ISSUE #2-C

SEPTEMBER 27TH, 2017

THE PAWS-A-TIVE NOTE

Thank you again for joining us and reading the material presented. I'll assume you have a vested interest in this topic & knowing more. We've covered a lot of information to this point, and that's part of why I chose to break this down into a series. Throwing too much information at somebody at one time can make it harder to absorb & understand it all. I hope you've read the first two news letters in our series, as I want to present new information here and not just repeat previously stated things. If not, you may navigate to them from the MORE link above right corner, go to our main THE PAWS-A-TIVE NOTE page, then go to each in order.

Starting out it's important to note that federal law trumps state/local law, or private policies & procedures... I bring this up because there are inevitably conflicts in statutes. But why is this important & why does it happen?

Well quite frankly, many times states are behind in the timeline of things. Federal law may have changed, but they need to catch up. They may have had certain laws in place for a LONG time, and until something happens that FORCES a certain law to be addressed/changed, they just leave well enough alone as it has stood all this time. And let's face it, the peeps in power (Our elected officials/representatives) do have a lot on their plates too. Or maybe they don't know what is the right thing to do? And they certainly don't want to do the wrong thing to anger people. Maybe they don't want to be the first to make a change or challenge the status quo. So again they leave things stand as they have.

So until enough people yell loud enough together and demand a change, or something gets challenged in a lawsuit that goes to court, things probably won't change. Many times these cases get appealed and go to a higher court to overturn a lower court verdict. Some go all the way to the U.S. Supreme Court for a final verdict!

When a state law conflicts with a federal law, it's usually the lowly individual who is stuck in a bad position. I have found through research into some state laws, what I think some of these conflicts stem from. The first federal laws specifically regarding any type of service animal were from the 1960's and were specific to guide dogs for the seeing impaired. With the federal law states moved quickly to enact their own laws to be in line with it. There have been changes, adaptations, amendments and new federal laws enacted since then. However, not all states have updated their laws.

Here's an example of an old law but modern case. Just a couple of decades ago there was a guy charged with stealing a horse in a northern state. They actually had to put his case on hold until new legislation could be passed, because according to the old law still on the books, such an offense was punishable by death by hanging! In the 1700 & 1800's horses were possibly a person's most valued possession. They were the main mode of transportation & they provided the very power to tame the frontier & till the soil. To steal one was a very big NO NO! Today however, we no longer hang people for such things.

Here's another example. Not intending to pick on anybody here but I am going to state this is ALASKA. (Alaska is just 2nd in line of alphabetical order for the states and I just happened to be able to find conflicting stuff easily).

Just for the record I love Alaska, I used to live there. But Alaska is for the most part a very remote & rugged country. They are in a sense, somewhat removed from the rest of the U.S., and if your a person who likes to live by your own rules, doesn't like to conform to more strict society, can endure a rugged life style... this may be your choice to live there. And many people who chooses to live there do so BECAUSE of these things, not to mention the beautiful outdoors!

Alaska makes it a crime to prevent someone with a disability from being accompanied by, or receiving assistance from, a certified service animal in a public place (which includes motels, restaurants, theaters...) In addition, under the federal Americans with Disabilities Act (ADA), people with disabilities may bring service animals to all public accommodations. Public accommodations in Alaska must comply with both state and federal law.

Alaska’s Human Rights Law does not say which animals can count as service animals, but the state’s criminal statutes, which make it illegal to prevent someone with a disability from being accompanied or assisted by a certified service animal, does provide a definition. The state says "A certified service animal is an animal trained to assist someone with a disability and certified by a school or training facility for service animals to have completed such training." (REMEMBER FEDERAL LAW SAYS NO CERTIFICATION, REGISTRATION, ID... IS REQUIRED...AND YOU CAN TRAIN YOUR OWN SERVICE DOG!)

The state further says

"Under the ADA, a public accommodation may not ask you questions about your disability or demand to see certification, identification, or other proof of your animal’s training or status. If it is not apparent what your service animal does, the establishment may ask you only whether it is a service animal, and what tasks it performs for you."

Therefore, it would seem that Alaska’s criminal law applies only to “certified” service animals. However, the law doesn’t indicate whether the person using the animal must show certification or other proof (if a "criminal" act has taken place).

Now I also found a M E M O R A N D U M from the State of Alaska Department of Labor and Workforce Development from Don Brandon (the state's ADA coordinator at the time) dated July 12th, 2007. Subject is the state policy on service animals. It states as follows:

SERVICE ANIMAL DEFINITION AND DESCRIPTION

"Regulations implementing the ADA define a service animal as any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to: guiding individuals with impaired vision; alerting individuals with impaired 2 hearing to intruders or sounds; providing minimal protection or rescue work; and pulling a wheelchair or fetching dropped items. If the animal meets this definition, then it is considered a service animal under the ADA regardless of its licensure or certification by a state or local government."

NOTE:

The federal ADA does NOT give "service dog" status to a dog that has been trained for protection or rescue work! When the statutes were originally written some people interpreted the wording to mean it was included. The DOJ/ADA have since clarified the intended actual meaning to be "a dog protecting somebody having a seizure" and that the dog continues to provide rescue/support work during a seizure. They NEVER intended it to mean actually teaching a service dog to attack/bite on command. They also never intended it to mean "search & rescue" or a police/military canine either. In fact, they specifically make mention now that a dog trained for attack/bite work can be excluded by a business on the grounds that it could pose a threat!

Also please notice the "other animal" reference. Remember the Federal ADA limits the definition of a service animal to a dog or mini horse specifically trained to do tasks for an individual with a disability in order to lessen that disability.

And please also notice the state now says regardless of licensure or certification by a state or local government

It has other references in line with the federal ADA too. But has something else I found strange.

ASCERTAINING STATUS AS A SERVICE ANIMAL

Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. Such documentation may not be required as a condition of providing a service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability. To help determine whether an individual’s animal is a service animal, agency staff may ask the individual the following questions:

1) Is this animal your pet, a therapy animal, or a service animal?

2) Is this service animal required because of a disability recognized under the ADA? [However, you cannot ask about the nature of the disability.]

3) Is your service animal certified with the Service Animal Registry of America (SARA) or the Delta Society? [Note: Certification is not required and you may not insist on proof of certification, so you may wish to eliminate this question.]

4) Has the animal been individually trained to assist you? [If not, then the animal does not qualify as a service animal.]

5) What service does this animal provide that you need to participate in this state program? (Only get general information about the individual’s disability as it may assist in making reasonable arrangements for the individual and their service animal.)

The #3 noted directly above makes reference to two different entities (SARA & DELTA SOCIETY). SARA is one of the bogus registration sites I've made mention of and the Delta Society is an organization for therapy animals!

So, I'm at a total loss of trying to make any sense out of why a state memorandum would have ANY reason to make mention of them!

I think we could dissect this all day long. The point here is I think you can see where a conflict may occur. And in the end, when a state statute conflicts with a federal one, federal wins out. Now please understand, a state/local statute may be broader or more restrictive than the federal statute. However ONLY as long as it doesn't conflict could it stand up in a court though. And it is generally accepted that whichever gives the broader rights is the accepted one to go by.

Here's some examples:

1) Let's say there's a convention going on with tickets open to the public to purchase. You buy your ticket, get there and security tells you no dogs allowed. You inform the man that your dog is a SA. He demands to see some ID or says your dog has to be wearing certain equipment. This is NOT legal for them to refuse you entry with your service dog nor to require an ID/certain equipment. This stuff is granted at the federal level, no matter what anyone lower says.

2) Let's say in your state/local city they specifically grant status to actual search & rescue dogs, therapy & Service animals in training... They may grant the same broad access rights, provide for criminal prosecution if somebody injures/kills/harasses/ interferes with the dog working... just as for a SA defined by the DOJ/ADA. But you should know those statutes would ONLY apply in that particular state AND locale, and the federal level statutes wouldn't come into play since they specifically exclude dogs of those definitions. So let's say you wanted/needed to fly to another state for search & rescue work. The airline does NOT have to allow you to take the dog in the cabin with you even though your flying out of a state that grants broader access rights! This is because the airlines must go by the federal level statutes. The airline may CHOOSE to make special accommodations and allow you to fly your dog kenneled in the cargo hold at a reduced fee or free. But there is no federal statute that requires them to grant you anything special!

Now, theoretically you could have a SA that is dual trained. In such an instance, since the dog is your actual service dog it could fly in the cabin with you. This would not be a normal instance though.

Or in times of an emergency or a great catastrophe the airline may organize an entire flight to fly a whole group of S&R dogs with their handlers somewhere. Again, they are NOT required to do so.

3) Let's say in your state/local city they grant the same broad public access rights to an emotional support dog as is federally granted to SA. If something happens, your only covered by that state/local statute, as federal doesn't grant you any rights of public access.

So the next thing we will discuss is what is illegal for somebody to do to a handler & their service dog. We already know when it's illegal to deny access/interfere with or refuse a service dog & their handler services. You should also know that in addition to the federal statutes most states have statutes that make it illegal too. Many of them spell out very specifically with stiff fines, jail terms, and restitution payments.

It is NEVER EVER ok to taunt or try to distract a service dog by barking/growling/throwing things, touching, talking to the dog, making kissing noises, making eye contact, making threatening gestures at the dog or handler... in fact it is illegal!

If you or your dog cause serious bodily injury, pain or death to a service animal or handler you will also face some very stiff charges & have to pay for all medical bills, retraining costs, replacement costs for the service dog/equipment...

The reasons for these laws are very valid. So let's look at some very important reality here folks. Not all disabilities are visible. Some SA work is such that a persons very life may depend on that SA tasks, and if you distract the dog it could miss alerting to something like for a seizure alert, low or high blood sugar, someone who passes out, a pilot dog, if someone has panic attacks... And not everybody wants to plaster their diagnosis on their service dog for everybody to know! People have the right to privacy!

As a person with a physical disability, I know I'm going to get noticed out in public. As a person with a physical disability AND a very large service dog, i know I'm going to get noticed even more. Know what? I DON'T CARE! The reality of it is that my service dog provides invaluable help to me! He is not here for anybody else but ME!

So that leads us to our next topic. What is proper etiquette when you encounter a SA & their handler? Proper would be to treat them no differently than you would any other person, maybe say hi or good morning. But if you don't have a reason to interact with them BESIDES the fact that they have a service dog with them that you are curious about, then leave them ALONE! Think of it this way. Most people take no big notice of my cane, I do get the nice gentleman that will open a door for me sometimes, which I would appreciate no matter what. But nobody makes a big deal about my cane. People don't ask me my name, they don't ask why I need to use it or what's wrong with me or how old I am, or if I'm a boy or a girl...

And it's really not ever ok to ask these things to a handler about their service dog or themselves! Now as I already told you in the first news letter, I personally don't mind talking to people about my SD and what he does, or about his breed. But what I do mind is inconsiderate people who think it's ok to just come up to him and start petting &/or talking to him or offer him something to eat! Or if they have their dog with them and just let it come running up to us! Those are simply put VERY RUDE and DANGEROUS things to do! It is NOT meet & greet time when a handler is out in public with their service dog working!

Those of us who have & need a service dog still live our lives one day at a time just like everybody else. We have to go out to the store to buy what we need, just like you do. And we would like to get in & out of a store quickly just like you do. Most of the time these SA have been at work all day long with their handlers. They also deserve to get home as quickly as possible so they can go "off duty" to eat and rest.

You must remember, when a handler tells you NO you can't pet their dog, they are not being mean. It is nothing personal usually against you. Again I have to say, it's not meet & greet time when a handler is out in public with their SA!

To make my point here, my SD is a very large and handsome male rottweiler, he attracts attention everywhere. We have been very closely bonded from the day I got him, he "attached" himself to me, I am his alpha. Which is what you want in your SA. However, he LOVES LOVES LOVES kids. When we go out, if I let too many kids pet him, he then becomes distracted and starts actually looking for more kids to interact with. And I can't have that, as he needs to stay on task and pay attention to my needs to be an effective mobility assist SD. So, I do have to limit kids so that he knows I am the one who makes the decision, not him.

When I see another handler & their SD I simply say hello or comment that they are beautiful and then go the other way. If I can't go away from them I will put my dog in a sit or down stay and give my command for leave it. It really is not ever appropriate to allow another dog to come up to my SD without ASKING before your dog gets within 20 feet of us. I personally will not allow my dog to interact with others when we are out in public. It's NOT play time! He has a play buddy at home for such things. And if you allow your SD to play with other dogs out in public, they will become very distracted, and most likely will get worse as time goes on looking for others to play with out in public! Those of us with SD's know this. It's private owners/handlers of NON service animals who don't seem to get it.

Just imagine what could happen if somebody has a pilot dog that you allow your dog to go up to and distract! Or if your dog decided it didn't like this particular dog and attacked it! I would not want to be you when the lawyers/ prosecutors get done with you!