Page 22 - Winter 2018 Journal

“service animals,” meaning that emotional support animals because the dog may interfere with emergency staff’s abil-
or pets that provide comfort or companionship are not ity to treat patients, stating that “the staff should make other
protected by the ADA, even if the owner has letters or arrangements to have the dog transported to the hospital.”
paperwork indicating the pet is an ESA. For purposes of This example is similar to the process ski areas follow when
housing, airlines, and lodging, there are regulations that restricting animals from chairlifts by providing a different
specifically address ESAs and comfort animals (under the mode of transport for the guest and the dog.
federal Rehabilitation Act), apart from those regulations Generally, businesses cannot single out or segregate
governing service animals under the ADA. persons with disabilities from the general public. DOJ
The DOJ’s regulations under the ADA, however, do regulations require that persons with disabilities be allowed
not allow businesses or other places of public accommoda- to participate in services and activities without “unjustified
tion to ask for documentation for a service animal, mak- segregation.” Pursuant to 28 C.F.R. 36.203, businesses
ing the application of these rules all the more perplexing. and other places of public accommodation must provide
(In the Winter Park incident, the ski area assumed that the services that “enable individuals with disabilities to interact
guest’s dog was a legitimate service animal.) Under the ADA, with nondisabled persons to the fullest extent possible.”
a business can ask a person with a disability two questions This regulation is often referred to as the “integrated
only: “Is the animal a service animal required because of a setting” requirement.
disability?” and “What tasks is the animal trained to per- In her complaint against Winter Park’s policy restrict-
form?” This strict limitation on inquiries about service ani- ing animals from chairlifts, the woman claimed that Winter
mals has led to exploitation of the law by pet owners who Park’s policy resulted in “separat[ion] of disabled persons
do not have legitimate service animals that are trained to do from [the] public,” which she maintains is discriminatory
specific tasks. and violates the ADA. However, is riding a two- to four-per-
Under the ADA, service animals can only be dogs (or, in son chairlift (or even a six-pack) “segregating” someone from
very rare circumstances, miniature horses) specifically trained interacting with other skiers? That’s a stretch—most chair-
to respond to the needs of a person with a disability. Thus, lift rides are particularly short in duration (four to six min-
pot-bellied pigs, ferrets, or any other animals that are not utes, give or take), and members of the general public likely
dogs or miniature horses are not considered service animals would not ride on the same chair with the service animal,
under the ADA. But with 90 million pet dogs in the US, due to some of the same safety considerations noted herein.
many pet owners are exploiting the confusion under these (Also, Winter Park does allow service animals in its gondo-
regulations to bring their dogs and other animals where las and cabriolets, which provides for this type of integra-
pets typically have not accompanied owners in the past. tion with the public.) Moreover, the Forest Service approves
When pet owners abuse these rules it creates a tremendous such restrictions of animals riding chairlifts as long as some
disservice to those who truly need legitimate service animals alternative transport is offered. As a result, the agency itself
to function and thrive. appears to not view this alternative transport as rising to the
Importantly, the DOJ does recognize limited exceptions level of unlawful segregating persons with disabilities from
to the general rule requiring businesses to allow service ani- the rest of the skiing public.
mals to accompany a person with a disability person. Under In short, the DOJ’s examples clarifying the “legitimate
28 C.F.R. 36.301, one key exception is that a business may safety requirement” exception provide strong support for a
impose “legitimate safety requirements that are necessary ski area’s restriction of service animals from open chairlifts,
for safe operation” if there is a “direct threat” to the safety as long as other modes of transport are offered.
of others. However, the DOJ states that these safety require-
ments “must be based on actual risks, and not on mere spec- SERVICE - PET - COMFORT - SAR -
ulation, stereotypes, or generalizations about individuals
with disabilities.” Safety Considerations
The DOJ has explained that service animals can be
restricted at parts of a zoo or parts of a dormitory due to
others’ allergies. The DOJ has stated that service dogs can Most ski areas have long relied on the DOJ’s “legitimate
be restricted from entering swimming pools and hot tubs, safety requirement” exception for restricting all animals
but they cannot be restricted from the deck around the (including service dogs) from riding open chairlifts. During
pool where the public is allowed to go. The DOJ has even the loading or unloading process, dogs could injure other
said that service animals can be restricted from ambulances guests or employees who are also in the process of loading

20 | NSAA JOURNAL | WINTER 2018