Col. Johnny

Hope everyone had a happy Memorial Day weekend. I have mentioned from time to time that I use a service dog in the house. But what does he look like? The above picture is the answer. Say hello to Col. Johnny, a four-year-old miniature poodle.

Today’s blog entry is about animals. I thought it would be interesting to look at recent Oklahoma legislation and then, explore a recent enforcement guidance from the Department of Transportation on Nondiscrimination on the Basis of Disability in Air Travel issued on May 23, 2018. DOT is also seeking comment on that. As usual, the blog entry is divided into categories and they are: Oklahoma legislation; my thoughts; DOT interim statement of enforcement priorities; and my thoughts on DOT’s enforcement guidance. The reader is free to focus on any or all of the categories.

I

Oklahoma Legislation

The Oklahoma legislation recently signed into law, HB 3282, and effective November 1, 2018, focuses on service animals and emotional support animals in the context of landlord and tenants. It isn’t a long piece of legislation. Its salient points are:

  1. “Assistance animal,” encompasses both what the ADA calls a service animal as well as an emotional support animal.
  2. If the person making the request has a disability or disability-related need for an assistance animal that is not readily apparent, then the landlord may request reliable supporting documentation that: 1) is necessary to verify the person meets the definition of disability under the Fair Housing Act; 2) describes the need for the accommodations; and 3) shows the relationship between the person’s disability and the need for the requested accommodation.
  3. The landlord can independently verify the authenticity of any supporting documentation.
  4. Supporting documentation acquired through purchase or exchange of funds for goods and services is presumed to be fraudulent supporting documentation.
  5. A landlord is not liable for injuries by a person’s assistance animal permitted on the landlord’s property as a reasonable accommodation to assist the person with disability.
  6. A person knowingly making a false claim of having a disability requiring the use of an assistance animal or making a claim by knowingly providing fraudulent supporting documentation in connection with such a claim, subjects themselves to procedures under the Oklahoma residential Landlord and Tenant Act, 41-132. Further, if the landlord proceeds to evict that person and prevails in the eviction, the court can award costs and fees, plus damages not to exceed $1000 from the tenant.

II

My Thoughts

  1. My concern with this legislation is ¶ 4. Presumably, whenever a physician or provider provides a note for an individual with a disability to support a service animal or an emotional support animal, one would think that there is a charge for that service. The plain language of this particular provision would make it impossible for such documentation to be obtained unless the provider did it for free. Obviously, the concern with the legislation was to stop people from buying documentation or vests from online suppliers without any individual analysis from a qualified professional being done first. However, the plain meaning of the legislation seems to go a lot further than that.
  2. Since any documentation or goods obtained through an exchange of funds is presumed fraudulent, that puts the burden of proof on the person with a disability to prove that the animal is an emotional support animal or a service animal. The plain meaning of the statute is such that a landlord can now force a person with a disability to go through legal proceedings first before they allow a service animal or an emotional support animal. Again, that could not have possibly been the intent of the legislation, but it literally suggests that. Such a reading arguably also interferes with federally protected rights, which do not contain any such requirements.
  3. I am not an Oklahoma attorney. So, be sure to consult one if you have any questions on this law.

III

Department Of Transportation’s Interim Statement of Enforcement Priorities

  1. Comments on the interim statement of enforcement priorities are due June 7, 2018, next week.
  2. DOT intends to exercise its enforcement discretion by focusing its resources on ensuring that U.S. carriers continue to accept the most commonly used service animals (dogs, cats, and miniature horses), for travel. Other kinds of animals will be enforced by DOT on a case by case basis.
  3. DOT is okay if airlines limit passenger to transporting one emotional support animal, and they are okay if airlines limit passengers to transporting a total of three service animals. So, what this means is that DOT is okay if airlines adopts a policy allowing a person to take anywhere between 1, 2, and or 3 service animals with them.
  4. With the exception of emotional support animals and psychiatric service animals, carriers may not otherwise require advance notice for passengers traveling with service animals.
  5. When deciding to accept an animal as a service animal, airlines have to determine both whether the passenger is an individual with a disability and whether the animal is a service animal.
  6. If a person’s status as an individual with a disability is unclear, i.e. not clearly visible, then the airline personnel may ask questions about the passenger’s needs for a service animal. Such a question might be, “how does your animal assist you with your disability?” A credible response mean that the passenger had given enough information to establish that he or she is a person with a disability and that the animal is a service animal. Airlines have a right to insist on the verbal assurance that the animal is a service animal in addition to any documentation.
  7. DOT will act if an airline requires that a passenger with a service animal check in at the ticket counter since passengers without a service animal do not have to do that.
  8. DOT intends to clarify what constitutes a direct threat through the rulemaking process.
  9. DOT will not pursue enforcement actions against airlines should they require proof of the animal’s vaccination, training, or behavior with respect to emotional support animal and psychiatric service animals.
  10. DOT will not take action against carriers imposing reasonable restrictions on the movement of emotional support animals in the cabin so long as the reason for the restriction is the concern for the safety of other passengers and crew. Restrictions may include requiring that the animal be placed in a pet carrier, the animal stays on the floor at the passenger’s feet, or requiring the animal to be on a leash or tether. The particular restriction should be appropriate for the animal’s size.

IV

My Thoughts on DOT Interim Enforcement Guidance

  1. To my mind, it is completely arbitrary to distinguish between service animals and psychiatric service animals. Both animals are service animals and the requirements should be the same for both. That is not the case as things stand now under the Air Carrier Access Act. It is the case under title II and title III of the final ADA implementing regulations.
  2. It will be interesting to see how direct threat comes up. A good place to start would be Chevron v. Echazabal.
  3. If through rulemaking it was decided that emotional support animals are out, Sen. Burr’s from North Carolina bill for example, a lot of people who would need an emotional support animal to fly on the plane simply will not fly and will need to take other transportation.
  4. DOT does not actually say in its enforcement guidance how to figure out whether an animal is a service animal. However, by the questions they suggest, they clearly seem to be focusing on establishing the animal as engaged in recognition and response in a way related to a person’s disability.

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