28 CFR Part 36

[ILGHAUS]

[Federal Register: September 15, 2010 (Volume 75, Number 178)][Rules and Regulations] [Page 56236-56358]
DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44


Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.


SUMMARY: This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act [[Page 56237]] (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991. Concurrently with the publication of the final rule for title III, the Department is publishing a final rule amending its ADA title II regulation, which covers nondiscrimination on the basis of disability in State and local government services.

Effective Date: March 15, 2011.

http://edocket.access.gpo.gov/2010/2010-21824.htm


Public accommodations that are subject to the ADA as well as other
Federal disability discrimination laws

[[Page 56240]]

must be aware of the requirements of all applicable laws and must
comply with these laws and their implementing regulations. Although in
many cases similar provisions of different statutes are interpreted to
impose similar requirements, there are circumstances in which similar
provisions are applied differently because of the nature of the covered
entity or activity, or because of distinctions between the statutes.
For example, emotional support animals that do not qualify as service
animals under the Department's title III regulations may nevertheless
qualify as permitted reasonable accommodations for persons with
disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual
Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public
accommodations that operate housing facilities must ensure that they
apply the reasonable accommodation requirements of the FHAct in
determining whether to allow a particular animal needed by a person
with a disability into housing and may not use the ADA definition as a
justification for reducing their FHAct obligations. In addition,
nothing in the ADA prevents a public accommodation subject to one
statute from modifying its policies and providing greater access in
order to assist individuals with disabilities in achieving access to
entities subject to other Federal statutes. For example, a quick
service restaurant at an airport is, as a public accommodation, subject
to the title III requirements, not to the ACAA requirements.
Conversely, an air carrier that flies in and out of the same airport is
required to comply with the ACAA, but is not covered by title III of
the ADA. If a particular animal is a service animal for purposes of the
ACAA and is thus allowed on an airplane, but is not a service animal
for purposes of the ADA, nothing in the ADA prohibits an airport
restaurant from allowing a ticketed passenger with a disability who is
traveling with a service animal that meets the ACAA's definition of a
service animal to bring that animal into the facility even though under
the ADA's definition of service animal the animal lawfully could be
excluded.

* * * * *

Service animal means any dog that is individually trained to do
work or perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric, intellectual,
or other mental disability. Other species of animals, whether wild or
domestic, trained or untrained, are not service animals for the
purposes of this definition. The work or tasks performed by a service
animal must be directly related to the handler's disability. Examples
of work or tasks include, but are not limited to, assisting individuals
who are blind or have low vision with navigation and other tasks,
alerting individuals who are deaf or hard of hearing to the presence of
people or sounds, providing non-violent protection or rescue work,
pulling a wheelchair, assisting an individual during a seizure,
alerting individuals to the presence of allergens, retrieving items
such as medicine or the telephone, providing physical support and
assistance with balance and stability to individuals with mobility
disabilities, and helping persons with psychiatric and neurological
disabilities by preventing or interrupting impulsive or destructive
behaviors. The crime deterrent effects of an animal's presence and the
provision of emotional support, well-being, comfort, or companionship
do not constitute work or tasks for the purposes of this definition.


* * * * *

[ILGHAUS]

Sec. 36.302 Modifications in policies, practices, or procedures.

(c) * * *
(2) Exceptions. A public accommodation may ask an individual with a
disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal's handler does not
take effective action to control it; or
(ii) The animal is not housebroken.
(3) If an animal is properly excluded. If a public accommodation
properly excludes a service animal under Sec. 36.302(c)(2), it shall
give the individual with a disability the opportunity to obtain goods,
services, and accommodations without having the service animal on the
premises.
(4) Animal under handler's control. A service animal shall be under
the control of its handler. A service animal shall have a harness,
leash, or other tether, unless either the handler is unable because of
a disability to use a harness, leash, or other tether, or the use of a
harness, leash, or other tether would interfere with the service
animal's safe, effective performance of work or tasks, in which case
the service animal must be otherwise under the handler's control (e.g.,
voice control, signals, or other effective means).
(5) Care or supervision. A public accommodation is not responsible
for the care or supervision of a service animal.
(6) Inquiries. A public accommodation shall not ask about the
nature or extent of a person's disability, but may make two inquiries
to determine whether an animal qualifies as a service animal. A public
accommodation may ask if the animal is required because of a disability
and what work or task the animal has been trained to perform. A public
accommodation shall not require documentation, such as proof that the
animal has been certified, trained, or licensed as a service animal.
Generally, a public accommodation may not make these inquiries about a
service animal when it is readily apparent that an animal is trained to
do work or perform tasks for an individual with a disability (e.g., the
dog is observed guiding an individual who is blind or has low vision,
pulling a person's wheelchair, or providing assistance with stability
or balance to an individual with an observable mobility disability).
(7) Access to areas of a public accommodation. Individuals with
disabilities shall be permitted to be accompanied by their service
animals in all areas of a place of public accommodation where members
of the public, program participants, clients, customers, patrons, or
invitees, as relevant, are allowed to go.
(8) Surcharges. A public accommodation shall not ask or require an
individual with a disability to pay a surcharge, even if people
accompanied by pets are required to pay fees, or to comply with other
requirements generally not applicable to people without pets. If a
public accommodation normally charges individuals for the damage they
cause, an individual with a disability may be charged for damage caused
by his or her service animal.
(9) Miniature horses. (i) A public accommodation shall make
reasonable modifications in policies, practices, or procedures to
permit the use of a miniature horse by an individual with a disability
if the miniature horse has been individually trained to do work or
perform tasks for the benefit of the individual with a disability.
(ii) Assessment factors. In determining whether reasonable
modifications in policies, practices, or procedures can be made to
allow a miniature horse into a specific facility, a public
accommodation shall consider--
(A) The type, size, and weight of the miniature horse and whether
the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature
horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse's presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
operation.
(iii) Other requirements. Sections 36.302(c)(3) through (c)(8),
which apply to service animals, shall also apply to miniature horses.

* * * * *

[ILGHAUS]

Breed limitations. A few commenters suggested that certain
breeds of dogs should not be allowed to be used as service animals.
Some suggested that the Department should defer to local laws
restricting the breeds of dogs that individuals who reside in a
community may own. Other commenters opposed breed restrictions,
stating that the breed of a dog does not determine its propensity
for aggression and that aggressive and non-aggressive dogs exist in
all breeds.

The Department does not believe that it is either appropriate or
consistent with the ADA to defer to local laws that prohibit certain
breeds of dogs based on local concerns that these breeds may have a
history of unprovoked aggression or attacks. Such deference would
have the effect of limiting the rights of persons with disabilities
under the ADA who use certain service animals based on where they
live rather than on whether the use of a particular animal poses a
direct threat to the health and safety of others. Breed restrictions
differ significantly from jurisdiction to jurisdiction. Some
jurisdictions have no breed restrictions. Others have restrictions
that, while well-meaning, have the unintended effect of screening
out the very breeds of dogs that have successfully served as service
animals for decades without a history of the type of unprovoked
aggression or attacks that would pose a direct threat, e.g., German
Shepherds. Other jurisdictions prohibit animals over a certain
weight, thereby restricting breeds without invoking an express breed
ban. In addition, deference to breed restrictions contained in local
laws would have the unacceptable consequence of restricting travel
by an individual with a disability who uses a breed that is
acceptable and poses no safety hazards in the individual's home
jurisdiction but is nonetheless banned by other jurisdictions.
Public accommodations have the ability to determine, on a case-by-
case basis, whether a particular service animal can be excluded
based on that particular animal's actual behavior or history--not
based on fears or generalizations about how an animal or breed might
behave. This ability to exclude an animal whose behavior or history
evidences a direct threat is sufficient to protect health and
safety.

[ILGHAUS]

Several corrections made by the Final Rule, Correction


"A pet or support animal may be able to discern that the individual is in
distress, but it is what the animal is trained to do in response to this
awareness that distinguishes a service animal from an observant pet or
support animal."


"Tasks performed by psychiatric service animals may include
reminding individuals to take medicine, providing safety checks or room
searches for individuals with PTSD, interrupting self-mutilation, and
removing disoriented individuals from dangerous situations."


" ... the work or tasks performed by the service animal must be related
directly to the individual's disability ..."


From
[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Rules and Regulations]
[Pages 13286-13288]
[FR Doc No: 2011-5581]

DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44

Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities; Corrections

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule; correction.

Dated: March 7, 2011.
Rosemary Hart,
Special Counsel.
[FR Doc. 2011-5581 Filed 3-10-11; 8:45 am]
BILLING CODE 4410-13-P


http://www.gpo.gov/fdsys/pkg/FR-2011.../2011-5581.htm