t help but recognize – that’s a legitimately frustrating net of policies for a well-behaved pet. So when a neighbor (who admitted to claiming her dog as an ESA for similar reasons) suggested it, I empathized with the temptation. Airlines can be a bit more flexible about your carry-on pet’s confinement if they want, and they do not have to charge so much for a breathing carry-on. It costs almost nothing for them to process a small animal in the cabin. It just comes off as greedy to charge $125 each way for a carry-on that happens to breathe. In this sense, I feel airlines deserve some of the blame for the explosion of ESA animals, too.

Are the airlines indeed to blame — or, at least, share in a significant part of the blame — for this controversy?

You would think that the airlines would use this as a golden opportunity to increase revenues by stricter enforcement of their policies pertaining to emotional support animals by charging — or increasing — fees while simultaneously cracking down on passengers who attempt to transport their pets free of charge under the false guise of designating them as service dogs or emotional support animals…

…within the law, of course. Admittedly, that is not as easy as it sounds, as mentioned earlier in this article.

Let me officially state for the record that I have never had a problem with service animals — directly or indirectly. They allow passengers with certain disabilities to be able to have better peace of mind with an improved experience while traveling; and I wholeheartedly support it. Let me also state that I rarely see animals in the cabins of the aircraft where human passengers are seated while I am traveling; in fact, the complaints I have read which were posted on FlyerTalk significantly outnumber the times I have actually seen an animal aboard an airplane during a flight.

The problem I have — when it is proven, of course; and despite the argument posed by Sarah Steegar — is when passengers deliberately attempt to flout the rules as though they do not apply to them and bring their pets aboard commercial aircraft under the false pretense that the animals are officially designated as service animals or for emotional support to their owners…

…or — even worse, in my opinion — that a service animal implies that its owner has a disability which may not even exist. What is the difference between “faking” a service animal and pretending to be disabled to secure a prized parking spot reserved only for people officially designated with a disability?

There are options:

• Check the animal as per the rules of the airline; although some passengers would be hesitant to do so after hearing about pets which die in the cargo hold
• Purchase a seat for the animal, if the airline allows it
• Leave the animal at home

 

Is the process to officially designate animals as service dogs or to provide comfort and emotional support for their owners too easy? Do commercial airlines and other travel entities such as lodging companies have a responsibility to enforce the rules and policies? Should there be clearer distinctions as to what is considered a legitimate emotional support animal without infringing upon the rights of animal owners?

It appears that members of the House of Representatives of the state of Florida are well on their way to pioneering a legal distinction between actual service animals and the nebulous definition of an “emotional support” animal of which pet owners who do not want to pay for the transportation of their beloved pets or confine them to the cargo hold can take advantage.

I personally would not have any issue with animals designated as “emotional support” animals — provided that there are stringent qualifications and legitimate certifications that necessitate and truly earn that designation — such as a diagnosis from a qualified doctor as part of the process, for example.

If the bill does pass and the law does take effect as of Wednesday, July 1, 2015, could it prompt other states and jurisdictions to pass similar laws? Could it also potentially prompt airlines to change their policies related to service animals versus “emotional support” animals — and if so, could they potentially violate the Air Carrier Access Act?

What are your thoughts?