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.
(See How the Americans with Disabilities Act has become the “Pit Bull Pushers Act”.)
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.
Sharon Yildiz says
If only this would work. I’m a former guide dog puppy instructor, and IMO, 95-98% of all dogs wearing “service dog” vests in the U.S. are fakes.
Dead giveaways the dog is a fake include:
!) Wearing a head halter, prong collar or no-pull harness.
2) Wearing “fashions” such as a skirt, lace ruffle, pink leash, hat, goggles, etc.
3) Wearing a service dog vest with no credentials on it of any kind other than the words “service dog,” especially when combined with the above.
4) A dog that is barking, lunging, pulling the owner around on leash, eliminating in inappropriate places.
5) Owner encouraging people to pet the dog, take photos with it, etc.
6) Dog is off-leash.
7) Dog being walked around by different people at different times or days. (For instance, at a sci-fi convention I go to, where a fake service pit bull is with a different person each day, all friends of the “pit rescue” owner. This same dog has been observed trying to bite passers-by, but is still allowed at the con).
I call out fake service dogs publicly and loudly whenever I see them. AT the very least, I want people to know that others are on to their scam.
The worst offenders are people who want to fly with their pets but don’t want to pay. I fly with my two small performing dogs, and they are ALWAYS flown the legal way. To do this, I:
* Buy a ticket for me and for my fiance, as each dog must be accompanied.
* Buy airline cabin crates for each dog.
* Take both dogs to the vet 7-30 days before the flight for a $118 health inspection and certificate of vaccination.
* Pay for the dogs’ flights, which is typically $120-200 per dog each way.
* Keep the dogs in their crates at all times while traveling through the airport and while on the plane. We do not have heads sticking out, or dogs on our laps. The sole exception is if we have a very long layover and ask permission to let the dogs sit on our laps in a seating area at the airport that is away from other flyers.
Do you know how many people actually follow these rules? I’ve been keeping count the last few flights, and there are typically 15-20 fake service dogs flying for free, with no crate, and walking through the airport…. for every dog that is properly crated and has a paid ticket to ride.
We performed in Orlando at the AKC National Dog Show last year, and I even saw bunches of dog show people at the hotel who compete in conformation/agility/obedience slap fake service dog capes on their dogs and set off for the airport in taxis as soon as the show finished.
Having strict laws where service dogs must pass standardized tests cannot come soon enough for me!
Where I work we have a large homeless population. En masse, they have found that the way to get their dogs into homeless shelters, soup kitchens, and all manner of public places and businesses is to slap a generic service dog vest or collar on them, or simply just verbally claim the animals are service dogs.
Where people who can barely feed their dogs or themselves are getting service dog vests and collars, your guess is as good as mine.