The ADA specifically prohibits proprietors and public entities from requiring identification of any kind
(including the tag many of us issue) as proof of 'assistance dog' status or entry. The law allows a
business or public entity to inquire whether the dog is an assistance dog, and if so what function the dog
is trained to perform. Beyond that, no inquiry is allowed.
Many departments currently issue an "Assistance Dog Tag" of a style that is standardized throughout
the state, to those that complete an application and appear to qualify. Current legal opinion is that--
despite our role as the certifying agency or 'gatekeeper'--we do not possess any power to deviate from
the restrictions placed on all public accommodations and other businesses regarding the information
that can be required of the alleged disabled person. As such an application may ask for: 1) the
name/contact information for the person training the dog; and 2) the task(s) the dog is trained (or in
training) to perform to assist the disabled person. It also includes the following language:
"By affixing my signature to this affidavit, I hereby declare I fully understand that Section 365.7 of
the Penal Code prohibits any person to knowingly and fraudulently represent himself or herself,
through verbal or written notice, to be the owner, (authorized user), or trainer of any canine
licensed as, to be qualified as, or identified as, a guide dog, signal dog, or service dog, as defined in
subdivisions (d), (e), and (f), respectively, of Section 365.5 of the Penal Code and paragraph (6) of
subdivision (b) of Section 54.1 of the Civil Code, and that a violation of Section 365.7 of the Penal
Code is a misdemeanor, punishable by imprisonment in a county jail not exceeding six months, by a
fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. I declare
under penalty of perjury, under laws of the State of California, that the information provided on this
application is true and correct."
Assistance dogs are required to obey all other animal-related laws regarding health and licensure. (CA
Food & Ag section 30851).
An interpretation of the law is that assistance dogs can be excluded from any place (such as certain
portions of a hospital) where the presence of the dog would pose a threat to the health or safety of
persons. That is based not on the strict language of section 35.104 below, but on a DOJ publication
dated 2002, that stated:
“A person with a disability cannot be asked to remove his service animal from the premises unless:
(1) the animal is out of control and the animal’s owner does not take effective action to control it (for example,
a dog that barks repeatedly during a movie) or (2) the animal poses a direct threat to the health or safety of
According to the latest updates to 28 CFR Part 35 (that is the Code of Federal Regulations):
Sec. 35.104 Definitions.
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.
Sec. 35.136 Service animals.
(a) General. Generally, a public entity shall modify its policies,
practices, or procedures to permit the use of a service animal by an
individual with a disability.
(b) Exceptions. A public entity may ask an individual with a
disability to remove a service animal from the premises if--
(1) The animal is out of control and the animal's handler does not
take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a public entity properly
excludes a service animal under Sec. 35.136(b), it shall give the
individual with a disability the opportunity to participate in the
service, program, or activity without having the service animal on the
(d) 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).
(e) Care or supervision. A public entity is not responsible for the
care or supervision of a service animal.
(f) Inquiries. A public entity 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
entity 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
entity shall not require documentation, such as proof that the animal
has been certified, trained, or licensed as a service animal.
Generally, a public entity 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).
(g) Access to areas of a public entity. Individuals with
disabilities shall be permitted to be accompanied by their service
animals in all areas of a public entity's facilities where members of
the public, participants in services, programs or activities, or
invitees, as relevant, are allowed to go.
(h) Surcharges. A public entity 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 entity 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.
(i) Miniature horses. (1) Reasonable modifications. A public entity
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
(2) 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 entity shall
(i) The type, size, and weight of the miniature horse and whether
the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse's presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
(C) Other requirements. Paragraphs 35.136(c) through (h) of this
section, which apply to service animals, shall also apply to miniature
Here is the language that identifies the sections above as the latest versions, and provides contact
information for questions:
SUMMARY: This final rule revises the regulation of the Department of
Justice (Department) that implements title II of the Americans with
Disabilities Act (ADA), relating to nondiscrimination on the basis of
disability in State and local government services. The Department is
issuing this final rule in order to adopt enforceable accessibility
standards under the ADA that are consistent with the minimum guidelines
and requirements issued by the Architectural and Transportation
Barriers Compliance Board (Access Board), and to update or amend
certain provisions of the title II regulation so that they comport with
the Department's legal and practical experiences in enforcing the ADA
since 1991. Concurrently with the publication of this final rule for
title II, the Department is publishing a final rule amending its ADA
title III regulation, which covers nondiscrimination on the basis of
disability by public accommodations and in commercial facilities.
DATES: Effective Date: March 15, 2011.
FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, or
Barbara J. Elkin, Attorney Advisor, Disability Rights Section, Civil
Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice
or TTY). This is not a toll-free number. Information may also be
obtained from the Department's toll-free ADA Information Line at (800)
514-0301 (voice) or (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home
Page at http://www.ada.gov. You may obtain copies of this rule in large
print or on computer disk by calling the ADA Information Line listed
The other issue is: “Who is disabled?” Many of us receive applications with notes from doctors
recommending or even prescribing the continuous presence of a dog. A large percentage of
applications are for seizure detection dogs. But epilepsy is not necessarily a “disability” under the
federal guidelines. The definition of a disability is found in 42 U.S. Code section 12102. Below is
case law on the subject.
You may also be interested in the following sections in State law: CA Code of Regulations Title 13
section 1216, and Title 26 section 13-1216, Title 17 sections 7985.1 and 7988.1 (which are probably
unconstitutionally restrictive of ‘signal’ and ‘service’ dogs because they list only ‘guide’ dogs); Civil Code
sections 54 – 54.3, 54.7; Education Code section 39839; Food & Agriculture Code sections 30850 –
30854; Health & Safety Code sections 113903, 114259.4, 114249.5, 114316, 114332.3, 114371, 114375;
and Penal Code sections 365.5 – 365.7. Of less importance in our jurisdiction are CCR Title 2 section
1207, Title 13 section 1866, Title 14 section 4954; and Penal Code sections 417.27, 600.2 and 600.5.
Note: Per a Board of Supervisors’ resolution, County of San Diego Department of Animal Services
provides a free dog license to all "assistance dogs" including guide dogs (for the sight impaired), signal
dogs (for the hearing impaired) and service dogs (for persons with other physical or psychological
disabilities) for those in its jurisdiction.
The issue of assistance tag distribution is a huge problem for all kinds of ‘public accommodations’
including hospitals because nobody wants to go through the expense of going to court to prove that the
person with the dog was not really qualified to have the dog there in the first place. Alleged victims can
get free representation, and if they prevail the defendant (us) has to pay attorneys fees and costs in
addition to whatever sanctions and damages are awarded. Until the law clearly requires certification for
service dog training as it does for guide dog training, the amount of fraud will be overwhelming.