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March 29, 2016

Aunt Rena Albarello was born in 1925 in the Town of Pullman. She lost her sight at age 4 from spinal meningitis. In her late teens, she attended a residential guide dog school in Michigan where she was paired with Julia, a beautiful black Doberman Pinscher. Julia was taught by skilled instructors to safely guide her ward through the complexities of pedestrian travel. Julia provided Rena with increased independence and they loved each other very much.

Shop owners in Pullman and Roseland, like Fattori’s Square Deal and Frigo Bros. Foods, freely allowed Julia to accompany Rena into their establishments. Julia was harnessed. She had impeccable manners. She was not a “pet.” These business owners accommodated Rena long before the passage of the Illinois White Cane Law, the Service Animal Access Act, and the Americans with Disabilities Act of 1990 (ADA).

Title III (public accommodations and commercial facilities) of the ADA makes it illegal for places like restaurants, theaters, schools, and hospitals to interfere with the ability of people with disabilities to come onto the premises and access services. Today, Julia would be deemed a “service animal” under the ADA. The ADA defines a “service animal” narrowly as any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. In certain circumstances, businesses also must permit the use of a miniature horse. Notably, the ADA regulations specify that the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.

If Rena entered the Italian Village today for a meal of polenta and roast chicken, she could not be turned away. The restaurant legally could not ask her about the nature or extent of her disability because her blindness is open and obvious and the work performed by Julia for Rena’s disability is readily apparent. The restaurant legally could not ask Rena for proof that Julia has been certified or trained as a service animal. Special identification and certification are not required by the ADA. Neither a deposit nor a surcharge may be required as a condition of allowing the service animal to accompany the individual.

However, if Rena’s disability was a non-apparent seizure condition and Julia’s work or task relative to the condition was not readily apparent, the restaurant legally could make two inquiries to determine whether Julia qualified as a service animal: 1) Is this a service animal that is required because of a disability? and 2) What work or tasks has the animal been trained to perform? If the answer to the first question is yes, and the second question is answered, further inquiries are impermissible, and the restaurant cannot ask that Julia demonstrate her ability to perform the work or task for which she is trained.

The restaurant has some protection. If Julia is out of control and Rena does not take effective action to control her, or Julia does not control her waste or acts in a manner that poses a direct threat to the health or safety of others, the Italian Village legally could deny Julia access to the restaurant. However, a determination that a service animal poses a direct threat must be based on an individualized assessment based on the animal’s actual conduct. The restaurant legally cannot deny Julia access because of a stereotype that Doberman Pinschers are dangerous.

The law concerning “assistance animals” in the housing context differs from the above. I address the topic in this article.

© Margherita M. Albarello, Esq., 01-31-16