Dr. MedLaw: Service Dog – Physician’s Weekly

Q: I own a small medical building in which my office is located. The problem is that one tenant, a speech therapist, gets frequent social visits from her son, who brings his dog, and the dog urinated on the hallway carpet.  My tenant refuses to pay for cleanup because she says that it is his service dog for the PTSD he developed while serving in Iraq. I doubt that because service dogs are generally very well-trained. The policy is that no animals other than service animals can come into the building and I think that she is lying to let him come in with the dog. Do I have any options about excluding the dog and getting the cleaning paid for? After all, he is not a patient – he is just hanging out with his mother.

A: Let’s start with the fact that he is not a patient. That he is just visiting his mother rather than coming for speech therapy is not the issue – you are running a place of public accommodation and he is a member of the public. If he has a disability and requires a service animal he must have that access.

Of course, that is based on this dog actually being a service animal, so let’s move onto that issue.

It may well be one – dogs are one of the two types of service animals (miniature horses are the other) covered by the ADA and calming a person with PTSD is a recognized type of service that an animal may be trained to perform.

The next step is trying to verify that.  You cannot ask about the son’s disability or require medical documentation of it, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task. However, because it is not readily apparent what the dog does for the son (i.e.; not like a dog leading a blind person) you are allowed to ask if (1) the dog is required because of a disability, and (2) what work or task the dog  has been trained to perform. To make sure that your questions are not later misrepresented by the mother, you should do so in a letter that also cites the permissibility of these questions under the ADA.

You may well get an answer that qualifies under the ADA like “The dog has been trained to alert in response to agitated conduct by my son and to approach him in a calming manner”, but if you get an answer like “Petting the dog helps him when he gets upset” then it is just an emotional support animal and the ADA does not apply. Emotional support animals have to be accommodated (under HHS) in housing and on airplanes but those rules do not apply to you and you could exclude the dog on that basis.

However, let’s assume that your tenant provides you with a qualifying answer. That still leaves you recourse as to excluding the dog. Under the ADA, a service animal must be under the control of its handler through physical or voice methods. The owner can be asked to remove the animal from the premises if it is out of control and they do not take effective action to control it or if it is not housebroken.

In your case, the son only provably failed to take effective action to control the dog on that past occasion, but that the dog urinated in the hallway at all indicates that it is not housebroken, an issue that goes to future visits.

You also have recourse as to the cleaning.  Although you cannot charge a cleaning or maintenance fee to a disabled person as a quid pro quo for being allowed to bring in their service animal, you may charge a disabled person if their service animal causes damage as long as you would do so for anyone.

You would certainly charge anyone whose animal urinated on the carpet so you can therefore charge the son for cleaning even if this is a service dog.  If the mother’s lease covers payment for damages from her visitors you could charge her, but without that element this is the son’s responsibility because he was the dog’s handler.

So, first see if, based on the answer to your letter, this is really a service animal. If not, you are done – you can charge for the cleaning and then keep the dog out.  If, however, it is a service animal then explain to your tenant that while you thank her son for his service and are going to comply with the law as far as him bringing in the dog, that he must, under that same law, pay for the cleaning and maintain the dog properly in the future.

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