As Florida begins to re-open its economy in wake of the COVID-19 pandemic, business owners are understandably going to be sensitive as to who and how many people to allow inside their place of business. This may lead to questions by both customer and business owner as to exactly which types of assistance animals are legally allowed to accompany their owners into stores, restaurants, hotels, and other privately owned buildings. The laws have not changed recently, and so this article is designed to remind people of the various laws in place and how they apply to the different levels of assistance animals.
According to the federal government and the State of Florida, there are three levels of assistance animals: (1) Service Animals; (2) Therapy Animals; and (3) Emotional Support Animals.
Service Animals enjoy the highest level of accommodation and protection. The federal Americans with Disabilities Act (“ADA”) and Florida law share some differences, but, in short, the ADA trumps the state law which tracks the ADA pretty closely. All business owners should be aware that the ADA defines a Service Animals as an animal trained to perform certain tasks or do work for a person with a disability. While Service Animals are traditionally identified by a special vest, this is not required by law. The protection under the ADA is so stringent that there are only two questions which a business can ask a guest: (1) Is that a service animal required because of a disability; and (2) what work or task has the animal been trained to perform. That’s it. Any other questions will likely result in a violation of the ADA, and it does not take a lawyer to tell you the consequences will be unpleasant. To provide an example of the level of protection afforded a Service Animal, a business may not even ask for paperwork, documentation, or anything related to the disability.
A Therapy Animal is different than a Service Animal and is not afforded such absolute protection. The vast majority of Therapy Animals are therapy dogs. A therapy dog is trained to provide affection and comfort to people in hospitals, retirement homes, nursing homes, schools, hospice, people with learning difficulties, and stressful situations, such as disaster areas. Therapy dogs are not owned by an individual, but by a handler. The laws pertaining to Therapy Animals are not well-defined, but is clear they do not share protection under the ADA.
Emotional Support Animals (“ESA”) have gained a great deal of popularity over the last five to ten years. Similar to Therapy Animals and Service Animals, most ESAs are dogs, but many are also cats, birds, and even horses. In order to qualify as an ESA, a licensed mental health professional must write the owner a letter. Because the letter must state that a diagnosis of mental illness has been made, a psychiatrist is typically the most-qualified professional to write a letter which includes all of the requirements necessary for an animal to qualify as an ESA under the law. ESAs are protected under the Fair Housing Act and the Air Carrier Access Act, both federally established laws. This means that the owner can fly on a commercial airline with an ESA, but more importantly, under the Fair Housing Act, as long as the owner provides the ESA letter to his or her landlord, HOA/COA, or housing manager, accommodations must be made. However, ESAs and their owners do not enjoy any protection under the ADA, and there are no Florida or federal laws which explicitly require business owners to allow sch animals to enter their place of business.
So what does all of this mean? How is a business owner able to distinguish between a Service Animal and an ESA? Is it even worth it to question any patron about their animal? From a practical standpoint, it is best to promote a welcoming atmosphere to all people who are interested in boosting the economy, and at the same time, expecting that animal owners practice responsible control over their assistance animals. Whether or not a business owner decides to take this approach, he or she should always be aware that no animal, even an ADA-protected Service Animal, is permitted to frequent a public establishment if it is not housebroken, behaves in a menacing way toward patrons, or causes a disturbance which would make patrons feel uncomfortable. At its very essence, the ADA’s treatment of Service Animals extends the same responsibilities of the animal to its owner. If a person was to cause a disturbance which would cause a business owner to have him or her removed from the premises, the same would apply to the Service Animal.