Thirty years ago I practiced as a civil rights lawyer and sometimes still hear from those who knew me in that world. Last week one of my former colleagues asked me why I hadn’t seen that the new Department of Justice rules on service animals will bring about a sea change in state laws about service animals—basically making them irrelevant. He argued that Justice’s rules under Part 35 (not the rules under Part 36 that I blogged about on September 15) mean that federal rules now cover the waterfront of service animal access law.
It seemed to my former colleague that the Obama administration had effectively federalized the regulation of service animal access rules. First, even if there is truth to this, and there is some, the rules were proposed during the Bush administration (on June 17, 2008), to give credit where credit is due. Democrats cannot take sole credit for helping the disabled, nor should they take all blame for creeping federalism.
Second, there are aspects of state law that are not covered by federal rules. State laws, for instance, often allow access to trainers of service animals, an issue seldom mentioned in the federal rules. (This is true of more than half the states. See Chapter 15 of Service and Therapy Dogs in American Society.) Nevertheless, as I’ve noted several places, many states have tended to adopt federal rules, and even where they have not specifically adopted them, will cite them with state statutes in enforcement procedures. The inclusion of service animal rules in Part 35 is likely to increase this tendency to merge federal philosophy into state enforcement.
Let us look at what the new rules that apply to state and local governments will actually mean for them and the users of service animals.
The definitions section of Part 35 adopts the same definition of “service animal” provided in Part 36 and is worth quoting in full:
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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
The Part 35 provision on access to areas of a public entity refers to “participants in services” rather than “program participants” or “clients,” but the intent is identical. Miniature horses get the same break as well when coming into public entities.
In the preamble to the Title II (Part 35) changes, the Department of Justice notes that although Title II regulations did not refer to service animals previously, “title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary in order to avoid discrimination on the basis of disability….” Thus, the Department may see the obligations of state and local governments regarding service animals as already existing and only confirmed by the final rules now issued. If so, this could not easily be gathered from the regulations that apply to public accommodations. The preamble to the 1991 DOJ rules on public accommodations explicitly stated that “[p]ublic entities are excluded from the definition of private entity and therefore cannot qualify as public accommodations under this regulation.”
Although referring to state and local governments in the title to the release, the rules apply to public entities and facilities which are operated or owned by such governments, not to everything state and local governments may themselves regulate. Thus, if state law on service animals is inconsistent with federal law, as is true in many cases, the governments may have different obligations as to entities they operate as opposed to entities they regulate. (Aside from the previously mentioned tendency to merge federal and state rules in state enforcement proceedings.)
A public entity is defined as:
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation [Amtrak], and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).
Thus, state and local governments and anything they run are required to comply with the new service animal requirements. This could include parks, courthouses, government office buildings open to the public, public recreation facilities and play areas, etc.
Breed Limitations and Inconsistent Local Laws
As noted in my blog of September 15, the Department of Justice did not accept breed limitations for dogs. This is true in both Parts 35 and 36. This does not mean that a public entity must accept aggressive animals. The Department changed some wording in its proposals to make this clear. The proposal had allowed, as had the 1991 regulations on public accommodations, for a dog that provided “minimal protection.” This was changed to “non-violent protection” in the final rules. Alerting to “intruders,” also in the language of the 1991 public accommodation regulations and specifically concerning hearing or signal dogs, was changed to “the presence of people or sounds,” to clarify that a dog that might attack intruders was not what the Department had in mind.
Thus, an individual with a pit bull service animal does indeed have a service animal and the public entity, despite being operated by a state or local government with a pit bull ban, would have to accept the animal. The regulation would, however, not preclude the state or local entity from excluding pit bulls that are not service animals, or for that matter, excluding pit bulls that are service animals but are out of control.
Out of Control. Commenters to the 2008 proposed rules had noted that excluding a service animal that is out of control might be unfair where the animal has been provoked. The Department acknowledged that “misbehavior in response to provocation is not always unreasonable.” This creates a certain duty on the public entity:
In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public entity must give the handler a reasonable opportunity to gain control of the animal. Further, if the individual with a disability asserts that the animal was provoked or injured, or if the public entity otherwise has reason to suspect that provocation or injury has occurred, the public entity should seek to determine the facts and, if provocation or injury occurred, the public entity should take effective steps to prevent further provocation or injury, which may include asking the provocateur to leave the public entity.
State and local governments will have an obligation to explain how these rules create responsibilities for government employees, responsibilities that may not exist under state statutory law. Some states criminalize interference with a service animal, and state employees will sometimes have an obligation to inform law enforcement authorities about such instigators.
The preamble to the 2010 rules notes that commenters had argued that public entities should be careful in asserting a “fundamental alteration” as a reason for excluding a service animal. Thus, an animal should not be excluded for barking in an environment where noise is tolerated, such as a rock concert. The preamble states that “the appropriateness of an exclusion can be assessed by reviewing how a public entity addresses comparable situations that do not involve a service animal,” presumably agreeing with that a city-owned rock concert venue should not be able to exclude a dog that barks since it will not exclude a fan who yips, barks, and makes other ridiculous noises. (I am showing my age here.)
Service Animals as Dogs (and Miniature Horses)
In writing about the Part 36 regulations on September 15, I said that monkeys lost. In the preamble to the Part 35 regulations, the Department notes that under the Fair Housing Act, an individual with a disability may have a right to have an animal other than a dog in his or her home. The Department notes that this may conflict with state or local law, but that a request for reasonable accommodation under state or local law must be made under the Fair Housing Act (administered by the Department of Housing and Urban Development).
Zoning law, for instance, might preclude a pot-bellied pig from being in a neighborhood if the pig is classified as livestock not allowed in a residential area. If the pot-bellied pig were to be brought into a public entity, the owner could be excluded under Justice’s rules because only a dog is a service animal (and a miniature horse is something like a service animal). If state law is more expansive as to breeds that can be service animals, the zoning ordinance might also be attacked under that law. This is one case where separate state laws still have a function when they differ from federal rules.
Emotional Support Animals
In distinguishing emotional support animals from psychiatric service animals (which it sees as service animals), the Department of Justice notes that it “believes … that the presence of [emotional support] animals is not required in the context of title II entities such as courthouses, State and local government administrative buildings, and similar title II facilities.” Thus, although you can take your emotional support animal on a plane, you can’t take it to the courthouse or local park with a no-pets rule, again unless some relief is provided under state or local assistance animal law.
As already noted, states that have restricted the definition of service animal to functions involving physical disabilities will now have to apply, in public entity contexts, federal rules treating psychiatric service animals as full-fledged service animals. This is likely to be the most significant change brought about by the Part 35 amendments.
The preamble to Justice’s 2010 rules states that “[a]irports operated by public entities are not subject to DOT’s ADA regulation, but they are subject to subpart A of title II and to this rule [i.e., to 28 CFR Part 35].” Of course, this is why a person with a service monkey might be able to take it onto an airplane (under DOT Air Carrier Access Act rules), but not into a facility in the airport (because it is not a service animal under DOJ rules). This also means that airports owned by a state or local government are obligated to accept psychiatric service animals into their facilities.Rail and Bus Transportation
The Americans with Disabilities Act, subchapter II, covers public services. Part A of subchapter II provides rules as to public entities, while Part B applies to public transportation provided by public entities. Public entities include Amtrak and any commuter authority (as defined in section 24102(4) of title 49). The 1991 DOJ regulations provided that to “the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements of this part.” The preamble to the 2010 regulations explains that this means that public transportation services under 49 CFR Part 37 are not covered by the Justice rules of 28 CFR Part 35.
The preamble to DOJ’s 2010 rules elaborates that the “DOT rules apply only to the entity’s transportation facilities, vehicles, or services; the DOJ rules may cover the entity’s activities more broadly.” An example of what this means was provided in the 1991 regulations.
For example, if a public entity operates a transit system and a zoo, DOT's coverage would stop at the transit system's edge, while DOJ's rule would cover the zoo as well.
This presumably would also apply to any facilities run by public entities inside of train stations. Some rail and bus systems are publicly owned and the transportation authorities will often have to enforce service animal rules of both the Departments of Transportation and Justice for different aspects of their operations.
Unusual Service Animals. In the preamble to the 1991 release which contained the original service animal requirements under 49 CFR Part 37, DOT elaborated:
Service animals shall always be permitted to accompany their users in any private or public transportation vehicle or facility. One of the most common misunderstandings about service animals is that they are limited to being guide dogs for persons with visual impairments. Dogs are trained to assist people with a wide variety of disabilities, including individuals with hearing and mobility impairments. Other animals (e.g., monkeys) are sometimes used as service animals as well. In any of these situations, the entity must permit the service animal to accompany its user.
Thus, in enforcing rules in transportation facilities they operate, state and local governments are going to have to determine which federal law must be complied with. Because the Department of Transportation has been more accepting of unusual service animals, such as monkeys, state officials may have to consider that someone getting off a train may be entitled to have the monkey, even if she need not be admitted to a restaurant in the station covered by Department of Justice rules.
My friend from my civil rights era had a good point, and I acknowledge that I was slow to see the full significance of it. State governments are likely to see maintaining separate laws on service animals as something of a burden in the face of the federal rules applying to state and local government services. On the other hand, since only those laws that are more expansive than the federal rules can be enforced in most contexts, state governments may determine that they will, for instance, allow service monkeys into their facilities. Since this does not narrow the federal mandate, it is acceptable. A state could not, however, preclude psychiatric service animals from access to its services even if state law only recognizes service animals as serving individuals with physical disabilities. That would be more restrictive than federal rules allow.
Some states may decide to conform state statutory language to federal rules, but others may leave their laws in place and enforce them when it seems appropriate. I would appreciate any observations from readers about state enforcement actions as the application of Justice’s rules begins to unfold in March 2011. Email me directly at email@example.com.
 Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services. 75 Fed. Reg. 56164 (September 15, 2010).
 73 Fed. Reg. 34466 (June 17, 2008).
 See 41 CFR 102.74 (animals may not be brought onto federal property for other than official purposes, except a disabled person may bring a seeing-eye or guide dog, “or other animal assisting or being trained to assist that individual”) (emphasis added). The language may mean that only the individual who will ultimately use the dog in training can bring it onto federal property. State laws sometimes criminalize exclusion of service animals or causing injury to guide dogs or service animals. Although such laws are not made redundant by the federal rules, they could easily be adapted to cover the definition of service animal provided by the Department of Justice.
 28 CFR 35.104; see also 28 CFR 36.104.
 28 CFR 35.136 and 28 CFR 36.302(c).
 75 Fed. Reg. 56191.
 28 CFR Part 36, Appendix B (56 Fed. Reg. 35546, July 26, 1991).
 Ensminger, J. and Breitkopf, F. (2010). Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules. Journal of Animal Law, 6, 1. Some states, for instance, include monkeys in the definition of service animal.
 42 U.S.C. 12131(1); 28 CFR 35.104.
 75 Fed. Reg. 56197.
 75 Fed. Reg. 56195.
 75 Fed. Reg. 56167.
 42 U.S.C. Chapter 126, subchapter II.
 42 U.S.C. 24102(2) defines “commuter authority” as “a State, local, or regional entity established to provide, or make a contract providing for, commuter rail passenger transportation.”
 42 U.S.C. 12131(1)(C).
 28 CFR 35.102.
 Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45584, 45736 (September 6, 1991).
 56 Fed. Reg. 45736.
 Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45755 (September 6, 1991). See also the extensive discussion of monkeys and other “unusual service animals” in the 2008 Air Carrier Access Act regulations. 73 Fed. Reg. 27636.