Service, Emotional Support Animal Regs


by Terry Rogers

In September, many Delaware residents were surprised to learn that dogs were not permitted in restaurants in the state, even on outdoor patios, due to Division of Public Health regulations. The rule had been on the books for over 10 years but was rarely enforced and only came to light when the division posted on social media after an article naming “dog-friendly restaurants’ in the First State. This has led State Representative Pete Schwartzkopf to propose legislation to allow dogs in outdoor areas on a leash if it is permitted by the owner.

“I was just as surprised as they to hear that this long-standing rule existed but had not been enforced,” Representative Schwarzkopf said. “I brought my dog with me to restaurants often over the years and were never told of this policy. If this regulation is not being enforced, it is time to get rid of it. It does not mean a restaurant must allow dogs on their outdoor decks and patios but that they will be permitted to do so if they choose.”

There is a significant amount of confusion about animals in public places. With the ability of many people to have their animals declared service animals simply by filling out a form online, it is much more difficult for business owners to know when they can allow an animal and when they cannot. Recently, a local business came under fire on social media when they denied access to their business to a service dog. They have since issued a lengthy apology which stated they were unaware of the regulations. Although many on social media scoffed at the explanation, believing the laws should have been clear, the fact is that the law can be difficult to understand.

According to the Americans with Disabilities Act (ADA), only dogs are recognized as service animals and the dog must be individually trained to do work or perform tasks for someone with a disability. Examples of tasks a dog may perform include guiding someone who is blind, alerting someone that they are about to have a seizure or calming someone with PTSD. A service animal must be permitted in all areas where people with disabilities are allowed to go, including hospitals, restaurants, offices or churches. The dog must be harnessed, leashed or tethered unless the person’s disability prevents them from using such devices. The dog must remain under control at all times.

When it is not clear what service an animal provides, businesses are limited to what they can ask of the owner. Basically, they can ask only two things – is the dog required because of disability and what task has the dog been trained to perform. The business cannot ask what the person’s disability is, require medical documentation or ask to see any special identification regarding the dog. They also cannot ask that the dog demonstrate the task.

When the Division of Public Health announced their regulation, many people who agreed with the ruling claimed that allergies were one reason to keep dogs out of public places. When it comes to service dogs, allergies as well as fear of dogs cannot be used to deny access to a service animal. If another customer claims an allergy to the dog, the business must accommodate both, usually by placing the two patrons in different areas of the restaurant.

An emotional support animal is not covered by the same rules as a service animal. A dog or other animal that is used to simply provide comfort is not trained to do a specific job or task and do not have the same protections under the ADA. There are some exceptions, however. If someone has severe anxiety has a dog that is trained to help avoid the attack or lessen the impact, they qualify as a service dog. If the dog’s mere presence provides comfort, the animal is not covered under the ADA.

When it comes to housing, however, there are some ADA rules that protect emotional support animals. The Fair Housing Act states that reasonable accommodations must be provided for all types of assistance animals if the property in question receives federal funding. This includes private residences or condominiums as long as they accept Section 8 applicants as tenants. Emotional support animals may also travel in the cabin of an aircraft, according to Department of Transportation regulations. However, an airline is permitted to request documentation from a psychiatrist or physician that states the animal must remain in the presence of the owner while traveling.

The new law in Delaware that will allow dogs in outside areas of restaurants will be introduced in the House of Representatives in January 2020 when the legislators return to session.

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