Journal of Animal Law Vol 6.pdf - Animal Legal & Historical Center

96 Pages·2010·1.07 MB·English

J
ournal of
a l
nimal aw
Michigan State University
College of Law
MAY 2010
Volume VI
J a l
o u r n a l o f n i m a l a w
Vol. VI 2010
E B
ditorial oard
2009-2010
Editor-in-Chief
Jane C. Li
Managing Editor
eriCa a. armstrong
Articles Editor
tabby mCLain
Executive Editor
DanieL aLbahary
Notes & Comments Editor
Kathryn e. austin
Business Editor
maria m. gLanCy
Associate Editors
anDrea L. DomorsKy John F. hiLKin
JuDson Katz Kristina m. maCionsKi
ogeChi o. onyeani robert m. stone
aKisha townsenD KathLeen P. wiCKett

Faculty Advisor
DaviD Favre
J a l
o u r n a l o f n i m a l a w
Vol. VI 2010
P r C
EEr EviEw ommittEE
2009-2010
taimie L. bryant
DaviD Cassuto
DaviD Favre, Chair
rebeCCa J. huss
Peter sanKoFF
steven m. wise
The Journal of Animal Law received generous support from the Animal Legal Defense Fund and
the Michigan State University College of Law. Without their generous support, the Journal would
not have been able to publish and host its second speaker series. The Journal also is funded by
subscription revenues. Subscription requests and article submissions may be sent to: Professor
David Favre, Journal of Animal Law, Michigan State University College of Law, 368 Law College
Building, East Lansing MI 48824.
The Journal of Animal Law is published annually by law students at ABA accredited law schools.
Membership is open to any law student attending an ABA accredited law college. Qualified
candidates are encouraged to apply.
J a l
Current yearly subscription rates are $27.00 in the U.S. and current yearly Internet subscription rates o u r n a l o f n i m a l a w
are $27.00. Subscriptions are renewed automatically unless a request for discontinuance is received.
Back issues may be obtained from: William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New Vol. VI 2010
York 14209.
The Journal of Animal Law welcomes the submission of articles, book reviews, and notes &
P r C
comments. Each manuscript must be double spaced, in 12 point, Times New Roman; footnotes must EEr EviEw ommittEE
be single spaced, 10 point, Times New Roman. Submissions should be sent to [email protected]
using Microsoft Word (or saved as “rich text format”). Submissions should conform closely to the Taimie L. Bryant is Professor Law at UCLA School Of Law where
18th edition of The Bluebook: A Uniform System of Citation. Authors should provide photocopies
she teaches Property and Nonprofit Organizations in addition to
of the title pages of all sources used and photocopies of the phrases and sentences quoted from the
teaching different courses on animal law. Prior to receiving her
original sources. All articles contain a 2010 author copyright unless otherwise noted at beginning
J.D. from Harvard Law School, Professor Bryant earned a Ph.D.
of article. Copyright © 2010 by the Journal of Animal Law.
in anthropology from UCLA. Since 1995, she has turned her
attention to animal rights, focusing both on the theoretical issues
of conceptualizing such rights and on legislative and other legal
regulations of human treatment of animals. Recent publications
include Similarity or Difference as a Basis for Justice: Must Animals
be Like Humans to be Legally Protected from Humans?, False
Conflicts between Animal Species, and Transgenic Bioart, Animals
and the Law.
David Cassuto is a Professor of Law at Pace University School of
Law where he teaches Animal Law, Environmental Law, Property
Law, and Professional Responsibility. Professor Cassuto has
published and lectured widely on issues in legal and environmental
studies, including animal law. He is also the Director of the Brazil-
American Institute for Law & Environment. He holds a B.A. from
Wesleyan University, an M.A. & Ph.D. from Indiana University,
and a J.D. from the University of California, Berkeley, Boalt Hall
School of Law.
David Favre is a professor of law at Michigan State University
College of Law. He is Faculty Advisor to the Journal of Animal Law
and Chair of the Peer Review Committee of the Journal. As Editor-
in-Chief of the Animal Legal and Historical Web Center, he has
published several books on animal issues. He teaches Animal Law,
Wildlife Law, and International Environmental Law.
Rebecca J. Huss is a professor of law at Valparaiso University School
of Law in Valparaiso, Indiana. She has a LL.M. in international
and comparative law from the University of Iowa School of Law
and graduated magna cum laude from the University of Richmond
School of Law. Recent publications include Companion Animals
and Housing in Animal Law and the Courts: A Reader; Rescue
Me: Legislating Cooperation between Animal Control Authorities
J a l
and Rescue Organizations; Valuation in Veterinary Malpractice; o u r n a l o f n i m a l a w
and Separation, Custody, and Estate Planning Issues Relating to
Companion Animals. Her primary focus in research and writing
Vol. VI 2010
is on the changing nature of the relationship between humans and
their companion animals and whether the law adequately reflects the
importance of that relationship.
t C
aBlE of ontEnts
Peter Sankoff is a Senior Lecturer at the University of Auckland,
artiClEs
Faculty of Law, where he has taught animal law, criminal law
and evidence since 2001. Peter graduated with a B.A. (Broadcast
Journalism) from Concordia University in 1992, a J.D. from the Evolving funCtions of sErviCE and thEraPy animals
University of Toronto in 1996, and an LL.M. from Osgoode Hall and thE imPliCations for PuBliC aCCommodation aCCEss rulEs
Law School in 2005. Peter has also worked as a law clerk for
John Ensminger and Frances Breitkopf. ..........................................1
Madame Justice Claire L’Heureux-Dubé at the Supreme Court of
Canada and for the Canadian federal government as an advisor on The proliferation of service dog types, beyond dogs serving people who are
human rights matters involving criminal justice. blind, deaf, or mobility impaired, has necessarily resulted in added complexity
in the interpretation of the statutes and regulations that apply to these dogs and
their handlers. The Departments of Justice, Transportation, and Housing and
From 2002-2006, Peter was the Co-Chair of the Executive Committee
Urban Development, along with some states, have in recent years also issued
of the Animal Rights Legal Advocacy Network (ARLAN), a New
or proposed rules taking into account dogs whose services relate to autism,
Zealand group of lawyers and law students working on animal
post-traumatic stress disorder, cognitive disabilities, and other conditions,
welfare issues, and also the editor of the ARLAN Report, a short
yet the rules of the various agencies and states are increasingly inconsistent,
journal discussing topics relating to animals and the law. In 2007,
and the same terms may have different meanings for businesses, airlines, and
Peter won a $15,000 grant from Voiceless, the fund for animals
for different kinds of housing accommodations. The authors describe the
(with Steven White of Griffith Law School) to produce a workshop
issues and recommend ways to reduce the confusion.
entitled Animal Law in Australasia: A New Dialogue. From this
workshop will emerge the first book on animal law ever written in
the Southern Hemisphere, expected in late 2008. To learn more a CasE study of afriCan ElEPhants’ JournEy from swaziland to
about this and other aspects of Peter’s work, visit: www.lawstaff. us zoos in 2003: a QuEstion of CommErCE and a talE of BrinkmanshiP
auckland.ac.nz/~psan009
Lisa Kane .......................................................................................51
African and Asian elephants are subjected to a variety of human threats to
Steven M. Wise is President of the Center for the Expansion of
their survival, including the international trade in live elephants. The United
Fundamental Rights, Inc. and author of Rattling the Cage - Toward
States zoo industry, committed to displaying live elephants, has been largely
Legal Rights for Animals (2000); Drawing the Line - Science and The
unsuccessful in maintaining and breeding elephants in captivity. This suggests
Case for Animal Rights (2002), Though the Heavens May Fall - The
continued resort to importation of wild-caught animals is inevitable. Elephants,
Landmark Trial That Led to the End of Human Slavery (2005), as
designated Appendix-I species, may not be lawfully imported under CITES
well as numerous law review articles. He has taught Animal Rights
unless the purpose of the importation is non-commercial. Examination of a
Law at the Vermont Law School since 1990, and at the Harvard Law
recent legal challenge to the zoo industry’s importation of wild-caught wild-
School, John Marshall Law School, and will begin teaching at the
St. Thomas Law School. He has practiced animal protection law for caught elephants permits analysis of whether zoos’ display and captive breeding
twenty-five years of elephants are non-commercial activities under CITES. Specifically, this
article examines the argument: that determining that an import has a non-
commercial purpose turns on the importing party’s actions rather that its status
as a charitable or educational institution; the article also examines influence of
threats by the exporting nation to cull on the US federal court.
i
Brazilian animal law ovErviEw: notEs & CommEnts
BalanCing human and non-human intErEsts
Tagore Trajano de Almeida Silva ...................................................81
thE finE linE BEtwEEn animal advoCaCy
This paper offers a conceptual analysis of the state of Animal Law in the and EntErPrisE tErrorism
Brazilian system. It discusses how the Brazilian judiciary respond to the Daniel Albahary ...........................................................................131
animal rights debate. It also asks how the Brazilian courts have developed
This Note briefly canvasses a few of the important social and legal issues
the debate and decided in some of the cases pro interest of animals such as
in contemporary animal advocacy and explains how they have become
Festival of Oxen, cockfighting, and principally habeas corpus for animals.
inextricably politically altered in the post September 11, 2001 American
Additionally, it explores the effects of unique provision of the Brazilian
consciousness. It argues that while the Animal Enterprise Terrorism Act
Constitution stating that the government shall protect the fauna and species,
presents a number of serious legal problems, it still continues to be seen by
prohibiting the cruelty to animals. Thus, this paper shows that this debate
those in power as the best social and legal response Congress can develop
offers a pattern of understanding of how the Brazilian legal system operates.
in the face of the broad domestic violence committed by animal rights
extremists. While much of this purported activity nevertheless falls under
with whom will thE dog rEmain? on thE mEaning of the general purview of states’ criminal law power, some argue that our world
thE “good of thE animal” in israEli family Custodial disPutEs has changed too much since 9/11 to leave the acts of these activists to only
Pablo Lerner ................................................................................105 the workings of the criminal justice system. This Note examines the legal
veracity of this argument.
Israeli courts have recently become increasingly proactive and intervene
more often in animal rights issues. Prior to Ploni v. Plonit, a custodial
dispute over a family companion animal had yet been determined by an adaPting thE Child’s BEst intErEst modEl
Israeli court. In this case, the Court determined that the companion animals to Custody dEtErmination of ComPanion animals
would continue to live with the defendant and adjudicated it using the “good
Tabby McLain ..............................................................................151
of the animal” test. The use of the “good of the animal,” is a functional
concept that allows judicial discretion to avoid familiar disputes and stresses Companion animals are currently treated as property in the law. When a
the need to consider the animal’s needs and interests in understanding the married couple divorces, the home’s companion animals are distributed
special relationship that exists between humans and animals. This Article according to the same laws that govern distribution of the furnishings and
primarily focuses on two questions: 1) How is the standard “the good of the other inanimate objects that the couple previously shared. As society’s
animal” defined? 2) What are the similarities and differences between this views change and companion animals in the home become more a part of
standard and the standard—”the good of the child”—which is used in child the families they reside with, some courts have taken steps to accommodate
custody issues. this dynamic in the divorce settlement process. While some judges are
attempting to award custody of companion animals by thinking outside the
box of traditional property concepts, this trend is by no means universal. In
this article, I propose a change in the law which would allow all courts to
take into account the needs and desires of the companion animal itself by
modifying the best interest model currently in use for children involved in
custody disputes.
2009-2010 CasE law rEviEw
John F. Hilkin ...............................................................................169
ii iii
Evolving Functions of Service and Therapy Animals
and the Implications for Public Accommodation Access Rules 1
E f
volving unCtions of
s t a i
ErviCE and hEraPy nimals and thE mPliCations
P a a r
for uBliC CCommodation CCEss ulEs
J E f B *
ohn nsmingEr and ranCEs rEitkoPf
i. situations dEmonstrating ProBlEms arising from thE laCk of
uniformity in trainEd dog aCCEss rulEs
ii. tyPEs of sErviCE and thEraPy animals and rElatEd aCCEss issuEs
A. Service Animals Defined
B. Guide Dogs
C. Signal Dogs
D. Service Dogs for Individuals with Other Physical Disabilities
1. Mobility Impairment
2. Seizure-Alert Dogs
3. Seizure-Response Dogs
4. The Problem of Non-visible Physical Disabilities
E. Service Dogs for Individuals with Mental Disabilities and Emotional
Support Animals
1. Dogs and Autism
2. Service Animals for Individuals with Mental Disabilities in
Department of Justice Rules
3. Service and Support Animals for Individuals with Mental
Disabilities in Department of Transportation Rules
4. Assistance Animals for Individuals with Mental Disabilities in
Federal Housing Rules
5. State Laws on Use of Service Animals by Individuals with
Mental Disabilities
F. Atypical Service Animals
G. False and Questionable Claims of Service Animal Status
H. Therapy Dogs
I. Access Rights of Trainers and Handlers
*John Ensminger is a tax lawyer and specialist in anti-money laundering programs for financial
institutions. His book, Service and Therapy Dogs in American Society: Science, Law and the
Evolution of Canine Caregivers, will be published by Charles C. Thomas, Ltd. (ccthomas.com),
in 2010. He can be reached at [email protected]. Frances Breitkopf is the past president
of the Ulster Dog Training Club in Ulster County, New York. Fran can be reached at
[email protected]. Both authors own therapy dogs. © John Ensminger 2010.
Evolving Functions of Service and Therapy Animals
2 Journal of Animal Law, Vol. VI and the Implications for Public Accommodation Access Rules 3
iii. vErifying sErviCE animal status I. situations dEmonstrating ProBlEms arising from
A. Verification under Department of Justice Rules thE laCk ofuniformity in trainEd dog aCCEss rulEs
B. Verification under Department of Transportation Rules
C. Federal Fair Housing Act Disputes on Service Animal Status A blind man, allergic to dogs, uses a guide horse, a miniature horse less than
D. State Verification Requirements three feet tall weighing only 30 pounds. A dog recognizes that his master is about
1. Verification by Public Accommodations under State Law to have an epileptic seizure and aggressively nuzzles the master’s leg as a signal
2. Verification by State and Local Governments that the master should give himself a shot to avoid the seizure. A boy with autism
has a canine companion that keeps him from going into a state of withdrawal. A
iv. rECommEndations woman who is troubled by the idea of leaving her dog at home brings him with her
everywhere she can.
v. final oBsErvations Which of these four people can bring the animal into a restaurant or other
business?
The answer to this question will vary in each of these cases depending on
the state or federal rules that are applied.
The man with the guide horse has a type of service animal that, if properly
trained, would in some states and under federal air transportation rules qualify for
access with its user. Recently proposed Department of Justice rules, however, state
that a miniature horse is not a service animal, and would not have to be accepted
by a business from its no-pets policy. The individual with epilepsy has a physical
condition, though it will not be visible most of the time, and under the laws of most
states, the master should be able to bring the dog in a restaurant because the dog
satisfies the requirement of being a service or assistance dog to someone with a
physical disability. Some states that define service animals as helping the “mobility
impaired” might not allow this person to be accompanied by the dog if they apply
state law in a situation, though they would if they applied federal law. The boy with
autism has a mental health disability that in some states will entitle him to bring the
dog into a restaurant even though he is not physically disabled. Indiana has recently
amended its statutory definition of “service animals” to include “an autism service
animal.”1 Under certain federal rules, access for the boy and his dog might depend
on whether the dog performs any functions other than comfort, such as stopping the
boy from engaging in self-destructive behavior, or barking to alert his parents when
the boy gets out of bed in the night. The woman who feels guilty about leaving her
dog at home will not qualify for restaurant access in any state. The Department of
Transportation’s air carrier access rules allow access for emotional support animals
if the owner can document a diagnosed mental or emotional disorder. On the other
hand, if she falsely claimed that the dog was a service dog, she could be prosecuted
for her brashness in some states.
Jurisdictions also differ on how places of public accommodation may
challenge the status of the animal. Some states provide unique documentation or tags
to disabled individuals using service animals, while other states do not distinguish
service animals from pets in issuing licenses and tags. Some states require that trainers
carry identification, but do not apply such requirements to individual users of such
1 IC 16-32-3-1 (amended by P.L. 15502009, § 2, in 2009).
Evolving Functions of Service and Therapy Animals
4 Journal of Animal Law, Vol. VI and the Implications for Public Accommodation Access Rules 5
dogs. In most states, the rights of individuals owning service animals are enumerated the easiest approach is for these governments and agencies to recognize certifications
without any specification as to how a challenge for admission is deemed satisfied. by organizations, many of which are national in scope and operation, with a record of
Federal rules are equally inconsistent. The Department of Justice discourages inquiry rigorous testing and certification requirements. It is also the position of the authors that
by a business as to anything but what the service animal does for the individual. The there should be limited access rights for certain categories of trained dogs that need
Department of Transportation, however, allows a carrier to rely on a special tag issued to travel for others to obtain the benefits of their training. The absence of uniformity
by a state (or subdivision) to a service animal. The Department of Housing and Urban on these issues leads to confusion, and makes it difficult for managers of restaurants,
Development allows a housing authority to ask for a letter from a health authority hotels, and other places of public accommodation to make fair decisions.2
verifying a nexus between the individual’s disability and the service provided by the
animal. Disabled individuals may have to provide specific evidence of an animal’s ii. tyPEs of sErviCE and thEraPy animals and rElatEd aCCEss issuEs
status for one type of activity, but provide something else for another activity. If
traveling from state to state, the burden can be even greater. When taking an airplane, This Part will discuss the types of service and therapy animals. Issues
an individual with an emotional support animal may be able to keep an animal with regarding access of the various types of service and therapy animals will be
him in the cabin, but would be unable to take it into some of the facilities in the airport. discussed for each type of service animal, but the discussion will be most expansive
Consider another increasingly common situation. A trainer of therapy dogs under those categories where there is the most confusion and which have produced
regularly takes the dogs to the cancer ward of a children’s hospital. The hospital is 75 the most discussion in recent regulatory releases and other developments.
miles away from her house and she lives in the Midwest where winters are very cold
and summers stifling hot. She needs to go into a restaurant on her way home from A. Service Animals Defined
the therapy dog assignment, but the only restaurant available refuses entry to the
dog because it does not qualify as a service dog, and probably does not qualify as a Most definitions of service animals or service dogs include guide dogs,
service dog in training. Should she be allowed to bring the dog into the restaurant in signal dogs, and service dogs for the otherwise disabled. Department of Justice
these exceptional circumstances? In some states, a handler of a search and rescue dog regulations, for instance, define a service animal as a—
would be able to bring a dog into a restaurant if going to or from a search and rescue
assignment, but this would not be true in most states. Should there be some sort of guide dog, signal dog, or other animal individually trained to do work or
intermediate access provision for certain categories of trained dogs that do not meet perform tasks for the benefit of an individual with a disability, including, but
the definition of service dog? What about a cancer-sniffing dog that accompanies a not limited to, guiding individuals with impaired vision, alerting individuals
nurse to remote villages in Alaska as a means of pre-screening patients that may be with impaired hearing to intruders or sounds, providing minimal protection
airlifted to a university hospital in Anchorage? No access provisions currently apply or rescue work, pulling a wheelchair, or fetching dropped items.3
to such a handler and animal (and no such animals are yet known to exist, but the idea
may someday be practical), though policy arguments strongly favor limited access.
2 This article discusses only certain aspects of state and federal statutory and regulatory law that are
There should be much greater uniformity among the federal regulatory
unique to trained dogs, specifically definitions of the various types of trained animals, access rights,
agencies, and among the states, as to the access rights of handlers with mental
and verification of status (including licensing and tagging). State laws often also distinguish such
disabilities who use service dogs. Although this uniformity might be provided if
animals from pets with regard to (1) traffic precautions (right of way at intersections for the blind
states follow federal rules issued under the Americans with Disabilities Act, the accompanied by guide dogs, and often for the deaf and mobility impaired), (2) crimes (separate
Act and implementing rules issued by the Department of Justice do not adequately crimes for interference with a disabled person’s use of a guide, signal, or service dog; some states
consider appropriate training requirements and verification procedures. Further, the have separate cruelty statutes regarding trained dogs; some states have laws regarding interference
or injury caused to a service dog by a house pet; some states specify that interference statutes do
burden is placed on the places of public accommodation since the federal government
not apply if the disabled person with the animal was in the process of committing a crime when the
is not generally involved in the registration, licensing, and tagging of dogs.
interference occurred), (3) civil and criminal damages (veterinary bills for injuries, costs of different
With the increasing use of service dogs, some trainers and training facilities
accommodations required by the loss of the animal, replacement costs including training costs), (4)
have been known to certify poorly trained dogs for service and therapy purposes. The license fees (often waived for service dogs), (5) rights to keep in disasters or emergencies, including
solution to this—at least a partial solution—is to assure that dogs whose trainers and the right to keep a service dog with the owner in an ambulance, (6) quarantine provisions (less rigor-
owners claim are service and therapy dogs receive appropriate tests for the certifications ous quarantine provisions for service dogs), (7) exemption from state sales tax, (8) tax deductibility
of service dog expenses (some laws specify disability supporting deduction must be physical), (9)
they are given. This does not mean that any specific set of testing and certification
costs of service dogs taken into consideration in determining eligibility for food stamps and other
organizations should be given a monopoly. States and political subdivisions that
social services, (10) provision for school children (for mobility and safety), (11) programs for pris-
license specially trained dogs could do the testing, but given tight government budgets
oners to train service animals, and (12) exemption from municipal fines for failure to clean up feces.
3 28 C.F.R § 36.104 (2009).
Evolving Functions of Service and Therapy Animals
6 Journal of Animal Law, Vol. VI and the Implications for Public Accommodation Access Rules 7
The same definitional regulation specifies that a disability “means, with respect to Some state statutes are even narrower, referring to “mobility impaired.”9 Most
an individual, a physical or mental impairment that substantially limits one or more states refer to service animals as serving the disabled, without limiting the reference
of the major life activities of such individual….”4 to the physically disabled.
The Department of Justice’s recently proposed revision of the definition of Even with states that define service animals as serving the physically disabled,
service animal is broader: or which provide access rights to the physically disabled when accompanied by
service animals,10 it is not clear that state enforcement would be denied a mentally
Service animal means any dog or other common domestic animal individually disabled individual with a service animal. Many civil enforcement actions and
trained to do work or perform tasks for the benefit of an individual with a tort suits refer to both federal and state rules. Some states may assume that federal
disability, including, but not limited to, guiding individuals who are blind coverage is a sufficient protection for the mentally disabled.11
or have low vision, alerting individuals who are deaf or hard of hearing to
the presence of people or sounds, providing minimal protection5 or rescue B. Guide Dogs
work, pulling a wheelchair, fetching items, assisting an individual during a
seizure,6 retrieving medicine or the telephone, providing physical support Guide or “seeing eye” dogs have been used by blind people since after the First
and assistance with balance and stability to individuals with mobility World War and are the most protected assistance dogs in the world.12 As far as public
disabilities, and assisting individuals, including those with cognitive accommodations are concerned, they are almost regarded as canes, wheelchairs, or other
disabilities, with navigation. The term service animal includes individually prosthetic devices. Although guide dogs, as with other service dogs, could be excluded
trained animals that do work or perform tasks for the benefit of individuals from a place of public accommodation if out of control,13 this is, given the rigorous
with disabilities, including psychiatric, cognitive, and mental disabilities….7 selection procedures and the level of training guide dogs receive, almost unheard of.
The trend in federal and state law has been to recognize that individuals with
psychiatric conditions may have service animals, but at least eighteen state laws ailments, including seizures)); Oklahoma (oklA. StAt. tit. 7 § 19.1(D)(2) (2009)); Oregon (or. rev.
StAt. § 346.680 (2009)); South Dakota (S.d. CodIfIed lAwS § 20-13-23.2 (2009)); and Tennessee
still require that the individual served by the animal must be physically disabled.8
(tenn. Code Ann. § 62-7-112(a) (2009)).
9 Connecticut (Conn. Gen. StAt. § 46a-44(a)-(b) (2009) (regarding transportation access)); Mary-
4 The Equal Employment Opportunity Commission proposed in September 2009 to expand the defi- land (md. Code Ann., [Developmental Disabilities Law] § 7-701 (West 2009); see also md. Code
nition of major life activities as a result of the ADA Amendments Act of 2008, 122 Stat. 3553 (Sept. Ann., [Developmental Disabilities law] § 7-705 (West 2009)); New Hampshire (n.H. rev. StAt.
25, 2008). It is likely that similar rules will be issued by other agencies. See EEOC, “Regulations to Ann. § 12.167-D:1(IX) (2009)); and Ohio (oHIo rev. Code Ann. § 955.011(B) (West 2009) (defin-
Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended,” ing mobility impaired as including seizure disorders)).
74 Fed. Reg. 48431, 48445-46. (Sept. 23, 2009) (proposing 29 C.F.R. § 1630.2(i) (2009)). 10 Some state statutory systems do not separately define any or all categories of service animals,
5 The preamble to recently proposed revisions to regulations under the Americans with Disabilities but refer to such guide, signal, and service dogs (by whatever terms) in provisions providing access
Act of 1990, 28 C.F.R. § 36 (2009), Nondiscrimination on the Basis of Disability by Public Ac- rights to users, discrimination and criminal interference statutes, and otherwise. Apparently in this
commodations and in Commercial Facilities, indicates that commenters urged elimination of the category are Alaska, Arkansas, Connecticut, Georgia, Michigan, Nebraska, South Dakota, Tennes-
phrase regarding minimal protection, but the Department of Justice believes it should be retained see, and Vermont. Some states do not post searchable versions of administrative codes and other
but understood to exclude attack dogs that pose a threat to others. 73 Fed. Reg. 34508, 34516 (June pronouncements on which state officials may rely for enforcement purposes.
17, 2008). Some commenters had noted that the mere presence of a dog may act as a crime deterrent 11 A 1996 letter signed by the Assistant Attorney General of the Department of Justice Civil Rights
and thus provide minimal protection, but the Department argues that this interpretation was not con- Division and the President of the National Association of Attorneys General (posted on many websites
templated. The Department cites dogs that alert individuals of an oncoming seizure, or responding including http://www.ada.gov/archive/animal.htm), provides some basic guidelines regarding access
to the seizure, as the sort of situation contemplated. Id. at 34521. rules. The letter indicates that twenty-four state attorneys generals are distributing a similar document
6 The wording does not seem to cover seizure-alert dogs, as will be discussed further below, but the along with state-specific requirements “to associations representing restaurants, hotels and motels, and
items specified are said not to be all inclusive. retailers for dissemination to their members.” http://www.ada.gov/archive/animal.htm. The twenty-
7 28 C.F.R § 36.104 (proposed June 17, 2008). four states were: Alaska, Arizona, California, Connecticut, Florida, Hawaii, Illinois, Iowa, Kentucky,
8 Arkansas (Ark. Code Ann. § 20-14-304(a) (2009)); Colorado (Colo. rev. StAt. Ann. § 24-34- Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, North Carolina, North
803(7) (2009)); Delaware (del. Code Ann. tit. 6, § 45-4502(6) (2009)); Georgia (GA. Code Ann. § Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Washington, and Wisconsin.
30-4-2 (2009)); Hawaii (HAw. rev. StAt. § 347-13 (2009)); Idaho (IdAHo Code Ann. § 56-701A(7) 12 Dorothy Harrison Eustis, The Seeing Eye, tHe SAturdAy evenInG poSt (Philadelphia), Nov. 5,
(2009)); Illinois (740 Ill. Comp. StAt. Ann. 13/5 (2009)); Louisiana (lA rev. StAt. Ann. § 46:1952 1927, at 43.
(2009)); Maine (me. rev. StAt. Ann. tit. 17 § 1312(7) (2009)); Massachusetts (mASS. Gen. lAwS. 13 Nevada Business Code (stating that a place of public accommodation may ask a person with a
ch. 272 § 98A (2009)); Mississippi (mISS. Code Ann. § 97-41-21(5)(g) (2009) referring to a service service animal or service animal in training to remove it if it is out of control and the person accom-
dog for a “physically limited” individual)); Missouri (mo. rev. StAt. § 209.150.4 (2009)); New panying the animal fails to take effective action to control it or it poses a direct threat to the health
Jersey (n.J. StAt. Ann. § 10:5-5(dd) (2009) (referring to disability but defining this with physical or safety of others) nev. rev. StAt. § 651.075 (2009).