Why does California allow Psychiatric Service Dogs into public places and not Emotional Support Animals?

This very issue has many California business owners and their employees “up in arms” as the rampant abuse continues to grow out of control.

Not only is it extremely dangerous for an untrained animal to be brought into a place of business by its owner … it is illegal!

The number one question I get asked over and over is “How can I determine if an animal is truly a service or psychiatric animal or just a pet with a fancy vest?”

First, let’s define what these types of animals are and when and where they are allowed.

California law allows persons with disabilities to bring trained service dogs and psychiatric service dogs, but not emotional support animals, to all public places.

Several different California laws set out the rights of people with disabilities who use animals to assist them.

These laws include the Unruh Civil Rights Act, the California Disabled Persons Act (CDPA), and the Fair Employment and Housing Act (FEHA). (Federal disability rights laws, such as the Americans with Disabilities Act (ADA), also protect the rights of people who use service dogs and emotional support animals.

Keep in mind that when federal and state law differ, whichever one provides a greater level of protection will generally apply.

So which California Laws Protect Assistance Animals and when?

Which California law applies depends on three factors:

• What kind of animal is it?

• How does the animal help the disabled individual?

• What is the setting or facility involved?

So let’s define the different types of Service animals!

First, a "service dog," under California law, is a dog trained to help a specific individual with a disability with services such as fetching dropped items, minimal protection work, rescue work, or pulling a wheelchair.

There are two important things to note about California's definition of service dogs.

First, it is limited to dogs with the exception of miniature horses! The ADA authorizes the use of miniature horses as service animals in some limited circumstances so California does as well.

Second, it is further limited to dogs that are “trained” to help individuals with their specific disability needs. So, no animal other than a dog can qualify as a service animal, even if that animal is trained to assist a person with a disability. This means that even a dog does not qualify as a “service dog” if it has not been individually trained to help its disabled owner in a way that is specifically related to her or his disability.

"Psychiatric" Service Dog!

California doesn't have a separate definition for "psychiatric service dog," but a dog that is individually trained to help a person with a mental disability with specific requirements is considered a service dog, and an individual that uses such a dog is entitled to the same rights under the law as someone with a physical disability that uses a service dog.

Examples of tasks that a service dog can be trained to perform for someone with a mental disability include:

• Waking their owner up at a specified time in the morning to take their medication

• Responding to an owner's panic attack by initiating contact to comfort the individual

• Alerting a person exercising poor judgment due to a mental disorder when they are acting in a dangerous manner.

Emotional Support Animal ...

An "emotional support animal" is a dog or other animal that is NOT trained to perform specific tasks directly related to an individual’s disability.

Instead, the animal's owner derives a sense of well-being, safety, or calm from the animal’s companionship and presence. Or the owner just merely wants to bring their pet everywhere they go. An emotional support animal does not need to be a dog at all. It can be a bird, snake or even a ferret!

The bottom line is that an emotional support animal is NOT allowed into places of public accommodation like a service animal.

These animals only have consideration when it comes to “housing” such as a rented or leased apartment, condo or house. This is an issue that an apartment manager must deal with when an existing resident or a new prospective resident is asking for the management company to be flexible with their “one or two” pet policy or to allow a type of animal that is not a dog or a cat to live with them in their unit.

That’s It!!! Period!

Other than in their own apartment or house, emotional support animals are NOT allowed into places of public accommodation!

California law guarantees disabled who use trained service dogs full and equal access to all public places.

So what Places Are Considered Public?In California, the service dog guarantees apply to an even broader range of public places than the ADA covers, including:

• Any place to which the general public is invited, including bars, restaurants, shops, hotels, theaters, salons, parks, and government buildings!

• Medical facilities, such as hospitals, clinics, dental and physicians' offices

• Any public transportation method such as airplanes, taxi’s, trains and light rail, buses, trollies, cruise ships, whether private, public, franchised, licensed, or contracted.

Public places must allow persons with disabilities to bring in their service dogs and, if necessary, they must modify their practices to accommodate the dogs. Public places must also allow an “authorized trainer” to bring in a service dog in training, even if the trainer doesn't have a disability.

So, can an owner or employee in a place of public accommodation require proof that an animal is truly a “service animal”?

A public place can ask only two questions to determine if that individual's dog is a service dog:

• Whether the dog is required because of a disability?

• What work is the dog is trained to perform?

What we cannot require is a person to "prove" their dog is a service dog. A service dog is not required to be registered, certified, or identified as a service dog.

However, in California, pretending to be an owner of a service dog is a criminal misdemeanor punishable by a fine of up to $1,000 and/or up to six months in jail.

There are restrictions for service animals in public or private zoos and wild animal parks though!

California has specific rules regarding the use of service dogs at zoos or wild animal parks. Such places are not required to allow service dogs in areas where animals are not separated from the public by a fence or gate such as the kiddie petting area. But a zoo or park that doesn't allow service dogs into such areas must provide free, clean, and safe kennel facilities for the service dog.

Under some circumstances, the facility must also provide certain additional accommodations — such as free transportation and sighted escorts —to blind or visually impaired patrons and to individuals who rely on their service dog for mobility.

So what types of disabilities qualifies a person to use a “Service Dog” or “Support Animal”?

California does offer a much greater level of protection than the federal law for persons with disabilities.

Here is why!

California’s definition of “disability" is more broadly defined than the ADA definition. Under the federal ADA, a physical or mental impairment qualifies as a disability only if it "substantially limits" a major life activity.

In California, a physical or mental impairment need only limit, not "substantially" limit a major life activity, which basically means that the impairment must make the achievement of the major life activity difficult.

In California, a mental disability includes any mental or psychological disorder or condition that “limits a major life activity”. Examples of a mental disability:

• Intellectual disability

• Clinical depression

• Bipolar disorder organic brain syndrome

• Emotional or mental illness

• Specific learning disabilities that limit any major life activity. A major life activity refers to physical, mental, and social activities and working.

California does not, however, consider compulsive gambling, kleptomania, or unlawful substance use disorders to be mental disabilities.

At least not yet!

Give it time, I am sure some of these will get included at some point.

The most frustrating aspect of these laws is that there is so much abuse and fraud taking place, and no real attempt to fine-tune these laws has taken place. The “truly disabled” service animal owners are put into dangerous situations on a daily basis and the public in general is put in harm’s way every time someone brings their untrained pit-bull or little fur ball into a coffee shop or theater.

To make matters worse, the business owner or their employee are often too afraid to confront the customer about their “pet” in fear of getting hit with a lawsuit.

If you have any questions or concerns related to this topic, please feel free to contact me directly. Thanks! Chris.