Where the hot air comes sweeping up the plain
OKLAHOMA CITY, Oklahoma–– A new Oklahoma state law takes a new approach to trying to curb widespread misuse of “service dog” claims and paraphernalia, but will probably fail the first time a conviction is appealed to a federal court.
Oklahoma HB 3282 addresses people who use bogus “service dog” claims and credentials to take dogs into public places where dogs are not otherwise allowed, keep dogs in “no pets” housing, take their dogs in air travel for free, or evade local prohibitions on pit bulls.
Not due to take effect until November 1, 2019, Oklahoma HB 3282 is therefore not likely to be challenged in court before then, and can be claimed by the sponsors as a legislative achievement during the fall 2018 election campaign, even if it fails immediately after the voting on November 6, 2018.
20 other states have tried
The intent of Oklahoma HB 3282 is not unique, but the reach of the new law is.
“Twenty-one states have in recent months mounted a major crackdown down on people who falsely claim their pets as service and support animals,” reported Adam Edelman of NBC News on May 5, 2018, four days after Oklahoma Governor Mary Fallin, a Republican, signed HB 3282 into law.
In April 2018, Edelman recounted, “Minnesota Governor Mark Dayton, a Democrat, signed into law a bill making it illegal for people to misrepresent their pets as service animals, under which pet-loving perps are subject to a $100 fine and a misdemeanor charge. Arizona Governor Doug Ducey, a Republican, signed a nearly identical bill, under which those who “fraudulently misrepresent” service animals can be fined $250.”
Penalties imposed for a crime seldom proven
The new Minnesota and Arizona laws, however, like the 18 laws adopted earlier in other states, have in common that they only impose criminal penalties on misrepresenting a pet as a “service” animal.
This requires that the misrepresentation must first be identified, no easy matter, since the federal Americans With Disabilities Act does not include standards that dogs must verifiably meet to claim the privileges allowed to “service” animals.
Instead, the Americans With Disabilities Act allows business or rental housing personnel to ask only two questions of anyone who claims to have a service dog: “Is the dog required because of a disability?” and “What work or task has the dog been trained to do?”
Businesses and housing providers are not allowed to ask people claiming to have a service dog for any documentation of their claims.
Fines for asking questions
Even if the claims are unconvincing, asking further questions of a person who can establish in court the right to have a service dog is a violation of the Americans with Disabilities Act.
The fines for alleged Americans with Disabilities Act violations are $55,000 for the first offense and $100,000 for each additional offense. Falsely accusing a valid service dog can also enable the dog owner to sue the business or rental housing provider for damages.
The potential penalties are so severe that many businesses and rental housing provides have given up trying to exclude bogus “service dog” claimants entirely. This has contributed to attacks by 22 dogs falsely represented as “service” animals causing at least four human deaths and 16 disfigurements since 2011. Fourteen of the dogs were pit bulls, three were Rottweilers, two were German shepherds, and three were dogs of undisclosed breed.
Falsely represented “service dogs” have also inflicted hundreds of bites of less severity on humans; have killed or injured hundreds of other dogs, including actual service dogs; and have been involved in thousands of other incidents such as defecating in airline terminals, public transportation, restaurants, and supermarkets.
Delta Airlines, beginning in November 2017, and Alaska and United Airlines beginning in early 2018, have sought to reduce misrepresentation of dogs as “service” animals by requiring 48 hours advance notice that a “service” animal will accompany a passenger.
But, from fear of running afoul of the Americans With Disabilities Act and the Air Carrier Access Act, which requires airlines to transport “emotional support” animals at no charge, the airlines stop short of actually trying to distinguish legitimate “service” dogs from others.
“Removes liability from the landlord”
Oklahoma HB 3282, introduced by Republican state representative Chris Kannady and Democratic state senator Kim David, tries to help landlords work their way around the Americans With Disabilities Act, and also some relevant provisions of the federal Fair Housing Act.
Deanna Fields, executive director of the Manufactured Housing Association of Oklahoma, told Richard Mize, real estate editor for The Oklahoman, that HB 3282 “will have no bearing on the broad language of the ADA/Fair Housing Act.”
Said Fields, “It basically addresses bogus certification and removes liability from the landlord and can penalize the tenant for falsifying their ‘pet’ as a service animal. Enforcement is through the legal system.”
Further, Fields told Mize, “It’s the insurance companies that prohibit breeds that are classified as ‘dangerous’ breeds, i.e. pit bulls, if the landlord wants liability insurance for his property. So to remove the liability for the service animal is a relief for the insurance companies.”
What the law says
HB 3282 provides that, “Unless the person making the request [to keep a ‘service’ dog] has a disability or disability-related need for an assistance animal that is readily apparent, the landlord may request reliable supporting documentation that (1) is necessary to verify that the person meets the definition [of a person needing a ‘service’ dog] pursuant to the Fair Housing Act, (2) describes the needed accommodation, and (3) shows the relationship between the person’s disability and the need for the requested accommodation.”
Further, HB 3282 says, “The landlord may independently verify the authenticity of any supporting documentation. Supporting documentation that was acquired through purchase or exchange of funds for goods and services shall be presumed to be fraudulent supporting documentation.”
Continuing, HB 3282 stipulates that “A landlord shall not be liable for injuries by a person’s assistance animal permitted on the landlord’s property as a reasonable accommodation to assist the person with a disability.”
Feds did it; feds have to fix it
The latter is the only part of HB 3282 that is likely to withstand a challenge in federal court.
Explained Dog Bite Law attorney, blogger, and video maker Kenneth Phillips to ANIMALS 24-7, “The federal government created the service animal mess and must straighten it out before more Americans are hurt by it. Oklahoma has to put pressure on Congress, because as well intentioned as they are when it comes to this issue, they cannot take matters into their own hands. No state can enforce laws that weaken federal laws, so I fear that the only enforceable aspect of this new law will be the break it gives to landlords faced with a civil claim after a dog attack –– and that is something which would be wrong because it would hurt dog bite victims.”
As well as over-reaching state jurisdiction in trying to over-ride the restrictions imposed by the Americans With Disabilities Act, HB 3282 might be held to be “overbroad” because, in effect, it excludes recognition of “service” dogs trained and certified by individuals, companies, and even nonprofit organizations who receive compensation for their work.
As written, HB 3282 appears to accept only “service dogs” who are trained and provided entirely pro bono.