Gone to the Dogs in Massachusetts

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Gone to the Dogs: Service Animal Law and Leash Law in Massachusetts

Sometime last year, in the small town of Oxford Massachusetts, a Veteran with a service dog entered a restaurant. The restaurant was very small and very local. The restaurant owner was also a local business man. The restaurant owner didn’t know the Veteran and visa versa. Neither did the restaurant owner know why the dog came into the restaurant with the Veteran, a very average looking man. The Veteran wasn’t blind.  He didn’t appear physically disabled.  The Veteran had no physical impairments, visible to most people.  Unfortunately, this is where the trouble started.

Apparently, the service dog was not appreciated inside the restaurant owners place of business.  People were eating there.  Food was prepared there.  The restaurant owner was so concerned, that he asked the Veteran to remove his dog.  The Veteran protested.  The Veteran tried to explain his situation and the circumstances.  The restaurant owner didn’t believe him.  Others chimed in. It all turned into one big mess. According to local news stories, the restaurant owner did not understand why the service dog was required by the Veteran or what the Veteran’s motivation for having the dog inside was.

Even so, this one simple transaction turned into a situation. It wasn’t pretty. The restaurant owner and the Veteran exchanged words. People were angry. The Veteran was asked to leave. Then, the police were called in. The Restaurant owner was upset, very upset. Patrons left the restaurant.

The next day, all the nasty details were reported in the local news paper. The news sparked even more interest. Dog owners, people with disabilities and Veterans from far and wide formed groups to protest the tiny restaurant in Oxford. Dogs dogs and more dogs, come with dog owners to voice their opinion. A few people sided with the restaurant owner. Even so, bad publicity is never a good thing. The restaurant owner lost customers. The bad publicity was not good for business and embarrassing to say the least.

In this instance, the service dog was used as not only a companion for the Vet but a tool to help him manage his disability, post traumatic stress disorder. The Veteran’s PSTD was a medical condition, directly related to his service. The restaurant owner never heard of this before. The restaurant owner made an incorrect assumption that the Veteran was not disabled.

Eventually, after a few very emotionally charged discussions, the restaurant owner apologized.  His apology was made public.  The public apology was a newsworthy story of success and communications, based on the efforts of the Veteran and the restaurant owner.  The Veteran accepted the apology.  They both shook hands. The Veteran and his service dog were welcomed back into the restaurant. The two became friends.

Eventually, life went back to normal in this sleepy little Massachusetts town in Southern Worcester County. People stopped protesting. Newspapers stopped reporting. Oxford returned to its regular state of normalcy.

This story sheds a little light into various legal reasons why someone would need to have a dog in a public place. It also sheds light as to a few things a dog owners must consider, before they bring their dogs into public places. Every town or jurisdiction in Massachusetts has important local rules or regulations pertaining to health, housing, service dogs and pets.

Other important laws regarding dogs or “service animals” can be found in the Americans with Disabilities Act (“ADA”) the Fair Housing Amendments Act (“FHAA”) and the Air Carrier Access Act (“ACAA”). It’s important to have a good understanding about these laws, especially if you are a dog owner and a business owner.

The Federal Code of Regulations (“CFR”) provides an understand of terms like, public accommodations and service animals. According to Title 28 CFR Section 36.302, business owners must make public accommodations to serve people with disabilities and those with limited capacity to access services. Subsection (c) talks about Service Animals. Service “animals” includes service dogs. The Veteran’s dog, who entered the Oxford restaurant with the Veteran, was a licensed service dog. Generally, people with disabilities have documentation that shows a dog is a service dog. If need be, service dog handlers should be able to present service dog identification to public business owners.

Generally, a public accommodation is the modification of policies, practices or procedures that allows people with disabilities to use their service animal on the premises. Under the CFR, a store or business owner should do whatever is reasonable to permit service animals onto their business premises so that the service animal can help the disabled person shop and conduct business as best they can. This is the right thing to do.

There are only a few exceptions as to why a business owner may exclude a service animal, under CFR law.  First, a service animal can be excluded if the service animal is out of control. If the animal’s handler does not take effective action to control the animal, the business owner may ask the service animal and the handler or owner, to remove the animal. In this situation, the business owner is not required to make a public accommodation for the service animal.

Next, if a service animal is not housebroken, for example a dog urinates or defecates in unacceptable areas, the store owner is not required to accommodate that service animal. This makes sense. Another exception is that a business or store owner is not required to accommodate the disabled person in caring for or supervising the service animal. In other words, the owner/handler is responsible for supervision of their own service animal if they want to take the service animal in public places.

Another key aspect of service animal law is that a service animal under must be on leash, harness, or other tether. If the handler is unable to put the animal on a leash or harness or tether, because it is not safe for the service animal, then the service animal must be under the handlers control by some other means. Again, in another sense, this means that if the owner/handler can not control the service animal, the animal may be excluded from the business premises. Examples of this sort of legal control are voice, hand signals or some other effective means of control. There is lots of guidance and case law on means of control.

For dog owners in general, it is important to note that federal law does not always trump local leash laws or ordinances. Many Massachusetts town ordinances and state laws regarding leash laws differ and are dependent upon each situation. This means that each fact pattern, or individual situation, can be different and may involve alternative duties, responsibilities and liabilities. If you are unsure about the leash laws and dog ordinances in your particular jurisdiction and situation, ask an attorney. Your attorney should be more than happy to research the laws for you and help you to understand how to obey your local laws in your area.  Taking to your attorney is a good way to become a more informed and responsible dog owner.

When I was growing up, I had the opportunity to watch service dogs being trained in the streets and on the sidewalks in Morristown, NJ. A school for service dogs for the blind was nearby.  Watching service dogs being trained was a beautiful sight. The dogs were harnessed and steady. They peered into the eyes of their handlers. The dogs were lively, yet always sat when asked and at the appropriate times.  The dogs walked quietly. They always stayed close to their handler. Unlike most dogs I’ve ever seen, these dogs didn’t randomly sniff at people and bark at things. The service dogs did not jump. There was no dog feces or urine in any public places. Never did these dogs intimidate or scare people or children. They didn’t even bark at other dogs.

Service dogs at work ignore all sources of stimulation, like other dogs, children and food. Service dogs are attentive, only to their handlers and the work they do in each moment.  Watching service dogs and their handlers is a treat.

I remember once walking up to a service dog, wanting to pet the dog.  I was about 10 years old at the time.  My mother told me, no.  I was a bit crushed, because I really love dogs, so I asked my mother why?  My mother explained to me that often handlers of service dogs ask visitors not to touch or pet the service dog. I understood and listened to my mother. I also wanted to encourage the dogs to be good. From that point on, I never touch a service dog unless I first get permission from the dog’s handler or owner.  I do this for all dogs now, hoping to help all dogs mind their manners.

Because I am an adult now, and an attorney, I understand most laws and policies of service dog handlers.  When service dogs are “at work,” they must be allowed to remain quiet and attentive to their handler. Petting the dog is a big distraction. This is important to know, for both dog owners and non dog owners.

The CFR discusses what to do when a store owner or business owner, for good reason, is unable to make a reasonable accommodation for the disabled person’s service animal. According to the Code, if a public accommodation properly excludes a service animal under 28 CFR Section 36.302(c)(2), the business shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. This means that the store owner has a legal duty to assist and accommodate the disabled person, reasonably, even if store owner or handler must keep the service animal off the premises for whatever reason.

Appropriate, respectful and lawful exclusion or inclusion of dogs in and out of business is the right thing to do. This does not mean all dogs must be legally accommodated in all places. Each situation is different, under the law. It is not always appropriate, lawful or prudent to take your dog shopping in most public places. Massachusetts state and local health and housing regulations may prohibit pets, animals and dogs from many public places. Likewise, not all dogs can be excluded from public places and businesses, with only a few exceptions.

In Massachusetts, civil laws may impose strict liability onto dog owners for any and all harm to others or property, caused by the dog they own. This means that if a dog causes harm or damage to people or property in Massachusetts, the owner of the dog will be held liable for any damages. Dog owners also have a legal duty to prevent their dogs from harassing or frightening others. This includes not permitting your dog to frighten children with sensitivities and people with disabilities. It is also important for dog owners to know, property owners are not legally obligated to accommodate dogs, unless they are service animals.  Then, there are local leash laws.

The town of Charlton Massachusetts is the town my law office is located.  In Charlton, dogs are not permitted to be outside without a leash or a harness.  Dogs must be on a leash, even when the handler or owner is not the property owner. Property owners have a duty to keep all dogs visiting their property on leash, even when property owners don’t own any dogs. Property owners failing to keep all dogs on-leash, visiting or otherwise, may face legal consequences. Although it may seem different or strange, obeying leash laws in Charlton is the responsibility of property owners in Charlton. The same type of leash law ordinance applies to West Brookfield, Oxford and Dudley, Massachusetts and other cities and towns.

Leash laws are one reason why it’s a good idea for dog owners to talk to the host or property owner when visiting, before bringing dogs on the premises. Before allowing your dog off-leash in any area, communicate with host or check the policy of the property owner. Good dog owners not only genuinely care for their dogs, they care about people. Responsible dog owners learn what to do in each situation, before bringing their dog.

Personally, one of my favorite past-times is walking near the Buffamville Dam in Oxford. This is a good spot for me to get my doggie fix.  Almost always, someone is walking their dog.  I ask if I can pet most all dogs on leash.  This is fun, to me.  It’s also fun for families and children to play at the park and at skateboard parks in Charlton and Oxford. Wherever permitted, dogs are found on-leash.  Attending local football games or taking a child to the YMCA playground in Southbridge is an awesome experience.  Keep in mind, however, it’s not always wise or permissible to bring a dog.

If it isn’t permissible, reasonable, healthy or legal to take your dog to a public place, think twice. Summer is upon us. I’ts time to enjoy the outdoors.  Bring your dog to outdoor places only when it makes sense.  Show respect for others.  Showing respect is not only good for you, it’s best for your dog.

If you are a business owner or a pet owner, and you do not fully understand your legal rights, the health regulations, the story of the Oxford restaurant owner and the Veteran is a very good lesson. Local leash laws and dog ordinances, and laws about service dog accommodations are important to know. Please, talk to your attorney if you need help in any of these areas of the law. Being concerned about others is good for business. Knowing the law and our responsibilities under the law is our duty and a good way to gain trust and respect from others. Trusted and respected business owners in Massachusetts are such a great benefit.

If you are a pet owner or dog owner or have been harmed in some way because of an out-of-control animal or a dog, please call your attorney right away. Consider the statute of limitations law in your jurisdiction. Plan to contact your attorney before the time to take legal action runs out.

If you need an attorney, and need experienced and approachable help, feel free to call our office. We are here for you. All consultations are confidential. First consultations are free.

Enjoy your spring.  Enjoy your summer.  Enjoy your dog and the great outdoors!

About Artist Annie Saliness 

The artist who painted the featured illustration “Herbie” is Annie Saliness.  Annie is an Artist full of hope, grit and true artistic talent. During her career, Annie had a stroke which took away her ability to use her right hand and more.  Annies’ struggles, triumphs and victories over her disability and other things, is a wonderful story. Annies story is as beautiful as her art. To read more about Annie, her triumph over adversity and more, follow this link > http://www.oregonlive.com/north-of-26/index.ssf/2012/10/cedar_mill_artist_annie_salnes.html

More of Annie’s artwork can be found on Annie’s website at http://www.anniesalness.com.  Take a look at Annie’s art and things. You’ll be glad you did.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under animal law, business law, civil law, Massachusetts law, Massachusetts town ordinance law

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