BARRISTER'S BRIEFING: A Refresher on Legal Protections of Service Animals

Leon Cameron, Esq. | October 2018

We all love our pets. However, service animals, as that term is defined in our state law, are not pets and are afforded certain legal protections above and beyond what pets receive. This article concerns the definition of service animals, where they are allowed, and the interplay between local, state and federal laws concerning this issue.

Under the Americans with Disabilities Act, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. The disability may be physical, psychiatric, sensory or mental. Only dogs are considered service animals under the ADA. Regardless if the dog has been licensed or certified by state or local law, they are service animals under federal law. There are various tasks that a service animal can perform including providing seizure assistance, alerting individuals to sounds or allergens, and pulling wheelchairs, just to name a few items.

Under both New York State law as well as the ADA, businesses and other facilities, which serve the public, may not discriminate against persons with disabilities. These locations include restaurants, hotels, retail stores, theatres, sports facilities and any other similar venues that hold themselves out to the public. Disabled persons are also protected when using public transportation including taxicabs and buses. Any person or entity that is found violating these laws can be assessed administrative penalties by the New York State Division of Human Rights. Likewise, they may also be assessed damages and penalties by a court of competent jurisdiction.

Local laws, which try to prohibit the presence of service animals (e.g. a local health ordinance prohibiting dogs on a particular premises), are preempted by the Americans with Disabilities Act. Businesses may only exclude service animals if the animal is out of control or not housebroken. Allergies or fear of dogs are not valid reasons to exclude a service animal. Businesses are not permitted to require documentation from the person requiring the use of a service animal.

The federal Fair Housing Act prohibits discrimination in the sale or rental of housing based on an individual’s disability and requires a housing provider to make “reasonable accommodations” that are necessary for an individual with a disability to fully use and enjoy the housing. This may include allowing those with a disability to have a service animal live with them, regardless of a “no pets” policy. Similar to the ADA, the federal Fair Housing Act protects persons with physical and mental disabilities, and requires that service animals be allowed in housing. However, the animal service rules that apply to service or other animals in housing differ from the rules that apply to public accommodations in a few ways. For instance:

• The definition of service animals under the Fair Housing Act is broader than that under the ADA. Animals that provide comfort or emotional support do not qualify as service animals under the ADA, but may qualify under the Fair Housing Act. This is not limited to dogs; any animals may qualify.

• The animal need not be specifically trained as a service animal if it provides physical or emotional support, lessens the effects of the person’s disability and is necessary for the person to be able to fully enjoy the housing.

• A housing provider may require an individual to provide documentation of their disability and their need for the animal (for example, letters from doctors or therapists describing the disability and explaining how the animal helps the individual).

With this information, Realtors can find themselves better prepared to serve landlord and tenant clients who may have questions or concerns regarding service animals. Remember, they are not pets, but nevertheless hold a special place in the law and in our society.

Editor’s Note: The foregoing article is for informational purposes only and does not confer an attorney/client relationship. For a legal opinion specific to your situation, please consult a private attorney.

Leon Cameron, Esq.
Leon Cameron, Esq., is Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.