The ADA and Service Animals – Don’t Horse Around – By Martin H. Orlick

Just when you think you’ve seen it all, imagine your astonishment when boarding the train for your morning commute to find you’re sharing the ride with a miniature horse. That’s exactly what happened to some passengers taking BART (Bay Area Rapid Transit) in the San Francisco Bay Area on a November morning in 2019.

Yes, the miniature horse is a service animal, as so defined under the Americans with Disabilities Act (ADA), and is allowed in “public accommodations” including banks, restaurants, hotels, shopping centers, and on public transportation (and see our blog on ride-sharing and service animals).

When the ADA was amended in 2010 (effective March 2012), the Department of Justice (DOJ) clarified that only specially trained dogs, and some miniature horses, qualified as service animals.  Hoteliers, restaurant owners, retailers, bankers and others breathed a sigh of relief when “service animals” no longer included chimpanzees, lizards, snakes, or dogs that are not really trained to assist their disabled owners. Why are miniature horses allowed? It seems there is a strong lobby in the disabled community for the inclusion of miniature horses, which are able to pull wheelchairs and perform other tasks for their disabled owners. Miniature horses typically can live longer than service dogs and are hypoallergenic.

But, back to your commute with the horse… and now imagine the miniature horse and its owner disembarking at the Montgomery Street station, taking the elevator up to the street level, then dining at Perbacco for lunch after which they head to Union Square for some upscale shopping in a trendy boutique before heading home again, on BART. While this is in our imagination only, it is a possible scenario.

What would you do, as the proprietor, hostess, server or cashier when a miniature horse enters your establishment with its disabled owner?

First, recognizing that miniature horses are a legitimate service animal is important. It’s important to train your staff to welcome service animals and their owners, so they don’t refuse service to someone with a genuine service animal.

All of your staff should know what questions they can ask – and perhaps more importantly, what questions not to ask – a person with a service animal.

It’s also good to know that the disabled owners of service animals are responsible for their animal: the animal cannot be a threat or danger to anyone, and the owner is responsible for cleaning up after the animal. If the service horse presents a legitimate danger to the public, you can ask the owner to get the animal under control or to put the animal in the car. The disabled customer is always welcome in the premises.

According to the DOJ’s website, “The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.”

Also, under the ADA, “…the dog must already be trained before it can be taken into public places. However, some State or local laws cover animals that are still in training.”

Having written policies and procedures in place is also important, and can help protect your business in ADA litigation, if there is a misunderstanding and the disabled owner of the miniature horse files a lawsuit against you.

And a hearty, “Hi-ho Silver Away!”

Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. Please contact us if you would like to discuss any issues that affect your hotel interests or see how our experience might help you create value and avoid unnecessary pitfalls. Who’s your hotel lawyer?

Logos, product and company names mentioned are the property of their respective owners.

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