ACCESS RIGHTS OF PEOPLE WITH DISABILITIES AND THEIR SERVICE ANIMALS

INTRODUCTION

People with disabilities use -- and have a right to use -- the same facilities and services used by those without current disabilities; use of a service animal almost never limits that right.

This pamphlet is intended to provide a communal, accurate source of information for (1) people who use or train service animals, (2) those managing or employed by places of public accommodation (including both private and governmental entities), and (3) police officers and others responsible for enforcing the rights of people with disabilities who are using service animals and of those people who train such animals.

To find the legal obligations that apply to a particular establishment, refer to the list of types of public accommodations at the end of the pamphlet. That list uses categories from the Americans with Disabilities Act (ADA) to direct the reader to pages setting forth rights and responsibilities applicable to each type of location or service not only under the ADA, but also other Federal, State and City laws recognizing and protecting rights of people with disabilities in a wide variety of contexts. While each law has its own parameters, we have stated the "bottom line" law with respect to establishments within New York City. In most instances, the statements are applicable throughout New York State. Of course, the material in this pamphlet does not limit the actual statutes, regulations, or governmental technical assistance materials. This pamphlet provides citation to pertinent laws for easy reference.

This brochure is not offered as legal advice and should not be relied upon for particular matters without the independent advice of counsel qualified in these issues. For counsel you can contact the Legal Referral Service of the Association of the Bar of the City of New York and the New York County Lawyers' Association or your local bar association.

MESSAGE TO MANAGERS AND EMPLOYEES OF PUBLIC
ACCOMMODATIONS

It is unlawful to discriminate against a person who is enjoying or seeking to enjoy a place of public accommodation (including a public entity) solely because that person has a disability and is accompanied by a guide dog, hearing dog, or other service animal. Americans with Disabilities Act 42 U.S.C. §12101 et seq.; 28 C.F.R. Part 35 and Part 36, §36.302(c)(1); 49 U.S.C. §41705; NY Civil Rights Law §47; NY Executive (Human Rights) Law §296(14); NY Transportation Law §147; and NYC Admin. Code (Human Rights) §8-102(4) and (18), and §8-107.4 and §8-107.15; 56 Regulations of the City of New York ("RCNY") (Department of Parks and Recreation) §1-04.

Not all disabilities that require the use of service animals are visible. Many are hidden, such as epilepsy, heart disease, lung disease and those that are of a psychological/emotional origin. A person with a disability is not required to give you any verbal or written confirmation to establish his/her disability. The animal used need not be formally trained to perform as a service animal. You may exclude any animal, including a service animal, from your facility when that animal's behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.

If you have any doubt that your entity qualifies as a place of public accommodation to which a service animal has access, consult the index at the back of the pamphlet. City and State Human Rights laws do not have an "exclusive" list of entities or services, so these are merely examples.

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A SERVICE ANIMAL IS NOT A PET

A person with a disability who is accompanied by a service animal may keep the service animal in his/her immediate custody. NY Civil Rights Law §47-b(1). The service animal is admitted without charge. NY Civil Rights Law §47-b(2).

A disabled individual needs his/her service to benefit from a particular service and, therefore, should not be separated from the animal. Such separation adversely impacts on the overall ability of an individual with a disability to use places of public accommodation. Furthermore, separation not only impairs, but may destroy, the relationship between the individual and the service animal since a service animal regards such separation as punishment.

Under New York Law, a service dog must be in a harness or on a leash but need not be muzzled. NY Civil Rights Law §47-b(4). 1 Moreover, a service animal need not be secured in a kennel or other container when being transported in a taxi. 35 RCNY (Taxi and Limousine Commission) §2-50(e)(7).

A person with a disability who is accompanied by a service animal is not required to show proof that the animal is a service animal. Some, but not all, service animals wear special collars or harnesses. For example, guide dogs used by persons with vision impairments typically wear harnesses that enhance their ability to guide the person. Some, but not all, service animals are licensed and certified and have identification papers.

ROLE OF POLICE OFFICERS

It will most likely be the police officer to whom a person with a service animal will turn in the first instance when s/he is refused access to a public accommodation, as when a taxi driver refuses to provide transportation to a person with a disability accompanied by a service animal, or a restaurateur refuses to seat and serve a person with a service animal.

Prompt police action upholding the rights of people with disabilities can make the difference as to whether these individuals can enjoy these rights.

People with disabilities throughout the United States are able to function safely, independently, and efficiently with the assistance of trained service animals. They can travel to and from employment, social engagements, and recreational activities; they can perform daily errands and other activities using mass transit and other modes of transportation. The fact that they perform these tasks accompanied by service animals does not complicate the functioning of public accommodations involved. However because of misinformation or unfamiliarity with the law, individuals accompanied by service animals are often denied entry to or service from public accommodations.

The Americans with Disabilities Act was designed to end such discrimination and is nearly a decade old. New York State and New York City laws also recognize the rights of people with disabilities.The laws and the generally applicable penalties are set forth in this pamphlet.

While the person who is refused service or access may later file a complaint with the appropriate authority, a police officer's immediate intervention and education will often remedy the situation and provide the best solution to all involved.

TYPES OF PUBLIC ACCOMMODATIONS

The following segments describe the particular types of public accommodations (including both public and private sector entities and services). Where appropriate, examples are provided to demonstrate how the general principles apply to the specific type of public accommodation.

FOOD OR DRINKING ESTABLISHMENTS

A food or drinking establishment includes, but is not limited to, a restaurant, bar or brewery.

For example, a brewery was directed to modify its rules to permit a service dog to accompany a visually impaired visitor in its hospitality room, a food or drinking establishment. Johnson v. Gambrinus Co./Spoetzel Brewery, 116 F.3d 1052 (5th Cir. 1997); and a restaurant was required to permit access to an individual with muscular dystrophy utilizing a wheelchair and a service dog. Flores v. Villerose, Inc., 1996 U.S. Dist. LEXIS 11171, 5 Am. Disabilities Cas. (BNA) 1672.

PLACES OF DISPLAY OR COLLECTION

A place of display or collection is a facility where objects are displayed for viewing. For example, a brewery was directed to modify its rules to permit service dog to accompany visually impaired visitor on the public tour of an exhibit in its manufacturing facility. Johnson v. Gambrinus Co./Spoetzel Brewery, 116 F.3d 1052 (5th Cir. 1997). Places of display or collection include a museum, library or gallery.

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PLACES OF EXERCISE

A place of exercise includes, but is not limited to, a gymnasium, health spa, bowling alley, golf course, skating rink, shooting gallery, bath house and swimming pool, billiard hall and pool parlor, tennis court or beach.

PLACES OF EXHIBITION OR ENTERTAINMENT

A place of exhibition or entertainment includes, but is not limited to, a theater, concert hall, sports facility, motion picture house, stadium, music hall or airdrome.

The New York City Commission on Human Rights secured a settlement of $7000 from the operator of a movie theater for a would-be customer who had been denied admission when she appeared with her guide dog. Silver v. Loew's Theater Management Corp., complaint No. FH05022388DN (1989).

PLACES OF LODGING

A place of lodging includes, but is not limited to, a hotel, inn, motel or trailer camp.

PLACES OF PUBLIC GATHERING

A place of public gathering includes, but is not limited to, an auditorium, convention center or lecture hall.

PLACES OF RECREATION

A place of recreation includes, but is not limited to, a park, park building, amusement park, playground, zoo, bathing facility, picnic area, swimming pool, tennis court, beach, casino, race course, flea market or fair ground.

SOCIAL SERVICE CENTER ESTABLISHMENTS

A place of social service includes, but is not limited to, a day care center, senior citizen center, homeless shelter, battered women's shelter, food bank or
adoption agency.

PUBLIC AND PRIVATE TRANSPORTATION

A public or private transportation facility includes, but is not limited to, taxi, bus, subway, train, boat, airplane and all other public conveyances operated on land, on water or in the air offered for public use. Terminals, depots and stations are also included.

Air carriers must permit a service animal to accompany a passenger with a disability on the flight in any seat to which the individual is assigned, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation. If a service animal cannot be accommodated at the seat of a passenger with a disability, the carrier shall offer the passenger the opportunity to move with the animal to any seat location where the animal can be accommodated, if present on the aircraft, as an alternative to requiring that the animal travel with checked baggage. 14 C.F.R. §382.55(a); Air Carriers Access Act 49 U.S.C. §41705.

A driver of a transportation service cannot refuse to transport a passenger with a disability and his/her service animal where the trip was prearranged and the destination is within the City of New York. 35 RCNY (Taxi and Limousine Commission) §4-08.

A taxi driver cannot refuse to transport a passenger with a disability who is accompanied by a service animal to any destination within the City of New York, the counties of Westchester and Nassau, or Newark Airport. 35 RCNY (Taxi and Limousine Commission) §2-50(b).

SALES OR RENTAL ESTABLISHMENTS

A sales or rental establishment includes, but is not limited to, a grocery store or bodega, clothing store, hardware store, bakery, shopping center, ice cream parlor, bookstore, car rental establishment, pet store, video rental store or jewelry store.

SERVICE ESTABLISHMENTS

A service establishment includes, but is not limited to, a laundromat, dry cleaner and other cleaning establishment, bank, barber shop, beauty shop, shoe repair service, travel service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of health care provider, hospital, dispensary or clinic.

A person with disabilities, although not permitted in the delivery room of a hospital, may permitted in the hall of a hospital, hospital cafeteria and other public places of a hospital. See Perino v. St. Vincent's Medical Center of Staten Island, 132 Misc.2d 20 (Sup. Ct. NY Co. 1986)

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GENERALLY APPLICABLE PENALTIES

Penalties for violations of these rights can be substantial. There are a variety of administrative and judicial remedies that can result in civil and criminal sanctions.

A complaint may be filed on behalf of the aggrieved individual with the New York City Commission on Human Rights (CCHR). The CCHR may seek up to $50,000 in civil penalties (up to $100,000 for willful, wanton or malicious acts) NYC Admin. Code (Human Rights) §8-126. Where the CCHR finds a pattern or practice of discrimination, the City may institute a further action for civil penalties not to exceed $250,000 (independent of damages or penalties recovered in other proceedings on the same facts). NYC Admin. Code §8-402). Any person failing to comply with a CCHR order (including conciliation agreements) is liable for an additional civil penalty of up to $50,000, in addition to being assessed $100 per day while the violation continues. NYC Admin. Code (Human Rights) §8-124. In addition, a willful violation of CCHR orders or other obstruction is a misdemeanor, punishable by a fine of not more than $10,000 and/or imprisonment for not more than one year. NYC Admin. Code §8-129.

A private right of action is available under the CCHR, including the harassment provisions. Compensatory and punitive damages, as well as injunctive and other relief, are available. A prevailing party may recover costs and attorneys' fees. NYC Admin. Code (Human Rights) §8-120 thorough 8-124; NY Civil Rights Law §40-c and §47-d.; Americans with Disabilities Act 42 U.S.C. §12101 et seq.; 28 C.F.R. §36.501 to 36.505.

A violation of the New York City Taxi and Limousine Commission regulations can be redressed by a complaint filed with that agency. Violations may be penalized by a fine not to exceed $350 for the first offense or not to exceed $500 for subsequent offenses, as well as suspension or revocation of the operator's license in appropriate circumstances. 35 RCNY (Taxi and Limousine Commission) §2-87.

In addition, a willful violation of the State Civil Rights Law where there is a pattern or practice of discrimination can be prosecuted as a class A misdemeanor punishable by a criminal fine of not more than $1,000 and/or imprisonment for not more than one year; NY Civil Rights Law §40d and §47-c; or as a violation punishable by a criminal fine of not more than $250 and/or imprisonment for not more than 15 days. NY Civil Rights Law §40d and §47-c.

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PART II

This section provides a listing of further resources at the city, state and federal levels.

FEDERAL ASSISTANCE

Individuals are entitled to bring private actions against offenders or may enlist the aid of the United States Department of Justice. For civil rights matters that involve disabilities contact:

United States Department of Justice
Civil Rights Division
Disability Rights Section
P.O. Box 66738
Washington, D.C. 20035-6738

ADA Information Line for documents and questions
U.S. Department of Justice
telephone (800) 514-0301 (voice)
or
(800) 514-0383 (TDD)
web: http://www.usdoj.gov/crt/ada/adahom1.htm

For guidance on complaints contact:

Coordination and Review Section
Civil Rights Division
United States Department of Justice
P.O. Box 66118
Washington, D.C. 20035-6118

ADA Title II complaints relating to Public Transportation and complaints under the Air Carrier Access Act are filed with:

United States Department of Transportation
Federal Transit Administration
400 Seventh Street, SW
Washington, D.C. 20004-1111
a) for documents and information:
(800) 366-1656 (voice)
use relay service (TDD)
b) for legal questions
(800) 366-1936 (voice)
use relay service (TTD)

NEW YORK STATE ASSISTANCE

Individuals are entitled to bring private actions against offenders or may enlist the aid of the following state offices:

New York State
Office of Advocate for Persons with Disabilities
One Empire State Plaza Suite 1001
Albany, New York 12223-1150
State Advocate
telephone (518) 473-4129
(800) 522 4369
fax (518) 473 6005

Office of the New York State Attorney General
New York State Department of Law
Civil Rights Bureau
120 Broadway 23rd Floor
New York, New York 10271
Assistant Attorney General in Charge
telephone (212) 416-8250(voice)
or
(800) 788-9898 (TDD)
web: http://www.oag.state.ny.us

NEW YORK CITY ASSISTANCE

Individuals are entitled to bring private actions against offenders or may enlist the aid of the following city agencies or offices.

Mayor's Office for People with Disabilities
52 Chambers Street, Room 206
New York, New York 10007
telephone (212) 788-2830
fax (212) 788-2858

New York City Commission on Human Rights
40 Rector Street
New York, New York 10006
telephone (212) 306-7500
(212) 306-7686 (TDD)
fax (212) 306-7658

New York City Taxi and Limousine Commission
40 Rector Street
New York, New York 10006
telephone (212) 676-1122

New York City Police Department
One Police Plaza
New York, New York 10038
telephone (212) 374-5000

NATIONAL ORGANIZATIONS

Delta Society
National Service Dog Center
289 Perimeter Road
Renton, Washington 98057
(800) 869-6898 (voice/TDD)

Delta Society East Coast Office
300 Park Avenue, 2nd Floor
New York, New York 10022

Canine Companions for Independence
Northeast Regional Training Center
P.O. Box 205
Farmingdale, New York 11735

Guiding Eyes for the Blind
611 Granite Springs Road
Yorktown Heights, New York 10598

Canine Hearing Companions
247 East Forest Grove Road
Vineland, New Jersey 08360

International Association for Assistance Dog Partners
P.O. Box 1326
Sterling Heights, Michigan 48311
(810) 826-3938

Assistance Dogs International
Nicole McBride
C/O Canine Partners for Life
P.O. Box 170
Cochranville, PA 19330
610-869-4902 extension 12
nmcbride@k94life.org
Web Site: www.assistance-dogs-intl.org

Canine Working Companions, Inc.
Contact Person: Louanne Smith or Terry Plizga
316 East Walnut Street
Oneida, NY 13421
315-366-1006

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APPLICABLE LAWS

The civil rights of people with disabilities to be accompanied by their service animals in places of public accommodation are established in the following federal, state, and local legislation. This section provides a listing of pertinent statutes to which reference has been made throughout the pamphlet.

FEDERAL LAWS

Americans With Disabilities Act of 1990 (ADA) 42 U.S.C. §12101, et seq.
and its implementing regulations 28 C.F.R. Title I (employment),
Title II Part 35 (state and local government activities and public transportation); and Title III (public accommodations), Part 36, and in particular, §§36.104 and 36.302(c)(1); and see Title III Technical Assistance Manual 28 C.F.R. §36.301 to 36.310; Air Carriers Access Act 49 U.S.C. §41705 and its implementing regulations.

NEW YORK STATE LAWS

NY Civil Rights Law §40c and §40d & §§47 to 47-c;
NY Executive (Human Rights) Law §§292 and 296;
NY Agriculture and Markets Law §108;
NY Transportation Law §147.

NEW YORK CITY LAWS

NYC Admin. Code (Human Rights Commission) §8-102, §8-107, §8-120 through §8-124;
35 RCNY (Taxi and Limousine Commission) §2-50(b) and (e)(7); §2-87; and 4-08;
56 RCNY (Department of Parks and Recreation) §1-04;
21 RCNY (Miscellaneous) §1050.9(h)(3).

When city, state and federal laws conflict, the law that gives the greatest protection to the person with the disability prevails. For example, the New York State laws apply to "service dogs," but the ADA applies to "service animals"; therefore, the broader federal provision controls. The City Human Rights Law also is not limited to dogs.

Committee on Legal Issues Pertaining to Animals

1 21 RCNY (Miscellaneous) §1050.9(h)(3) clarifies that purporting to require the guide dog, hearing dog, or service dog user to procure and produce an identification card is inconsistent with and pre-empted by NY Civil Rights Law §§47 and 47-b and the Americans with Disabilities Act, 28 C.F.R. §36.302(c)(1).

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