With the number of service animals on the rise, it is important for a retail owner to know its rights as to which animals can be lawfully excluded from a retail establishment. This is especially true, as improperly excluding protected service animals from a store can subject its owner to civil and criminal liability.
As an initial matter, there are two separate types of animals that may be at issue: “Service Animals,” which have been trained to perform a specific task for their owner (i.e. seeing eye dogs); and “Emotional Support Animals” (“ESAs”), which have not been trained to perform a specific task, but which merely provide emotional support for an owner that has been diagnosed with anxiety, Post Traumatic Stress Disorder (“PTSD”) or some other psychological condition.
Service Animals are covered under both the Americans with Disabilities Act (ADA) and applicable Illinois State laws, as set forth below, and may not be lawfully excluded from a retail establishment except in very rare circumstances. ESAs are not covered under the ADA or Illinois State law, and thus may be lawfully excluded. Further, the ADA and applicable Illinois laws only allow for dogs and miniature horses to qualify as “Service Animals” and thus any other type of animal (cats, etc.) may be lawfully excluded.
The Americans with Disabilities Act prohibits discrimination against people with disabilities by places of public accommodation, such as restaurants, hotels, retail stores, theaters, parks, concert halls and sports venues. These businesses must allow people with disabilities to bring their Service Animals onto the premises and into all areas where the public is generally allowed. Thus, for example, it would be inappropriate to exclude a Service Animal from areas such as restaurants and grocery stores where food is prepared, kept or served. However, it may be appropriate to exclude a service animal from certain medical units where the animal’s presence may compromise a sterile environment.
Under the ADA, a “Service Animal” means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button. “Service Animals” include “Psychiatric Service Dogs”, which is a dog that has been trained to perform tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and lessen their effects. Tasks performed by Psychiatric Service Animals may include reminding the handler to take medication, identifying signs of an oncoming anxiety attack, or keeping a disoriented owner from danger.
The ADA does not protect ESAs. Again, these are differentiated between Psychiatric Service Dogs, as ESAs have not been trained to perform a specific task, but are merely to comfort the owner.
Under the ADA, Service Animals must be harnessed, leashed, or tethered, unless these devices interfere with the Service Animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. If a Service Animal is out of control and the handler does not take effective action to control it, retail staff may request that the animal be removed from the premises.
Illinois State Law
The applicable Illinois laws are comparable to the ADA. In Illinois, service animals are governed by the Service Animal Access Act (720 ILCS 5/48-8) and White Cane Law (775 ILCS 30/4). These are state criminal laws that guarantee the right of a person with a disability to be accompanied by a service animal in public. Violation of the Service Animal Access Act is a Class C misdemeanor, while violation of the White Cane Law is a Class A misdemeanor. For the purposes of the Service Animal Access Act, “Service Animal” means a dog or miniature horse trained or being trained as a hearing animal, a guide animal, an assistance animal, a seizure alert animal, a mobility animal, a psychiatric service animal, an autism service animal, or an animal trained for any other physical, mental, or intellectual disability. Thus, just as with the ADA, an ESA may be excluded from a retail establishment, as it is not trained to perform a specific task, but a Service Animal may not be excluded.
Based on the above, Service Animals may not be prohibited from a retail establishment, except under rare circumstances and doing so may subject the store owner to criminal or civil penalties. Further, you may not place requirements on the Service Animal to enter the establishment, such as requiring the dog to wear a muzzle. Currently, there is no Federal or State law that prohibits ESAs from being excluded from a retail establishment.
So how do you determine the difference between a Service Animal and an ESA? In situations where it is not obvious that the dog is a service animal, staff may ask only two specific 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 are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person’s disability. If the person states that the dog is an ESA, and that the dog has not been trained to perform any specific task, the animal may be lawfully excluded the establishment.
By Ryan Greely