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Bulletin Focus |
Animal Law
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Giving Pets and Service Animals Shelter from the Storm
By Gary C. Norman
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.
