December 18, 2017
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Misuse, misunderstanding of service dog law create troublesome gray area

By Abigail Curtis, BDN Staff
Updated:

BELFAST, Maine — Judi Bayly’s service dog, Kira, goes everywhere her owner goes. She has to — the calm Irish setter is crucial to the well-being and freedom of Bayly, who has multiple sclerosis and diabetes.

Kira has been on Caribbean cruises, shopping trips to WalMart, to lunches out at restaurants, to appointments at medical offices and many other places. She is trained to pay attention to small signs that indicate Bayly’s blood sugar levels are going out of control, and also to nudge open doors and help her owner navigate tricky, small spaces, including public restrooms.

“Without having Kira to get around, I don’t,” said Bayly, who is living in Hampden right now. “I would just have to stay home.”

That’s why Bayly, 62, gets her hackles up when she hears of people abusing the Americans with Disabilities Act, the law that allows trained service dogs to accompany disabled people in all areas members of the public can go.

“To be in a store or a business where somebody brings a pet dog that has not been trained for public access, it causes a disruption for the working dog,” she said. “I have literally had a dog jump out of a shopping cart, run five aisles over and bite my dog. My dog got bitten by a fake service dog.”

Bayly and other disability rights advocates would like more people to better understand the law, which makes it a federal crime to both use a fake service animal and to discriminate against a disabled person who is using a real one. More information would help smooth relationships between disabled people and business owners, according to Kathy Hecht of Searsport, a University of Maine at Machias instructor who teaches service dog training and uses a service dog herself.

“As somebody using a service dog, you do have rights protected under the law, but you also have huge responsibilities,” Hecht said. “A lot of people say, ‘I have a disability and therefore you have to put up with my dog.’ But nobody has to put up with a dog that is causing problems.”

Under the law, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities, including guiding people who are blind, alerting those who cannot hear, calming a person with post traumatic stress disorder during an anxiety attack, and much more. Some service animals are licensed or certified and have identification papers that prove it. Others are not, but still meet the law’s definition of service animal. All trained service dogs must be allowed in public spaces.

However, the law also specifies that the animals must be both under the handler’s control and housebroken.

“If the dog is misbehaving, businesses do have the right to ask the person to remove the animal,” Hecht said. “Even if you have a legitimately trained service dog, if that dog growls at people, or if that dog has an accident in the building — I have seen badly trained service dogs lift their legs and pee on merchandise — if the dog does damage, the person who owns that dog is liable for the damage.”

In 2011, the language of the Americans with Disabilities Act was tightened to exclude emotional support animals and other animals from the law’s protection. Now, other than dogs, only trained miniature horses are allowed to assist the disabled in public places in some instances. But still, it is easy to purchase service-animal wear online and put it on a pet. Claiming a dog as a service animal also means that a person does not have to pay the annual licensing fee, and could get their pet into airplane cabins or other places animals are not usually allowed to go.

Misuse of the law — whether by those who fraudulently claim to have trained service dogs or by business owners or employees who do not freely allow access to service dogs — has led to court cases, both in Maine and nationally. Misuse and misunderstanding of the Americans with Disabilities Act also has seemed to create a troublesome gray area, in which many people are not certain what they are legally allowed to say or do when it comes to service dogs — or fake service dogs — being allowed in public places.

Split decision

Even members of the Maine Human Rights Commission, who are charged with enforcing the law, were at odds earlier this month over its interpretation and intent.

On Nov. 17, the commission ruled 3-2 against a Steuben man who claimed his rights were violated when the manager of Helen’s Restaurant in Machias asked him to prove that his pit bull Sneg was truly a trained service animal. The manager told the Human Rights Commission investigator that the dog had growled menacingly at one of the restaurant’s employees in the past.

According to the Americans with Disabilities Act, the only questions that can be asked of a person who comes to a public place with a service animal are whether the animal is required because of a disability, and what work or task the animal has been trained to perform. Staff members are not allowed to ask about the person’s disability, require medical documentation or require a special identification card for the dog.

Because the manager admitted asking for Sneg’s service animal documentation, two of the commissioners found that Kenneth Stanhope, the disabled man who owns him, was in fact the victim of discrimination.

“It’s the law,” Commissioner Sallie Chandler said at the hearing.

But the majority of commissioners said they had serious concerns about the underlying policy of the law. They felt that concern about Stanhope’s dogs was widely known in Machias, and that the behavior of the restaurant’s manager made sense in that context. Chairman Arnold Clark said he believes the prohibition on asking other questions is too restrictive and might not be allowed under the First Amendment, if challenged in court.

It is too soon to tell if the commission’s decision about Sneg will have lasting repercussions, but it certainly led to conversations around the state — some happy and others heated.

Greg Dugal, CEO of the jointly run Maine Innkeepers and Maine Restaurant associations, said last week that the decision had the ring of common sense.

“The problem with some of these laws is that it’s not about fairness and looking at the whole perspective,” he said. “It’s about nailing someone for making a mistake, a small mistake.”

Hecht, who has trained service dogs and their owners for 30 years, also said she found the decision to be “very appropriate.”

“The fact that Helen’s asked for documentation was wrong, but the reason they asked was because of the dog’s behavior,” she said. “I’ve been in restaurants all over the state [with dogs]. When you go in and say this is a service dog, and explain a little bit about the law, most of the time they’re very appreciative and glad to have the knowledge.”

But Stanhope had a very different reaction to the decision. The 55-year-old said he suffers from mental and physical disabilities, including post traumatic stress disorder, a traumatic brain injury, hearing loss and balance problems, and relies on pit bulls Sneg and Beam to help him function every day.

“People either love my dogs or they hate my dogs, no in between,” Stanhope said through tears. “It’s not about anybody getting hurt or injured, because nobody has been … as far as them being dangerous dogs, there’s no way they are. They’ve been in service with me since they were puppies.”

He said he couldn’t afford to go to Augusta to give his side of the story to the Maine Human Rights Commission, or to pay an attorney to represent him. Stanhope does not think the commissioners’ decision was fair, and has felt targeted over the years by many people in Washington County who he believes are simply afraid of pit pulls. He said he had taken service animal training courses with his dogs.

“Me and my dogs have not done anything wrong,” he said.

However, a Machias District Court judge in September signed an order mandating Stanhope to keep Sneg and Beam securely muzzled when in an outdoor or indoor public place. The order cited an episode in July when the dogs attacked a leashed black Lab, causing puncture wounds that required veterinary treatment. After that, the Machias animal control officer issued a dangerous-dog order requiring Stanhope to keep his dogs muzzled and confined to his residence, which at that time was his car.

Abuse of, and continued need for, the ADA law

Asking the public to accept Stanhope’s pit bulls as trained service dogs might sound like a stretch. But before the ADA language was changed in 2011, Dugal said he had heard of much more unusual creatures being brought forward by hotel guests or restaurant patrons as protected emotional support animals.

“Pretty much you had to accept everybody then,” Dugal said of the pre-2011 days. “You couldn’t take the chance. I was having people from hotels call me about monkeys, snakes, goats, ferrets, cats. People would want to have their animal with them, and they would make this up.”

The change in language has provided some clarity for Maine hoteliers and restaurateurs, he said, adding that he still gets a lot of calls from worried hotel managers.

“They say, ‘People are here and they claim they have a service animal, but the dog is barking and chasing my staff,’” he recounted. “I tell them service animals don’t do that. You can ask the dog to leave. You can’t claim discrimination if you truly don’t have a service animal, and service animals don’t do that.”

Some in Maine may wonder why service dogs are not required to be certified at the state or federal level.

Kristin Aiello, the managing attorney at the Disability Rights Center, Maine’s federally funded protection and advocacy agency for people with disabilities, said the Americans with Disabilities Act is designed to protect both privacy and public safety. She said the law strikes a balance by allowing business owners and employees to make limited inquiries regarding the dog, while not requiring a disabled person to carry documentation or certification papers with them at all times.

Making them carry documents “would be a barrier to equal access to the community,” she said.

While there have been instances when people try to circumvent the law by claiming their family pets are service animals, no one is more outraged about it than people with disabilities who rely on their trained dogs for independence and autonomy, she said.

“Fraudulent acts, such as putting a service animal vest on a pet, are inexcusable and threaten the rights of those who have a legitimate need for a service dog,” she said. “Despite the fact that the ADA passed almost 25 years ago, we still receive complaints from Maine citizens whose perfectly trained, well-behaved service dogs have been barred from restaurants and hotels.”

But Hecht said she can see a future in which the state has more oversight over service animal certification, especially in cases when dog owners train their own service dogs.

“I can see the state saying, OK, you have to pass a written test showing that you really understand your legal rights and responsibilities,” she said.

BDN writer Mario Moretto contributed to this report.


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