A wave of animal friendliness has swept, and continues to sweep, the nation. Once relegated to waiting for his owner to return from a trip to the store, Fido now enjoys outings down aisles A through Z.
But for some pet-owners, this unprecedented level of collective pet-acceptance isn’t enough. They want to bring their nonhuman companions everywhere – the rights of their neighbors be dammed. The question is one of individual sovereignty, but gets confused by affection for fur and feathers.
The harms associated with the presence of animals, frequently dogs, in public places is often negligible. But hitherto downplayed pernicious effects are coming into focus. One such effect is being felt by the nation’s disabled citizens.
The Americans with Disabilities Act was enacted by Congress in 1990. Among its litany of provisions was guaranteed access for service animals to private establishments that otherwise prohibited pets. In rebalancing the rights and responsibilities of private life, Congress expressed a preference for those who need service animals at the expense of the wishes of business owners. Businesses cannot refuse admission to a service animal on the basis of a policy against admitting animals.
In its effort to create a low barrier of entry for Americans with disabilities to enjoy the protections of the ADA, Congress inadvertently permitted a wave of abuse against the property rights of individuals otherwise keen to accommodate the ADA’s purpose. These abuses have been slow to develop and likely weren’t anticipated by lawmakers in 1990. But as of 2016, the expansive flexibility Congress granted to service animals and their disabled owners has been appropriated by those without disabilities.
Owners without disabilities, aware the ADA prohibits only two questions about an animal’s training or purpose, are bringing their pets with them everywhere. Since these encounters are made in passing, and because the penalties for not complying with the ADA are so high, non-disabled pet owners are able to assert rights never intended for them. Currently, there is no verification, certification process or specific penalty in place to prevent such fraud. As a result, those genuinely in need of assistance from service animals are watching the hard-won respect and understanding for their companions evaporate, as untrained pets bark, bound and bite their way through the general public.
In an already overcriminalized and prolifically litigious society, the idea of introducing further restrictions on private behavior is justifiably balked at. But fraud, particularly fraud perpetrated to the detriment of a class of individuals specifically protected by federal law, is worthy of attention. One Colorado lawmaker, acting at the behest of a coalition of disability-rights activists, thinks he has a solution.
State Rep. Daniel Kagan, D-Englewood, has introduced legislation that would fine those who misrepresent their pets as service animals. The bill, H.B. 1308, creates the crime of “intentional misrepresentation of a service animal.” The measure represents an attempt to restore the default balance between the rights of individuals not contemplated by the protections of the ADA.
But while Rep. Kagan should be applauded for his effort, his bill – even if enacted – is unlikely to achieve its goal of curtailing fraud, for the simple reason that enforcing its provisions is virtually impossible. It’s legislation with teeth, but no bite.
For now, the ADA has set-out a ceiling for what may be asked of owners of would-be service animals beyond which states cannot legislate. State laws that prescribe more probing questions, even if the goal is to suss out fraud, likely would fail under the scrutiny of the Supremacy Clause. The ADA also precludes states from establishing certification and identification programs, which the law explicitly states are unnecessary, as well as investigatory rights of action.
Dishearteningly, there is no state fix for this federally created problem. A solution will have to come from the federal government. Three fixes to the ADA could tamp down on fraud:
- The law could raise the bar slightly for verification of service animals;
- Limits could be set for the costly liability associated with wrongly handling situations in which a service animal is misidentified, thus allowing business owners to resist obvious attempts at fraud; or
- In cases in which fraud is suspected, the law could provide for greater investigatory flexibility on the part of local authorities.
Balancing rights is always a challenge, but only one group of people is benefiting by exploiting the ADA’s service-animal provision – liars.