Thursday, May 17, 2012

Myths About Miniature Horses

Rep. Jason Chaffetz has this op-ed in the (Provo, UT) Daily Herald.  It begins:
Should a restaurant be required to allow horses in the dining room? Incredulously, a recent Justice Department ruling now says yes. In response, last week I proposed an amendment to the Commerce, Science, and Justice appropriations bill that would repeal this ridiculous mandate. Having passed the House, the proposal now awaits the Senate's unlikely approval. 
Despite the difficulty (some would say impossibility) of housebreaking a horse, the Obama Justice Department ruled that "service" horses -- miniature horses used to accompany people with disabilities -- are no different than guide dogs under the Americans with Disabilities Act (ADA). As a result, shops, restaurants, hotels and even airlines could be sued if they did not accommodate horses.
With all respect, this reflects a fundamental misunderstanding of what the ADA regulations require.  Those regulations specifically define "service animals" to include dogs only.  As the regulations specifically say, "[o]ther species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition."  28 C.F.R. 36.104. A business is required to accommodate service animals -- dogs -- except where "[t]he animal is out of control and the animal's handler does not take effective action to control it" or "[t]he animal is not housebroken."  28 C.F.R. 36.302(c).  So, even if we're dealing with a service dog, if it's not housebroken, a business does not have to let it in.

Because some people with disabilities are allergic to dogs or have religious objections to using dogs as service animals, the ADA regulations provide that in certain circumstances businesses must allow people with disabilities to use miniature horses to serve them.  But, far from treating them as "no different than guide dogs," the regulations place service horses in a distinctly disfavored position.  Unlike service dogs, which must be admitted unless they are out of control or not housebroken, miniature horses must be admitted only where doing so is reasonable.  The regulations specifically allow businesses to exclude miniature horses not only where they are out of control or not housebroken, but also where the facility can't accommodate "the type, size, or weight of the miniature horse," where the miniature horse's presence "compromises legitimate safety requirements," or in any other circumstance where it would not be reasonable to admit the miniature horse.  28 C.F.R. 36.302(c)(9).  What is so unreasonable about that?

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Blogger Julie Mills said...

Professor Bagenstos: With all due respect, I disagree with your post on miniature-horse myths. Specifically, I don't think that the regulations are as clear as you present. The reg is ambiguous because, yes, the first part mentions "any dog" but goes on to mention miniature horses "if reasonable," not "if a dog cannot be used." Dogs and miniature horses are both allowed (albeit under different standards) but not miniature horses only if dogs cannot be used. So, one could use a miniature horse with the only difference being that he or she might have to show that is in reasonable in certain circumstances. A restaurant that has enough room to accommodate a typically larger dog (as are most service dogs) would arguably have the room for a mini horse, in my opinion.

4:59 AM  

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