The technical guidelines explain that, under the ADA, a service animal is “a dog that has been individually trained to do work or perform tasks for an individual with a disability.” In addition, the task(s) performed by the dog “must be directly related to the person’s disability.” Applying these definitions, the technical guidelines make clear that dogs (or other animals) that provide comfort through their presence alone do not qualify as service animals under the ADA. To satisfy the requirements of the ADA, the dog must be trained to take a specific action when the disabled individual requires assistance. The technical guideline provides these examples:

• A person with diabetes may have a dog that is trained to alert him/her when his blood sugar reaches high or low levels;
• A person with epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure; and
• A person who suffers anxiety attacks may have a dog that is trained to sense when an attack is about to happen and take a specific action to help avoid or lessen its impact.

Merely providing emotional support and comfort by presence alone is insufficient to qualify a dog as a service animal under the ADA.

The technical guidelines also provide clarification as to the proper inquiries that may be made of a patron seeking to utilize a service animal in a place of public accommodation. In situations where it is not obvious that the dog is a service animal, staff may ask the patron only two specific questions:

1. Is the dog a service animal required because of a disability?
2. What work or task has the dog been trained to perform?

Staff may not request supporting documentation for the dog, require the dog to demonstrate the task, or inquire about the nature of the patron’s disability.

Managers of restaurants, hotels, retail establishments and other public accommodations should review the guidelines provided by the Department of Justice in order to more fully understand their rights when presented with a patron claiming need to use a service animal.

Title III’s overarching obligations that retailers provide individuals with disabilities with full and equal enjoyment of their goods and services and engage in ongoing barrier removal include the requirement to provide and maintain accessible routes (generally, a minimum of 36 inches in width) into the store, to merchandise, and to locations such as check-out and service counters, restrooms, fitting rooms, and other amenities.  Title III’s implementing regulations and related Technical Assistance Manuals clarify that isolated and temporary obstructions to the accessible route do not violate the ADA, if infrequent and promptly removed.

Here, Chapman alleged that Pier 1 violated Title III and related state accessibility laws, by, among other things, repeatedly obstructing its aisles with merchandise, furniture, display racks, and ladders.  Chapman encountered such obstructions on eleven separate visits to a Pier 1 store.  In upholding the district court’s finding of summary judgment for Chapman on the obstructed aisle issue, the Ninth Circuit rejected Pier 1’s argument that these allegations should be excused as mere temporary obstructions and thus, did not violate the law.

The Ninth Circuit’s reasoning suggests helpful guidance for retailers looking to avoid similar lawsuits:

• Adopting policies governing the placement of merchandise to maintain accessible routes, and practices and procedures to help implement those policies (g., regular walks of the store with a tape measure) do not insulate a retailer from liability if, the policies, practices, and procedures are – as in Chapman – ineffective;

• An obstruction is unlikely to be deemed temporary, if retailers place the onus upon the customer to request its removal;

• An obstruction will not necessarily be deemed temporary just because it was created by another patron and not the retailer itself – the retailer has an obligation to maintain its accessible routes;

• Even if individual instances of obstruction when viewed separately might be temporary, a volume of “temporary obstructions” can become sufficiently prevalent to constitute repeated and persistent failures that were not promptly remedied and, thus constitute a violation of Title III; and

• True temporary obstructions – those that are isolated and transitory in nature – g., maintenance equipment being actively used to make repairs or items currently involved in re-stocking merchandise – remain subject to Title III’s exemption to the accessible route requirements.

For additional information please contact Joshua A. Stein.