When Companion Pets Become Service Animals

Three weeks ago, I posted an article titled Badly Behaved ‘Service Animals’, which focuses on a growing social problem involving people who claim that their pets are “service animals.” A big issue involving “fake service animals” is their poor manners. But not all alleged service animals behave badly.

The federal courts recently issued opinions on two service animal cases. One of these cases involves an alleged service monkey. The other case involves an alleged service dog. What is particularly interesting about these two cases is that each of the handlers were not medically diagnosed with a “disability” until some time after acquiring the “service animals.” The other interesting thing about these two cases is that there is no indication that either service animal behaves badly (at least not in the courts’ opinions).

A brief overview of the facts and the court’s analyses follow. At the end of this long post, I offer six important lessons to learn from these two cases. (If you want to skip the case discussion, you can just jump down to the six “take-home” lessons.)

Richard the Service Monkey

If Richard the “service monkey” sounds vaguely familiar, it is because you probably read about him in Rebecca Skloot’s New York Times article, “Creature Comforts.” In that article, Rebecca wrote about Richard, a Bonnet Macaque, who supposedly helps Debby Rose with her anxiety disorders and agoraphobia. I discussed Rebecca’s article at length in Should We Rethink The Concept of Service Animals? Although Rebecca just posted a brief update about Debby Rose’s case with a link to the court’s opinion, I’d like to devote some space to discussing the facts of the case and what the court determined.

Caption: Richard sits on Debby Rose's lap while driving a car. Courtesy of Rebecca Skloot

Debby Rose has owned Richard since 2004. Although she claims to have suffered anxiety disorders and agoraphobia for years, Rose’s medical records do not appear to support these claims. Apparently, Rose was not medically diagnosed until 2006. When the local Health Department determined that Richard was not a service monkey and posed a threat to public health, the Department ordered the local food establishments not to allow Richard into their buildings. Rose subsequently filed a federal complaint against various entities, alleging that she had been discriminated on the basis of disability.

Rose alleged that Richard “alleviates” her anxiety and agoraphobia symptoms. However, Rose provided no evidence that Richard had been trained to perform any specific task. Rose only alleged that Richard “breaks the spell” or “changes her mood.” Rose’s own physician (apparently) admits that Richard is a service animal to the extent that Rose is “comforted” by the monkey.

Based on the facts presented, the court determined that Debby Rose’s “disability” did not substantially impair a major life activity. (For a detailed explanation of what would constitute a “major life activity,” see my previous post, Is Driving a Major Life Activity?) The court noted that Rose had been married several times, gave birth to several children, was employed, took vacations, and was the President of a local Historical Association. The court determined that Rose’s anxiety and agoraphobia symptoms were “mild limitations.”

The court went on to say that even if Rose had a disability, the court was unconvinced that Richard was a trained service animal. The court could not find a single task that Richard was trained to perform in order to mitigate Rose’s “disability.” For example, even if Richard could retrieve a toothbrush, how does that mitigate Rose’s anxiety disorder? The task is not related to the disability–there is no connection. Likewise, even if Richard “gently” pushed people away from Debby, how does this “task” help Debby “mitigate” her disability? The court, therefore, determined that Richard was nothing more than a comfort pet.

In the end, the court granted summary judgment to the defendants. (Rose lost.)

In the days since the court’s opinion was published, at least four bloggers (here, there, over yonder, and way over there) have had some pretty harsh words to describe Debby Rose and her “monkey case.” Only one blogger, OnPoint, provided a restrained and objective perspective of this case. OnPoint also informs us to another service monkey case that was litigated in Arizona earlier this year. Have a look at what these bloggers had to say, then form your own opinions. If you like, leave a comment at the bottom of this post to share your opinion with others.

Booster the Service Dog

Unlike most bloggers who commented on the “service monkey” case, several attorneys (John Ensminger, Joshua Gerstin, Lincoln Hobbs, and Lisa Magill) have blogged about Booster the service dog case in a more thoughtful and respectful manner.

In this case, Davis Hawn, the plaintiff, purchased a condominium in 2004 and was aware that no pets were allowed on the property. In 2005, Hawn adopted a Labrador Retriever puppy named “Booster” and subsequently wrote to the condominium property association that the pet policy should be revised. The property association apparently did not respond to Hawn’s request. In 2006, Hawn claimed that he suffered from panic attacks and some mobility issues and, for the first time, Hawn referred to Booster as his “service dog.”

(By the way, Hawn and Booster were featured in The Freeport News in 2007. In that same year, Hawn wrote an article titled “My Booster: A Personal Story,” wherein he repeatedly refers to Booster as that “damn dog.”)

The property association requested documentation that Hawn suffered from these disabilities and requested proof that Booster was a service animal. Hawn provided some documentation, but when the property association requested additional information concerning Hawn’s medical providers’ backgrounds and extent of Booster’s training, Hawn failed to respond to the association’s requests. The property association then informed Hawn that until such documentation was provided for consideration, Booster could not remain at the condominium.

Hawn then filed a federal complaint. In essence, Hawn argued that he was discriminated against on the basis of his disability and was denied a reasonable accommodation.

The lower court found in favor of the condominium property association. Hawn subsequently appealed, and the appellate court agreed with the district court that the property association may request additional information and documentation in order to conduct a meaningful review. Since Hawn failed to provide the requested information within the specified time-frame, the property association had the right to deny Hawn’s application to have Booster stay in the condo. In short, Hawn lost.

The Bottom Line

This article is already quite long, so I’ll keep this short and sweet.

1. The legal definition of disability matters.
2. The tasks that a service animal has been trained to perform should be related to the handler’s disability.
3. A demonstration of the service animal performing a specific task to mitigate the alleged disability is very helpful.
4. Timing is important. There is a healthy skepticism with regard to an animal being a companion pet one day, then a service animal in the next.
5. Litigation is expensive and not always feasible. Cooperating with the other party and providing the necessary information to support your position may save time and money.
6. Where there is a conflict between the Department of Health and the right to be accompanied by a service monkey under the Americans with Disabilities Act, it’s going to be a very difficult battle.

© 2009, Matthew Stoloff. All rights reserved.

Related posts:

1. Badly Behaved “Service Animals”
2. Calculating Damages and the Legal Value of Service Animals
3. Accommodating Service Animals
4. Service Animals in the Schools
5. Service Animals and the Law
6. Are IEPs Necessary for Service Animals?
7. Service Animals, Tort Reform, and Layla’s Law
8. Should We Rethink the Concept of Service Animals?
9. Service Animals Now “Defined”
10. The Year of the (Service) Dog