By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Arizona. A restaurant called and wanted a man trespassed because he had a service animal inside. Can you do that?
Can you trespass someone just because they brought a service dog inside?
All right, let’s talk about trespassing somebody because they have a service dog. Interesting, right?
This officer says, hey look, we had a call from a restaurant where they wanted this guy trespassed because he had a service animal inside the restaurant. And he’s an officer in Arizona. Can we do that?
Now, I’ve done some research on this. And look, it’s a legit service animal. It’s not the emotional support puppy. You’ve got to be careful. It’s not the little Yorkie in the purse. This is a certified animal to help somebody with a disability.
My thought going in was that the regular rules are going to apply for trespassing. Are they causing a disturbance? Are they violating something that would cause anybody to get trespassed? But if it’s solely because we don’t want some dog fur in the food, I think that this person has a right to have their service animal with them. You’re just going to make adjustments and make some reasonable accommodations.
What does the ADA actually require of a business?
So the Americans with Disabilities Act, the ADA, obviously is going to play a part here. And it basically says that businesses that serve the public must allow service animals into their establishment.
Now, we are not ADA lawyers. We don’t play ADA lawyers on TV or anything like that. So I’m just telling you what I think the law is here. There may be somebody smarter than me saying, well Anthony, that only applies to businesses with 10 or more employees. I don’t know. But I’m just telling you what I think the law is.
A service animal is defined under the ADA as a dog trained to perform tasks related to a person’s disability.
What two questions can a business ask?
Now my research has said that businesses can ask two primary questions. Number one is, is this dog required because of a disability? Do you need this dog? And the other question is, what task is the dog trained to perform? What does this dog do for you? The emotional support animals, it’s like, well, when I get sad it licks me in the face.
But they cannot ask for certification, and that’s important too, because I found this out. You can self certify a dog. A service dog does not actually have to be certified.
I thought there’d be something. There should be something, I think, because people abuse this. Let’s be, I mean, there are just like there are legit people that need welfare assistance, there’s a lot of people who just don’t want to work. This is one of those things. There’s a lot of people who abuse this. We travel all the time, and how many times have you seen dogs on leashes in those airports? For the most part if you see a dog on a leash in the airport it’s a service animal, because it’s supposed to be. And these are some of the most beautiful service animals you’ve ever seen.
So, you cannot ask for certification. You cannot require proof of any disability. And you cannot demand to know the person’s disability, like what is wrong with you? That just makes sense.
So those are the two things. Is this dog required, do you need this dog for your disability, and what was it trained to do.
What if the dog is aggressive or not under control?
Now it also says that if the dog is not acting under control, it’s barking excessively, it’s being aggressive, it’s not housebroken, then the dog can be removed. The dog can be removed, but maybe not the person necessarily.
If the person has a legit disability, you don’t want to discriminate against their disability. What my research is saying is that the dog itself may not be acceptable as a service animal because it’s aggressive, barking and so forth. But if the person still has a disability, you should not be kicking them out just because they told you they have a disability. They would have to be doing something else.
Why does the reason for the trespass matter?
So when people are trespassed, usually it’s for cause.
After 9/11 there were businesses out there that would not serve Arab men in restaurants, or they’re just discriminating against these people. And if the cops arrived on a call like that, and it says we can refuse service to anybody, no you can’t.
So that’s something that’s important for the cops to ask when you’re doing this. Why is this person, why are you kicking him out here? Well, because of his race or religion, we don’t like. Yeah, exactly.
Now it also says that Arizona law mirrors the ADA, and so it also protects individuals with service dogs. So that’s important, because sometimes these federal laws have more requirements to apply to a small business, but Arizona’s is going to probably apply to all businesses. Most likely.
We’re not ADA attorneys, but hopefully it’s a good discussion. This is something that can happen on a call for service.
The short version
- The regular trespass rules apply. Are they causing a disturbance? Are they doing something that would get anybody trespassed?
- If it’s solely because we don’t want some dog fur in the food, I think that person has a right to have their service animal with them.
- The ADA says businesses that serve the public must allow service animals into their establishment.
- A service animal is defined as a dog trained to perform tasks related to a person’s disability.
- A business can ask two questions. Is the dog required because of a disability, and what task is the dog trained to perform.
- They cannot ask for certification. You can self certify a dog.
- They cannot require proof of a disability, and cannot demand to know what the disability is.
- If the dog is aggressive, barking excessively, or not housebroken, the dog can be removed. Maybe not the person.
- When people are trespassed, usually it’s for cause. Ask why the business wants this person out.
- Arizona law mirrors the ADA and also protects individuals with service dogs.
- We are not ADA lawyers. I’m just telling you what I think the law is here.
So that’s what we got. Hopefully it helps. If you like what we’re doing here, like, subscribe, share with your friends. Until next time my friends, you guys stay safe.
Related from Blue to Gold
- Detention for Criminal Trespass
- Can a Hospital Trespass a Patient Who Refuses to Leave?
- Can Police Demand ID During Consensual Encounter?
This article is an edited transcript of Roadside Chat EP#791. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
