Previously, I had mentioned that I was going to explore how some States are reacting to the increasing use of dogs being misrepresented as service dogs. I also previously covered here the approach Texas took with respect to service dogs in general. So, today, I want to explore how Hawaii and Washington are reacting to the problem. Hawaii gets it right, but Washington, effective January 1, 2019, goes way too far. Finally, if you have not voted yet for understanding the ADA’s inclusion in the ABA 100 for this year, please do so as the deadline for voting is tomorrow. The link for voting can be found here, and you have until August 7 to vote. As usual, the blog entry is divided into categories and they are: Hawaii’s reaction to the service dog problem; Washington’s reaction to the service dog problem; and my thoughts on the Washington approach. As usual, the reader is free to concentrate on any or all of the categories, but probably will want to read the whole thing.

I

Hawaii’s Reaction to the Service Dog Problem

Hawaii recently enacted legislation without the Governor’s signature in response to the service dog backlash. It isn’t easy to find the engrossed bill on their website, but the site where you can find it would be located here. The important provisions are as follows:

  1. The definition of a service animal tracks the definition of a service animal under DOJ’s title II and title III final regulations.
  2. Hawaii believes that a penalty for misrepresentation of a dog or other animal as a service animal would discourage people from fraudulently representing their pets as service animals.
  3. Imposes a civil penalty for a person to knowingly misrepresent as a service animal any animal not meeting the requirements of the service animal statute.
  4. Clear and convincing evidence is the burden of proof in order to find that a person is subject to a civil penalty for misrepresenting an animal as a service animal.
  5. Hawaii previously had a section of the statute making it a penalty for someone to intentionally interfere with the use of a service dog and that section has not changed in any substantive way.

II

Washington’s Reaction to the Service Dog Problem

The Washington Attorney General leads the charge against many of President Trump’s actions. So, I was a little bit surprised that the Governor of Washington actually signed this legislation. Let’s explore how this legislation goes too far. Particularly, if you are working on behalf of enforcement officers in the state of Washington, I would check your ability to respond to the inevitable increase in both §1983 claims and ADA interference claims, as those claims are about to go through the roof. Let’s see why. Here are the key provisions of the Washington law:

  1. As in the case of Hawaii, Washington also finds that too many people are misrepresenting their animals as service animals. Such misrepresentation is a disservice to both persons relying on the use of legitimate service animals as well as the places of public accommodations and their patrons.
  2. The definition of a service animal tracks the definition of the service animal in DOJ’s title II and title III final implementing regulations.
  3. Makes it a civil infraction for any person to misrepresent an animal as a service animal.
  4. A violation of the misrepresentation provision occurs whenever: A) a person expressly or impliedly (emphasis added), represents an animal as a service animal for the purpose of securing the rights or privileges afforded disabled persons accompanied by service animals set forth in Washington or federal law; or B) a person knew or should have known (emphasis added), that the animal in question did not meet the definition of the service animal.
  5. Allows an enforcement officer to investigate and enforce the statute by making an inquiry of the person accompanied by the animal in question and issuing a civil infraction. Further, any refusal to answer the questions allowable creates a presumption that the animal was not a service animal and the enforcement officer may issue a civil infraction and require the person to remove the animal from the place of public accommodation.
  6. The two inquiries an enforcement officer can make of an individual with an alleged service animal are whether the animal is required because of a disability and what work or task the animal has been trained to perform. Generally speaking, an enforcement officer or place of public accommodation may not make those inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for a person with a disability.
  7. Miniature horses are allowed if they are used in the same way as a service animal.
  8. The maximum penalty is $250 but increases to $500 where a person refuses to answer the enforcement officer’s questions.

III

My Thoughts on the Washington Approach

  1. Like many States, the definition of disability is different than the ADA. With respect to Washington, the definition of disability includes a record of an impairment as well as regarded as. However, the first prong of a disability under Washington law is different than the ADA. Under Washington law, disability means the presence of a sensory, mental, or physical impairment that is medically cognizable or diagnosable. That prong is quite a bit different than the first prong under the ADA. Also, Washington essentially takes the ADA’s definition of major life activities and incorporates its into their definition of an impairment. Finally, Washington has some very interesting provisions with respect to disability in the workplace. Did I mention, I am not a Washington lawyer?
  2. Don’t have a problem with the definition of service animal under Washington law as it tracks the DOJ’s title II and title III final implementing regulations.
  3. I very much have a problem with how Washington law imposes a civil penalty where a person either impliedly or should have known that the animal in question does not meet the definition of a service animal. The reason I have a problem with it, is that a person may not actually know whether their animal is a service animal or not. They may honestly think their animal is a service animal when it isn’t. Another thing I have seen is a person honestly thinks their animal is an emotional support animal when it is actually a service animal.
  4. Enforcement officers in the state of Washington now have to worry about added liability under both 42 U.S.C. §1983 as well as under 42 U.S.C. §12203.
  5. 42 U.S.C. §1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Washington law, RCW 7.80.040, defines an enforcement officer as, “a person authorized to enforce the provisions of the title or ordinance in which the civil infraction is established.” That means police officers are included within that definition. Accordingly, if they implement this law wrongly. For example, ask questions when they are not supposed to, or do not ask the proper questions, or do not make the proper determination after asking the proper questions, then they are depriving the person with a disability the rights and privileges under the ADA. Further, qualified immunity won’t be of help since what enforcement officers are supposed to do is all laid out in Washington statutes.

  1. The knowingly or should have known provisions of the Washington law are so vague as to make the argument that the law and certainly its implementation will interfere with the rights of persons with disabilities thereby violating 42 U.S.C. §12203(b). That is, a person with a disability with a dog or a miniature horse trained to engage in recognition and response (i.e. a true service animal), now has a very strong disincentive not to bring their service animal into a place of public accommodation or into a public entity knowing that he or she is likely to be challenged by both employees and even police officers, and perhaps aggressively so. The vagueness of the law also creates the argument of a substantive due process/equal protection claim as well.
  2. Considering the aggressiveness of the Washington Attorney General with respect to responding to numerous initiatives of President Trump, I wonder if he will even bother defending the inevitable challenges to this law. Also, considering the increased liability under §1983, I am a bit surprised that the enforcement officers in the state of Washington did not mobilize against it (I am assuming they did not mobilize against it because otherwise it is hard to believe the law would have been signed, though I don’t have actual knowledge either way).
  3. When it comes to service dogs, the approaches of the States can vary significantly. You do want to contact knowledgeable legal counsel with respect to your specific jurisdiction’s laws. Many States are basically codifying the final title II and title III implementing regulations of the DOJ. That is okay. The problem is when States overreact, such as in Washington’s case. Washington’s particular problems are that the statute is extraordinarily vague and it imposes obligations on enforcement officers. I do think enforcement officers in the State of Washington need to be checking to make sure they are prepared for the increase in 42 U.S.C. §1983 claims that are likely to occur now. I also look for more interference claims to occur as well.
  4. The problems in the Washington law could be solved by getting rid of “impliedly or should have known language,” in the statute and by not imposing a civil penalty on a person refusing to answer an enforcement officer’s question. Also, the Washington service animals misrepresentation provisions do not mention any burden of proof for finding a violation. Considering the federal rights involved, I like Hawaii’s clear and convincing evidence standard.

Finally, don’t forget to vote for understanding the ADA’s inclusion in the ABA 100, here. Deadline tomorrow.

4 Responses to The Washington and Hawaii Approaches to the Misrepresentation of Service Dogs

Great blog as usual. I agree that the Washington law creates problems with its “should have known” standard. There are so many websites spreading false or confusing information about service and assistance animals that the public is bound include many individuals who are confused about what is and is not allowed. In fact, many businesses still have trouble with the service dog / assistance animal distinction, which is more than a little confusing when it comes to service dogs for mental and other non-obvious impairments.

Service Animal Defined by Title II and Title III of the ADA. A service 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. State law cannot diminish the protections afforded under the ADA, and it is clearly retaliation to punish an individual for engaging in protected activity. Furthermore, an individual who was substantially limited in the areas of thinking, concentrating, comprehending, would be distinctly harmed by the “should have known” provision. Not to mention the issues of vagueness, which is clearly.

Thanks for another great posting! Clearly, there’s a universal need to address the issues raised by pets versus service animals in public places. And if the states do a good job at addressing these issues, that’s great for the state (although the state must then be sure that everyone knows and follows the laws).
I realize this is a loaded question, but what about addressing these issues at the federal level?

Excellent comparison, as always, Bill. Hawaii got it right? Maybe compared to Washington and other states, but not according to Hawaii’s Civil Rights Commission and others.

Even that state’s AG expressed strong reservations about enforcement, as noted in a quote from the Star Advertiser, “The Hawaii Civil Rights Commission testified in opposition of the bill, along with the state Disability and Communication Access Board, which was concerned that such a law might encourage the asking of inappropriate questions. Similarly, the Department of the Attorney General said it would be challenging to prove beyond a reasonable doubt in court that an animal is not a service animal, given the limited questions one may ask and the fact that service dogs do not have to be licensed, certified or registered with any authority.”

Are these laws barking up the wrong tree? Ugh. With apologies.

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