“There is certainly an uptick in dogs out in public where you wouldn’t expect them to be,” said Meloy, who is blind and has had a guide dog for 22 years. “I walked into the bank and there was a lady there with her little dog and was causing my dog issues. I said, ‘excuse me what task is your dog trained to perform?’, because that is one of the questions you can ask. he said.
“The answer was ‘oh, she makes me feel better during the day.’ Well that’s not a task that a service animal does.”
According to the Americans with Disabilities Act, “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.”
Additionally, “dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.”
False representation
While receiving a doctor’s note pertaining to an emotional support dog may allow a person to have the animal in a residence, it does not carry over to public buildings, despite a “service animal” vest or harness that can be purchased online, according to Michigan State University College of Law professor David Favre, who specializes in animal law and creator and editor of the Animal Legal and Historical Web Center.
“Federal law doesn’t require you to have a vest. There’s no federal law requiring a marking. Everything on the internet is a fraud and people buy it. They think they can buy the status,” Favre said.
About 20 states have laws against “faking” or falsely representing a service animal in a public place. Ohio is not one of them. Michigan is. In Michigan, a person found guilty of the misdemeanor can be fined up to $500.
Favre said he is not aware of anyone who has been charged since the Michigan law was passed in 2016.
“The problem is real and not politically difficult to get a law through, because it is not Republican or Democrat. It is just sort of common sense. You shouldn’t be able to bring you dog out to public places unless you have got a service animal,” Favre said, adding only dogs can be service animals, “so if anybody tries to take anything else in, it is a clear violation.”
He said the law is a tool for those trying to “police” animals in public places, but education is more likely the key to stopping abuse.
“It can be a good message to people that we know what you are doing; it’s illegal to do it and they could be fined for it and it gives a tool to merchants to say, by the way, you know it is illegal to bring in an animal unless it is actually a service animal,” Favre said. “But there’s also confusion in the public because they don’t understand the difference between an emotional support animal and a service animal. So they think because they have gotten permission to have their dog in their apartment, they think they can take it anywhere with them because it is like a service animal and it is important to them — they are wrong, but it doesn’t stop them from doing it.”
He added for store operators it may be a matter having to put up with questionable animals rather than putting employees at risk and causing a scene.
“From the point of view of actual enforcement, if you run a grocery store, are you really going to call the cops on someone who comes in with a dog and start all that? File a report, fill out paperwork. It is easier to just deal with it and put up with it,” Favre said. “They don’t want to put their employees at risk getting into a fight with a dog in the middle of it. Confrontation is asking a lot of employees in a grocery store.”
A little dog in a shopping cart or pulling on a leash at a local big box store may not be a service animal, but that doesn’t mean they are going to bite someone, he said. So putting up with the abuse is usually the route these days, until something goes wrong.
The ADA does permit limited inquiries when it is not obvious what service an animal provides.
“Staff may ask two questions: 1. is the dog a service animal required because of a disability? and 2. what work or task has the dog been trained to perform? Staff cannot ask about the person’s disability, 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,” according to the guidelines stated on the ADA website.
Jenifer Moore, a Kroger spokesperson said, “Kroger follows federal ADA guidelines for service animals to ensure a safe and full, fresh and friendly shopping and workplace experience,” when asked about store policies and enforcement.
There have been incidents in which things do go awry with animals permitted in public places — one in the Butler County Government Services Center in Hamilton.
“We did have a guy bring a dog in claiming it was a service dog and it bit a child,” said Butler County Sheriff’s Office Deputy Chief Anthony Dwyer. “The deputy was able to effectively manage it, thankfully. When you get a dog that is not trained to be around people in an environment, that is dangerous.”
BCSO provides security for county public buildings, and deputies see people trying to push the envelope with a service dog status often.
“We have great compassion for people who go through the process and need those service animals and the dog that should legally be allowed to accompany somebody. The problem we have is there are people who try to circumvent or abuse the process and take their pet in because it is what they want to do,” Dwyer said. “Not only is it inappropriate, but it is also difficult to manage because you don’t want to question people who have a service animal in any great degree. There is no law in Ohio and you just try to go with administrative rules.”
Dwyer said deputies once watched a man try to pass off a large dog to get in a secure building with a harness purchased at a pet store and “service dog written on it with a Sharpie.”
“Some people are just obstinate and creating an issue, pushing the envelope and that is what is sad,” Dwyer said. “They feel the rules don’t apply to them and they will do what they want.”
Those people pushing the rules have caused hardships for people who have a service dog helping them daily. Dusty goes with Meloy to work daily whether in his Southwest Ohio office or courtrooms throughout the region and has traveled with him.
“As a service animal user, I think the whole emotional support animal thing has expanded because they are allowed to be in housing, I think people make the assumption that ‘I can take that emotional support animal in public with me’ and it’s just not the case. It has caused an undue burden on people who are actually using service animals,” Meloy said.
“The reaction to that has been places like airlines saying you have to jump through more hoops to travel with your service animal like having documents with things like vaccinations in advance.”
But Meloy agrees education, not criminal charges, are the answer.
“I don’t know, maybe it is the criminal defense attorney in me, but do I want someone to have a criminal offense for trying to sneak their in Chihuahua in the Walmart? Seems a little harsh. But I think education would solve a lot.”
There is education to be had on both sides of the issue.
“More agencies who know the questions they can ask, and deny access, that would be helpful,” Meloy said. “And people need to know because they have a doctor’s note of an emotional support animal doesn’t mean it is a service dog,” he said.
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