Fryberger, Buchanan, Smith & Frederick, P.A.

Have you noticed an unusual animal in a place you hadn’t expected or seen before? There has been an increase in publicized stories revolving animals in places generally reserved for humans. A few accounts from the news:

Support turkey gets to fly: [1] “the passenger provided proper documentation proving that the fowl was indeed their emotional support animal, so Delta let the bird on board and even gave it its own seat.”

Kangaroo gets kicked out of McDonalds: [2] “[the kangaroo] is a therapy pet who accompanies her nearly everywhere – including her church, the movie theater, and regular visits to a McDonald’s…after a customer complained…police asked her to leave.”

Dog poop causes emergency landing: [3] “[passenger account] about an hour into the flight, I started smelling this terrible smell…I look up the aisle and there’s a dog [relieving himself] right in the middle of the aisle. It was a big dog, three or four feet tall and he was just going!”

Emotional support pig on a plane: [4] “[passenger account] the woman was carrying a big, brown pig, perhaps between 70 and 80 pounds…the pig began ‘dropping things’ in the aisle…when she tied him to the armrest to try to clean up after him, he began to howl.”

It’s important to distinguish between the three types of assistance animals – they are service animals, therapy animals and emotional support animals, and they are not treated equally under the law.

Service animals have the longest history in the United States, beginning with seeing-eye dogs or guide dogs, later expanding into hearing dogs, seizure alert dogs and other highly-trained support dogs. Service animals are a defined category, awarded protection under the Americans with Disabilities Act (the “ADA”). Service animals are not considered pets; they are almost always dogs, and in some cases miniature horses. (Note that Wisconsin’s definition includes “other animals” and is not limited to dogs and miniature horses as it is in Minnesota.[5]) Training for service animals is highly specialized and expensive. A service animal is classified as a deductible medical expense.

General provisions regarding service animals include:[6]

• Local governments, nonprofit organizations and all businesses that serve the general public or are open to the public (including restaurants, hotels, grocery stores, modes of public transportation, hospitals, parks, theaters and shopping malls) must allow service animals within all areas where the public is typically allowed.
• Businesses may ask if the animal is a service animal but may not: (i) ask about the disability or request documentation of the person’s disability; (ii) request documentation identifying the service animal as such; (iii) require the animal demonstrate it’s special service skills; or (iv) require the person use a different entrance or otherwise discriminate.
• A person with a disability cannot be asked to remove the service animal from the business premises except in situations where the animal is out of control or poses a direct threat to health or safety of others.
• People using service animals cannot be charged extra fees, isolated or treated differently.
• Service animals do not have to be restrained by leash or otherwise.
• Access and/or service cannot be denied due to allergies or fear by others; the business must attempt to accommodate the person with the service animal and the fearful or allergic persons.

 Therapy animals encompass a broad category, which category has no protection under federal or state laws. A therapy animal can be any type of animal used in a therapeutic situation. Dogs are commonly used for therapy purposes in nursing homes, hospitals, schools and in response to traumatic situations. Therapy animals can help people relax and feel comfortable enough to talk to the trained psychiatrist or behavioral specialist. While therapy animal training is available, it is not specialized or regulated in any way, nor is it required to classify an animal as a “therapy animal.” It is essentially advanced obedience training and adapting your animal to a wide-range of environments, smells and noises. Because therapy animals are not afforded special protections, businesses can allow or deny access as they wish.

 An Emotional Support Animal (“ESA”) is the most controversial category of assistance animals in recent years – and the subject of those outrageous headlines. Emotional support animals are afforded protections under the Fair Housing Act (the “FHA”) and the Air Carrier Access Act (the “ACAA”). Both the FHA and the ACAA prohibit discrimination against disabled persons. In the case of the ACAA, commercial airlines must accommodate passengers with disabilities. (Airports are also subject to the ADA.)

An ESA provides emotional support to a person suffering from a physical, psychiatric or intellectual disability. An emotional support animal does not require any specialized training. There is no federally regulated certification process or standardized identification for ESAs. An individual must only: (i) meet the federal definition of disabled; and (ii) have a note from a physician, or other “medical professional,” stating the individual has a disability and that the ESA provides a benefit for the individual. An ESA can be any type of animal – including snakes, chickens, mice, pigs, kangaroos – and can be your pet. Most pet owners probably rely upon their pets for emotional support, making just about any animal a potential ESA.

Under the FHA, reasonable accommodations must be considered for disabled persons, including determining whether the person has a physical or mental impairment that substantially limits the person’s activity and whether the animal provides emotional support that alleviates a symptom of the affected person.[7] The FHA (but not the ADA) allows a landlord to request reliable documentation of a disability (in the case where the disability is not readily apparent to the landlord) and documentation of the need for an ESA. This has produced a for-profit industry of online ESA prescription and letter providers, whose qualifications are questionable.  It is conceivable that an animal does not qualify as a service animal under the ADA can still qualify as an ESA under the FHA.

Similar to a service animal under the ADA, an individual with an ESA cannot be charged for transporting their animal on a plane, nor can they be charged a pet fee in a hotel or apartment.

For example, A has been diagnosed with depression and is disabled under the FHA. A’s physician prescribes Rex, a dog, to alleviate some symptoms. The landlord must allow A and Rex to live in the apartment, as a reasonable accommodation to A’s disability. The landlord may charge pet deposits to other tenants, but must waive the pet deposit for Rex because Rex is an ESA. It is the same result whether Rex is a pot-bellied pig or a chicken.

In conclusion, expect to continue to see controversial animals in public places until there is more guidance from the federal government regarding the licensing and registering of emotional support animals.

[1] Cutler, G. (2016, January 14). Passenger brings ‘support turkey’ on Delta flight. New York Post. Retrieved from http://www.nypost.com

[2] Grenoble, R. (2015, February 5). Woman Brings Kangaroo to McDonalds in Wisconsin, Gets Kicked Out. Huffington Post. Retrieved from http://www.huffingtonpost.com

[3] Odd News column. (2014, June 2). Dog poops on flight and forces emergency landing. Fox News. Retrieved from http://www.foxnews.com

[4] Grinberg, E. (2014, December 1). Airline: ‘Emotional support’ pig kicked off flight for being disruptive. CNN. Retrieved from http://www.cnn.com

[5] Wis. Stat. Sections 106.52(1)(fm) and 106.5o(2r)(bm)

[6] See https:/www.ada.gov/service_animals_2010.htm

[7] See U.S. Department of Housing and Urban Development, FHEO Notice: FHEO-2013-01, issued 2013, April 25.

Dehlia C. J. Seim is an attorney at Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of real estate and creditor remedies. This article is intended as an informational piece and should not be construed as legal advice. You should always seek independent legal counsel to know your rights and obligations.