As a general rule, the owner of land can deny access to any person or any animal accompanying a person. The owner therefore usually can impose and enforce a policy of not allowing pets or other animals access to his property. This general rule is limited by, among other things, federal and state laws that give disabled persons the right to bring their dogs and sometimes other pets onto most private property, regardless of what the owner wants. But not all dogs are treated equally. The extent of the legal protection depends on the person’s disability and the dog’s training. This article is intended to summarize the most important sources of the relevant law.

There are a number of federal statutes that address the right of access of animals onto private land, despite the owner’s “no pets” policy. The two most important statutes are the Americans with Disabilities Act, which is administered by the Department of Justice, and the Fair Housing Act, which is administered by the Department of Housing and Urban Development.

1. Service Animals Under Americans with Disabilities Act.

A dog that qualifies as a service animal under the Americans with Disabilities Act of 1990, as amended (“ADA”), [1] is at the top of the animal legal pyramid. The ADA provides in relevant part that

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. [2]

A “place of public accommodation” under the ADA is pretty much means any place that affects commerce, [3] which include privately owned office buildings, retail stores, restaurants, hotels, grocery stores, daycare centers, schools and gyms. Specific exceptions exist for private clubs and churches. [4]

The ADA further provides that “discrimination” includes failing to make “reasonable modifications” to policies and practices when necessary to afford access to individuals with disabilities. [5]

The ADA itself does not use the term “service animals.” Regulations issued by the Department of Justice’s Civil Rights Division pursuant to the ADA state that building owners that have “no pet” policies must modify their policies to allow service animals into their facilities. [6]

A “service animal” is defined in the regulations to the ADA as 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….The work or tasks performed must be directly related to the individual’s disability…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. [7]

Persons with a wide range of physical and emotional disabilities can have service animals. Regulations issued by the Department of Justice provide the following examples of what a service animal might do:

…assisting individuals who are blind or have low vision with navigation or 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. [8]

Other tasks that a service animal might perform include preventing a child with autism from wandering away, picking up items for a person who uses a wheelchair, alerting a person with diabetes when blood sugar levels rise or fall, and reminding a person with depression to take his medicine. [9] Note, however, that under the definition of a service animal, the provision of emotional support, by itself does not make a dog a “service animal.”

Only a dog can be a service animal. A service animal does not have to be any particular breed of dog. German shepherds and Labrador retrievers are probably most common, but any breed of dog, from a Chihuahua to an Irish wolfhound, can qualify as a service animal under the ADA. [10]

If a person comes into a building and claims that his dog is a service animal, a building owner is only permitted to ask two questions of the person. First, is the dog a service animal required because of a disability? Second, what work or task has the dog been trained to perform? The building owner cannot ask about or require proof of the person’s disability or require proof of the dog’s training. [11]

A building owner generally cannot ask a person to remove his service animal from the premises unless (a) the dog is out of control and the disabled person does not take effective action to control it, or (b) the dog is not housebroken. [12] A building owner can exclude service animals from all or part of a building if the owner has legitimate safety concerns. For example, a hospital cannot exclude service animals in waiting rooms, but the hospital can exclude them from operating rooms or burn units. [13] In a school dormitory, the school can restrict service animals from entering certain areas reserved for students with allergies. [14]

Service animals are required to be kept on a leash. Service animals are not required to wear vests, tags or other item that identifies the dog as a service animal. [15] However, as a practical matter, the existence of a vest or other visible cue may save a disabled person from having to explain repeatedly that the dog is a service animal.

Service animals are not required to have documentation that they have been trained. There are businesses that will certify that the service animal has been trained, but these certificates do not convey any rights under the ADA. [16]

A service dog must be allowed to accompany its disabled person into a restaurant, including self-service food lines. The restaurant owner is permitted to require that the dog stay on the floor and not on a chair or table. [17]

A hotel cannot charge a disabled person a pet deposit or special cleaning charge for a service animal. But the hotel can charge the same fee for damages to the room caused by a service animal that it charges to other guests. [18]

2. Assistance Animals Under the Fair Housing Act.

While the ADA is the source of law regarding service animals, the Fair Housing Act (“FHA”) is the source of law for assistance animals. The Fair Housing Act applies to almost all kinds of housing, both public and private.

The FHA makes it illegal to discriminate against any person in the sale or rental of a dwelling because of a handicap of that person. [19] The Act further provides that discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” [20]

The FHA itself does not expressly address assistance animals. Regulations and public notices issued by the Department of Housing and Urban Development (“HUD”) pursuant to the FHA state that housing providers must make reasonable accommodations to their policies for handicapped persons with assistance animals. [21] A public notice promulgated by HUD describes an assistance animal as follows:

An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. [22]

Note that unlike a service animal under the ADA, an “assistance animal” under the FHA does not have to be a dog, but can be any animal. For example, it is not unheard of for Vietnamese pot-belly pigs to qualify as emotional support animals. The FHA also allows an assistance animal for emotional support only. While a service animal under the ADA is required to be individually trained, an assistance animal under the FHA is not required to have training. [23]

If a disabled person makes a request to a housing provider for reasonable accommodation to possess an assistance animal, the housing provider must consider the following two questions:

(1) Does the person seeking to use and live with the animal have a disability—i.e, a physical or mental impairment that substantially limits one or more major life activities?

(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability? [24]

Unless the person’s disability is obvious, such as a blind person with a guide dog, the owner of the property is entitled to ask for proof of the person’s need for an assistance animal. For example, it would be reasonable for the landlord to request a letter from a physician or other mental-health professional stating that the person has a disability and that the animal will provide some disability-related assistance. [25]

The landlord can refuse to provide an exception to its “no pets” policy in some circumstances. If the animal in question poses a direct threat to the health and safety of others, or would cause substantial damages, and the threat or damage cannot be reduced or eliminated by reasonable accommodations, the landlord can refuse to make an exception to its “no pets” policy for the animal. [26] But this determination must be specific to this animal and not based on breed, size or weight. For example, the landlord cannot refuse to make reasonable accommodations for a pit bull or Rottweiler simply because the dog is a pit bull or Rottweiler.

3. Other Federal Statutes Regarding Assistance Animals.

Separately from the ADA and the Fair Housing Act, Congress has enacted other statutes that address the rights of disabled persons to use dogs and other animals for assistance despite “no pets” policies.

The Rehabilitation Act of 1973 provides in part that no otherwise qualified individual with a disability shall be excluded from participation in, or be subjected to discrimination under, any program or activity receiving federal financial assistance. [27] Programs or activities include colleges and entities engaged in the business of providing education, health care, housing, social services or parks and recreation. [28] HUD interprets this statute as imposing on such programs and activities the same requirements regarding assistance animals as the Fair Housing Act. [29]

The Housing Act of 1937 permits pet ownership in public housing. [30] It permits the public housing authority to charge tenants a fee for having a pet and also a pet deposit. [31] The public housing authority can impose reasonable rules on the ownership of pets. This statute does not apply to pet ownership by the elderly or handicapped, [32] or assistance animals. [33]

The Housing and Urban-Rural Recovery Act of 1983 permits tenants in assisted rental housing to own common household pets. “Common household pets” are defined as dogs, cats, birds, and rodents, including rabbits. [34] The landlord is allowed to adopt rules regarding pet ownership, such as limiting the number and size of pets, barring pets from certain areas of the project, and collecting a pet deposit. [35] The landlord must adopt rules requiring inoculation of pets, addressing disposal of pet waste, and keeping pets leashed while outside of the rental unit. [36] This statute does not apply to service animals [37] or assistance animals. [38]

The Air Carrier Access Act provides that an air carrier may not discriminate against an individual who has a physical or mental impairment. [39] Regulations issued by the Federal Aviation Administration provide that air carriers must permit service animals to accompany a person with a disability. [40] An air carrier is required to accept “identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified individual using the animal” as evidence that the animal is a service animal. [41] If a passenger seeks to travel with an animal that is used as emotional support animal, the air carrier is not required to allow the animal in the cabin unless the passenger provides a letter from a doctor that the passenger has a mental or emotional disability and needs the emotional support animal for air travel or at the passenger’s destination. [42]

4. Reconciling the Americans with Disabilities Act and the Fair Housing Act.

There are many overlaps between service animals, as defined under the ADA and its regulations, and assistance animals, as defined in the FHA and its regulations. Service animals are more narrowly defined; they can only be dogs, they must be trained to perform a specific task and they cannot be only for emotional support. Any service animal should qualify as an assistance animal, and some assistance animals that are dogs will qualify as service animals, but not every assistance animal will qualify as a service animal.

While service animals are permitted in any “place of public accommodation,” the protection afforded to assistance animals is limited to the housing context and institutions that receive federal funds, such as colleges. [43] So while the owner of a hotel or restaurant with a “no pets” policy cannot exclude service animal, the owner can exclude an assistance animal that is not also a service animal.

5. Emotional Support Dogs.

No separate legal (statutory or administrative) definition exists of an emotional support dog, nor is there a separate category in the federal statutes or regulations for an emotional support dog. One reference source has defined an emotional support animal as “a companion animal which a medical professional has determined provides benefit for an individual with a disability.” [44]

The ADA makes a distinction between an animal whose mere presence provides emotional support, which would not be considered a service animal under the ADA, and a dog which has been trained to detect the onset of an anxiety attack and take specific actions to avoid or lessen the impact of the attack, which would qualify as a service animal under the ADA. [45] A dog that is trained to perform a specific task and qualifies as a service animal may also—and in most cases probably does—provide emotional support and thus would be considered an emotional support dog, but dogs that provide emotional support only and are not trained to perform a specific task are not going to qualify as service dogs. They may qualify as assistance dogs under the FHA if the owner obtains a letter from a health care professional stating that the owner has a disability and that the dog will provide disability-related assistance. [46]

6. Therapy Dogs.

A therapy dog has been defined as “a dog that might be trained to provide affection and comfort to people in hospitals, retirement homes, nursing homes, schools, hospices, disaster areas, and to people with autism.” [47] For example, the Lutheran Church has a mission service that takes therapy dogs and their handlers to disaster sites to comfort the victims and first responders. [48] Therapy dogs, sometimes known as comfort dogs, provide wonderful services and comfort to people in need, and make the world a better place. But therapy dogs have no protected legal status. It is up to the owner of the property to decide whether to permit therapy dogs on the owner’s property.

7. Dogs and Leases.

Employees of a tenant of an office or other commercial building can bring their service dogs to work with them under the ADA. Beyond what the law requires, some employers permit their employees to bring their dogs to work as an employee incentive, including for example Google, Amazon and Proctor & Gamble. [49] In a competitive circumstance in which a desirable tenant is considering more than one location to lease, an owner who offers the tenant a “pet friendly” environment may have an advantage over an owner who does not.

Having a dog in the building raises special issues for landlords, including storage of food, disposal of waste, allergies of other employees, dogs that bark incessantly, and potential liability if the dog bites someone. Lease provisions that a landlord should consider including in a “pet friendly” lease include the following:

1. Designating a specific area for the dog to relieve itself.

2. The tenant’s liability insurance should cover any dog-related injuries and damages.

3. The tenant should indemnify the landlord against claims arising from dogs being present in the leased premises.

4. The tenant should be responsible for any additional cleaning costs attributable to dogs, both on a daily basis (e.g., dog hair) and special occasions (accidents happen).

5. Dogs must be kept on leash or otherwise restrained.

6. Dogs must comply with all local laws, including having required shots.

7. Addressing where the dog will eat and get water, and who will maintain these spaces.

8. The owner can exclude a dog that barks or otherwise interferes with other employees or tenants.

The extent to which a landlord can restrict a dog that is a service animal under the ADA or an assistance animal under the FHA is limited, but commercial landlords should be able to impose restrictions on any other types of dogs or other pets.

8. Mississippi Laws Regarding Service and Assistance Animals

While there are many federal laws and regulations that address the rights of disabled persons to bring service animals or assistance animals into public and private areas regardless of a “no pets” policy, Mississippi provides its own protections to disabled persons and their service or assistance animals. On some points, the Mississippi statutes provide broader protection for disabled people with assistance animals than federal law.

Mississippi has its own version of the Americans with Disabilities Act, at least in regard to service and assistance animals. A Mississippi statute provides that “blind persons, visually handicapped persons, deaf persons and other physically disabled persons” shall have full access to “public facilities, and other public places” [50] and to “lodging places, places of public accommodation, amusement or resort, and other places to which the general public is invited.” [51] Mississippi for many years has provided that blind or deaf persons can be accompanied by a guide or hearing aid dog. [52] In 2000 the Legislature adopted a law that provided broader rights to disabled persons with assistance animals:

Any blind person, mobility impaired person or hearing impaired person who uses a dog or other animal specifically trained as a guide, leader, listener or for any other assistance necessary to assist such blind, mobility impaired or hearing impaired person in day to day activities shall be entitled to the full and equal accommodations, advantages, facilities and privileges of all public conveyances, hotels, lodging places, businesses open to the public for sale of any goods or services and all places of public accommodation, amusement, or resort and other places to which the general public is invited, and may take the dog or other animal into conveyances and places, subject only to the conditions and limitations applicable to all persons not so accompanied, … [53]

This statute also provides that trainers of these dogs shall have the same rights of access as the disabled person whom the dog is intended to assist. [54]

Note that under this statute, a disabled person may bring an animal other than a dog; the animal must be “specifically trained”; and this only applies persons who are blind, mobility impaired or hearing impaired. This statute would not apply to a dog that was for emotional support only.

Disabled children are allowed to bring their service or assistance dogs to school. This protection is limited to children with debilitating illnesses and disabilities, which include diabetes and epilepsy. [55] This statute requires that the child be trained in handling dogs and particularly in the presence of other children who are allergic to dogs. [56]

While Mississippi has a statute that makes it a crime to cruel to a dog or cat, [57] the Legislature has enacted a separate statute for cruelty to service or assistance animals. This statute provides that it is a crime in Mississippi for a person to assault, beat, harass, injure, or attempt to assault, beat, harass or injure a dog that he knows or has reason to believe is a “guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, a service dog for a physically impaired individual, or a support dog for a mobility impaired person. [58] It also is a crime to willfully and maliciously impede or interfere with, or attempt to impede or interfere with, duties performed by a dog that he or she knows or has reason to know is a guide or leader dog for a blind individual, a hearing dog for a deaf or audibly impaired individual, a service dog for a physically limited individual, or a support dog for a mobility impaired person. [59] A person who violates this statute is guilty of a misdemeanor punishable by imprisonment for not more than ninety days or a fine of not more than $500. [60]

By applying to animals other than dogs, providing protection for dog trainers, and specifically addressing school children, Mississippi law arguably provides better protection for disabled persons on these points than federal law.