When Can You Ask If a Service Dog is a “Service Dog”?
The Colorado Court of Appeals recently addressed when you can ask if a service dog is a “service dog.” As you might imagine, the question and answer are not so simple.
In Stalder v. Colorado Mesa University, the Colorado Court of Appeals was faced with a scenario where a student at Colorado Mesa University (“CMU”), a public university, tried to bring his dog into a gym at the school. His dog had a vest showing the words “therapy animal.” The student claimed at trial that he has post-traumatic stress disorder (PTSD), anxiety, and depression. An employee at the CMU gym asked the student about the dog, who told her that his dog was an emotional support animal.
The CMU employee noticed the dog was “clearly not trained as a true service dog would be. Wants petted [sic], wants to sniff everyone.” The employee asked the student what service his dog provided, and he responded that his dog was registered and offered to bring papers. CMU informed the student that his “Therapy Dog is not allowed in any campus buildings including the Mav Rec Center.” The next day, the student went to USAServiceDogRegistration.com and “registered” his dog as a service animal.
The student did not need to provide any supporting documents or prove that his dog was trained as a service animal to complete the registration. Through the website, the student paid $200 for a service animal certification and a service dog identification badge. At trial, the student’s expert, testified that these types of websites not regulated under the ADA and allow anyone to represent, truthfully or not, that their dog is a service animal.
The student brought his dog to the gym on a few occasions afterward, and the dog’s behavior was problematic. CMU expressed its concerns to the student that the dog was “not trained as a service animal” and told the student that he could not bring the dog on campus unless he provided documentation that the dog was a trained service animal and only if the student took the dog to an obedience class and provided documentation of the dog’s attendance. The student sued CMU for violation of the American with Disabilities Act (ADA) and Colorado Anti-Discrimination Act (CADA).
The key issue was whether CMU was permitted to engage in further appropriate inquiries about a service dog when it has “legitimate suspicions” about the dog being a service animal and when the additional inquiry is not being used to harass. The Court of Appeals held that the “legitimate suspicions doctrine does not apply and is inconsistent with the ADA regulations and reversed the trial court.
The Court noted that the ADA regulations provide generally that a public entity shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.
The ADA regulations provide that “[s]ervice animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
Under CADA, “[a] qualified individual with a disability has the right to be accompanied by a service animal individually trained for that individual” in any place of public accommodation, which includes educational institutions.”
The Court noted that courts around the country have held that a plaintiff must point to evidence of individual training to set a service animal apart from an ordinary pet. “This is not a taxing requirement, however, and there are no federally-mandated animal training standards.” There is no requirement as to the amount or type of training that a service animal must undergo, and there is no requirement as to the amount or type of work a service animal must provide for the benefit of the disabled person.
Who won? CMU won on the intentional infliction of emotional distress claim. The student “won” on the ADA and CADA appeal – which means it will go back to the trial court for further proceedings. CMU can also appeal to the Colorado Supreme Court — who might consider taking it, as its an issue of first impression — we’ll keep an eye out for that.
So, what does this mean for Colorado businesses, especially restaurants? Well, Colorado restaurants and bars are places of public accommodation, so the ADA and CADA applies to them. However, Colorado’s retail food regulations also apply, which prohibit non-service dogs from being inside food and drink establishments.
Under Colorado’s retail food regulations, non-service animals are not allowed inside food and drink establishments.
Thus, Colorado restaurants must walk a fine line, and must live by the ADA, CADA and the retail food regulations. Thus, the restaurant may only ask:
(1) Is the animal required because of a disability and (2) what task is the animal trained to perform?
Thereafter, the questioning must stop.
Now, what about dogs on patios in Colorado?
In 2019, the Colorado Department of Public Health and Environment issued a statewide variance request criteria to allow dogs that are not service animals in an outdoor patio area. If a restaurant follows certain criteria, which can be found here.
Contact our Colorado Restaurant lawyers – we are ready to assist with your individual and business needs. Having more than 45 years in civil litigation and business and commercial law experience, our Boulder restaurant attorneys stand ready to provide you and your business with the representation you need.
