Tuesday, December 29, 2015

Airplane Access Regulations on Service Animals to Be Reconsidered by Transportation Department; Closer Alignment with Justice Department Possible

Additional Notes:  The comment period on the Department of Transportation's Reg Neg announcement was extended to January 21, 2016 by an announcement in the Federal Register (81 Fed. Reg. 193, January 5, 2016).  By that date, 68 had been submitted, but comments submitted as late as February 12 have also been posted and there are now 87 comments on the regulations.gov webpage for the announcement. Organizations submitting comments, many of which specifically offered to participate in the Reg Neg process, are Bark Busters, the Hawaii Disability and Communication Access Board, the Muscular Dystrophy Association, Psychiatric Service Dog Partners, All Wheels Up Inc., Tadsaw, Inc., Association of Flight Attendants--CWA (AFL-CIO), the National Council on Independent Living, the National Alliance on Mental Illness (by Alicia Smith), the National Federation of the Blind, Delta Air Lines, Inc., the Assistance Dog Advocacy Project (by Theresa Jennings), Los Angeles World Airports, Aerolineas Argentinas, New Zealand Air, the Disability Rights Education & Defense Fund, Assistance Dogs International, Open Doors Organization, Airlines for America, the Airline Passenger Experience Association, the Consortium for Citizens with Disabilities Transportation Task Force and Rights Task Force, the American Council of the Blind, and the International Air Transport Association (IATA).

The IATA, which represents 88 passenger carriers that fly into and out of the U.S., and Delta Air Lines, both feel that there are four areas on which a consensus may be difficult to achieve: inflight entertainment, inflight medical oxygen, accessible lavatories on single-aisle aircraft, and seating accommodations.  Service animals were not mentioned by the IATA, though some service-animal issues could be classified under the category of seating accommodations. Delta Air Lines specifically states that "the topics of (1) defining service animals and (2) developing safeguards to prevent pets being falsely claimed as service animals, would be amendable to a Negotiated Rulemaking."

Eight organizations--the Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Easter Seals, National Council on Independent Living, National Disability Rights Network, National Multiple Sclerosis Society, Paralyzed Veterans of America, and United Spinal Association--submitted a combined comment that speaks directly to some service animal issues:

According to the notice of intent, DOT is exploring whether a Reg Neg would be feasible in seeking to “[d]etermine the appropriate definition of a service animal” and “[e]stablish safeguards to reduce the likelihood that passengers wishing to travel with their pets will be able to falsely claim that their pets are service animals.” We hope that discussion of these issues would also include consideration of “whether certain changes should be made to provisions allowing carriers to require medical documentation and 48 hours advance notice from users of emotional support and psychiatric service animals.” The current policy presents barriers to individuals who use service animals for invisible disabilities. We hope that discussion of this issue would be framed in a manner that ensures individuals who use service animals and emotional support animals will be able to do so without the inappropriately restrictive criteria that currently apply. (footnote deleted)

Several of the eight organizations signing this letter also submitted individual comments. A group of organizations representing the deaf and hearing impaired also submitted a combined comment. These organizations were the National Association of the Deaf, Association of Late-Deafened Adults, California Coalition of Agencies Serving the Deaf and Hard of Hearing, Cerebral Palsy and Deaf Organization, Deaf and Hard of Hearing Consumer Advocacy Network, Deaf Seniors of America, Hearing Loss Association of America, Telecommunications for the Deaf and Hard of Hearing, Inc., and the Rehabilitation Engineering Research Center at Gallaudet University.

Los Angeles World Airports also specifically addressed service and emotional support animal issues, stating:

Los Angeles International Airport (LAX) has experienced an escalation in the number of passengers who falsely assert their pets are service animals.... Even though ... the ACAA states "airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation," this provision is ludicrous inasmuch as anyone can get fake documents online and often do.... The Committee [LAWA's Citizen Disability Committee] believes that the ACAA should not provide special status to emotional support animals.... The Committee is of the opinion that existing regulations tie airlines and others from making legitimate inquiries about the role a service animal perform in assisting a traveler with disabilities."

The American Council of the Blind "calls upon DOT to implement regulations that mirror the Department of Justice's regulations in line with Title II of the Americans with Disabilities Act," criticizing the failure of DOT's regulations "to apply the DOJ's more moderate and common-sense approaches to the kinds of animals that fall within the scope of ADA's protections...." This organization argues that the ACAA regulations, "by permitting the utilization of uncommon and exotic creatures ... exposes the use of service animals as a whole to ridicule and resistance by covered entities and the public generally...."

A number of organizations submitting comments in the last few days indicate that they have already had discussions with the convener appointed by the Department of Transportation to initiate the Reg Neg process described below.

The Department of Transportation is not the only agency presently considering conforming its service-animal regulations to those of the Department of Justice.  In proposed rules published in the Federal Register on January 26 (81 Fed. Reg. 4494), which would apply to recipients of federal funds under the Work Innovation and Opportunity Act, the Department of Labor defines a service animal, except for two words, identically to the way the Department of Justice defines the term.  As to the substantive requirements for service-animal access, DOL’s provisions are again almost identical except that (1) DOL includes a separate provision regarding the use of service animals in food preparation areas, and (2) DOL does not mention of miniature horses as being used in a manner similar to service animals.  It is to be hoped that the Department of Transportation will allow for the use of miniature horses in flights, even if other species are excluded by any revision of its airline access rules. Unfortunately, as I have noted before, the users of miniature horses do not appear to have yet formed an effective lobbying group and no comments focusing on the issue were submitted to the Department of Transportation. The comment of the American Council for the Blind made one mention of miniature horses, as did Tadsaw, Inc. and Monica  McClain, an individual commenter.

My original blog follows....

On November 7, 2015, the Department of Transportation announced “that it is exploring the feasibility of conducting a negotiated rulemaking (Reg Neg) concerning accommodations for air travelers with disabilities,” addressing, among other things, service animals, seating accommodations, and carrier reporting of disability service requests. By using the Reg Neg process, the Department will not follow the usual pattern of having its staff develop proposals, offer them for comment in the Federal Register, then weigh the comments received before issuing final regulations.  Rather, the Reg Neg approach means that parties interested in the issues involved--stakeholders--will be invited to serve on a committee that will propose revisions for the Department, and subsequently the public, to consider. Nondiscrimination on the Basis of Disability in Air Travel; Consideration of Negotiated Rulemaking Process.  RIN 2105-AE12.  80 Fed. Reg. 75953 (December 7, 2015). 

Reg Neg Process

The Department has hired a “convener,” Professor Richard W. Parker of the School of Law of the University of Connecticut, whose responsibility is “to undertake the initial stage in the Reg Neg process” and assist the agency in making an initial determination as to “whether an appropriate advisory committee can be assembled that will fairly represent all affected interests, negotiate in good faith, and offer a reasonable likelihood of reaching a consensus on the issues.”  The Department elaborates on the convener’s responsibilities:

The neutral convener will interview representatives of affected interests, including but not limited to, disability advocacy groups, airlines, and manufacturers of aircraft cabin facilities and equipment and determine whether other interest groups should be included. The convener will examine the potential for adequate and balanced representation of the varied interests on an advisory committee convened to negotiate the regulation and/or to reach consensus on specific issues. Based on these interviews, the convener will submit a written report of findings and recommendations to the Department, and the final report will be available to the public. The convenor’s [sic] report will provide a basis for the Department to decide whether to proceed with a Reg Neg, and, if so, to determine the scope of the issues the committee will address. In the alternative, the Department may also decide to forgo a Reg Neg and proceed with a traditional notice-and-comment rulemaking.

The concept of the convener is statutory (5 U.S.C. 566(3)), where the term is defined as “a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a particular rulemaking.”  (Note that although the statutory spelling is “convener,” in a number of instances and once in the 2015 Federal Register release, the term is spelled “convenor.")

The idea behind a negotiated rulemaking is to select representatives of different groups and perspectives who can interact cooperatively with those who have different viewpoints in a give-and-take process that will lead to a set of proposals that can reflect appropriate viewpoints and be practical to implement.  An advisory committee would be formed, according to the preamble, “to seek to reach consensus recommendations on the appropriate resolution of the issues before the committee.”  If the Department decides to go forward with the Reg Neg process, it will subsequently publish “a notice of intent to solicit comment on membership and to invite interested persons to apply for nomination to the committee.”  The operation of the negotiated rulemaking committee is described in the Negotiated Rulemaking Procedure Act (PL 114-38, codified at 5 U.S. Code Subchapter III), particularly at 5 U.S.C. 566.

The Department perhaps hopes to avoid having a public hearing where those favoring one point of view gather enough of their minions to drown out any other perspectives on various issues both essential and tangential.  If, however, the convener does not think the Reg Neg process will succeed, he can recommend, or the Department can decide on its own, to forget that and let the free-for-all occur.  As to the “neutral” aspect of the convener’s responsibilities, the Department’s release states:

The Federal Government will make no claim to the convener’s notes, memoranda, or recollections or to documents provided to the convener in confidence in the course of the convening process. The convener will not interpret Department policy, make decisions on items of policy, regulation, or statute, or take a stand on the merits of substantive matters under discussion.

It will, on the other hand, be interesting to see which parties Professor Parker designates as appropriate participants in the Reg Neg process.  If face-to-face meetings are held, this will likely occur in Washington, DC.  Although Professor Parker is with the University of Connecticut, he is the director of the law school’s Semester in DC Program and has an office in the Capitol. His UCONN webpage states: 

Professor Parker has published major articles or book chapters on international regulatory harmonization and cooperation….  He also has contributed to expert panels developing recommendations to strengthen public participation and agency analysis in rulemaking. In 2011, Professor Parker served as a convenor and facilitator for a Department of Energy negotiated rulemaking on energy efficiency standards for distribution transformers. He is currently serving as co-chair of the American Bar Association Administrative Law Section’s Committee on Environment and Natural Resources and vice-chair of the Section’s Committee on Collaborative Governance. (emphasis added)

Thus, he has done this before, though for the Department of Energy, and seems rather uniquely qualified to the task the Department of Transportation has given him.

ACAA Regulations on Service Animals

In 2008, the Department issued final regulations under the Air Carrier Access Act (73 Fed. Reg. 27614, May 13, 2008), with extensive discussion of service animal access, as described in Service and Therapy Dogs in American Society and subsequently as to specific issues in a number of blogs on this site.  The current release indicates that the “Department anticipates that the interested parties may include disability advocacy organizations, airlines, airports, airline vendors providing wheelchair assistance, aircraft manufacturers, IFE system manufacturers, movie studios, other IFE content providers, service animal training organizations, and other Federal Agencies,” including the Department of Justice.  Service animal trainers should take note of this. 

The current release refers to the preamble to the 2008 regulations as mentioning possible additional rule-making regarding various topics, including service animals.  This apparently refers to the following paragraph in the 2008 preamble:

While it is possible that foreign air carriers may have safety-related reasons for objecting to service animals other than dogs, even ones that have been successfully accommodated on U.S. carriers, these reasons were generally not articulated in their comments to the docket. Nevertheless, to give foreign carriers a further opportunity to raise any safety-related objections specific to foreign airlines to carrying these animals, the final rule does not apply the requirement to carry service animals other than dogs to foreign airlines. However, foreign carriers could not, absent a conflict of laws waiver, impose certification or documentation requirements for dogs beyond those permitted to U.S. carriers. We intend to seek further comment on this subject in the forthcoming SNPRM. (73 Fed. Reg. 27636)

The preamble to the current release states that the “Department is now planning to address … transport of service animals….”  Thus, the Reg Neg process will pay some attention to how foreign carriers have dealt with service animals, and the airlines and airports that will volunteer or be asked to participate in the rule-making process may well include foreign air carriers and airports. (This likely explains why Professor Parker met with representatives of the International Air Transport Association before the comment period closed, as mentioned in the Additional Note at the beginning of this blog.)

Definition of Service Animal

The current preamble also mentions that “airlines and disability organizations have raised concerns with the Department of passengers falsely claiming that their pets are service animals.”  A footnote to this sentence specifically identifies the Petition for Rulemaking filed by the Psychiatric Service Dog Society in April 2009.  The Department’s discussion on service animals then raises a major concern regarding service animals that has been raised by the Psychiatric Service Dog Society and other organizations: “These groups have also pointed out the inconsistency between the Department of Justice definition of a service animal and the Department of Transportation’s definition of a service animal.” The Department then states that part of the reason for exploring a Reg Neg as a means of gathering information for a rule revision is to “[d]etermine the appropriate definition of a service animal.”  This may well mean that the Department will consider aligning its use of the term with the definition provided by the Department of Justice.

In addition, the Department now states that rules may be appropriate to “[e]stablish safeguards to reduce the likelihood that passengers wishing to travel with their pets will be able to falsely claim that their pets are service animals.”  This possibility will appeal to a broad range of service animal organizations as well as many individuals with legitimate service animals who have encountered difficulty in getting those animals onto airplanes because so many gate personnel have been excoriated for allowing bogus service animals into cabins where they have become disruptive and sometimes dangerous.  As someone who regularly gets emails from service animal users, I would suspect that I have received more complaints about the consequences of bogus service animals than any other issue facing this community. 

Finally, a very specific service animal issue is described:

Various disability organizations have reported to the Department that their members are unable to obtain bulkhead seating while traveling with a service animal as the bulkhead seats are now primarily located in what has been designated by airlines as the premium economy section.

This inevitably creates a conflict with the notion that a service animal user cannot be charged extra for bringing a service animal onto the plane. 

Service animals are only one of the issues that the Department wants to put on the table for revision.  Others include inflight entertainment, supplemental medical oxygen, accessible lavatories on single-aisle aircraft, seating accommodations, and carrier reporting of disability service requests. Although the last two would overlap with service animal issues, the others would generally not.  The solution under the Reg Neg process may be to have several advisory subcommittees, as was the case in the Department of Energy Reg Neg process that occurred in the Department of Energy with Professor Parker’s help in 2011. Thus, one possibility here would be to create a service animal working group that would focus on the issues of concern to the Department and the service animal community.  One working group in the 2011 DOE Reg Neg process consisted of 25 participants, so the number of organizations represented can be high. 

Comment Period

In its December 7 release, the Department provided a one-month comment period, meaning that comments on the Reg Neg proposal were to be received no later than January 6, 2016.  The usual methods of commenting were provided, with the easiest being via the regulations.gov website, where one could be taken to the docket folder by typing in DOT-OST-2015-0246.  Comments have been received on many other issues than just service animals, but a number of service animal users have commented, many recommending conformity between the Department of Justice and Department of Transportation rules regarding service animal definitions and access.  Psychiatric Service Dog Partners, created by certain former participants in the Psychiatric Service Dog Society, in its comment has appropriately advanced itself as an ideal participant in the Reg Neg process.

There is a chance that the comment period will be extended.  A group of 11 organizations has submitted a letter to the Department of Transportation complaining that a 30-day comment period at the end of the year means the actual period available for these organizations “is effectively reduced to nearly two weeks.”  The groups signing the letter are sufficiently powerful that their request for an extension may well succeed.  They are: Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Disability Rights Education & Defense Fund, Easter Seals, National Association of the Deaf, National Disability Rights Network, National Federation of the Blind, National Multiple Sclerosis Society, Paralyzed Veterans of America, The National Council on Independent Living, and United Spinal Association. A number of these groups have taken positions on service animal issues and may be intending to do so in the ACAA context if recommended for an advisory committee. (Most of the 11 organizations requesting an extension to the comment period submitted a combined comment, as noted in the Additional Note at the beginning of this blog.)

Conclusion

Bringing airline access closer to public accommodation access for service dogs makes some sense.  An airline cabin was always an odd location to allow an untrained and potentially raucous emotional support animal, given that unlike a restaurant or a movie theater it is not possible to remove the animal and its owner from the environment and a problem situation may sometimes continue unabated for hours.  On the other hand, there are owners whose emotional need for an animal during the stress of flight may be so high as to prevent them from flying at all without that comfort. Different environments often argue for different verification procedures, and the requirement for letters from mental health professionals has not always been effective in keeping bogus service animals out of cabins, in part because some professionals have been signing form letters provided to them by patients, as Dr. Thomas and I noted nearly three years ago.

The current status of the Reg Neg process is not one of formulating concrete recommendations to resolve such complexities, though some commenters have already made important suggestions, but rather of identifying stakeholders who may be able to provide input as to what issues should be considered in developing proposals.  Inevitably, any advisory committee created to assist the Department of Transportation in overhauling its animal access regulations will have its hands full. Nevertheless, I encourage any organization interested in changing the airline access rules on service animals to contact the Department through the regulations.gov website and put itself forward as a potential participant in the Reg Neg process.

Thanks to Brad Morris, Veronica Morris, Dr. J. Lawrence Thomas, Alli Spotts-De Lazzer, and Leigh Anne Novak for suggestions and corrections. 

Wednesday, December 9, 2015

FDA Food Production Rules Grant Access to Guard and Pest-Detection Dogs, but Why Are Guide Dogs the Only Service Animals Allowed into Some Buildings and Facilities?

The Food and Drug Administration has thousands of pages of regulations regarding the growing and manufacturing of food for human consumption, among which are rules about animal waste, which is a concern because of the possibility that, if found in human food, such waste can cause disease (Salmonella, E. Coli, Cryptosporidium, etc.). Two new sets of rules issued in September, concerning food manufacturing procedures, and November, concerning fruits and vegetables, add nearly five hundred pages to the total, and raise certain access issues as to specially trained canines that will be discussed here (Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, 80 Fed. Reg. 55908, September 17, 2015; Standards for the Growing Harvesting, Packing, and Holding of Produce for Human Consumption, RIN 0910-AG35, 80 Fed. Reg. 74354, November 27, 2015).

General  FDA Policies on Reducing Animal Contamination Risks

In order to reduce the threat of contamination as much as possible, animals are generally prohibited to the extent practical from being in environments where food is grown, harvested, stored, processed, packaged, and otherwise altered before reaching retail outlets. Not all animals can be excluded, however. Grazing animals may be on farms where plants are being grown for human food. Livestock herding and guarding dogs may have to protect these grazing animals from predators. Guard dogs may be needed to protect buildings where food is processed and stored.  Pest-detection dogs may be needed to identify and eliminate various pests and infestations both in fields and pastures and inside of structures. Farm pets may run through fields and barns. Individuals with disabilities may work in food-producing environments and may require the assistance of service dogs. 

The FDA regulations in Title 21 of the Code of Federal Regulations recognize all these types of animals, except service dogs. Rather, the regulations recognize guide dogs only, most probably a legacy of that period where the only dogs with access greater than pets under disability law were guide dogs for the blind and visually impaired. The earliest references to guide dogs in FDA regulations date from 1986, before the 1991 regulations under the Americans with Disabilities Act fleshed out access provisions for service animals. The reason the FDA has not taken service animals into consideration is probably administrative inertia in continuing to use the first rule (21 CFR 110.35) as a template for later rules.  Also, apparently in none of the subsequent regulatory proposals did anyone with a service animal comment on the restrictive language, nor that I can find did any service animal organization submit comments. I must acknowledge that I also failed to notice when proposals only mentioning guide dogs, not service animals, were published in the Federal Register in 2013. It is too late to submit comments on the proposals as they have been made final, but, fortunately, there is a way to raise the issue outside of the regulatory process. 

The concept of service animals is not, however, foreign to the FDA as the 2013 Food Code, a document issued jointly by the FDA, the Centers for Disease Control and Prevention (CDC), and the Food Safety and Inspection Service of the U.S. Department of Agriculture (USDA), uses the term multiple times. 

Locations with Animal Access Restrictions under FDA Regulations

Before discussing the various types of dogs that may be present in agricultural and food production operations, it might be helpful to list general locations where specific types of dogs and other animals are permitted. This table generally moves from the more confined locations (buildings and manufacturing plants) to more open locations (water sources, growing areas, and farms). As is evident in the table, and further explained below, the more restricted areas are generally only supposed to be open to certain dogs with specialized training and skills, while more open areas such as fields and farmyards are accepted as inevitably having more types of animals, even grazing and wild animals, under less or no control.   

Locations Where FDA Rules Specify Limitations on Animal Access
Location/type of food
Animals allowed (dogs)
Provision/effective date
Buildings and facilities used in manufacturing, packing, or holding human food (Part 110)
Guard and guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
21 CFR 110.35 Pest control (removed after 9/17/2018, but effectively replaced by 21 CFR 117.35 on 11/16/2015; this replaces a non-binding provision with a binding provision.)
Physical plant and grounds used in manufacturing, packaging, labeling, or holding operations for dietary supplements  (Part 111)
Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces.
21 CFR 111.15, effective since 2007.
Fully-enclosed buildings used in growing, harvesting, packing and holding of produce (fruits and vegetables) for human consumption (Part 112)
Domesticated animals must be excluded from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed, unless such animals can be separated from such activities in the fully-enclosed building by “location, time or partition.”  However: “Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.”
21 CFR 112.127, effective 1/26/2016, with different compliance dates depending on the size of the business (an income determination).
Areas of a plant used for manufacturing of human food (Part 117)
Guard, guide, or pest-detecting dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
21 CFR 117.35, effective 11/16/2015 (as noted above replacing non-binding provision of Part 110 with binding provision in Part 117).
Water sources, water distribution system, and pooling of water used in growing, harvesting, packing and holding of produce (fruits and vegetables) for human consumption (Part 112)
Water sources must be kept free of domesticated animals.
21 CFR 112.42, effective 1/26/2016.
Areas, including growing areas where” there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate” produce (fruit and vegetables) (Part 112)
Grower must evaluate whether produce can be harvested without reasonable likelihood of contamination. Working animal is defined broadly to include “dogs, cats, or chickens” used to deter pests in growing areas, as wells as “guard dogs used to keep other animals out of fields.”  This would seem to include livestock guarding dogs used to deter predators.
21 CFR 112.83, effective 1/26/2016.

Guide, Guard, and Pest-Detecting Dogs

A rule added to 21 CFR Part 110 (Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food) in 1986 (51 Fed. Reg. 22475, June 19, 1986) contained a provision on pest control (21 CFR 110.35) that included the sentence: “Guard or guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.”  The wording of this sentence has continued to the present, though the provision will now be moved to new 21 CFR 117.35, where it will be modified to add a reference to “pest-detecting dogs.” (There will be a nearly two-year interval where both provisions will technically be effective because of staggered effective dates, though because of the identical language, this will present no additional burden.)

Guide dogs are also mentioned in 21 CFR Part 111 (Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements), at 21 CFR 111.15, which includes a sentence which differs from that in 21 CFR 110.35 only by the italicized words:

Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces.

The difference, of course, is that Part 111 deals only with manufacturing practice regarding dietary supplements.  This provision was proposed in 2003 (60 Fed. Reg. 12158, March 13, 2003) and finalized in 2007 (72 Fed. Reg. 34752, June 25, 2007), well within the modern era of ADA regulation, but no service dog user or organization commented on the restrictive reference to guide dogs only.  The “physical plant” includes the “building, structure, or parts thereof, used for or in connection with the manufacturing, processing, packing, or holding of human food” (80 Fed. Reg. 55938, September 17, 2015; 21 CFR 117.3).

New Part 112, Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, added in 2015 (80 Fed. Reg. 74357, November 27, 2015; proposed 2013), also mentions guide dogs along with guard dogs. Under 21 CFR 112.127:

(a) You must take reasonable precautions to prevent contamination of covered produce, food contact surfaces, and food-packing materials in fully-enclosed buildings with known or reasonably foreseeable hazards from domesticated animals by:
(1) Excluding domesticated animals from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed; or
(2) Separating domesticated animals in a fully enclosed building from an area where a covered activity is conducted on covered produce by location, time, or partition.
(b) Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.  (emphasis added)

Because the provision is not merely a manufacturing provision, but also covers the growing and harvesting of produce within an agricultural operation, the precautions that must be taken include taking such steps as are reasonable with regard to animals such as livestock, which might contaminate areas where produce (fruit and vegetables) are being grown or harvested. Thus, putting up a fence to keep cattle out of a corn field might be expected.   

As mentioned in the first paragraph under this heading, some of Part 110 is being moved to new Part 117, Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food, and new 21 CFR 117.35 will continue the guard and guide dog reference for manufacturing of food (except for Part 111, concerning dietary supplements), with the addition of “pest-detecting dogs.”  There appears no logical reason why pest-detection dogs were not added to the parallel provisions mentioning guard and guide dogs in Parts 111 and 112. 

Working Animals

Under new 21 CFR Part 112, references to “working animals” can include dogs.  Subpart I of Part 112 concerns domesticated and wild animals, and 21 CFR 112.83(a) states: 

You must take the steps set forth in paragraph (b) of this section if under the circumstances there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate covered produce. 

There are additional references to working animals in 21 CFR 112.32 stating that hygienic practices require avoiding contact with animals other than working animals and requiring steps to minimize the likelihood of contamination from contact with working animals including washing hands after contact.

“Working animal” is not defined in the regulations but the preamble describes this category as including “horses, dogs, cats, and chickens” (80 Fed. Reg. 74481), and another passage refers to “using dogs, cats, or chickens to deter pests in growing areas…” and “using guard dogs to keep other animals out of fields” (80 Fed. Reg.  74480-1). This would seem to be broad enough to include livestock guarding dogs, and should probably include livestock herding dogs. Yet another passage in the preamble distinguishes working animals from “grazing animals” (80 Fed. Reg. 74370).

Domesticated Animals

Yet another term found in the regulations just finalized that can include dogs is “domesticated animal.” This term also is not formally defined, though the preamble contains a parenthetical to the term “domesticated animals (such as livestock, working animals, and pets)…” (80 Fed. Reg. 74478).  (It is probably not too much of a stretch to argue that since the parenthetical does not mention guide or guard dogs, these also fit within the category of working animal.)  New 21 CFR 112.42 requires keeping water sources “free of … domesticated animals, and other possible sources of contamination of covered produce to the extent practicable….” 

Specifically as to pets, the FDA states:

You are permitted to have cats or dogs on your covered farm, provided that … you (1) adequately control their excreta and litter and (2) maintain a system for control of their excreta and litter. These measures are necessary to prevent contamination of covered produce, food-contact surfaces, areas used for a covered activity, agricultural water sources, and agricultural water distribution systems with waste from your cats or dogs.  (80 Fed. Reg. 74495; see also new 21 CFR 112.134.) 

Thus, a covered farm, one that grows food and produce for human consumption, need  not exclude its own pets, but might want to restrict visitors from brining in large numbers of pets. 

Why Were Service Animals Not Considered by the FDA?

None of the commenters on the 2013 proposals mentioned service dogs or service animals.  In contrast, the Pennsylvania Vegetable Growers Association (comment of Brian Campbell, President) noted that “dogs are sometimes used to control animal intrusions into fields…,” an observation which the drafters of the regulations adapted in the preamble.  Dr. Richard Bonanno, President of the Massachusetts Farm Bureau Federation, noted the need for the “intermittent presence of service animals, such as dogs to scare away wildlife or geese that may eat weeds….” George Greig, Secretary of the Pennsylvania Department of Agriculture noted that dogs and cats are used “for pest control and/or keeping other animals out of fields and outbuildings.” Thus, pest-detection dogs were recognized in the final rules, but service animals were not. 

It may be that if the issue of a non-guide service dog ever arises in a food production context, the relevant authorities will consider that such service dogs are to be treated the same way as guide dogs.  A personal communication with someone who has worked in agricultural settings has confirmed that this has been the case in her experience, and the references to service animals in the Food Code, discussed next, would certainly support such an argument. Nevertheless, in an email communication with an official of the FDA, the official suggested that the service animals would be in the same category as domesticated animals, i.e., in no better position for access than grazing animals. 

2013 Food Code

As stated at the beginning, the 2013 Food Code (“Code”) issued by three agencies, including the FDA and the CDC, both inside the Department of Health and Human Services, and the Food Safety and Inspection Service inside the USDA, makes numerous references to service animals.  The Code (p. 20) defines a service animals as “an animal such as a guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.” Employees are to “clean their hands and exposed portions of their arms” after “caring for or handling SERVICE ANIMALS or aquatic animals….” (2-301.14, p. 47).  Service animals controlled by a  “disabled EMPLOYEE or PERSON” may be in “areas that are not used for FOOD preparation and that are usually open for customers, such as dining and sales areas … if a health or safety HAZARD will not result from the presence or activities of the SERVICE ANIMAL.”  The following general statement is made (p. 537) regarding food employees with service animals:

Decisions regarding a food employee or applicant with a disability who needs to use a service animal should be made on a case-by-case basis. An employer must comply with health and safety requirements, but is obligated to consider whether there is a reasonable accommodation that can be made.

For additional information, the Code lists a number of releases of the Department of Justice regarding service animals, as well as the ADA website. It is clear that some officials inside the FDA are familiar with service animals, though perhaps the use of the more modern term in the Code is to be credited to one of the other agencies involved.   

Telling the FDA about a Service Animal

There is one way that service dog users can bring this issue to the FDA’s attention, should they wish.  The FDA has a system, the FDA Technical Assistance Network, which has an icon, “Submit Inquiry,” where a question may be posed to the FDA and which will, I am assured, be directed to the correct official inside of the agency. Those who have service animals who may be affected by these rules should consider sending a comment to this effect, along with any questions about the reach of the rules, through this mechanism.  I submitted the following comment by this means:

Although it is too late to submit formal comments regarding the recent Food and Drug Administration rules that discuss various types of trained dogs, pets, and other animals in food production environments (21 CFR 112.127; 21 CFR 117.35), I should like to note that the FDA’s regulatory limitation of service animals to guide dogs is contrary to recent legal developments regarding animals that are used by people with various types of disabilities other than blindness and vision impairment, and is also more limiting than the positions of the FDA itself as contained in the 2013 Food Code. 

In this connection, I believe that, in future revisions of 21 CFR 111.15, 112.127, and 117.35 (the latter replacing 21 CFR 110.35), the FDA should replace the term “guide dog” with “service animal.” Should it be deemed appropriate to define the term “service animal,” I suggest that the definition provided by the Department of Justice in 28 CFR 36.104 be used: “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.” The 2013 Food Code (6-501.115, p. 536) refers to 28 CFR 36.104 as the source of that document’s definition of service animal (though using a now outdated version of the Title 28 provision).  In this connection it is perhaps also worth noting that the Department of Justice recognizes that miniature horses have been trained to perform functions similar to those provided by guide dogs and therefore are allowed similar access to public accommodations (see 28 CFR 36.302(c)(9)). I accept that miniature horses would involve considerations that apply to certain grazing animals in the FDA regulations.    

Thank you for considering these observations.... 

The only response I have received so far was an unsigned email to my "FCIC Inquiry" advising me to submit my comments to "your local or state health department." This was either computer-generated (or at least mindlessly generated) as no state or local health department would have the authority to consider, much less correct, negligent drafting of federal regulations.  It must be hoped that, if more comments along the lines of what I have submitted are received, the issue will begin to be addressed by some higher intelligence inside the FDA. 

Conclusion

The actual level of inspection of farms and food-production facilities has dramatically decreased under the Obama administration according to experts in the area. (See, for example, Joe Ferguson, “Retired USDA Inspectors Share Concerns about HIMP Project,” Food Safety News, November 16, 2015; Tony Corbo, “USDA Continues to Deceive on Meat Inspections,” Food & Water Watch, April 17, 2014.)  So, admittedly, the chance that an inspector might actually raise an issue with regard to a non-guide service dog in an agricultural setting is not very likely.

The FDA is to be praised for taking pest-detection dogs into consideration with regard to manufacturing plants (Part 117), and should probably expand their usage to fully-enclosed buildings (Part 112) and manufacturing plants for dietary supplements (Part 111).  References to guide dogs should be expanded to service dogs, as it is as likely that people with disabilities other than vision impairments are working in the food industry.  Where dogs may be in fields and around grazing animals, references to guard dogs should clarify that in some of these environments the dogs might be livestock herding and protection dogs.  Since there are no open regulatory projects on which comments are still being received, such modifications may have to wait, but those interested in these issues should take advantage of the portal within the FDA Technical Assistance Network. 

Thanks to Sarah Bell for bringing to my attention the fact that under the Obama administration food inspection personnel have been reduced considerably, all but eliminating an important safety threshold on the food we eat. Thanks also to Veronica Morris, Brad Morris, and Chanda Hagen for suggestions and information regarding service animals used in agricultural settings. Thanks to Emma Ertinger of the National Sustainable Agricultural Coalition for information concerning FSMA rules and FDA procedures.
© John Ensminger 2015

FDA Access Rules Regarding Dogs and Other Animals in Food Production Environments
(Comprehensive Table of CFR Title 21 References)
Dog or animal category
CFR section
Relevant regulatory text
Status/Notes
Guard dog (note reference under “working animal” below to using “guard dogs to keep other animals out of fields” (80 FR 74481))
(see 21 CFR 100.35(c) and 21 CFR 100.15(d) below)


Guide dog
Part 110—Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food
Subpart B—Buildings and Facilities
21 CFR 110.35 Sanitary operations…
(c) Pest control.
… Guard or guide dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
51 FR 22475, June 19, 1986; amended 54 FR 24892, June 12, 1989;
Part 110 removed and reserved, effective September 17, 2018 (80 FR 56144, September 17, 2015); FDA is re-establishing “certain non-binding provisions of part 110 in part 117 as binding provisions.” (80 FR 55939)
Part 111-Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements
Subpart C—Physical Plant and Grounds
21 CFR 111.15 What sanitation requirements apply to your physical plant and grounds?
(d). Pest control.
(1) …  Guard or guide dogs are allowed in some areas of your physical plant if the presence of the dogs will not result in contamination of components, dietary supplements, or contact surfaces….
Proposed March 13, 2003, 68 Fed. Reg. 12158; finalized June 25, 2007, 72 Fed. Reg. 34752.
Part 112—Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
Subpart L—Equipment, Tools, Buildings, and Sanitation
21 CFR 112.127 What requirements apply regarding domesticated animals in and around a fully-enclosed building?
(a) You must take reasonable precautions to prevent contamination of covered produce, food contact surfaces, and food-packing materials in fully-enclosed buildings with known or reasonably foreseeable hazards from domesticated animals by:
(1) Excluding domesticated animals from fully-enclosed buildings where covered produce, food contact surfaces, or food-packing material is exposed; or
(2) Separating domesticated animals in a fully=enclosed building from an area where a covered activity is conducted on covered produce by location, time, or partition.
(b) Guard or guide dogs may be allowed in some areas of a fully enclosed building if the presence of the dogs is unlikely to result in contamination of produce, food contact surfaces, or food-packing materials.
Effective January 26, 2016 (80 FR 74357, 74528, November 27, 2015; proposed 78 Fed. Reg. 3504, January 16, 2013), but different compliance dates depending on the size of the business (an income determination). 
Part 117—Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food
Subpart B—Current Good Manufacturing Practices
21 CFR 117.35 Sanitary operations
(c) Pest control.
… Guard, guide, or pest-detecting dogs may be allowed in some areas of a plant if the presence of the dogs is unlikely to result in contamination of food, food-contact surfaces, or food-packaging materials.
Effective November 16, 2015 (80 FR 56131, September 17, 2015); note that there appear to be dates where both the requirements of Part 110 and Part 117 apply, though the identity of language makes this irrelevant.
Pest-detecting dog
(see 21 CFR 117.35 above)


Domesticated animals (which can include “livestock, working animals, and pets” (80 FR 74478); the absence of reference to guide dogs here suggests that in this connection at least a guide dog is a working animal)
(see 21 CFR 112.127 above)
Subpart E—Agricultural Water
21 CFR 112.42 What requirements apply to my agricultural water sources, water distribution system, and pooling of water?

(c) You must adequately maintain all agricultural water sources to the extent they are under your control (such as wells). Such maintenance includes regularly inspecting each source to identify any conditions that are reasonably likely to introduce known or
reasonably foreseeable hazards into or onto covered produce or food contact surfaces; correcting any significant deficiencies (e.g., repairs to well cap, well casing, sanitary seals, piping tanks and treatment equipment, and control of cross-connections); and keeping the source free of debris, trash, domesticated animals, and other possible sources of contamination of covered produce to the extent practicable and appropriate under the circumstances.


21 CFR 112.134  What must I do to control animal excreta and litter from domesticated animals that are under my control?
(a) If you have domesticated animals, to prevent contamination of covered produce, food contact surfaces, areas used for a covered activity, agricultural water sources, or agricultural water distribution systems with animal waste, you must:
(1) Adequately control their excreta and litter; and
(2) Maintain a system for control of animal excreta and litter.
(b) [Reserved]

Working animal (which can include “horses, dogs, cats, and chickens” (80 FR 74481, November 27, 2015); distinguished from “grazing animals” (80 FR 74370, 74481); “using dogs, cats, or chickens to deter pests in growing areas, or prevent farms from using guard dogs to keep other animals out of fields” (80 FR 74480-1); “working animals such as horses used for tilling and harvest activities and transporting produce” (80 FR 74480))
Part 112—Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
Subpart I—Domesticated and Wild Animals
21 CFR 112.83 What requirements apply regarding grazing animals, working animals, and animal intrusion?

(a) You must take the steps set forth in paragraph (b) of this section if under the circumstances there is a reasonable probability that grazing animals, working animals, or animal intrusion will contaminate covered produce. 
(b) You must:
(1) Assess the relevant areas used for a covered activity for evidence of potential contamination of covered produce as needed during the growing season (based on your covered produce; your practices and conditions; and your observations and experience); and
(2) If significant evidence of potential contamination is found (such as observation of animals, animal excreta or crop destruction), you must evaluate whether the covered produce can be harvested in accordance with the requirements of § 112.112 and take measures reasonably necessary during growing to assist you later during harvest when you must identify, and not harvest, covered produce that is reasonably likely to be contaminated with a known or reasonably foreseeable hazard.
See notes on 21 CFR 112.127 above.

Wednesday, November 11, 2015

Keeping the Homeless and Their Pets Together in Shelters and Housing: A Call for a Change in Public Attitudes, Governmental Priorities, and the Law

Via dell' Independenza, Bologna, October 2014 (courtesy Joan Ensminger)
Alessandro, I will call him, spends many days on the west side of the Via dell’ Independenza in Bologna, Italy, several blocks north of the Piazza del Nettuno with the fountain atop which stands the bronze Neptune cast by Giambologna in 1567.  Alessandro spreads the ground cover of his sleeping bag to his right for his dogs, Cabaletto and Raissa, though he usually holds Raissa.  He sits cross-legged on the pavement, a heavy backpack with his worldly possessions behind him to serve as a chair back when needed and positioned to slip on quickly if he has to move, though two police pass on horses once when I am near him and show no interest. Food and water dishes for his dogs are beside him and there is a plate in which he hopes some of the dense flow of well-dressed pedestrians—the clothing stores are expensive at this level of the Independenza—will be kind enough to drop a few coins.  The first thing I notice is how well the dogs are cared for.

Marta, again not her real name, sits against a building on the Vicolo Doria in Rome, an alley close to the Via del Corso just north of the Altare della Patria which casts a long shadow from the Capitoline in early October.  Her dog is also healthy and relaxed despite the constant foot traffic and the incessant blare of horns as cars jostle for position around the Piazza Venezia.  She focuses on her dog as if the mere sight of him calms the storm that is her life, barely nodding when someone puts a coin in the basket she places more than a foot before the blanket on which she and the dog live for hours each day.  She is surprised when I begin to speak to her and both she and the dog look up to see if something is wrong. 

There was one other homeless couple with two dogs in Bologna, but I did not talk to them and so did not photograph them.  They did not put a dish before their dogs but rather only before him when he played his guitar in the Piazza Maggiore.  She would sit with the dogs on one of the steps of the Basilica San Petronio, or further away.  I would not have known they were together had I not seen them several times late near the Novocento, his guitar in its case, the rest of their possessions in an assortment of bags, the dogs resting beside them, a family wrapping itself in what privacy could be found on the Bolognese streets through the night.  I was struck by the fact that they seemed never to try to use the dogs to obtain sympathy or coins.  They reminded me of some of the people who lived in People’s Park in Berkeley in 1969.  Drugs?  I suspected so, but only because I still trust instincts developed long ago when I could move inconspicuously between the worlds of the classroom and the street. 

Redemption Narratives

The most comprehensive discussion of the homeless and their pets is contained in a book, recently issued in paperback form, by Leslie Irvine, a professor in the Department of Sociology at the University of Colorado at Boulder, who has also written some seminal papers on the topic.  The book, My Dog Always Eats First: Homeless People & Their Animals (Lynne Rienner Publishers, Inc., 2012), examines the narratives homeless people develop to explain to themselves and to those who will listen how they reached where they are, what their lives are like, and what their pets mean to them.  Irvine begins the book with a sort of redemption narrative about herself, about how she began to develop an interest in and sympathy for the homeless who have pets.  While driving in Boulder one day, she saw a panhandler on the narrow median of a highway with a dog. She parked her car, walked to the median and offered to buy the dog from the homeless man, hoping to give the animal a better life.  She was taken aback at the panhandler’s almost violent reaction, accusing her of being a yuppie meddler. 

Vicolo Doria, Rome, October 2014
I suppose I now have my own redemption narrative on this issue, which has brought me from being an unsympathetic observer of the homeless and their pets to someone who believes that the lack of any significant, much less comprehensive, social policy regarding these people and animals is a failure of our American democracy.  My redemption narrative probably began in Berkeley (one of the places where Irvine studied the homeless and their pets, though long after my time there), where every summer there were thousands of runaway teenagers panhandling on Telegraph Avenue and along the edge of the campus, setting up tents and rolling out sleeping bags in the parks around the city.  Many had brought dogs and cats with them.  I always felt sorry for the animals.  Life and a legal career soon led me to New York City, where in the 1970s into the 1980s there were corrugated cardboard camps set up by the homeless (an older population than I had seen in Berkeley) along the streets between the Port Authority and Penn Station, where on weekdays I took a train to Trenton for work.  There were dogs in those camps.  “I’m not giving the money to him.  I’m giving it to the dog,” I’m sure I said many times either to someone I was with or to myself.  I never tried to buy a dog, but I felt sorry, even angry, for the lives the animals were leading.  They had no choice in their circumstances.  Though enough of a liberal not to put all the blame on the homeless themselves, I had much less sympathy for their plight than I had for the dogs.  It did not occur to me that there might be joys in this existence both for the homeless people and for their pets. 

Then I moved to the Hudson Valley, 80 miles north of the city, and seldom thought about or saw homeless people or their pets for many years.  It took a trip to Italy for me to begin to think about this in new ways. 

How Many Homeless Have Pets?

A Nevada nonprofit organization, Pets of the Homeless, states in the FAQs on its website that there are about 3.5 million homeless Americans and five to ten percent of them have dogs or cats.  “In some areas of the country the rate is as high as 24%.”  Genevieve Frederick, the founder of this organization, surveyed a large number of homeless shelters to obtain this statistic and advises me that she regards it as conservative.  Some homeless may deny having pets to people conducting surveys for fear of being denied services. Surveys of the homeless are notoriously difficult to conduct but government statistics do not put the number of homeless as high.  The Department of Housing and Urban Development provides Congress with an estimate of the number of homeless each January.  Their latest published report (2014) states:

In January 2014, 578,424 people were homeless on a given night. Most (69 percent) were staying in residential programs for homeless people, and the rest (31 percent) were found in unsheltered locations.

HUD does not estimate numbers of homeless with pets, though the agency says that of this number there were 216,261 homeless people in families and 135,701 children. 

Rhoades et al. (2012) found that of 398 homeless youth at two drop-in centers in Los Angeles, 23% reported having a pet.  Lem (2012) refers to an unpublished 2009 study of street youth in Toronto as finding that of 245 youth, “12.8% of participants reported being a pet owner.”  Lem et al. (2013), in a study of homeless youth in Canada, cited Dr. Stephen Hwang of the University of Toronto as indicating that in Toronto about 8% of homeless and 11% of “vulnerably housed individuals” have companion animals.  (Hwang has indicated to me that he has not subsequently gathered any additional data or published his findings on how many homeless people have pets.)  In 2009, Cronley et al., using data from a Homeless Management Information System found that 5.5% of the homeless in the system reported caring for an animal, and 2% had been refused housing due to animal caretaking (a much lower refusal percentage than found by Singer et al. 1995, discussed below).  Their findings “suggest that first-time homeless, Euro-American women who were homeless due to domestic violence were the most likely to say they were caring for animals.”    

A survey of homeless street youth in Toronto by Stephen Gaetz (chapter 3 in Hulchanski et al. 2009) found that 7.6% of homeless young people had obtained a dog for protection, 10.2% of boys and 4.3% of girls. This compared with 3.2% of domiciled youth (2.6% of boys but 4.0% of girls).  Gaetz et al. (2013) described “a number of situations where a group of street youth shared a dog and cared for it together, as a street family….”

Homeless Individuals by State (HUD 2014)
Unfortunately, most surveys of the number of homeless individuals with pets are specific to regions or age groups and an overall estimate is inevitably rough.  Nevertheless, it is clear that at there are currently at least 60,000 but perhaps as many as 300,000 people in the U.S. who are homeless with pets.  

Public Perception of the Homeless Having Pets

I have already acknowledged that among my initial reactions to homeless people having pets were that they were using the animals as props for begging and that the animals had a horrible life, perhaps little better than being confined in the cage of a pound.  Even if the animals were not scheduled to be euthanized, the risks of living with the homeless on the streets included high rates of disease and the ever-present chance of running into traffic. 

Irvine et al. (2012) report that homeless people say they are often criticized for having pets and failing to give them a physical home. They state that most of 60 homeless people they interviewed had encountered criticism for having a pet, with people telling them that they should not have a pet if they cannot give the pet a home.  Some reported that people had tried to buy their dogs to give them a home (as Irvine herself recounts having tried to do).  The homeless sometimes received threats that Animal Control would be called to take a pet away from them. 

Lem et al. (2013) found that homeless people themselves were inclined to see the use of companion animals for panhandling as exploitative, though some who had done it “acknowledged that companion animals often improved earnings,” particularly with younger animals.  One young man said that when his dog was between 16 weeks and six months, “I could almost guarantee $100 day every day.”  Lem et al. described a man who had lost his dog after it was hit by a car, which depressed him so much that he did not want to get another dog for fear of losing it the same way.  Thompson et al. (2014) found that loss of a pet on becoming homeless was a source of considerable grief among homeless in Australia. 

Lives of Homeless Pets

Unlike my ill-informed knee jerk reaction that homeless people obtain pets to improve their success in panhandling, a growing number of sociological and psychological studies, many included in the list of sources at the end of this blog, make it clear that the relationships of the homeless and their pets are generally the same as the rest of us have with our animals. Lem et al. (2013) found that homeless people referred to their pets as best friends, children, and family members. If anything, the animals of the homeless may get more attention, and more play time, than those of us with busy schedules ever give to our pets.  Lem et al., writing about “street-involved youth” in Canada, found that “pet before self” was a common theme among those they spoke with. Irvine found this characteristic so widespread and generally compelling that she referred to it in the first part of the title of her book, My Dog Always Eats First. Irvine (p. 30) says that most dogs, “due to the around-the-clock company of their guardians, were relaxed and attentive: most had received some training and knew at least the basic commands, such as ‘sit.’” 

Just as many of us want pets because we had them as children, Kidd and Kidd (1994) concluded that homeless people with pets were more likely to have had pets as children than was the case for homeless people without pets.  The homeless, like the disabled and the rest of us (Mader et al. 1989), may remark on how the animals increase interactions with other people.  Lem et al. (2013) interviewed one young man who said that by having a dog with him, “people could see a better side of me than they usually would.”  Taylor et al. (2004) found that among “homeless respondents, non-dog owners were significantly more likely than dog owners to believe that having a dog helped initiate conversations with the public.”  There may be a gender bias in who talks to the homeless with pets in that these researchers report that “women were significantly more likely to show concern for a homeless person’s dog’s welfare than men.” 

The homeless are often more conscious of the protection provided by their pets.  Gaetz et al. (2013) said that young homeless women found a dog “a source of security and comfort but also made it difficult to access necessary social services,” including public transportation.  Bukowski and Buetow (2011) found that homeless women treated their dogs “like family,” and depended on them for protection, sometimes to the point where even if they were offered housing they “would continue to live outdoors if their dogs could not go with them.”  In describing how the homeless camping in the woods often depend on the protective behavior of their dogs, Irvine’s account in her book (p. 116) reminded me of the ancient value of dogs to the human camp. 

The loyalty of dogs has always been important to humans, but it takes a sharper edge with the homeless.  Bender et al. (2007) quote a street youth as saying that his dog would stay with him “no matter what,” unlike the people he often met “out there.” 

[A dog] gives you somebody to talk to—I mean my dog is my home—he keeps me warm when it’s cold and gives me somebody to talk to when I’m walking down the highway.

Lynn Rew (2000) noted that homeless adolescents “often recognize the therapeutic value of pets.” She correctly argues that “[i]nterventions that enhance this coping strategy need to be developed and tested.” 

Like other people who seek to find rental housing, homeless people may encounter rejection because of a dog of the wrong breed or one that is too large. Lem et al. (2013) note that one homeless youth with a pit bull said that it was more difficult to find housing or shelter because his dog was a pit bull.  Tina Rasnow (2002) refers to a homeless individual not moving into housing because his dogs were slightly larger than allowed by a housing project. 

Obtaining Dog Food and Veterinary Care

Caring for a pet is also important for many homeless, perhaps even more important for some than being protected by it.  Irvine (p. 81) says of one woman:

Roe found that the responsibilities of caring for her dogs lifted her spirits when she felt sorry for herself; the dogs reminded her that she had things to do…. the animal provides important elements of predictability and permanence.

Those domiciled individuals more tolerant of the homeless having pets often provide dog food to homeless individuals they want to help because of concern for the pets, as I have done from time to time.  Animal control services and humane societies in many cities provide free pet food (Irvine, p. 60).  Some soup kitchens provide dog food, and some pet stores hand out dog food as well.  Some homeless people said they had never had difficulty getting enough food for a dog and Irvine et al. (2012) said that, in their sample, “none of the pets of the homeless went hungry.” 

There has apparently been a change in this regard.  Irvine et al. (2012) note that Kidd and Kidd (1994) had reported that about half of the homeless with pets had reported difficulty in getting enough food for their animals.

Obtaining veterinary care for their pets can also be a challenge for the homeless, though Irvine et al. (2012) indicate there are organizations that provide free veterinary services for the homeless, such as the Veterinary Street Outreach Service in San Francisco, and similar organizations in many cities.  (Indeed, Irvine in her book, at p. 22, notes that it was largely with the help of veterinarians and veterinary assistants that she was able to begin interviewing homeless people about their pets.)   Taylor et al. (2004) found that dog-owning homeless people were less likely to obtain health care services for themselves than were non-dog owning homeless people, “and health scores showed a reversed trend compare to that expected for the general population, with dog owners scoring lower than non-dog owners.”  So, in addition to feeding their animals before themselves, some homeless people may be obtaining medical services for their animals before they seek it for themselves. 

Pets as Redeemers

Perhaps the greatest difference between how the homeless describe their animals and how the rest of us do is that the homeless will often mention how a pet saved them.  Singer et al. (1995) found that “homeless pet owners were not markedly depressed and hopeless,” yet Irvine (2013) heard many “personal narratives in which homeless and formerly homeless people portray a pet dog or cat as either motivating them to change their lives or preventing them from taking their lives.”  Irvine “wanted to learn how homeless people narrated the slices of their lives that involve a relationship with an animal.”  One woman who Irvine called Donna said she stopped using heroin because of a German shepherd-Lab mix named Athena that had been rescued by another woman from a shelter where the dog had been scheduled to be euthanized.  Donna credited Athena with getting her out of an abusive relationship with a man who took her money and beat her up. Her mother allowed Donna to move into her house, but told Donna she would have to be clean.

“I said to myself, ‘My dog comes first in my life. Would I rather use drugs, or feed my dog?’ And I fell in love with Athena, so I gave up the needle. Gave up the pipe. I gave up liquor. Everything.”

Donna began to receive Supplemental Security Income (SSI).  When Athena died of cancer at age 13, a pet supply store held a memorial service for her and a veterinary clinic arranged for cremation.  “Donna has kept the ashes because she wants them mixed and distributed with hers when she dies.”  Donna also began being treated for HIV once she had Athena and had given up drugs. 

Another person Irvine interviewed was panhandling at the exit of a shopping center in Boulder, Colorado, holding a sign that read, “Sober.  Doing the best I can.  Please help.”  This woman—Irvine gave her the pseudonym of Trish—had a Jack Russell Terrier named Pixel that was at her side in a dog bed.  Although she lived in a condemned mobile home, she did not leave Pixel in it because Pixel, according to Trish, had separation anxiety and would rather be with Trish out in the cold than by himself. Trish said that she had hit “rock bottom” and had wanted to die, but she couldn’t give up “because I had something else to take care of besides myself.  So he kept me alive…. I still needed to feed him and keep him warm at night. I didn’t care about myself, but I had to care about him, you know? He got me through a really tough spot.” Trish also told Irvine that Pixel did not like the smell of alcohol and would nip at the heels of people who approached them smelling of alcohol. 

Lem et al. (2013), interviewing young homeless people in Canada, found that many reported similar efforts to reduce the use of drugs and alcohol because of a companion animal.  One reported that he still used marijuana but had given up heavier drugs.  Two individuals said that they had lost dogs after being arrested and the animals had been euthanized at shelters.  Others reported concern that they could lose their animals by having them seized by police or animal control officers. Fear of losing a pet because of a negative interaction with authorities can be found in many of the studies of the homeless and their pets.   

There is some statistical support for dog ownership reducing drug use among the homeless.  A study in England (Baker 2001; see also Cronley et al. 2009) determined that 49% of non-owning but 37% of dog-owning homeless people took drugs.

The Limited Nature of the Current Safety Net for Pets of the Homeless

Before discussing what needs to be done (however unrealistic my hopes in this regard may be), it is essential to describe what social safety nets presently exist that can help the homeless and their pets.  It will be seen that only when certain categories of the homeless or potentially homeless arouse broad public sympathy, absolving them of primary responsibility for their homelessness and placing the blame on natural disasters or abusive husbands, will there be found any effective social safety net. 

Shelters for Disaster Victims

The effects of Hurricane Katrina on pets were devastating, and many people were forced to save themselves by leaving their pets behind (McNabb 2007).  A legislative result of this horror was the Pets Evacuation and Transportation Standards Act of 2006, PL 109-308 (amending 42 U.S.C. 5196), which provided federal funding for “the procurement, construction, leasing, or renovating of emergency shelter facilities and materials that will accommodate people with pets and service animals.”  The legislation presumes that displaced individuals or families will soon be returned to their homes, or will be able to obtain new housing, after the crisis passes.  The homeless status of the disaster victims is temporary, as is that of the pets, and thus does not generally concern the populations I am discussing here. 

Sheltering Abuse Victims and Their Pets  

The fact that many abused women will not leave abusers if they cannot take pets with them has received considerable attention from the popular press and legislators.  A study by Amy Fitzgerald (2007) found that abused women sometimes stayed with abusive partners longer than they might otherwise have done because their pets “kept them going” and provided them with enough support to cope with the abuse.  Some even said the pets were a reason they did not end their own lives.

Regina Jones (2008), discussing the importance of courts including pets in protective orders, just as spouses and children are covered, recounts a client showing her pictures of her husband cutting “cutting her beloved dog’s ears off with a pair of garden shears.”  The husband had sent the ears to his wife.  The correlation of domestic violence with animal abuse is high. Ascione et al. (1997) surveyed shelters concerning intake procedures regarding battered women, finding that 83.3% had observed the coexistence of domestic violence and pet abuse, yet only 27.1% had questions regarding pets in intake questionnaires.  Rebecca Wisch (2014) has assembled data on those states that have enacted legislation to include provisions for pets in domestic violence protection orders. (See NY Social Services Law section 459-b: "If the victim of domestic violence has a service animal or therapy dog ..., such service animal or therapy dog shall be allowed to accompany the victim at the residential program authorized ....")

The proposed Pet and Women Safety Act of 2015, presently mired in agricultural committees in both the House and Senate, would provide—

short-term pet shelter and housing assistance, including assistance with respect to expenses incurred for the temporary shelter, housing, boarding, or fostering of the pets of domestic violence victims and other expenses that are incidental to securing the safety of such a pet during the sheltering, housing, or relocation of such victims….

This assistance would be in the form of grants to entities established to help victims of domestic violence.  A pet for purposes of the Act is defined broadly as “a domesticated animal, such as a dog, cat, bird, rodent, fish, turtle, horse, or other animal that is kept for pleasure rather than for commercial purposes.”  This proposal recognizes that some victims of abuse may remain with the abuser in order to protect a pet (Fitzgerald 2007; Flynn 2000; Ascione et al. 1997). 

The Act is designed to help “victims of domestic violence, dating violence, sexual assault, or stalking and the pets of such victims.” It would not guarantee that the pet or pets would be kept with the victim while housing is provided for each.  It considers that pet shelter and housing may but need not necessarily be co-located with that provided the victim (“locate and secure safe housing with their pet or safe accommodations for their pet….”). 

Although the Act refers to “emergency and transitional pet shelter and housing assistance,” as well as “short-term pet shelter and housing assistance,” it does not specify how quickly after leaving the abusive situation the victim must seek shelter.  It does refer to providing services to a victim “fleeing” domestic violence, so it might be argued that a victim who has been on the streets for a time but is still living in fear of the abuser might be able to seek assistance for herself and her pets.  The time frames will probably require regulatory clarification if the Act does pass.  

A program founded by Allie Phillips, Sheltering Animals & Families TogetherTM  encourages shelters to accept animals along with members of families fleeing domestic violence and provides lists of shelters that accept pets. 

Homeless Person with Dog in New York City, April 2016 (courtesy R. Keats)
Shelters for Homeless People

Singer et al. (1995) found that most participants in a survey had been refused housing because they had pets (though the authors acknowledged that the refusals were sometimes for legitimate reasons).  With limited exceptions described below, most homeless shelters will not accept animals. This raises health issues.  Lem (2012) notes that young homeless people have reported that their health has been affected by having to sleep outside in inclement weather because of refusal to be separated from their pets. Singer et al. surveyed 35 men and 31 women who visited a veterinary clinic serving homeless pet owners.  93.3% of men and 96.4% of women said that housing would not be acceptable if they could not bring their pets with them.  61% of men and 33% of women said they would be willing to live anywhere pets were allowed except a shelter.  Particularly uninterested in going into shelters were chronically homeless men (men who had been homeless more than six months), perhaps as a result of negative experiences with shelters.  Lem et al. (2013) found that the exclusion of pets from shelters may hit homeless women more than homeless men in that “homeless women are more likely to seek shelter or housing due to their vulnerability on the street.”

Under 42 U.S.C. 12181(7), a public accommodation includes a “homeless shelter, food bank, adoption agency, or other social service center establishment…” (See also 28 CFR 36.406(d).)  This means that homeless shelters are covered by the Americans with Disabilities Act and should be required to accept service animals as defined under 28 CFR 36.104. Although not common, I have been advised of some veterans who have service dogs, primarily for PTSD, who have had difficulties obtaining access to shelters even with highly trained service dogs.  Part of the problem may be that, at least in some areas, homeless people with pets have been obtaining service dog paraphernalia for their pets in order to increase the access of the animals and such bogus service animals have been causing problems in shelters as they have in other places of public accommodation. 

In San Francisco, an individual with a licensed dog and a doctor’s letter stating the individual has a disability, and needs a dog as a service/support animal, can register the dog with the San Francisco Department of Animal Care and Control and obtain service dog tags (also called California Assistance Dog tags).  The applicant must have had the dog for at least 30 days, and must sign an affidavit confirming that he or she is disabled “and that your dog is trained to assist you.”  There is no charge for the tags.  A webpage of the organization PAWS (Pets Are Wonderful Support) devoted to the procedures of obtaining and benefits of having these tags explains that they entitle the holder to bring the service or support animal “of any species” into, among other places, “public health clinics, case management or mental health services, [p]ublic or private housing, including SROs, homeless shelters and residential treatment programs funded by or contracted with the City.”  Irvine in her book (p. 78) states that the “majority of guardians in San Francisco had such tags for their dogs, and one had them for her cat.”  Although I favor some of the results of this program as to shelters and housing, I believe its benefits are best kept in San Francisco as it is clear that under federal perspectives on service and probably even emotional support animals, many of the tags are being issued to individuals without legitimate service or assistance dogs. (I have dealt with this issue many times in this blog, such as with regard to airline access )

The obligation of a homeless shelter system becomes more complicated if the animal is not a service animal but does provide emotional support to an individual with a handicap under 42 U.S.C. 3604(c).  This requires determination of whether a shelter can be considered a dwelling unit under 24 CFR 100.201, which states:

Dwelling unit means a single unit of residence for a family or one or more persons. Examples of dwelling units include: a single family home; an apartment unit within an apartment building; and in other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling, rooms in which people sleep. Examples of the latter include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons.  

The application of the Fair Housing Act to homeless shelters is not a matter of settled law, however, as courts have split on whether specific temporary shelters fit within the Act’s definition of dwelling.  In Community House, Inc. V. City of Boise, Idaho, 490 F.3d 1041 (9th Cir. 2007), a facility that provides more than transient housing, including “transitional housing units in which tenants reside for up to a year and a half,” was, at least as to this part of the facility, a dwelling under 42 U.S.C. 3602(b).  See also Woods v. Foster, 884 F.Supp. 1169 (D. Ill. 1995), finding a facility where guests were allowed to stay up to 120 days was a dwelling. 

In contrast, Intermountain Fair Housing v. Boise Rescue Mission, 717 F.Supp.2d 1101 (D. Idaho 2010), affirmed on other grounds, 657 F.3d 988 (9th Cir. 2011), concerned a facility where guests have to check in on a daily basis between 4:00 and 5:30 p.m. and remain in an outdoor waiting area until 6:00 p.m., are not guaranteed the same bed each night, are not allowed to leave the shelter during the night once they enter it, but are required to leave by 8 a.m.  “Guest sleeping areas are in dormitory-style rooms shared with many guests….”  This facility is not a dwelling, according to the Idaho federal district court, but is rather a “place of temporary sojourn or transient visit.”  The decision observed:

The Court is not convinced that a homeless shelter is a "dwelling" simply because the guests have "nowhere else to `return to,'" … because, under that interpretation of "dwelling," any building or structure in which a homeless person is sleeping and storing his or her possessions would be considered a "dwelling" based simply on the intent and circumstances of the homeless person.

Via dell' Independenzia, Bologna, October 2014
Karen Wong (2009) has argued that “shelters should typically not be classified as dwellings under the Fair Housing Act.”  Rather, they “should be treated as public accommodations subject to the more lenient restrictions of the Civil Rights Act of 1964.”  For the present discussion, this would mean that the more typical type of homeless shelter described in Intermountain Fair Housing would be required to accept a service dog but not an emotional support animal. See also the excellent discussion of Katherine R. Powers (2014), considering the dwelling question with regard to a college dormitory but analyzing the history of the concept of dwelling in a range of residential arrangements (drug treatment facilities, halfway houses, migrant worker housing), particularly focusing on the length of residence issue as often determinative. 

A legislative initiative in Hawaii in 2011, designed to provide funding for parks for homeless persons (HR 133), included a provision stating that homeless persons would be permitted to bring into a park “a limited amount of possessions and a maximum of one pet as appropriate.” Although the legislation eventually passed, the pet reference was deleted before enactment. The rule would have excluded many homeless people who have more than one pet.   Recently, a transitional shelter on Sand Island for homeless people on Oahu was made pet-friendly by Mayor Kirk Caldwell of Honolulu.  The decision has been controversial, and has been followed by the local press (see letter from Pamela Burns, President of the Hawaiian Humane Society in the Star Advertiser, November 1, 2015, answering critics of the policy).

Some shelters do accept pets without any legislative mandate. Lem et al. (2013) note that most homeless shelters in Canada have no-pet policies, but some will accept pets “seasonally,” presumably in winter.  Labrecque and Walsh (2011) found that women with companion animals in Canadian cities wanted shelters to accept pets and suggested that there be separate areas for people with pets. Loftus-Ferren, Z. (2011) describes a homeless encampment in Ventura, California, that was created as a direct response to the rules against couples and pets that exist in many homeless shelters. Nevertheless, Bruce (2014) notes that, despite being sympathetic, many homeless shelter services feel that with limited resources they cannot justify allocating funds for pet care despite the attachments homeless people may feel towards their animals.  

Federal Court Requires Eureka to Let Homeless Keep Their Pets in Shelters

The City of Eureka, California, sought to remove over 100 homeless individuals from Palco Marsh on the Eureka Waterfront.   The City sought to dismantle the homeless encampment as it violated Eureka’s anti-camping ordinance, arguing that “unfettered illegal camping along the waterfront is detrimental to the community’s safety, leads to continued environmental degradation, and negatively impacts our tourism economy.”  The Eureka Police Department distributed flyers entitled “Notice to Vacate” to homeless individuals in the encampment, giving them a deadline of May 2, 2016, to find another place to live.

The homeless community in Eureka found a champion in Peter Martin, a local lawyer who handles, according to his website, civil rights, employment, police brutality, school district misconduct, and a few other types of cases.  Martin filed a complaint listing 11 homeless individuals as plaintiffs.  The first named plaintiff, Stacy Cobine, “lives at the Marsh in a tent covered with tarps, along with her five-year-old dog Lazarus.”  Nanette Dean “does not want to go to an emergency shelter that will not permit her to bring her one-year-old dog, Trixie….”  Gerrianne Schulze “would like to have stable housing with her two dogs, Max and Baby Girl, but has no money to pay for it…” Sarah Hood lives in the Marsh “in a nylon tent covered with tarps with her partner Aaron and their two dogs, Bagheera and Tierney.”  Lynette Vera “has a dog from whom she does not wish to be separated.” Marie Anntoinette Kinder has a one-year-old dog.  John Travis also has a dog. 

Thus, eight of the 11 named plaintiffs have dogs.  The complaint cites a Grand Jury report, Humboldt County Homeless Veterans, which states that “owning a dog eliminates many housing options for the homeless veteran.”  The complaint states that “[v]ery few shelter facilities accept people with dogs, even if they are service animals for people with disabilities.”  Eureka’s St. Vincent de Paul Society takes in the homeless but does not allow dogs or other pets.  The complaint alleges:

The EPD [Eureka Police Department] has also informed Palco Marsh residents that during the May 2 eviction, all unvaccinated, unfixed and unlicensed animals will be impounded and taken to a veterinarian for shots and alteration, and that their owners will have to pay the associated veterinary bills incurred within ten (10) days in order to reclaim their pets. If payment has not been made in full within ten (10) days, the beloved pets and service animals of the evicted Palco Marsh residents will be euthanized.

In issuing an injunction, the federal district court imposed certain conditions before the plaintiffs could be removed from the Marsh, the one relevant for this discussion being:

Defendants shall permit Plaintiffs to maintain custody of all items they require for their daily lives (e.g., clothing, toiletries, books, items of sentimental importance, etc.) and wish to bring with them to their emergency shelter accommodations, as well as their pets and/or service animals (to be housed on-site at the temporary shelter at which Plaintiffs will be accommodated in accordance with shelter rules) and shall not confiscate, impound, store and/or destroy such items….

Thus, the court effectively ordered Eureka either to leave the homeless in place or to allow them to bring their pets into the shelters in which the homeless will be given temporary housing.  According to local news reports, the homeless were moved out of Palco Marsh on May 2 on the Eureka's schedule.  Sixty shelter beds for men were added to the St. Vincent de Paul dining hall, but dogs are still not accommodated there.  Temporary emergency container housing was provided to 40 people in metal shipping containers, and I am advised by a representative of Mr. Martin's firm that there are about 25 dogs living with the homeless is the containers.  

It is to be noted that this was not a suit against an individual shelter and its precedential value in such a suit is probably minimal. It was, rather, a suit by a group of homeless individuals against a city, that city's police department and its chief of police, attempting to block an announced removal of the homeless plaintiffs from public property. The court approved that removal, with conditions as to where the homeless might be placed, one of which involved their pets.  It may, therefore, have some precedential value in litigation against a shelter system that fails to take into consideration that homeless individuals may have pets, and that being forced to give up those pets might have detrimental effects on the individuals.  

More information on the status of the residents can be found on the facebook page of “Friends of Palco Marsh.”  Cobine v. City of Eureka, C-16-02239 JSW, 2016 WL 1730084 (May 2, 2016). For pictures of some of the homeless and their pets, see the posting by Andrew Goff on Lost Coast Outpost of October 2015, as well as the article by Hunter Cresswell of the Times-Standard of March 25, 2016.

Society’s Treatment of Homeless Pets

New York City, May 2016 (courtesy R. Keats)
Animal control facilities are often specifically empowered to take in homeless pets (e.g. 225 ILCS 605/2, in which Illinois specifically provides that an animal control facility is to be operated “for the purpose of impounding or harboring seized, stray, homeless, abandoned or unwanted dogs, cats, and other animals”; see also Kansas Statutes 47-1701).  Homelessness of animals is sometimes a statutory reason for euthanasia.  Connecticut Revised Statutes 29-108g, for instance, provides:

Any agent or officer of the Connecticut Humane Society may lawfully take charge of and humanely destroy, or cause to be humanely destroyed, any abandoned, lost, strayed or homeless animal or animal unsuitable for adoption in his charge if upon examination a licensed veterinarian certifies, in writing, or if two persons called to view the animal in the presence of an agent or officer of the society find that the animal is injured, disabled or diseased past recovery, infirm or unsuitable for adoption, or if the owner consents in writing to such destruction. In the absence of such certification or finding or redemption by the owner, the society may, after five days, humanely destroy any animal in its charge pursuant to this section. In lieu of such destruction or redemption by the owner, the society may, in its discretion and without liability, deliver such animal, after five days, to a person other than the owner. (emphasis added)

Statutory provisions regarding drugs used for euthanasia may refer to their use on homeless pets (e.g., California Business and Professions Code (Veterinary Medicine) 4827(d), permitting administering sodium pentobarbital “for euthanasia of sick, injured, homeless, or unwanted domestic pets or animals….”; Colorado Revised Statutes 12-42.5-118, to the same effect).

Although a homeless person having a pet arguably has a homeless pet, some degree of neglect or abandonment is doubtless required for an animal control authority to seize and destroy a pet of a homeless person. Irvine (p. 107) notes that a domiciled dog may be allowed to remain locked up at home during a quarantine period after a bite, but a homeless dog will go into the pound. 

In Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012), the Ninth Circuit barred the City of Los Angeles from seizing and destroying temporarily abandoned property in the Skid Row district of the city absent an immediate threat to public safety.  LA had been seizing property temporarily left on public sidewalks while the homeless individuals who brought to suit “attended to necessary tasks such as eating, showering, and using restrooms.”  Such temporary abandonments, according to the City’s attorneys, violated an LA ordinance (LAMC 56.11) stating that no “person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.”  Both the district and circuit courts noted that the City’s interpretation of the ordinance would have the effect that “the government could seize and destroy any illegally parked car or unlawfully unattended dog without implicating the Fourth Amendment.” 

The homeless are well aware of the risk of leaving pets for even short periods of time and do their best to develop relationships with others who can watch over the animals when they have to obtain food or services for themselves.  There are a few kennels that allow homeless people to board their pets for short periods free of charge.  Loaves and Fishes, a shelter for the homeless in Sacramento, provides day-time kennels where pets can be left, though owners are expected to walk their dogs twice a day and clean the kennel at day’s end (Irvine, p. 79).  Such arrangements sometimes allow the homeless to obtain employment.  Lem et al. (2013) note that some homeless people have said they could not take jobs because they would not be able to take care of their animals.  Rhoades et al. (2014) found that homeless youth with pets in the Los Angeles area had lower rates of using housing and employment services:

Only 36.5% of pet owners had utilized housing services in the past month, compared to 52.4% of non-pet owners; the disparity was similar for utilizing services to help with finding a job, at 37.3% among pet owners, and 56.3% of non-pet owners.

The authors state that their “findings support prior research and suggestions that agencies serving homeless persons should explore how pets can be accommodated by their programs.”

Calls for Changing Perspective and Policy

Irvine (2012, p. 168) argues that there is a—

need to recognize the relationships that exist between homeless people and their companion animals. Animals matter for many homeless people, and if as much as a quarter of the homeless population in some areas have pets, service providers and policymakers need to acknowledge this.

Gaetz et al. (2013) state:

[S]ocial service agencies need to change their policies to allow dogs to accompany women. Travelling with a dog can offer a considerable degree of protection but it can also serve to isolate a woman who is unwilling to leave her dog unattended outside an agency. Offering women the opportunity to bring a dog inside shelters, drop-in centres, and other agencies could increase the chances that women will use these services, especially in the evening. This small initiative could go a long way to improving safety for women on the street.

Lem et al. (2013) argue that pet-friendly sheltering services are needed. 

Programs could consider allowing well-behaved companion animals into services with their owners, or providing accommodation in a safe place while their owners access services. Agencies could consider a kennel or companion animal boarding area in the design plans for new facilities. Incorporating animals into shelter services can provide significant benefits to the residents.

Singer et al. (1995) concluded that their study points “to the value of considering the homeless person and the animal as a unit and working to create a responsible living situation for these human-animal pairs.”  Similarly, Kim and Newton (2014), writing about homeless youth, state that “in light of the fact that youth care deeply about their animals, providing for the integrated needs of a human-animal family should also be considered.” 

Flynn (2000), though speaking specifically about battered women and their pets, emphasizes that it is “important that cross-training and cross-referrals occur between animal protection personnel and social service agency professionals.”  This recommendation should be taken to heart by all agencies seeking to help the homeless and their pets. 

Legal recognition of the importance of the human-animal bond, such as is found in the legislation regarding rescuing pets enacted after Hurricane Katrina (where, as noted by Kim and Newton (2014), 15,000 abandoned animals were rescue and no one knows how many died), needs to be extended to the homeless and their pets because, far too often, individuals who are homeless will be offered shelter but only if they accept that their animals cannot remain with them.  Unfortunately, no national movement is likely to lead to the pressure that changed pet-rescue policies after Katrina because the homeless are not a potent political force and there are a number of mistaken beliefs about the homeless and their pets including that the homeless are using the pets to get sympathy and money, that the pets are suffering because they are forced to be homeless along with their masters, and that the homeless cannot care for themselves much less for their pets.  It is true, of course, that until recently I shared some of these perspectives myself. 

My Recommendations

In order to limit the loss of pets by the homeless and to recognize the need to keep the homeless and their pets together where possible, I make the following recommendations:
  1. Require that shelter systems allocate 10% of shelter spaces for homeless individuals with pets, allowing for the possibility that some of the homeless will have more than one pet. Some shelters should be available for couples, who may of course have a pet together.  Employees of shelters would require some training, particularly if pets must be segregated from owners because of structural or legal reasons.
  2. Require that housing providers who receive subsidies for renting apartments to the homeless designate at least 10% of such units as pet-friendly.  Similarly, require that governmental entities providing subsidies verify that 10% of subsidies provided for housing the homeless be used for units that will accept pets. Some auditing would be required to assure that people with pets are not being excluded and also to determine if, as may happen with some HUD-funded housing, drug dealers are not using units to house dogs they use for protection or for dog fighting.
  3. Require that agencies providing social services to the homeless, such as health and counseling services, allow pets on the premises to the extent possible under state law, or provide temporary kennels or other supervision for pets while the owners are receiving services. State laws in this regard should be revisited to determine if animal entry restrictions for agencies providing social services are necessary for health or other reasons.
  4. Require that animal control officers and facilities identify pets of the homeless where possible and treat such pets in the same manner that lost pets are treated where their owners are domiciled. Before scheduling a dog or cat for euthanasia, where the animal has been licensed but no domicile for the owner has been established, an affidavit should be signed and filed stating that notification was provided to a central local service provider for the homeless.  I am aware that there will be resistance from shelters, where decisions are often made quickly to euthanize because a determination is made that an animal has no potential value. 
  5. Identify on a state-wide or regional basis a public or private agency to serve as a clearinghouse that can be used by homeless individuals to find pets that have been identified by animal shelters and animal control facilities as owned or licensed but as to which no domicile of an owner or licensee has been identified.  Preferably information should be made available electronically. 
  6. Remove “homeless” as a justification for euthanasia of pets from state and local laws; alternatively specify that homeless in this context means that the animal does not have an owner and that an owner can be a homeless individual. 
  7. Require cooperation between public and private entities providing temporary and longer-term shelter and housing for the homeless and animal control organizations and facilities to develop local policies and practices designed to keep the homeless from losing their pets while receiving services or obtaining shelter. A concerted effort should be made to leverage resources made available under the Pets Evacuation and Transportation Standards Act, the Pet and Women Safety Act (if it passes), and shelter systems for the homeless.
  8. Provide funding from public or private sources for kennels that would allow homeless individuals with employment to leave pets in kennels during work periods, perhaps requiring that the owners regularly walk dogs and pick them up before a certain time in the afternoon. 
  9. The Department of Housing and Urban Development should be required to include statistics on the number of pets with the homeless in its annual report to Congress regarding the homeless.  State agencies serving the homeless should maintain such statistics as well.  Objectives here should include developing a more accurate understanding of which areas in the country show significant variations in the number of homeless with pets and whether the recognition of the need to provide social and shelter services to the homeless in certain cities, such as San Francisco, serves as a magnet for the homeless with pets. 
  10. Resources for research on the homeless should be devoted to determining whether having pets has an effect on levels of addiction, symptoms of mental illness, suicide, and other parameters that might demonstrate if and where resources should be allocated to assure that the homeless and their pets will not be separated where this can be avoided.
I do not like making pie-in-the-sky proposals for social change or governmental policy and I hope that these recommendations will not be perceived in that category.  I am well aware that these recommendations can be improved upon, and I would appreciate suggestions for doing so.

Conclusion

As an undergraduate majoring in zoology at Berkeley, I was required to take several courses outside my major, the university’s effort to assure that it was turning out well-rounded scientists with at least a minimal appreciation of the liberal arts and other cultural aspects of the broader society in which we were expected to find a place.  Whether I learned enough from the sociology course to justify the university’s ambitions for me in this regard I can no longer say, but I do remember writing a paper about poverty and living on the edges of society for the class.  I did not keep a copy of this paper, though I am sure it was filled with the leftist rhetoric I was fond of spouting at the time.  What I do remember are two of the books that I read in writing it, which were Skid Row as a Way of Life, by Samuel E. Wallace, part of Harper & Row’s wonderful Torchbook series, and Subways are for Sleeping, by Edmund G. Love (later adapted into a musical). I kept both books with me through many moves and was saddened to find I no longer have them.  Wallace in particular was a mind-changing experience and I would like to be able smell the yellowed pages, aged by years of rather transient living as a student around Berkeley and Oakland when Scott speakers and a Marantz amplifier were my most prized possessions.  I would put Irvine’s My Dog Always Eats First in the same category with Wallace and Love, a book that can broaden understanding and change perspectives. 

Via dell' Independza, Bologna, October 2014
In the year before a presidential election, both Republican and Democratic candidates are expressing sympathy for the struggling middle and working classes, and for those who have lost their jobs or been required to take marginal employment.  Some of the accounts of the sociologists who have done research on the homeless mention people who lost their homes when the housing bubble burst and their mortgages became unaffordable.  Nevertheless, when someone loses a job and the safety nets run out, he or she may end up on the streets.  There were sympathetic stories some years ago of families taking their pets to pounds so as to reduce expenses and hopefully keep a house.  There were even stories of such pets being euthanized in the ordinary course of the operation of the pound.  There were, on the other hand, families that went onto the street rather than give up their pets.  Those families also deserve our sympathy, and perhaps even our respect.  Yet the tolerance of presidential aspirants often runs out when it comes to those who are reduced to begging and accepting the most limited of social services.  They are seen as social parasites (Newton 2012).  Admittedly there are drug addicts, alcoholics, people who will not take jobs they believe are beneath them, people who are more responsible for their condition than they are willing to admit and who will do less to right their ships than they should.  Nevertheless, we should all realize that for many of the homeless, the difference between them and us is little more than a matter of initial circumstances and the winds of fate.  There but for the grace of God go we.  There but for the grace of God go our pets. 

Thanks to Gavin Thornton of the Hawaii Appleseed Center for Law & Economic Justice for clarifying the status of Hawaiian legislation and for telling me about the Sand Island shelter.  Thanks to J. Wallace Oman, a friend from law school, for giving me additional perspective on housing policies and practices in San Francisco.  Thanks to L.E. Papet for helping refine the recommendations and for additional sources.  Thanks to Rebecca Wisch for suggesting that I look at the issue of victims of domestic violence and their pets. 

© John Ensminger 2015

Sources:

Homeless Families by State (HUD 2014)
  1. Ascione, F.R., Weber, C.V., and Wood, D.S. (1997).  The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who Are Battered.  Society & Animals, 5(3), 205-218.
  2. Baker, O.  (2001).  A Dog’s Life: Homeless People and Their Pets.  Blue Cross.
  3. Bender, K., Thompson, S.J., McManus, H., Lantry, J., and Flynn, P.M. (2007).  Capacity for Survival: Exploring Strengths of Homeless Street Youth.  Child Youth Care Forum, 36(1), 25-42.
  4. Bruce, L.J. (2014).  Pet Advocate Program for the Homeless in Missoula, MT (MA thesis, University of Montana).
  5. Bukowski, K., and Buetow, S. (2011).  Making the Invisible Visible: A Photovoice Exploration of Homeless Women’s Health and Lives in Central Auckland.  Social Science & Medicine, 72(5), 739-746.
  6. Cronley, C., Strand, E.B., Patterson, D.A., and Gwaltney, S. (2009). Homeless People Who Are Animal Caretakers: A Comparative Study.  Psychological Reports, 105(2), 481-499. 
  7. Diverio, S., Boccini, B., Menchetti, L., and Bennett, P.C. (2016).  The Italian Perception of the Ideal Companion Dog. Journal of Veterinary Behavior: Clinical Applications and Research, accepted January 2016 (noting that disparities between expectations as to what an ideal companion dog should be and what a dog actually is may explain why some dogs are abandoned to shelters in Italy). 
  8. Ellingsen, K., Zanella, A.J., Bjerkas, E., and Indrebo, A. (2010).  The Relationship Between Empathy, Perception of Pain and Attitudes Toward Pets among Norwegian Dog Owners.  Anthrozoos, 23(3), 231-243 (noting variations in cultural attitudes towards dogs and empathy for their pain).
  9. Fitzgerald, A.J. (2007).  “They Gave Me a Reason to Live”: The Protective Effects of Companion Animals on Suicidability of Abused Women.  Humanity & Society, 31(4), 355-378. 
  10. Flynn, C.P. (2000).  Women’s Best Friend: Pet Abuse and the Role of Companion Animals in the Lives of Battered Women.  Violence Against Women, 6(2), 162-177 (46.5% of women at intake reported that their batterers had threatened to harm or actually harmed their pets)
  11. Fosburg, L.B., and Dennis, D.L. (1998).  Practical Lessons: The 1998 National Symposium on Homeless Research.  Proceedings: Arlington, Va. (noting that dogs can help outreach workers in trying to talk to some homeless people).
  12. Gaetz, S., O’Grady, B., Buccieri, K., Karabanow, J., and Marsolais, A. (2013).  Youth Homelessness in Canada: Implications for Policy and Practice.  Canadian Homelessness Research Network: the homeless hub. 
  13. Garcia, P. (2015). Homeless People in Turlock: Their Needs and Experiences (MA thesis) (describing people entering a shelter having to leave their pets and carts “outside the gate.”).
  14. Government Accountability Office, GAO-12-491 (May 2012).  Homelessness: Fragmentation and Overlap in Programs Highlight the Need to Identify, Assess, and Reduce Inefficiencies. 
  15. Hughes, J.R., Clark, S.E., Wood, W., Cakmak, S., Cox, A., MacInnis, M., Warren, B., Handrahan, E., and Broom, B. (2010).  Youth Homelessness: The Relationships among Mental Health, Hope, and Service Satisfaction.  Journal of the Canadian Academy of Child and Adolescent Psychiatry, 19(4), 274-283.
  16. Hulchanski, J.D., Campsie, P., Chau, S.B.Y., Hwang, S.W., and Paradis, E. (2009) Finding Home: Policy Options for Addressing Homelessness in Canada (e-book).
  17. Huss, R.J. (2007)  Rescue Me: Legislating Cooperation Between Animal Control Authorities and Rescue Organizations.  Connecticut Law Review, 39, 2059.  
  18. Irvine, L. (2009). Filling the Ark: Animal Welfare in Disasters.  Philadelphia: Temple University Press. 
  19. Irvine, L. (2012). My Dog Always Eats First: Homeless People & Their Animals. Boulder, Colorado: Lynne Rienner Publishers, Inc.
  20. Irvine, L. (2013). Animals as Lifechangers and Lifesavers: Pets in the Redemption Narratives of Homeless People.  Journal of Contemporary Ethnography, 42(1), 3-30. 
  21. Irvine, L., Kahl, K.N., and Smith, J.M. (2012). Confrontation and Donations: Encounters Between Homeless Pet Owners and the Public.  The Sociological Quarterly, 53(1), 25-43. 
  22. Jones, R.C. (2008).  Including Pets in Domestic Violence Protective Orders.  McGeorge Law Review, 39, 469.
  23. Kidd, A.H., and Kidd, R.M. (1994).  Benefits and Liabilities of Pets for the Homeless.  Psychological Reports, 74, 715-722.
  24. Kim, C.H., and Newton, E.K. (2014). My Dog is My Home: Increasing Awareness of Inter-Species Homelessness in Theory and Practice, 48-63 in Animals in Social Work: Why and How They Matter (Ryan, T., ed.).  New York: Palgrave MacMillan
  25. Kirst, M., Zerger, S., Harris, D.W., Plenert, E., and Stergiopoulos, V. (2014).  The Promise of Recovery: Narratives of Hope among Homeless Individuals with Mental Illness Participating in a Housing First Randomised Controlled Trial in Toronto, Canada.  BMJ Open 2014(4), e004379 (some homeless expressed a desire to get a pet once they had housing).
  26. Labrecque, J., and Walsh, C. (2011).  Homeless Women’s Voices on Incorporating Companion Animals into Shelter Services.  Anthrozoos, 24(1), 79-95.
  27. Lem, M. (2012).  Effects of Pet Ownership on Street-Involved Youth in Ontario (MS Thesis, University of Guelph) (“Pet ownership was also demonstrated to be significantly and negatively correlated with regular shelter use…. [P]et ownership was found to be negatively associated with depression.”).
  28. Lem, M., Coe, J.B., Haley, D.B., Stone, E., and O’Grady, W. (2013).  Effects of Companion Animal Ownership among Canadian Street-involved Youth: A Qualitative Analysis. Journal of Sociology & Social Welfare, 40(4), 285-304.
  29. Lem, M., Coe, J.B., Haley, D.B., Stone, E., and O'Grady, W. (2016). The Protective Association between Pet Ownership and Depression among Street-involved Youth: A Cross Sectional Study.  Anthrozoos, 29(1), 123-136 ("To quantitatively investigate the association between depression and pet ownership among street-involved youth, a cross-sectional study was performed with a convenience sample of 189 street-involved youths who were surveyed in four cities in Ontario, Canada, 89 of whom were pet owners and 100 of whom were not. Logistic regression modelling found pet ownership to be negatively associated with depression in the study population (controlling for gender, regular use of drugs, and time since youth left home), with the odds of being depressed three times greater for youths who did not own pets. While pet ownership among street-involved youth has many liabilities, including impairing youths’ ability to access shelter, services, and housing and employment opportunities, companion animals may offer both physical and psychosocial benefits that youth have difficult attaining.").
  30. Loftus-Ferren, Z. (2011).  Tent Cities: An Interim Solution to Homelessness and Affordable Housing Shortages in the United States.  California Law Review, 99, 1037.
  31. Mader, B., Hart, L.A., and Bergin, B. (1989). Social Acknowledgments for Children with Disabilities: Effects of Service Dogs.  Child Development,60(6), 1529. 
  32. McNabb, M. (2007).  Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts with Pet Custody Disputes.  Animal Law Review 14, 71.
  33. Newton, E. (2012). In a Clasped Paw and Hand: A Case Study of Homeless People and Their Pets in Portland, Oregon. Association for Human-Animal Bond Studies. 
  34. Nowicki, S.A. (2011).  Give Me Shelter: The Foreclosure Crisis and Its Effect on America’s Animals.  Stanford Journal of Animal Law and Policy, 4, 97.
  35. Petrovich, J.C., and Cronley,C.C. (2015).  Deep in the Heart of Texas: A Phenomenological Exploration of Unsheltered Homelessness.  American Journal of Orthopsychiatry, 85(4), 315-323 (noting lack of facilities for companion animals among "programmatic barriers to service" among homeless in Fort Worth, Texas).
  36. Powers, K.R. (2014). Dogs in Dorms: How the United States v. University of Nebraska at Kearney Illustrates a Coverage Gap Created by the Intersection of Fair Housing and Disability Law. Creighton Law Review, 47, 363.  
  37. Rankin, S., Aliment, R., and Kaya, L. (2016).  No Pets Allowed: Discrimination, Homelessness, and Pet Ownership. Brief of Homeless Rights Advocacy Project, Seattle University School of Law.  
  38. Rasnow, T.L. (2002).  Conference: Access to Justice Conference September 11, 2001: Traveling Justice: Providing Court Based Pro Se Assistance to Limited Access Communities.  Fordham Urban Law Journal, 29, 1281.
  39. Rew, L. (2000).  Friends and Pets as Companions: Strategies for Coping with Loneliness among Homeless Youth.  Journal of Child and Adolescent Psychiatric Nursing, 13(3), 125-132. 
  40. Rew, L., and Horner, S.D. (2003).  Personal Strengths of Homeless Adolescents Living in a High-Risk Environment. Advances in Nursing Science, 26(2), 90-101.
  41. Rhoades, H., Winetrobe,H., and Rice, E. (2014).  Pet Ownership Among Homeless Youth: Associations with Mental Health, Service Utilization and Housing Status. Child Psychiatry and Human Development, 46(2), 237-244.
  42. Singer, R.S., Hart, L.A., and Zasloff, R.L.(1995).  Dilemmas Associated with Rehousing Homeless People Who Have Companion Animals.  Psychological Reports, 77, 851-857. 
  43. Slatter, J., Lloyd, C., and King, R. (2012).  Homelessness and Companion Animals: More than Just a Pet? British Journal of Occupational Therapy, 75(8), 377-383 (finding pet ownership to be “a valued occupation,” to which occupational therapists should pay more attention).
  44. Taylor, H., Williams, P., and Gray, D. (2004).  Homelessness and Dog Ownership: An Investigation into Animal Empathy, Attachment, Crime, Drug Use, Health and Public Opinion.  Anthrozoos, 17(4), 353-368.
  45. Thompson, K., Every, D., Rainbird, S., Cornell, V., Smith, B., and Trigg, J. (2014).  No Pet or Their Person Left Behind: Increasing the Disaster Resilience of Vulnerable Groups through Animal Attachment, Activities and Networks.  Animals, 4, 214-240. 
  46. Thompson, S.J., McManus, H., Lantry, J., Windsor, L., and Flynn, P. (2006).  Insights from the Street: Perceptions of Services and Providers by Homeless Young Adults.  Evaluation and Program Planning, 29, 34-43 ("I sit there and have conversations with her [dog]--she's actually the only thing that kept me sane on the road.").
  47. Trigg, J., Thompson, K., Smith, B., and Bennett, P. (2016).  An Animal Just Like Me: The Importance of Preserving the Identities of Companion-Animal Owners in Disaster Contexts. Social and Personality Psychology Compass, 10(1), 26-40 ("We argue for the importance of acknowledging the powerful intersubjectivity inherent to pet keeping, the inseparability of perceived pet identity from owners’ experiences of the self and that preserving the cohesion of the two is an essential consideration for owners’ psychological wellbeing when managing the integrated pet/owner in the face of risks posed by disaster and other hazards.").   
  48. U.S. Department of Housing and Urban Development: Office of Community Planning and Development (October 2014).  The 2014 Annual Homeless Assessment Report (AHAR) to Congress.  
  49. Wallace, S.E. (1965). Skid Row as a Way of Life.  New York: Harper & Row.  
  50. Williams, D.L., and Hogg, S. (2016).  The Health and Welfare of Dogs Belonging to Homeless People.  Pet Behaviour Science, 1, 21-30 ("The key findings demonstrated that dogs belonging to the homeless are not significantly less healthy than those belonging to non-homeless individuals. They have lower body condition scores, but this is because the non-homeless dog
    population tends towards being overweight or obese. They also appear to have fewer behavioural problems.").  
  51. Wisch, R.F. (2014).  Domestic Violence and Pets: List of States that Include Pets in Protective Orders.  Animal Legal & Historical Center, Michigan State University College of Law. 
  52. Woelfer, J.P., and Hendry, D.G. (2009).  Stabilizing Homeless Young People with Information and Place. Journal of the American Society for Information Science and Technology, 60(11), 2300-2312.
  53. Wong, K. (2009). Comment, Narrowing the Definition of “Dwelling” Under thforthe Fair Housing Act, UCLA Law Review 56, 1867.
  54. Woods, D.R., and Komorosky, D. (2013).  Animal Companion Placement and Management Challenges in California Domestic Violence Shelters.  National Social Science Proceedings, 53, 154-159.  (Batterers use this bond as a way to manipulate the control their victims through threats or actual harm done to companion animals. The concern for companion animals becoming victims of violent relationships is highlighted by the increased numbers of states placing pets on protection orders [citing Wisch].)
  55. Zimolag, U., and Krupa, T. (2009).  Pet Ownership as a Meaningful Community Occupation for People with Serious Mental Illness. American Journal of Occupational Therapy, 63, 126-137 (discussing the effects of companion animals on “community integration” of individuals with severe mental illness noting that occupational therapists can become involved in “teaching and advocacy related to the rights and responsibilities of being a pet owner in rental housing, and collaborating with housing agencies and veterinarians to develop creative pet solutions”).