Submission Date:
Question:
I saw a leashed dog in the library and saw no obvious identifiers that it was a service animal. I approached the patron and told him that pets were not allowed in the library. He told me that if I looked down, I could see it was a service animal. In fact, I could not. He then turned the animal around and pointed at the collar, which had "service animal" embroidered in it. Upon turning around to face me, the dog licked both of my hands. The owner ignored this behavior and went back to looking for books. (We do have video footage of the incident and can clearly see in it that the dog licked my hands.)
Does the dog licking my hands constitute a failure to keep the service animal (whether legitimate or not) under control?
I have already contacted the Attorney General's office with this specific question, which they declined to answer, and an HR attorney for advice on what to do if it happens to someone I supervise, which they declined to answer other than saying to tell employees to be cautious around service animals.
Answer:
First, I want to be very clear that service animals (dogs and miniature horses) do not have to wear any specific collar or badge. It is by their training and the service they provide (often not easy to discern to a casual observer) that they are identified. For that reason, it can be easy to mistake a service animal for a pet, so caution is always warranted.
Of course, this question is not about that. It’s about what if the service animal doesn’t quite act like a service animal.
Again, I have to be very clear: according to the Americans with Disabilities Act (ADA) and its case law, a deviation from control (like a lick) by a legally defined service animal is in not a blank check to eject that service animal from a place of public accommodation.
This important consideration was most recently discussed in a federal court opinion issued on December 19th, 2024, Ahlshlager v. Imhof.[1]
In this ADA opinion, federal Judge Orelia Merchant[2] evaluates the case of a person residing at a Suffolk County shelter who was forced to surrender her service dog after the dog “lunged” at a shelter worker.
The opinion makes for colorful reading because the name of the service dog in question is:
NIGHTMARE
At the shelter, Nightmare[3] didn't engage in serial nightmarish behavior, but at one point was captured on film “lunging” at a shelter worker after being surprised. So, just like in the question, the dog engaged in behavior outside the lines of what service animals are trained to do.
As reviewed by the judge, the shelter worker was scared but confirmed to the plaintiff and her family that there was no bite (she even provided a photo!). Nevertheless, the shelter took the position that Nightmare posed a risk to other shelter residents, and directed the plaintiff to remove Nightmare,[4] depriving her of the dog’s services in her residence.
Although the law does allow service animals to be restricted on the basis of safety, this turned out to be the wrong call.
In her decision, Judge Merchant does an excellent job of explaining when a service animal may be removed due to behavioral issues. If you have time to read the full opinion, I encourage it. However, I will summarize it this way: when there is a concern that a service animal is posing a risk, the risk must be firmly established, after which the least restrictive way of limiting the risk must be explored.
In the case of Nightmare, the judge determined that the record did not establish a risk of bites to other people in the shelter and concluded that the risk raised by the “lunge” could be addressed by Nightmare wearing a muzzle (a middle ground that the shelter did not explore; Nightmare just got booted without any compromise offer from the shelter being documented).
So, to answer the question: does a service animal licking a person’s hand show a lack of control sufficient to warrant removal of the animal or to conclude that the animal is not a service animal? Almost always the answer will be “No.”
All that said, I am sympathetic to two facts:
Fact 1: Not all people claiming to use a service animal are actually using a service animal as defined by law. We have addressed this question before, in Patrons with Service Animals.
Fact 2: Sometimes a service animal can cause a safety concern.
Taking a page from the excellent opinion in Ahlshlager v. Imhof, a script for addressing both these types of issues is:
STEP 1: If someone brings a dog or miniature horse into the building, and you suspect the animal is not a trained service animal, DO NOT confront them, but document the concern.
OR
STEP 1: If someone brings a dog or miniature horse into the building, and the animal appears to be a trained service animal but causes a safety or operational concern, address the safety concern to the degree required in the moment (call 911 for medical emergency, call maintenance to pick up poop, etc.), and document the issue. DO NOT confront the person in the moment other than to request their name (which they might withhold).
STEP 2: If the library believes it needs to take action in any way, have the documentation of the incident reviewed by an attorney who is familiar with the ADA to determine an appropriate response.
STEP 3: Follow that attorney’s written advice.[5]
After a careful review of the circumstances, the attorney’s advice may range from, “Do nothing,” to, “Here is how to address the safety issue properly,” to, “Here is how to address what we believe is a violation of the prohibition on animals in the library (except service animals).”
The reason to review the matter with an experienced attorney and follow their written advice is that—just as indicated by the non-replies from the attorney general and the HR attorney the member asked—ADA compliance is a high-risk legal issue. As shown in the case of Nightmare, even a scary incident might not be enough to deny services, and mishandling the situation can lead to disrespecting a patron, and to liability. By using the written advice of an attorney, you are more likely to respect the rights of a person who brought in an animal and also more likely to take the right action to protect the library.
At the same time, the ADA does allow for a place of public accommodation to address safety and operational concerns. By carefully documenting those concerns and obtaining specific legal advice before taking action, the library can react in a way that is appropriate.
Thank you for an important question, which will hopefully help many people avoid (or at least properly react to) a Nightmare.
[1] Nicole Ahlschlager v. John Imhof, in his official capacity as Commissioner of the Suffolk County Department of Social Services, 2024 WL 5168732, *2 (E.D.N.Y. Dec. 19, 2024) https://scholar.google.com/scholar_case?case=13998800369408309011.
[2] Presiding over U.S. District Court in the Eastern District of New York, so operating within a jurisdiction relevant to “Ask the Lawyer’s” New York audience.
[3] The plaintiff testified that her dog’s name comes from “The Nightmare Before Christmas.” The judge interpreted this to mean that the dog that appears in that film is named “Nightmare,” but that canine character is, in fact, named “Zero.”
[4] Who went to stay with plaintiff’s friend.
[5] Always request advice from an attorney in a high-risk issue be in writing. This is a reasonable request, and a good attorney will WANT to put their advice in writing (to protect them as much as to protect your library!).
