Maryland Bar Bulletin
Publications : Bar Bulletin : April 2007

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 Bar Bulletin Focus

Animal Law   

Giving Pets and Service Animals Shelter from the Storm

Reports indicate that pets were abandoned or not allowed into shelters, and that guide dogs were blatantly denied their guaranteed right to access during the brunt of Hurricane Katrina. President Bush has stated that his pet would be the one thing he would take if he is ever required to evacuate. To be sure, he consequently signed The Pet Evacuation & Transportation Standards Act on October 6, 2006. Section 2 of the Act provides that pets and service animals will be taken into account when approving standards for state and local emergency operational plans prior to, during and subsequent to an emergency. Section 3 of the Act allows the director of the Federal Emergency Management Agency (FEMA) to make “financial contributions” to pre-approved programs and projects by state and local authorities for emergency preparedness, including the construction of and/or the renovation of shelters so that they will be accommodating to pets and service animals. Section 4 of the Act allows FEMA to provide assistance for individuals with pets and service animals. The Act, however, fails to indicate the legal distinctions between pets and service animals.

Service animals particularly improve the daily quality of life of persons with disabilities by performing specialized tasks, such as guiding a visually-impaired person. The implementing regulation to Title 3 of the Americans with Disabilities Act of 1990 (ADA) specifies a Service animal as constituting, “any guide dog, signal dog, or other animal individually trained to do work or perform tasks….” Section 33 of the Maryland Annotated Code tracks this definition and states that it does not include “emotional support animals.” It is important to know that, while humans possess affinity to pets and service animals alike, the law recognizes them differently.

Title II of the ADA prohibits discrimination against qualified individuals with disabilities by public entities. To the extent that shelters are neither federal nor state public entities covered by Title II of the ADA and/or the Rehabilitation Act of 1973, then they most likely constitute places of public accommodation. Title III of the ADA prohibits discrimination, based on disability, to access and enjoyment to goods and services furnished by places of public accommodation. The implementing regulations specifically state that, “[A] public accommodation shall modify policies, practices, or procedures to permit the use of a service animal …” Although a large percentage of American households benefit from Fido’s salubrious companionship; this is not a valid reason to enact legislation that could dilute existing statues guaranteeing service animals’ access.

In a post-hock attempt to remedy the federal government’s failures in the hurricanes of 2005, the Act blurs the distinctions between pets and service animals. In so blurring these distinctions, the Act improperly diverts resources and attention from service animals. People have endeavored in recent years to have their supposed emotional support animals and pets admitted to places of public accommodation. Pets, no matter how emotionally supportive, or no matter to what degree to which affinity may be attached to them, are not, without more, service animals. The operative criteria reflected in the definition of a service animal are specialized training and the ability to perform mitigating tasks. Pets do not undergo the extensive breeding and training of guide dogs or other service animals. The estimated length of time and price to train and place a guide dog respectively ranges one-and-a-half years and costs $40,000 to $60,000. Since service animals perform critical roles for persons with disabilities, it is important that any additional efforts of the federal government to assure access to shelters are allocated to service animals because they are partnered based on immutable characteristics rather than by personal choice as is the circumstance with pets.

Despite the ADA having been in effect since 1990, there is a lack of enforcement that is required to evolve the American culture to the right of access by service animals. Public education about rights of persons with disabilities continues to be required. Governments, however, possess a limited font of resources. To the extent the Act provides for funding to enable shelters to be “pet friendly” or “service animal friendly”, this is of negative impact in that it diverts attention from federal agencies in the oversight of already federally protected civil rights access.

Pet owners’ demonstrated failure to properly control their companions argues against the prudence of permitting them into shelters, even when specifically constructed for animals. In 2001, people treated for non-fatal dog bites equaled 368,245. Non-fatal dog attacks have been shown to irreparably interfere with the post-attack abilities of a service animal. Service animals, unlike uncontrolled pets for which advance planning should be the responsibility of owners, have to be in and are already guaranteed access to shelters. As Charles De Montesquieu once wrote, “Unnecessary laws weaken the necessary ones.”

Gary C. Norman is licensed to practice law in Ohio and Maryland. Visually impaired, he works with a guide dog named Langer.

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Publications : Bar Bulletin: April  2007