Just sent the below to a state legislator’s office who is proposing legislation to address the problem of “fake” service dogs. As usual, they’re calling for the ability to ask for ID’s or certification. Anyway, here are my comments, for what they’re worth. Feel free to use them for your own purposes…

Hello:

I’ve gotten word that legislation is proposed that would punish those who fraudulently represent a dog as a service dog when it is not one. Thank you, first of all, for addressing this very real problem. It is a problem, and the problem does need to be addressed. However, it needs to be addressed in a way that will not infringe upon the rights of people with disabilities who legitimately use service dogs. As, first, a guide dog user myself, and second, as someone who has recently trained his own guide dog, I have some thoughts and concerns I’d like to share with you.

While well intentioned, I think you may be coming at this issue from the wrong angle. I’d like to establish where the rights and responsibilities lie in this discussion. The right to be accompanied by a trained service animal rightly belongs to the person with a disability. That means that it is the person, not the dog, who is perpetrating fraud in some fashion, either by falsely representing that s/he has a disability, by falsely representing that the dog has been trained to mitigate that disability, or both. The most likely case is “both”.

Having said that, however, since the ADA stipulates that one cannot be questioned as to the nature of his or her disability, there has to be a different test. A certification of the service dog? For one thing, there isn’t one, and creating one would present its own set of problems. (If you want to know what those are, I’d be happy to discuss them, but that’s beyond the scope of this discussion, and the problems are many.) Anyway, certification or ID. ID’s are a dime a dozen. Anyone can, and does, get them. The people perpetrating the fraud are most likely to have ID’s and are eager to show them. How, therefore, do you tell the real ones from the fake ones? Certainly the two allowable screening questions in the ADA implementing regulations help: most fakers will be able to answer the first and will either struggle with the second or, at best, won’t be able to give a reasonable answer to it.

The standard, therefore, is and must be behavior. Under that standard, any dog, whether service dog or not, can be removed from a place of business if it is not housebroken, and especially if it isn’t under the handler’s control or is aggressive or disruptive. This has always been the case. However, whether through fear or ignorance, business owners are reluctant to exercise their rights to have such disruptive animals removed for their disruptive behavior. Whether a dog is a legitimate service dog or not, there is no place in a public setting for it if it is disruptive or, especially, if it’s aggressive.

I’d suggest that the laws, first, address behavior of aggressive or disruptive animals. Second, address the fraudulent misrepresentation of disability. If, indeed, someone does not have a disability as defined in the ADA, and if their dog is not adequately trained (something that could easily be proved if it were aggressive or disruptive), that’s where your legislation could step in. Absolutely, give the false representation of disability or of trained status real teeth. As outlined, it seems to me, however, that your proposal would be unenforceable. The litmus test must be, not the presence of an ID or certification, but rather the behavior of the dog in question.

As I mentioned, I have trained my own guide dog. She’s my fourth guide, though only my first that I’ve trained myself. I started her out as a puppy, and I would say that she’s as well trained as any guide dog that came from a training program. How would your proposed legislation affect me? I have no ID for my dog, nor do I believe that I should have to prove that I, a law-abiding citizen, am not breaking the law with my dog, who is very well-behaved and always under my control. Laws should certainly be available to penalize the guilty, but the innocent should not be made to bear the burden of the behavior of the guilty. Conversely, I have met program-trained dogs who have ID’s issued by their schools, who are aggressive, disruptive, and whose training has not been maintained by their handlers. Those dogs would get a pass, and they absolutely should not. I can’t stress this enough: behavior, not ID, should be the litmus test here.

I’d be happy to discuss this with you further if you want or need.

Regards,