Full Title Name:  Why Context Matters: Defining Service Animals Under Federal Law

*1164 I. Introduction

II. History and Current Uses of Service Animals

A. The History of Service Animals

B. Current Uses of Service Animals

1. Animals Used for Animal-Assisted Activities and Animal-Assisted Therapy

2. General Impact on Human Health

3. The Benefits to Humans Who Use Service Animals

4. Risks to Humans of Using Animals

C. Ethical Issues Relating to the Use of Service Animals

• Therapy/service animals are only to be considered where other forms of therapy/assistance have failed, or when there is a particular reason for such animals (e.g. their socializing effects; a special *1174 relationship of the patient or disabled person to companion animals; cost effectiveness).

• Only domesticated animals which have been trained using techniques of positive reinforcement, and which have been, and will continue to be, properly housed and cared for . . . will be used.

• Safeguards to prevent adverse effects of working are in place (e.g. stress prevention measures, suitable technical equipment etc.). [FN72]

III. The Americans with Disabilities Act--the DOJ's Definition of Service Animal

A. Training and Purpose of Service Animals Under the Americans with Disabilities Act

Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection [FN79] or rescue work, pulling a wheelchair, or fetching dropped items. [FN80]

B. The Exclusion of “Emotional Support” Animals Under the Americans with Disabilities Act

*1180 C. Acceptable Species of Service Animals Under the Americans with Disabilities Act

1. Other Common Domestic Animals--Unless the Animal Is Too Big or Too Heavy?

2. Other than Common Domesticated Animals

3. When Is a Horse Not Just a Horse?

4. No “Monkeying” Around

a. The Arguments Allowing (Certain) Nonhuman Primates to Be Included in the Definition of Service Animal

b. Arguments Against Nonhuman Primates Being Used as Service Animals

c. Is There an Appropriate Middle Ground on the Use of Nonhuman Primates as Service Animals?

D. Case Law Illustrates the Need for Clarification of the Regulations

*1194 IV. Fair Housing Amendments Act--HUD's Definition of Service Animal

A. Applicability to Disabled Persons and Service Animals

B. The Status of the Animal Is Key to the Analysis

Demonstrate that he or she made a bona fide effort to locate a certifying authority and, if such authority is located, to subject the service animal to the specialized training necessary for such certification . . . . If neither the tenant nor the landlord . . . can locate a certifying authority after reasonable attempts to do so, it is reasonable for the landlord . . . to require that a recognized training facility or person certify that the service animal has that degree of training and temperament which would enable the service animal to ameliorate the effects of its owners disability and to live in its owner's household without disturbing the peace of mind of a person of ordinary sensibilities regarding animals. [FN247]

C. No Species Restriction but Only a Reasonable Accommodation Is Required

*1203 V. Air Carrier Access Act--the DOT's Definition of Service Animals

(1)The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders--Fourth Edition (DSM IV);

(2)The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger's destination;

(3)The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4)The date and type of the mental health professional's license and the state or other jurisdiction in which it was issued. [FN294]

VI. State Laws Defining Service Animals

A. General Definitions

B. Guide and Hearing Assistance Dogs

C. Animals Used for Other Physical Disabilities

D. Signal Animals

E. Psychiatric Service Animals

F. Emotional Support Animals

G. Service Animals in Training

H. Therapy Animals

VII. Conclusion: The Differing Definitions

[FNa1] . Professor of Law, Valparaiso University School of Law.

[FN1] . U.S. Department of Justice, Transcript of the Public Hearing on Proposals to Amend Regulations Under Titles II and III of the ADA, http:// www.ada.gov/NPRM2008/public_hearing_ranscript.htm (last visited Feb. 15, 2010) (testimony of Grace Chung Becker, Acting Assistant Att'y Gen. for Civil Rights at the Dep't of Justice).

[FN2] . Matthew W. Brault, Americans with Disabilities: 2005, Current Population Reports (U.S. Census Bureau), Dec. 2008, at 4, available at http:// www.census.gov/prod/2008pubs/p70-117.pdf (stating that 18.7% of the population of the United States reported some level of disability). The number and percentage of persons with severe disabilities has also increased. Id.

[FN3] . 42 U.S.C. §§ 12101-12213 (2000).

[FN4] . Id.

[FN5] . Press Release, U.S. Dep't of Justice, The Department of Justice Proposes New Rules to Implement the Americans with Disabilities Act (ADA) (June 4, 2008), available at http://www.usdoj.gov/opa/pr/2008/June/08-crt-498.html [hereinafter DOJ Proposes New Rules]. The DOJ is the agency responsible for implementing regulations interpreting Title III of the ADA. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34,508, 34,508-09 (proposed June 17, 2008) (to be codified at 28 C.F.R. pt. 36) [hereinafter NPRM Title III]. To the extent that transportation providers are subject to Title II and Title III of the Act such providers are regulated by the Department of Transportation. Id. at 34,509.

[FN6] . See DOJ Proposes New Rules, supra note 5.

[FN7] . See infra notes 14-24 and accompanying text.

[FN8] . See infra notes 25-72 and accompanying text.

[FN9] . See infra notes 73-212 and accompanying text.

[FN10] . See infra notes 213-276 and accompanying text.

[FN11] . See infra notes 277-313 and accompanying text.

[FN12] . See infra notes 314-343 and accompanying text.

[FN13] . See infra notes 344-361 and accompanying text.

[FN14] . See generally Roger A. Caras, A Perfect Harmony, The Intertwining Lives of Animals and Humans (1996) (discussing various ways that animals have been used by humans throughout history); Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 U. Colo. L. Rev. 181, 188-92 (2003) (discussing the domestication of animals and the changing perception of certain companion animals in our society).

[FN15] . Am. Veterinary Med. Ass'n, U.S. Pet Ownership & Demographics Sourcebook 1 (2007). The breakdown between these species is 72 million dogs and 81.7 million cats. Id. This does not include the estimates of the feral cat population of up to 100 million cats. No Kill Solutions, Do Feral Cats Have a Right to Live? 4 (2005), available at http:// www.nokilladvocacycenter.org/pdf/Feral%20Cats.pdf. Another estimate found similar results with 77.8 million dogs and 93.6 million cats. Am. Pet Prod. Mfr. Ass'n, 2009-2010 APPMA National Pet Owners Survey 8 (2009) [hereinafter APPA].

[FN16] . Assistance Dogs United, http:// www.assistancedogunitedcampaign.org/donor.html (last visited Feb. 15, 2010) (estimating there are 10,000 dogs working in the United States); Nora Wenthold & Teresa A. Savage, Ethical Issues with Service Animals, 14 Topics in Stroke Rehabilitation 68, 68 (2007) (estimating there are 17,000 assistance dogs working in the United States); International Association of Assistance Dog Partners, Veterinary Teaching Hospital Fee Structure for Disabled Clients Partnered with Guide, Hearing and Service Dogs, http:// www.iaadp.org/vthfee.html (last visited Feb. 15, 2010) (estimating that there are 30,000 disabled individuals working with guide, hearing, and service dogs).

[FN17] . Wenthold & Savage, supra note 16, at 68.

[FN18] . Alison Hornsby, Helping Hounds, The Story of Assistance Dogs 5 (2000). A Chinese scroll dating from the thirteenth century shows a blind man being led by a dog. Id. Similar scenes have been depicted in art from the sixteenth century. Id.

[FN19] . Wenthold & Savage, supra note 16, at 68 (describing records found at one hospital for the blind and other records of training dogs to assist persons with visual impairments).

[FN20] . Hornsby, supra note 18, at 5.

[FN21] . Id. at 5-6.

[FN22] . Id. at 6 (discussing the reports that Dorothy Eustis visited the training center in Europe and was the person who trained the first guide dog for use by an American).

[FN23] . Id. at 5.

[FN24] . Id. at 40.

[FN25] . See Delta Society, Understanding the Differences Between AAA and AAT, http://www.deltasociety.org/Page.aspx?pid=321 (last visited Feb. 15, 2010).

[FN26] . Id.; see also Cynthia K. Chandler, Animal Assisted Therapy in Counseling 5 (2005) (distinguishing AAA and AAT and stating that “AAA is a less formal human-animal interaction”).

[FN27] . See, e.g., Mary Renck Jalongo, “What Are All These Dogs Doing at School?”: Using Therapy Dogs to Promote Children's Reading Practice, 81 Childhood Educ. 152, 153-56 (2005) (discussing the issues that should be considered prior to the implementation of a reading program and the reading improvement that has been shown by such programs); Debra Nussbaum, Literacy; at These Readings, Listeners Growl for More, N.Y. Times, Aug. 13, 2006, http:// query.nytimes.com/gst/fullpage.html?res=9B01E4DB1F3FF930A2575BC0A9609C8B63 (describing programs of children reading to dogs and stating that formal programs began at least as far back as 1999); Anita B. Stone, Story Time: By Lending an Ear, “Reading” Dogs Help Children Learn, Bark, Sept.-Oct. 2007, at 60 (discussing programs in schools and libraries, stating that one program has 1,300 teams and describing several other programs).

[FN28] . Delta Society, Animal-Assisted Therapy, http:// www.deltasociety.org/Page.aspx?pid=320 (last visited Feb. 15, 2010); see also Chandler, supra note 26, at 5 (distinguishing between AAA and AAT).

[FN29] . See generally Handbook on Animal-Assisted Therapy: Theoretical Foundations and Guidelines for Practice (Aubrey H. Fine ed., 2d ed. 2006) [hereinafter Handbook on Animal-Assisted Therapy] (providing several examples of the use of AAT).

[FN30] . Chandler, supra note 26, at 12.

[FN31] . Id. at 10. Equine assisted physical therapy is often called hippotherapy and appears to be the leader of animal-related therapeutic modalities in the United States. Id.

[FN32] . Debi Davis, Service and Therapy Work: Can One Dog Do Both?, http:// www.deltasociety.org/Document.Doc?id=225 (last visited Feb. 15, 2010) (discussing service animals that perform in dual roles).

[FN33] . APPA, supra note 15, at 42 (reporting that fifty-five percent of dog owners and fifty-nine percent of cat owners say that a benefit of ownership is relaxation and stress relief, and that fifty-six percent of dog owners and forty percent of cat owners report that they believe that the animals are “good for my health or my family's health”).

[FN34] . See generally Companion Animals in Human Health (Cindy C. Wilson & Dennis C. Turner eds., 1998) [hereinafter Companion Animals] (discussing a variety of studies done on the impact of companion animals on human health); Delta Society, Library: Health Benefits of Animals for Adults, http:// www.deltasociety.org/Page.aspx?pid=332 (last visited Feb. 15, 2010) (listing articles that report on studies of the benefits of animals on the health of adults).

[FN35] . Aaron Honori Katcher, How Companion Animals Make Us Feel, in Perceptions of Animals in American Culture 113, 120 (R.J. Hoage ed., 1989) (discussing how visual and physical contact with animals induces calm).

[FN36] . Sarah J. Brodie et al., An Exploration of the Potential Risks Associated with Using Pet Therapy in Healthcare Settings, 11 J. Clinical Nursing 444, 445 (2002).

[FN37] . See supra notes 15-35 and accompanying text.

[FN38] . See generally Handbook on Animal-Assisted Therapy, supra note 29.

[FN39] . Id.

[FN40] . Wenthold & Savage, supra note 16, at 69; Diane M. Collins et al., Psychosocial Well-Being and Community Participation of Service Dog Partners, 1 Disability & Rehab.: Assistive Tech. 41, 46 (2006) (discussing the psychological improvements of persons using service animals).

[FN41] . S.A. Zapf & R.B. Rough, The Development of an Instrument to Match Individuals with Disabilities and Service Animals, 24 Disability & Rehab. 47, 47 (2002) (citing to work done by Katcher and Freidmann). Not every animal interaction is positive. One study showed that a possible adverse effect of some therapies using animals is that the individual may become “so involved with the pet that other human beings are neglected.” James Robert Brasic, Pets and Health, 83 Psychol. Rep. 1011, 1019 (1998).

[FN42] . Brodie et al., supra note 36, at 445-54 (discussing the spread of zoonotic disease); see also Brasic, supra note 41, at 1019.

[FN43] . Brodie et al., supra note 36, at 454. Of the people seen by allergists in North America, six percent have an allergic reaction to animal dander. Id.

[FN44] . For example, because allergies to cat dander is at the top of the hierarchy of allergy-producing animals, cats may not be the best suited for work in all environments. Id. at 454.

[FN45] . Id.

[FN46] . Brasic, supra note 41, at 1019.

[FN47] . Brodie et al., supra note 36, at 454 (discussing dog bite statistics in the United Kingdom). The most recently published statistic in the United States is that there are 4.7 million dog bite incidents annually. Insurance Information Institute, Dog Bite Liability, http:// www.iii.org/media/hottopics/insurance/dogbite/ (last visited Feb. 15, 2010).

[FN48] . Brodie et al., supra note 36, at 454.

[FN49] . The result of a survey of the literature in this area to assess potential and actual risk concluded that the hazards are minimal. Id.

[FN50] . But see Tzachi Zamir, The Moral Basis of Animal-Assisted Therapy, 14 Soc'y & Animals 179 (2006); see infra notes 66-71 and accompanying text.

[FN51] . See, e.g., Gary L. Francione & Anna E. Charlton, Animal Advocacy in the 21st Century: The Abolition of the Property Status of Nonhumans, in Animal Law and the Courts: A Reader 7 (Taimie L. Bryant et al. eds., 2008) (discussing the fact that animal interests are only protected when it is economically beneficial for humans). As an example, one Italian study focused on the suitability of specific animals to serve humans by proposing a model that identifies shelter dogs' suitability to serve as service animals. Pia Lucidi et al., Ethotest: A New Model to Identify (Shelter) Dogs' Skills as Service Animals or Adoptable Pets, 95 Applied Animal Behav. Sci. 103 (2005). This study is laudable in that its goal appears to be to provide a method to encourage the use of dogs (of any breed) otherwise confined to shelters to be removed from those facilities and trained for therapy work. Ultimately though, the study referenced back to humans' interest in the dogs' continued utility as service animals. Id. at 103 (stating that the “paucity of dogs dedicated to animal-assisted therapy...for disabled people creates long waiting lists worldwide and compromises the health of the few certified animals by demanding too much work from them at times, thus jeopardizing their future as service dogs”).

[FN52] . A more detailed discussion of issues relating to the use of nonhuman primates as service animals is found infra notes 130-174 and accompanying text.

[FN53] . Dennis C. Turner, Ethical Issues in Companion Animal Ownership, Use and Research, in Further Issues in Research in Companion Animal Studies 28 (Jill Nicholson & Anthony Podberscek eds., 1996); James A. Serpell et al., Welfare Considerations in Therapy and Assistance Animals, in Handbook on Animal-Assisted Therapy, supra note 29, at 453, 466 (discussing the use of aversive conditioning to instruct assistance dogs).

[FN54] . Robert Hubrecht & Dennis C. Turner, Companion Animal Welfare in Private and Institutional Settings, in Companion Animals, supra note 34, at 267, 273; Serpell et al., supra note 53, at 462-63 (discussing the changes in physical environments that occur to many assistance animals).

[FN55] . See Wenthold & Savage, supra note 16, at 70. For dogs working in institutional environments there can be psychological stress due to multiple handlers that may act inconsistently. See id. at 71.

[FN56] . See id. at 70-71.

[FN57] . Hubrecht & Turner, supra note 54, at 273-74 (discussing the need for good harness design to avoid injuries to dogs).

[FN58] . Kristen E. Burrows et al., Factors Affecting Behavior and Welfare of Service Dogs for Children with Autism Spectrum Disorder, 11 J. Applied Animal Welfare Sci. 42, 50-51 (2008) (discussing aggressive behavior by the child that is often directed towards the dogs and the stress dogs have when they have been “in jacket” for long periods of time without a break).

[FN59] . D.R. Lane et al., Dogs for the Disabled: Benefits to Recipients and Welfare of the Dog, 59 Applied Animal Behav. Sci. 49, 50 (1998) (discussing the role an organization that places an animal in service has for ongoing care of an animal). If an organization that places a service animal is not satisfied with the care of the animal, or the actions of the handlers, depending on the agreement with the handler, the organization may reclaim the animal or “de-certify” the animal. Scott Wyland, Blind Couple Lose Use of Guide Dogs: School for Companion Animals Decertifies Them After Abuse Allegations, Daytona News J., Aug. 19, 2007, at 03C (discussing the decertification of two guide dogs by the Leader Dogs for the Blind after officials had received complaints that the handlers abused the dogs and did not have proper control over them).

[FN60] . Lane et al., supra note 59, at 50. Cf. Dorit Karla Haubenhofer & Sylvia Kirchengast, Physiological Arousal for Companion Dogs Working with Their Owners in Animal-Assisted Activities and Animal-Assisted Therapy, 9 J. Applied Animal Welfare Sci. 165 (2006). This study found that dogs used in animal assisted therapy work were physiologically aroused when they engaged in therapy work. Haubenhofer & Kirchengast, supra, at 168-71. The study measured cortisol to determine the level of arousal and found that the concentration was significantly higher on therapy days than control days and higher if the therapy session occurred before 2:00 P.M. Id. at 168-69. The concentration of cortisol was also higher if the therapy session was shorter. Id. at 169. The researchers could not determine whether the arousal indicated positive excitement or negative stress related to the activity. Id. at 171.

[FN61] . Lane et al., supra note 59, at 58.

[FN62] . American Veterinary Medical Association, Wellness Guidelines for Animals in Animal-Assisted Activity, Animal-Assisted Therapy and Resident Animal Programs, http://www.avma.org/issues/policy/animal_assisted_ activity.asp (last visited Feb. 15, 2010) [hereinafter AVMA Guidelines]. The Delta Society, an organization that promotes the use of therapy and service animals, has a well-known program that trains and screens volunteers and their animals for visits to institutional environments. Delta Society, Delta Society Programs, http://www.deltasociety.org/Page.aspx?pid=257 (last visited Feb. 15, 2010). Delta Society's Standards of Practice include provisions that require the handler to continually evaluate the effect of interactions with people on the animal's health and the animals are to be treated “with respect and in a responsible manner.” Delta Society, Standards of Practice for Animal-Assisted Activities and Animal-Assisted Therapy 43-44 (1996).

[FN63] . AVMA Guidelines, supra note 62 (articulating concerns over the bi-directional transfer of diseases among other issues).

[FN64] . Id. (including interventions consisting of a “vacation” for the animal, more breaks or discontinuing the activity).

[FN65] . Cf. Wenthold & Savage, supra note 16, at 73-74.

[FN66] . Zamir, supra note 50, at 195.

[FN67] . Id. at 180. Professor Zamir states that the liberationist stance “ascribes value not only to the life of the animal but also to the quality of such a life--as well as to the value of the animal's freedom....” Id. Under the liberationist perspective the use of animals to treat humans is potentially immoral in several ways including limiting the animal's freedom, training issues, depriving animals of the animal's kin (focusing on simians) and injury. Id. at 181-82.

[FN68] . Id. at 181, 184-85, 189, 195. Professor Zamir cites to the prolonged period of training needed for dogs and monkeys and the necessity of “breaking” a horse for utilization in a hippotherapy program. Id. at 181.

[FN69] . Id. at 195. Professor Zamir argues that the welfare of dogs is promoted by the relationship and that horses “gain much” from the relationship they have with humans. Id. at 189. Although not stated in the conclusion, it appears that cats would also be included in this category. Id. at 183 (balancing what cats and dogs lose from their status as pets with the benefits they gain). Professor Zamir stated that there is a broad, moral vindication of forms of AAT that rely on horses and dogs as “[a] world in which practices like AAT exist is an overall better world for these beings than one that does not include them ....” Id. at 195.

[FN70] . Professor Zamir distinguishes between programs where the dolphins are not removed from their natural habitat and no coercion is used and does not include such programs in his argument against the use of dolphin AAT. Id. at 198 n.17.

[FN71] . Id. at 189, 195. Professor Zamir focuses on the fact that these animals can exist in the wild, and by using them for therapy, their social needs and freedoms are seriously curtailed. Id. at 189; see also Serpell et al., supra note 53, at 457-58 (raising ethical concerns about the use of nondomestic species).

[FN72] . Turner, supra note 53, at 28; see also Serpell et al., supra note 53, at 471-72 (setting forth ethical guidelines for the care and supervision of animals used in AAT or AAA programs).

[FN73] . DOJ Proposes New Rules, supra note 5.

[FN74] . Id. Currently, Title II of the ADA does not include any specific language regarding service animals. Nondiscrimination on the Basis of Disability in State and Local Government Services, 73 Fed. Reg. 34,466, 34,477 (proposed June 17, 2008) (to be codified at 28 C.F.R. pt. 35). The proposed rules would add to the Title II regulations the same definition for service animals that is being proposed for the Title III regulations. Id. This Article focuses on the revisions to Title III, although the same arguments apply to the regulations for Title II.

[FN75] . DOJ Sends Revised ADA Title II, III Regs to OMB for Review, Section 504 Compliance Advisor, Feb. 1, 2009 (discussing the rulemaking process). The DOJ announced that on January 21, 2009, it notified the Office of Management and Budget (OMB) that it had withdrawn its draft final rules from the OMB review process in response to a memorandum from President Obama's Chief of Staff “directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama.” Department of Justice, Proposed ADA Regulations Withdrawn from OMB Review, http://www.ada.gov/ADAregswithdraw09.htm (last visited Feb. 15, 2010).

[FN76] . See infra notes 79-93 and accompanying text.

[FN77] . See infra notes 94-106 and accompanying text.

[FN78] . See infra notes 107-174 and accompanying text.

[FN79] . The DOJ received many comments requesting that the “minimal protection” language be removed. NPRM Title III, supra note 5, at 34,521. The DOJ acknowledged that despite its efforts, the minimal protection language has been misinterpreted and, in response to such concern, would interpret the language to exclude attack dogs that pose a direct threat to others. Id.; see, e.g., Comment from Wells B. Jones, Chief Executive Officer, Guide Dog Found. for the Blind, Inc., on DOJ's NPRM for Title III (Aug. 18, 2008) [hereinafter Public Comment, GDFB], available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2717.1) (stating that it is “strongly opposed to the retention of the words ‘minimal protection’ or any mention of ‘protection’ because that term has a very specific meaning within the dog training industry [namely] aggression training”).

[FN80] . 28 C.F.R § 36.104 (2008).

[FN81] . NPRM Title III, supra note 5, at 34,524.

[FN82] . Id.

[FN83] . Comment from Joan Froling et al., Coalition of Assistance Dog Orgs., on DOJ's NPRM for Title III (July 30, 2008) [hereinafter Public Comment, CADO], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-0467.1).

[FN84] . For example, the training that was suggested by CADO consists of the following:

[FN85] . NPRM Title III, supra note 5, at 34,524.

[FN86] . 28 C.F.R. § 36.104 (2008).

[FN87] . NPRM Title III, supra note 5, at 34,521.

[FN88] . Id.

[FN89] . Public Comment, GDFB, supra note 79 (“[W]e urge the Department to reconsider the retention of ‘do work’ in the proposed new definition.”).

[FN90] . Id.

[FN91] . Id. The GDFB began this section of its public comment by stating that “[t]o eliminate further confusion and abuse regarding service animals....” Id.

[FN92] . NPRM Title III, supra note 5, at 34,521. This “grounding” language was analyzed in the public comment by CADO, which raised concerns that the “grounding” language was ambiguous in that it was contradictory to the prior emphasis on tasks and stated that if “the DOJ persists in using grounding, CADO feels it will most certainly undo all the progress accomplished by the 2002 interpretative guidance document ....” Public Comment, CADO, supra note 83; see also Comment from Melissa Winkle, Dogwood Therapy Servs., Inc., on DOJ's NPRM for Title III [hereinafter Public Comment, DTS], available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2828.1) (stating that the “‘[g]rounding’ is not necessary within the current explanations, which have been provided to differentiate between psychiatric service dogs which are task trained and mere pets that provide comfort”).

[FN93] . NPRM Title III, supra note 5, at 34,521.

[FN94] . Id. at 34,516.

[FN95] . Id.

[FN96] . Id.

[FN97] . Id. at 34,516, 34,522; see infra notes 213-276 and accompanying text (discussing the rules relating to assistance animals under the FHA); infra notes 277-313 and accompanying text (discussing the rules relating to emotional support animals under the ACAA).

[FN98] . See, e.g., Comment from Mary Faithfull, Executive Dir., Advocacy, Inc., on DOJ's NPRM for Title III (Aug. 18, 2008), available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1579.1) (opposing strongly the exclusion of emotional support animals from coverage under the ADA).

[FN99] . Comment from Kenneth Shiotani, Nat'l Disability Rights Network, on DOJ's NPRM for Title III [hereinafter Public Comment, NDRN], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1644.1); see also Comment from Annaliese Dolph, Senior Att'y, Disability Rights N.C., on DOJ's NPRM for Title III (Sept. 11, 2008) [hereinafter Public Comment, DRNC], available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1494.1) (using the same language).

[FN100] . Comment from Kevin Underhill, Shook, Hardy and Bacon, LLP, on DOJ's NPRM for Title III (Aug. 18, 2008) [hereinafter Public Comment, PAWS], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1546.1) (focusing on the “nature of a person's disability ... and whether the requested accommodation would legitimately address those difficulties”); see also Comment from Michelle Krajewski et al., The Whole Person, Inc., on DOJ's NPRM for Title III (Aug. 18, 2008), available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1532.1) (discussing the use of animals by people with psychiatric disorders such as severe anxiety “who can only access public goods and services or government programs because their service animal allows them to venture into public without debilitating panic attacks”).

[FN101] . Comment from Disability Policy Collaboration on DOJ's NPRM for Title III (Aug. 18, 2008) [hereinafter Public Comment, DPC], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1590.1) (stating that a blanket exclusion was “inconsistent with the basic tenets of the ADA”); see also Comment from Jennifer Mathis et al., Bazelon Ctr. for Mental Health Law, Nat'l Alliance on Mental Illness, Mental Health Am., on DOJ's NPRM for Title III (Aug. 18, 2008) [hereinafter Public Comment, Bazelon], available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1458.1) (using the same language).

[FN102] . Public Comment, DRNC, supra note 99; see also Public Comment, DPC, supra note 101 (stating that the proposed exclusion “simply invites covered entities to disallow the use of legitimate service animals”).

[FN103] . See Public Comment, PAWS, supra note 100 (stating that “[i]t appears that the primary concern of the service-dog organizations that have recently submitted comments is to avoid undermining the right to more traditional service animals....”).

[FN104] . See, e.g., Comment from Ed Eames, President, Int'l Ass'n of Assistance Dog Partners, on DOJ's NPRM for Title III [hereinafter Public Comment, IAADP], available at http://www.regulations.gov/search/Regs/home.html #home (Document ID: DOJ-CRT-2008-0015-0341.1) (applauding the DOJ's statement on emotional support animals and encouraging the DOJ to consistently support the distinction between “task training to mitigate the effects of an individual's disability on the one hand, and [the] mere presence [of an animal] on the other”); Public Comment, GDFB, supra note 79 (discussing the issue in connection with the “do work” language in the definition and stating that “it is our position that such individuals [for example persons with psychiatric disabilities]...should not be lumped in with those who wrongfully claim that the ADA sanctions public access for them and their non-task trained pets”).

[FN105] . See, e.g., Comment from Donna M. Garren, Vice President, Health and Safety Regulatory Affairs, Nat'l Rest. Ass'n, on DOJ's NPRM for Title III, available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2634.1) (stating “[l]eft unaddressed is precisely how a covered facility...is to distinguish between a psychiatric service animal...and a comfort animal”); Comment from Faith A. Cristol, Vice President, Retail Indus. Leaders Ass'n, on DOJ's NPRM for Title III (Aug. 18, 2008), available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2700.1) (requesting clarification on the permissible inquiries that can be made and actions that can be taken if the handler refuses to respond to permissible questions); Comment from Richard Block, Santa Barbara Zoo, on DOJ's NPRM for Title III (Aug. 15, 2008), available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2457.1) (supporting narrowing the definition, stating it is difficult to control the admission of animals, and that “more restrictive definitions would make our job easier and might help avoid stressful interactions with owners”).

[FN106] . NPRM Title III, supra note 5, at 34,520.

[FN107] . Id. at 34,477. A few commentators questioned how the language on “dogs and other common domesticated animals” and the individually trained language would be reconciled for cats. See, e.g., Public Comment, PAWS, supra note 100 (questioning the applicability of the training test to cats that provide therapeutic benefits as dogs). But see Scene: 911 Dialing Feline Proves You Can Train a Cat, Kan. City Star, Jan. 17, 2006, at E1 (discussing a cat that speed dialed 911 after the cat's owner who is disabled fell from his wheelchair); see also Patty Fisher, Believe It or Not, You Can Train a Cat, San Jose Mercury News, May 21, 2007, at 1B (discussing the use of clicker training to train cats to do particular tasks).

[FN108] . NPRM Title III, supra note 5, at 34,477-78.

[FN109] . Id.

[FN110] . Id. at 34,479.

[FN111] . See, e.g., Comment from Consortium for Citizens with Disabilities on DOJ's NPRM for Title III (Aug. 18, 2008) [hereinafter Public Comment, Consortium], available at http://www.regulations.gov/search/Regs/home.html #home (Document ID: DOJ-CRT-2008-0016-1499.1) (citing to the individualized inquiry already allowed under the ADA); Public Comment, DTS, supra note 92 (“Individuals have varying degrees of disabilities and therefore, needs. Many breeds can perform tasks.”); Public Comment, IAADP, supra note 104 (stating that the “size of a common domestic animal like an assistance dog is a matter of individual choice/necessity and may be related to the nature of the disability”).

[FN112] . Public Comment, Bazelon, supra note 101. Although not specifically referencing the individualized inquiry allowed by the ADA, another comment responding to the DOJ's question on size or weight restriction stated, “POSSIBLY. I think it would be appropriate to specify that any service animal is expected to be of a size that can be accommodated within the normal spaces provided to one person in a public accommodation (restaurant seats, airline or bus seats, theatre, etc.).” Comment from Julie Nye, Chief Executive Officer, Dogs for Autism, on DOJ's NPRM for Title III, available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2650.1).

[FN113] . Public Comment, GDFB, supra note 79 (referring to the difficulty in developing such a limitation and the burden on public entities trying to limit such a definition).

[FN114] . Comment from G. Kendrick Macdowell, Vice President, Gen. Counsel, Nat'l Ass'n of Theatre Owners, Inc., on DOJ's NPRM for Title III (Aug. 18, 2008), available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2646.1) (reporting on an incident with a Bull Mastiff in a crowded theatre where the dog filled the floor space in front of the person with a disability and the floor space in front of the next seat); see also Comment from Fred Schwartz, President, Asian Am. Hotel Owners Ass'n, on DOJ's NPRM for Title III, available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0015-2674.1) (stating it “believes it is advisable for the Department to impose a size or weight limitation for common domestic animals”).

[FN115] . Comment from Miami Dade Transit Office of Civil Rights and Labor Relations on DOJ's NPRM for Title III (Aug. 18, 2008), available at http:// www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1460.1) (recommending the DOJ restrict the size of service animals to fit a “32 inches by 48 inches envelope” and limiting one service animal per customer).

[FN116] . NPRM Title III, supra note 5, at 34,478.

[FN117] . Id.

[FN118] . Id. But see infra note 298 and accompanying text (discussing the DOT's ACAA rulemaking process where the DOT finds that reports of unusual service animals have been disproportionate to the frequency that such animals have been an issue).

[FN119] . NPRM Title III, supra note 5, at 34,478.

[FN120] . Id. (referring to reptiles); see also Public Comment, NDRN, supra note 99 (referring to insects, rodents, and amphibians); Comment from Jamey George, Executive Dir., The Freedom Ctr., Inc., on DOJ's NPRM for Title III (Aug. 15, 2008) [hereinafter Public Comment, Freedom Center], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1595.1) (referring to insects, rodents, and amphibians).

[FN121] . See infra notes 122-174 and accompanying text (discussing the use of horses and nonhuman primates).

[FN122] . Comment from Marilyn Golden, Policy Analyst, Disability Rights Educ. and Defense Fund, on DOJ's NPRM for Title III [hereinafter Public Comment, DREDF], available at http://www.regulations.gov/search/Regs/home.html #home (Document ID: DOJ-CRT-2008-0016-1594.1) (stating that “[m]iniature horses have been used as service animals by the disability community for some time, particularly the blind community”).

[FN123] . The Guide Horse Foundation, http://www.guidehorse.org/ (last visited Feb. 15, 2010).

[FN124] . This factor is important as the cost of the training of a service animal can be substantial. The estimate for the cost of an organization training a service animal ranges considerably. For example, the Children's Village estimates the cost of a service animal at $10,000 to $15,000. Assistance Dog Training Program, http://www.childrensvillage.org/programs-dog-more.htm (last visited Feb. 15, 2010). Texas Hearing and Service Dogs estimates the cost of training their assistance dogs at $17,500. Texas Hearing & Service Dogs, What We Do, http://www.servicedogs.org/whatwedo/public.html (last visited Feb. 15, 2010). Another sample organization stated the cost of preparing a service dog was $18,000. Wenthold & Savage, supra note 16, at 69. Susquehanna Service Animals estimated that the actual cost to train and place a service dog is $20,000. Susquehanna Service Dogs, http:// www.keystonehumanservices.org/ssd/ssd.php (last visited Feb. 15, 2010). Carolina Canines estimates the cost of its service dogs at more than $40,000. Service Dog FAQ, http://www.carolinacanines.org/index.php?c=17 (last visited Feb. 15, 2010). One recent article stated that the placement of a guide dog for the blind may cost up to $60,000. Rebecca Skloot, Creature Comforts, N.Y. Times, Jan. 4, 2009, at 34.

[FN125] . See The Guide Horse Foundation, http://www.guidehorse.org/ (last visited Feb. 15, 2010). The GHF states that these horses are very clean, shedding only twice a year, and do not get fleas. The GHF also reports that one poll found that twenty-seven percent of “respondents would prefer a Guide Horse if they required a guide animal.” Id.

[FN126] . Id.

[FN127] . Id.

[FN128] . Id.

[FN129] . Public Comment, DREDF, supra note 122; Public Comment, Freedom Center, supra note 120 (opposing the specific exclusion of “farm animals,” citing to the use of miniature horses); Public Comment, NDRN, supra note 99 (opposing the specific exclusion of “farm animals,” citing to the use of miniature horses).

[FN130] . See, e.g., Public Comment, Consortium, supra note 111 (citing to the use of monkeys by persons with spinal cord injuries); Public Comment, Bazelon, supra note 101 (stating that monkeys are frequently used as service animals).

[FN131] . Zamir, supra note 50, at 189, 195 (discussing the moral and ethical issues of using animals in therapy).

[FN132] . Nondiscrimination on the Basis of Disability in State and Local Government Services, 73 Fed. Reg. 34,466, 34,478 (proposed June 17, 2008) (to be codified at 28 C.F.R. pt. 35).

[FN133] . American Veterinary Medical Association, Nonhuman Primates as Assistance Animals, http://www.avma.org/issues/policy/nonhuman_primates.asp (last visited Feb. 15, 2010); see also NPRM Title III, supra note 5, at 34,478.

[FN134] . Comment from Megan Talbert, Chief Operating Officer, Helping Hands: Monkey Helpers for the Disabled, Inc., on DOJ's NPRM for Title III, at 3-5 (Aug. 15, 2008) [hereinafter Public Comment, Helping Hands], available at http://www.regulations.gov/search/Regs/home.html#home (Document ID: DOJ-CRT-2008-0016-1608.1) (providing background on Helping Hands Capuchin service monkeys). The public comment also states that the organization has placed 131 primates from the inception of the program. Id. at 14.

[FN135] . Id. at 4-5, 9.

[FN136] . Id. at 9. Helping Hands states that these monkeys are approximately six to eight pounds as adults. Id. Their natural tool using in the wild makes them “well-suited to the manual manipulation tasks that they are called upon to perform as service animals.” Id.

[FN137] . Id. at 4, 6. Service monkeys are also used by individuals with disabilities who, due to severe allergies, are unable to utilize assistance dogs. Id. at 6. Well cared for Capuchin monkeys can live to be between thirty and forty years old. Id. at 9. Helping Hands reports that some of its established placement pairs have been together for over twenty years. Helping Hands, Our History, http://www.monkeyhelpers.org/ourhistory/ (last visited Feb. 15, 2010).

[FN138] . Public Comment, Helping Hands, supra note 134, at 4.

[FN139] . Id. at 7. Helping Hands also stated that if service monkeys were not covered under the ADA definition, it would impair its ability to obtain necessary state and local licenses. Id. at 6.

[FN140] . Id. at 8-9. Helping Hands referenced the problem of nonhuman primates becoming larger and more difficult to handle being those that are “relegated to crates in the owner's home where they do not receive the socialization, exercise or enrichment they require.” Id. at 9.

[FN141] . Id. at 10. A service monkey can be removed from a home if its animal welfare policies are not followed. Id. Helping Hands retains ownership of the monkeys in its program. Id. at 5.

[FN142] . Id. at 10. In its description of Capuchin monkeys' suitability for service animal work, the Helping Hands letter referenced the fact that, in their natural habitat, this type of monkey will leave its pack as an adult; thus, placement in a training center or recipient's home does not lead to “stress caused by separation from other troop members.” Id. at 9.

[FN143] . Id. Helping Hands states that as a result of this activity, “Helping Hands service monkeys receive ample physical and mental stimulation and social interaction.” Id.

[FN144] . Id. at 10.

[FN145] . Id.

[FN146] . Meet Our Monkeys, http://www.monkeyhelpers.org/ourfamily/monkeys/ (last visited Feb. 15, 2010). In recent testimony before a U.S. House of Representatives subcommittee, a representative of the AVMA stated that out of its 76,000 members, approximately 170 work with or come into contact with nonhuman primates on a regular basis, with the majority of those veterinarians employed by zoos or research institutions. H.R. 2964, Captive Primate Safety Act; and H.R. 5534, Bear Protection Act of 2008: Hearing Before the Subcomm. on Fisheries, Wildlife & Oceans of the H. Comm. on Natural Resources, 110th Cong. 8, 39 (2008) [hereinafter CPSA Legislative Hearing] (statement of Gail Golab, Director, American Veterinary Medical Association), available at http:// www.gpo.gov/fdsys/pkg/CHRG-110hhrg11041235/pdf/CHRG-110hhrg11041235.pdf.

[FN147] . Public Comment, Helping Hands, supra note 134, at 9.

[FN148] . Id. at 11. Helping Hands reiterated that its Capuchin monkeys are small, docile, and highly trained. Id.

[FN149] . Id. at 11-12. The importance of a captive population is that the Helping Hands service monkeys do not come in contact with other nonhuman primates--so they are not exposed to some of the diseases that capuchin monkeys in the wild may encounter. Id. According to the former head of viral pathology for the Centers for Disease Control and Prevention, there have been “a few cases of primate-lab workers contracting herpes B from macaques--mostly from being bitten--but no cases of people being infected by service monkeys, which are usually capuchins.” Skloot, supra note 124, at 34 (quoting Frederick Murphy). Note that the importation of nonhuman primates for the pet trade has been banned by federal regulation since 1975. CPSA Legislative Hearing, supra note 146, at 8.

[FN150] . Public Comment, Helping Hands, supra note 134, at 14; see also CPSA Legislative Hearing, supra note 146, at 14 (statement of Sian Evans, Director, DuMond Conservancy) (testifying that “[p]et primates are not a documented source of disease to humans”).

[FN151] . See CPSA Legislative Hearing, supra note 146. The Captive Primate Safety Act was reintroduced as H.R. 80, passed by the House of Representatives on February 24, 2009, and is currently awaiting action in the Senate. The Library of Congress, H.R. 80, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR00080:@@C@@L&summ2=m&<<vertical bar>>/bss/111search.html (last visited Feb. 15, 2010).

[FN152] . CPSA Legislative Hearing, supra note 146, at 1.

[FN153] . Id. at 6. Dr. Jane Goodall, Founder of the Jane Goodall Institute, testified to many of the same points that were raised by Dr. Golab, including the risk of disease transmission and injuries to humans from bites. Id. at 35 (statement of Dr. Jane Goodall, Founder, The Jane Goodall Institute).

[FN154] . Id. at 9. Another person testifying clarified that according to the Humane Society of the United States, the 15,000 figure references all privately owned primates, not just pet primates. Privately owned primates would include United States Department of Agriculture exhibitors and breeders. Id. at 16.

[FN155] . Id. at 9 (discussing the AVNA policy regarding the use of nonhuman primates as service animals and stating that the risk of “human injury and zoonotic disease are often greatest in the very populations such animals serve”).

[FN156] . Id. at 7.

[FN157] . Id.

[FN158] . Id. at 9.

[FN159] . Dr. Golab stated that “baby primates may be taken away from their mothers when only hours or days old” to create suitable pets. Id.

[FN160] . Id. at 9. Dr. Golab stated that “[m]any nonhuman primates exhibit unpredictable behavior as they mature; males can become aggressive, and both males and females will strike, scratch, and bite to defend themselves and establish their place in the hierarchy of their peer group or surrogate human family.” Id. at 10. The Centers for Disease Control and Prevention (CDC) has studied the threat to public health from other types of monkeys. The CDC reports that both male and female macaque monkeys will bite, both to defend themselves and to establish dominance. Stephanie R. Ostrowski et al., B-virus from Pet Macaque Monkeys: An Emerging Threat in the United States?, 4 Emerging Infectious Diseases, Jan.-Mar. 1998, at 117-18; Skloot, supra note 124, at 34 (quoting Laura Kahn, a public health expert at the Woodrow Wilson School of Public and International Law at Princeton, who states that monkeys are “wild animals, and they're dangerous”).

[FN161] . CPSA Legislative Hearing, supra note 146, at 10. In another statement, a member of Congress stated that “[d]uring the last decade there were 100 incidents reported of human injury by these animals, about 30 of which involved children.” Id. at 1 (statement of Hon. Madeleine Bordallo, Member, H. Comm. on Natural Resources); see also Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009) (holding for the State of Arizona in a case where a woman argued that she was entitled to a reasonable accommodation to Arizona wildlife law in order to keep a chimpanzee in her home as a service animal). The Pruett case discussed the public safety concerns of helping the chimpanzee in a private home. Id.

[FN162] . CPSA Legislative Hearing, supra note 146, at 10.

[FN163] . Id.

[FN164] . Id.

[FN165] . Helping Hands states that it regularly tests for tuberculosis in the monkeys used in its program. Public Comment, Helping Hands, supra note 134, at 11.

[FN166] . CPSA Legislative Hearing, supra note 146, at 10-11. Other diseases that can be spread include poxviruses (including monkey pox and chicken pox), ringworm, and tapeworm. Id. at 10. Another possibility is the transmission of the “Herpes B” virus from macaque monkeys to humans. Ostrowski et al., supra note 160, at 117 (finding that seventy-three to one hundred percent of the captive adult macaque monkeys had seroprevalence of neutralizing antibodies to the B-virus).

[FN167] . Public Comment, Helping Hands, supra note 134, at 11.

[FN168] . Id.

[FN169] . CPSA Legislative Hearing, supra note 146, at 32-36 (focusing primarily on the welfare of the nonhuman primates but also raising public safety issues); id. at 52, 55-62 (statement of Wayne Pacelle, President and Chief Executive Officer, Humane Society of the United States) (discussing the threat to animal welfare, public safety, and public health and listing recent incidents involving primates injuring humans).

[FN170] . CPSA Legislative Hearing, supra note 146, at 64 (statement of Steve Ross, Supervisor of Behavioral and Cognitive Research, and Chair, Association of Zoos and Aquariums Chimpanzee Species Survival Plan, Lincoln Park Zoo).

[FN171] . Captive Wildlife Safety and Disabled Human Assistance Act, H.R. 6505, 110th Cong. (2008).

[FN172] . 154 Cong. Rec. E1466 (daily ed. July 15, 2008) (statement of Rep. Young) (introducing the Captive Wildlife Safety and Disabled Human Assistance Act). The text of the bill passed by the House of Representatives provided for an exemption for the transportation of a “single primate of the genus Cebus that was obtained from and trained by a charitable organization to assist a permanently disabled individual with a severe mobility impairment.” The Library of Congress, H.R. 80, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR00080:@@C@@L&summ2=m&<<vertical bar>>/bss/111search.html (last visited Feb. 15, 2010).

[FN173] . Compare supra note 150 and accompanying text (discussing Dr. Evan's testimony against the CPSA) with supra notes 151-170 and accompanying text (discussing the CDC's research and testimony for the CPSA).

[FN174] . Public Comment, Helping Hands, supra note 134, at 2. Obviously the service monkeys placed through the Helping Hands program would meet this definition.

[FN175] . 391 F. Supp. 2d 1067 (M.D. Ala. 2005).

[FN176] . Id. at 1070.

[FN177] . Id. When the general manager was informed that he could be sued, he told one of the individuals to “go ahead and sue him.” Id.

[FN178] . Id. at 1075.

[FN179] . Appropriate training and policies are key to a public accommodation meeting its obligations under the ADA. An example is the Stan v. Wal-Mart Stores, Inc. case where a shopper sued alleging that challenges to her entry to stores with her service dog violated her rights under the ADA. 111 F. Supp. 2d 119 (N.D.N.Y. 2000). In the Stan case, although a shopper with a visual disability was questioned about her service animal when she entered into Wal-Mart and Sam's Club stores, she was always able to complete her shopping. Id. at 121. The court found that the defendants in this case had the proper policies and had counseled their employees with respect to dealing with individuals with disabilities; thus the defendants' motion for summary judgment was granted. Id. at 127.

[FN180] . Brown v. Lopez, No. 04-02-00664-CV, 2003 WL 21918587 (Tex. App. Aug. 13, 2003). It is not uncommon to find cases in which a person with a disability, accompanied by a service animal, alleges that he or she was denied service at a restaurant. See, e.g., Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir. 2000) (discussing attorneys' fees following settlement of a suit based on a blind patron being refused entrance to a restaurant).

[FN181] . Brown, 2003 WL 21918587, at *2.

[FN182] . See, e.g., Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004).

[FN183] . Id.

[FN184] . Id. at 839.

[FN185] . See supra note 79 (discussing the controversy over the issue of the inclusion of the term “minimal protection” in the ADA regulations).

[FN186] . Lentini, 370 F.3d at 839.

[FN187] . Id. at 844.

[FN188] . Id. at 840. The court also discussed the Center's unwritten policy that ticket takers were “to admit any ‘recognizable’ service animals without any questions; ‘recognizable’ animals were those wearing an outer garment or some other identifying device.” Id.

[FN189] . Id.

[FN190] . Id. at 841.

[FN191] . Id. at 851 (affirming the district court's judgment in favor of Lentini).

[FN192] . See, e.g., Storms v. Fred Myers Stores, Inc., 120 P.3d 126 (Wash. Ct. App. 2005).

[FN193] . Id. Storms' psychiatric conditions included post-traumatic stress disorder and recurrent depression. Id. at 126.

[FN194] . Id. at 128.

[FN195] . The court's review included the Prindable case. For a discussion of Prindable, see infra notes 250-254 and accompanying text.

[FN196] . Storms, 120 P.3d at 129.

[FN197] . Id. Brandy's training had consisted of a thirty-day in house boarding program, a four-week follow-up course, and an intermediate follow-up course. Brandy had also undergone a temperament evaluation to determine whether she was gentle and patient enough to act as a service dog. Id.

[FN198] . See supra notes 86-93 and accompanying text (discussing “do work or perform task” language of the regulations); see also Joan Froling, Service Dog Tasks for Psychiatric Disabilities, http://www.iaadp.org/psd_tasks.html (last visited Feb. 15, 2010) (setting forth physical tasks that service dogs can perform for persons with psychiatric disabilities).

[FN199] . Thompson v. Dover Downs, Inc., 887 A.2d 458 (Del. 2005).

[FN200] . Id. at 459. The individual (Thompson) stated that the dog was a support animal and provided the casino employees with an identification card but refused to answer the employees' questions about the dog's training. Id.

[FN201] . Id. at 461.

[FN202] . Id. at 462.

[FN203] . Dilorenzo v. Costco Wholesale Corp., 515 F. Supp. 2d 1187 (W.D. Wash. 2007). The facts that the court set out regarding the age of the dog were contradictory, stating in one reference that the dog was approximately twelve weeks old in April 2004, and later stating that Dilo was acquired as an eight-month-old puppy in March 2004. Id. at 1189-90.

[FN204] . See id. at 1189. Dilorenzo asserted that Dilo was the service animal that was trained “to assist her in resisting and responding to the difficulties raised by her condition.” Id.

[FN205] . Id. at 1190.

[FN206] . Id. During this visit to the store, Dilo was wearing a vest with the words “service dog in training.” Id. One Costco employee described the vest as, “at least in part, ‘homemade.”’ Id.

[FN207] . See id. at 1192-93.

[FN208] . Id. at 1193. The court found it “highly questionable” whether Dilo was a service animal as of the time of the second visit to the store, given Dilorenzo's statements in her deposition that it took six or seven months before Dilo was able to recognize and alert her to a panic attack on his own. Id. at 1193 n.2. Ultimately, the court ruled in favor of Costco on its motion for summary judgment. Id. at 1198. Another example of a court finding that an animal did not meet the definition of service animal is found in the case of Baugher v. City of Ellensburg, No. CV-06-3026-RHW, 2007 WL 858627 (E.D. Wash. March 19, 2007). In the Baugher case, the plaintiff asserted that Bun, the dog at issue, assisted her in her daily life. Id. at *5. The court rejected the defendant's position that there must be documented evidence of individual training and stated that the issue was “whether Bun was trained to do work or perform tasks for the benefit of an individual with a disability.” Id. The court found that although it did not doubt that Bun provided the plaintiff with “a sense of security and comfort and helped her cope with her disability,” Bun did not meet the definition of a service animal given that the plaintiff did not provide any admissible evidence that distinguished Bun from an ordinary pet. Id.

[FN209] . Snyder v. Pend Oreille County Counseling Servs., No. CV-07-0230-LRS, 2008 U.S. Dist. LEXIS 100685, at *1 (E.D. Wash. Dec. 12, 2008).

[FN210] . Id. at *1.

[FN211] . Id. at *4-5. The court stated that both individuals were disabled. Id. at *4.

[FN212] . Id. at *7-8. The individuals admitted that “they share Bucky between the two of them and that they do not always take Bucky with them.” Id. at *8. All of the plaintiffs' ADA claims were dismissed by the court. Id.

[FN213] . 42 U.S.C. §§ 3601-3631 (2000); see also H.R. Rep. No. 100-711, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2176, available at 1988 WL 169871, at *14-15 (discussing the background and need for the Fair Housing Act).

[FN214] . 42 U.S.C. § 3601 -3619.

[FN215] . Id.; see also H.R. Rep. No. 100-711, at 17 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179, available at 1988 WL 169871, at *18 (discussing the need for an amendment to Fair Housing Act to protect the handicap). The FHA is sometimes referred to as the Fair Housing Amendments Act. In this Article, references to the FHA include the FHA as amended by the Fair Housing Amendments Act. Handicap is defined as someone with “(1) a physical or mental impairment which substantially limits one or more of such person's major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment.” 42 U.S.C. § 3602(h). The term handicap does not include “the current, illegal use of or addiction to a controlled substance.” Id. This Article will use the terms “handicap” and “disability” interchangeably as many of the court decisions do in this area. See, e.g., Giebeler v. M&B Assocs., L.P., 343 F.3d 1143, 1146 (9th Cir. 2003) (discussing the use of the terms “handicap” and “disability”).

[FN216] . 42 U.S.C. § 3608. The Attorney General or private persons may enforce the FHA. Id. §§ 3613-3614.

[FN217] . Although many of the cases discussing the applicability of the FHA deal with multifamily dwellings, under many circumstances single family homes are also included under the purview of the statute. Id. § 3603(b)(1).

[FN218] . 29 U.S.C. §§ 791-794. The Rehabilitation Act of 1973 provides that agencies and organizations that receive federal funds or contracts (in excess of certain dollar amounts) may not discriminate against qualified individuals with disabilities. Id.

[FN219] . See infra notes 225-262 and accompanying text (discussing FHA cases involving service animals).

[FN220] . 42 U.S.C. § 3604(f)(3)(B). Note that although the FHA requires that the public and common use portions of multifamily dwellings constructed after January 1, 1991 must be handicapped accessible, and any reasonable modifications within the unit are at the expense of the disabled person. 24 C.F.R. § 100.203 (2008). This is in contrast to the Americans with Disabilities Act provision that requires the person with the public accommodation to pay for any reasonable accommodations. 42 U.S.C. § 12111(9), 12111(10)(B).

[FN221] . 24 C.F.R. § 100.204(b)(1) (providing an example of a blind applicant with a seeing eye dog).

[FN222] . See infra notes 225-262 and accompanying text (cases discussing waivers of no-pet rules).

[FN223] . See 24 C.F.R. § 100.201.

[FN224] . U.S. Dep't of Hous. & Urban Dev., HUD Handbook 4350.3: Occupancy Requirements of Subsidized Multifamily Housing Programs 4 (2009) [hereinafter HUD Handbook], available at http:// www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3/index.cfm. The language of the Handbook addressing whether an assistance animal is a reasonable accommodation states the “question is whether or not the animal performs the assistance or provides the benefit needed as a reasonable accommodation by the person with the disability.” Id. at 2-44. See also Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed. Reg. 638383, 63834-38, (Oct. 27, 2008) (conforming pet ownership requirements under the Pet Ownership for the Elderly and Persons with Disabilities Act to clarify that the definition of assistance animals includes emotional support animals and that an assistance animal may not necessarily have had specialized training).

[FN225] . Note that in states that have laws that are at least as protective as the federal law protecting against discrimination, at HUD's discretion, the cases are referred to the applicable state division of human rights. 42 U.S.C. § 3610(f).

[FN226] . See, e.g., HUD v. Raczkowski, No. 02-99-0830-8, 2002 WL 1264012, at *2 (H.U.D.A.L.J. May 23, 2002) (providing in a settlement where a payment was made to a tenant who argued that he suffered from a psychiatric disability and that the dog was of “great emotional and social support” for him); HUD v. Bayberry Condo Ass'n, No. 02-00-0504-8, 2002 WL 475240, at *1-2 (H.U.D.A.L.J. Mar. 21, 2002) (providing in an initial decision and consent order that a resident of a condominium suffering from depression, generalized anxiety and panic disorder be granted a waiver of a no-pet policy as a reasonable accommodation of her handicap with such animal being referred to as an “emotional support pet”); HUD v. Meridian Group, Inc., No. 05-98-1418-8, 2001 WL 865717 (H.U.D.A.L.J. July 18, 2001) (providing in a consent order that a tenant who stated she was handicapped because of manic depression would be given permission to have a cat in her unit); HUD v. Glenwood Mgmt. Corp., No. 02-99-0442-8, 2000 WL 394074, at *2 (H.U.D.A.L.J. Apr. 14, 2000) (providing in an initial decision and consent order that a tenant suffering from anxiety would be able to retain her dog or have a replacement dog of a similar size upon proof of the alleged handicap in the form of a reasonably descriptive letter from tenant's physician, psychologist or social worker); HUD v. N. Waterside Redevelopment Co. Ltd. P'ship., No. 02-98-0179-8, 2000 WL 46116, at *3 (H.U.D.A.L.J. Jan. 14, 2000) (providing in an initial decision and consent order that a prospective tenant suffering from anxiety, depression, renal cancer, pulmonary disease and angina pectoris who obtained a pet dog on the advice of his physician to abate symptoms of anxiety and depression would be offered an apartment in a building with a no-pet rule upon receipt of a reasonably descriptive letter from the prospective tenant's physician). But see HUD v. Blue Meadows Ltd. P'ship, No. 10-99-0200-8, 2000 WL 898733, at *9-11 (H.U.D.A.L.J. July 5, 2000) (finding for a landlord who had requested verification that a dog was trained or certified in a case where the dog was used by a prospective tenant to pull his wheelchair).

[FN227] . Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995).

[FN228] . Id. at 426-27.

[FN229] . Id.

[FN230] . Id. at 431.

[FN231] . Id.

[FN232] . Id.

[FN233] . Id. at 430.

[FN234] . Id. at 429. After setting forth the standards for determining whether an accommodation is reasonable, the Bronk court found that a new trial was necessary due to jury instructions that may have confused jury members. Id. at 431-32. Another case that focused on the nexus between the animal and the disability is the case of Nason v. Stone Hill Realty Ass'n, No. 961591, 1996 WL 1186942, at *1 (Mass. Super. Ct. May 6, 1996). Nason, who had multiple sclerosis, submitted a letter from her physician that “suggested ... serious negative consequences for her health if she was compelled to remove ... [a] cat.” Id. at *1. The court found that Nason did not show “a substantial likelihood of proving that maintaining possession of the cat is necessary due to her handicap.” Id. at 3. Specifically, although the affidavit provided by Nason's doctor indicated that removal of the cat would result in “increased symptoms of depression, weakness, spasticity and fatigue,” it did not “demonstrate that such symptoms are treatable solely by maintaining the cat or whether another more reasonable accommodation is available.” Id. The court continued by stating that the affidavit failed to “illustrate how the presence of the cat, as opposed to some other therapeutic method such as chemical therapy, is essential or necessary to treating her symptoms.” Id. Thus the motion for a preliminary injunction was denied because the court found that the record “fail[ed] to clearly demonstrate the nexus between keeping the cat and her handicap.” Id.

[FN235] . Green v. Hous. Auth. of Clackamas Co., 994 F. Supp. 1253 (D. Or. 1998).

[FN236] . Id. at 1255-56.

[FN237] . Id. at 1256.

[FN238] . Id. The plaintiff tenants' summary judgment motion was granted as the court found that the housing authority did not accommodate plaintiffs by modifying its no-pets policy. Id. at 1257. In addition, the Green court found that an Oregon state law that required a hearing ear dog to be kept on an orange leash was preempted by federal law. Id.

[FN239] . In re Kenna Homes Coop. Corp., 557 S.E.2d 787, 799 (W. Va. 2001).

[FN240] . Id. at 791-92.

[FN241] . Id. at 792.

[FN242] . Id.

[FN243] . Id. The cooperative corporation's policy included an exception for dogs that were “properly trained and certified for the particular disability.” Id.

[FN244] . Id. at 797.

[FN245] . Id. The court did consider the fact that there are no uniform standards or credentialing criteria for service animals. Id.

[FN246] . Id.

[FN247] . Id. at 798.

[FN248] . Id. at 800.

[FN249] . Id. at 787, 800.

[FN250] . Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D. Haw. 2003), aff'd sub nom. DuBois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006).

[FN251] . Id. at 1256.

[FN252] . Id. at 1257 n.25.

[FN253] . Id. Note that the ADA's definition of service animal was used by analogy in this case. One argument that has been made by tenants' attorneys is that the “only requirements for an emotional support animal are that it be well-socialized and able to accompany [the tenant] to public places.” Zatopa v. Lowe, No. C 02-02543, slip op. at 14 (N.D. Cal. Aug. 7, 2002) (order granting preliminary injunction and requiring bond).

[FN254] . Prindable, 304 F. Supp. 2d at 1257. The court granted the defendants' motion for judgment as a matter of law as to plaintiffs' claim under the FHA for failure to make a reasonable accommodation. Id. at 1262. In State ex rel. Henderson v. Des Moines Municipal Hous. Agency, a court found that a dog that was trained to assist an individual with post-traumatic stress disorder by preceding her into rooms, switching on lights and bringing her cell phone may meet the standard set by the Prindable case. No. 06-1144, 2007 WL 4553350, at *6 (Iowa Ct. App. Dec. 28, 2007) (unpublished table decision).

[FN255] . E.g., Hous. Auth. of New London v. Tarrant, No. 12480, 1997 WL 30320 (Conn. Super. Ct. Jan. 14, 1997). In Tarrant, the defendant alleged that her son was mentally challenged and needed the companionship of a dog kept in their apartment in violation of a Housing Authority regulation. Id. at *1-2. Although there was evidence that the son's school performance seriously deteriorated after commencement of the eviction proceeding, the court did not find evidence linking this deterioration with the prospect of losing the dog. Id. at *2. The court reiterated that “given an appropriate factual predicate, mental handicap may warrant reasonable accommodations, including the keeping of an animal in a public housing complex” but found that the factual predicate was missing in this case. Id. The court reversed and remanded the case to determine the existence of the handicap, if any such handicap required the companionship of a dog and if so, whether a reasonable accommodation could be made. Id.

[FN256] . Overlook Mutual Homes, Inc. v. Spencer, No. 3:07-CV-398, 2009 WL 3486364, at *9-10 (S.D. Ohio July 16, 2009).

[FN257] . United States v. Kenna Homes Coop. Corp., No. 2:04-CV-00783, at *2-3 (S.D. W. Va. Aug. 10, 2004) (consent decree and dismissal order).

[FN258] . 578 N.Y.S.2d 1004 (Rochester City Ct. 1991).

[FN259] . Id. at 1005. In addition, a determination of whether a reasonable accommodation could be made was an issue in this case. Id. at 1007.

[FN260] . Id. at 1007. As there was conflicting testimony, summary judgment was denied. Id.

[FN261] . 169 F. Supp. 2d 1133, 1134-36 (N.D. Cal. 2000).

[FN262] . Id. at 1134.

[FN263] . Telephone Interview with Maddy Tarnofsky, Esq., Law Offices of Maddy Tarnofsky (Jan. 18, 2009). Ms. Tarnofsky practices in New York and has seen a growing number of cases involving emotional support animals. Id.; see also Motoko Rich, Pet Therapy Sets Landlords Howling, N.Y. Times, June 26, 2003, at F1 (discussing cases of emotional support animals).

[FN264] . Interview with Maddy Tarnofsky, supra note 263.

[FN265] . Id. In New York, that court would be the Supreme Court. The other option would be to continue the action through the administrative agency process. Id. In the few reported cases, the trend appears to be in favor of landlords with the courts focusing on the issue of how the animal assists a tenant in using and enjoying the premises. Id.; see, e.g., 105 Northgate Coop. v. Donaldson, 863 N.Y.S.2d 469 (N.Y. App. Div. 2008) (annulling a determination by the State Division of Human Rights in favor of a tenant and finding that the tenant failed to demonstrate that she required a dog in order to use and enjoy her apartment).

[FN266] . Telephone Interview with Sharon Crege, Esq., O'Donnell, McDonald & Cregeen, L.L.C. (Feb. 10, 2009) (stating that she has found that the Connecticut Commission on Human Rights has been very supportive of persons with disabilities who use emotional support animals); see also Frechtman v. Olive Executive Townhomes Homeowner's Ass'n, No. CV-07-2888-DSF, 2007 U.S. Dist. LEXIS 81125 (C.D. Cal. Sept. 24, 2007) (providing in an entry of a preliminary injunction that a common interest development with a no-dog rule would allow a resident to keep a dog as an emotional support animal on the premises).

[FN267] . Interview with Maddy Tarnofsky, supra note 263.

[FN268] . HUD Handbook, supra note 224, at 3-29 (allowing for an owner of property to require a tenant or applicant to provide documentation “from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates one or more of the identified symptoms or effects of an existing disability.” Id. Some of Ms. Tarnofsky's clients have been required to submit to an examination by a physician of the landlord's choice to establish their disabilities and the need for an assistance animal. Interview with Maddy Tarnofsky, supra note 263. Ms. Tarnofsky has never had a client abandon a claim because of the need to disclose medical information. Id.

[FN269] . See supra notes 34-36 and accompanying text (describing studies on the benefits of companion animals on human health).

[FN270] . See supra notes 258-260 and accompanying text (discussing the LeBoo case).

[FN271] . See supra notes 261-262 and accompanying text (discussing the Janush case).

[FN272] . See generally supra note 224 (citing to HUD handbook and rulemaking).

[FN273] . See Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Cal. 2000) (discussing tenant with birds); see also LaFore v. Hous. Auth. of Portland, No. CIV. 99-827-JO, 1999 WL 1058992 (D. Or. Nov. 19, 1999). In LaFore, the plaintiff alleged claims for housing and disability discrimination and that her disabilities required her to have an opossum as an assistance animal in addition to a dog as a service animal. LaFore, 1999 WL 1058992, at *1. The Housing Authority denied plaintiff's claim for modification of the pet policy to permit her to keep the opossum allegedly on the ground that “[o]possums are not domesticated animals and can present some issues because they are not normally inoculated, spayed/neutered and licensed.” Id. The court dismissed the federal claims due to the running of the two-year statute of limitations, but remanded the state claims to state court for further proceedings. Id. at *3-4. In another case, a tenant claimed that his snakes were service animals. Assenberg v. Anacortes Hous. Auth., 268 Fed. Appx. 643 (2008) (finding that the court did not have to address the claim that his snakes qualified as service animals).

[FN274] . See supra notes 107-173 and accompanying text (discussing proposed regulations).

[FN275] . Zatopa v. Lowe, No. C 02-02543, slip op. at 15 (N.D. Cal. Aug. 7, 2002) (order granting preliminary injunction and requiring bond) (finding that a landlord was not required to allow a tenant to have a dog described as a pit bull terrier or pit bull mix in an apartment).

[FN276] . See, e.g., Woodside Village v. Herzmark, No. SPH9204-65092, 1993 WL 268293, at *1, *6 (Conn. Super. Ct. June 22, 1993), appeal dismissed, 36 Conn. App. 73 (App. Ct. 1994) (allowing an apartment complex to regain possession of an apartment when a tenant with a disability could not adhere to reasonable pet rules).

[FN277] . 42 U.S.C. § 12141 (2000). Access to air terminal facilities is covered by Title III of the ADA. 14 C.F.R. § 382.51 (2009) (setting out the rules applicable to air terminal facilities). The Department of Transportation's ADA rules are applicable to intra-terminal and inter-terminal transportation, such as shuttle vehicles and moving sidewalks. Id. (citing 49 C.F.R. pts. 37 & 38). The Supreme Court held in 1986 that Section 504 of the Rehabilitation Act would not apply to commercial airlines because they were not the intended recipients of federal financial assistance. U.S. Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 610-13 (1986). The Air Carrier Access Act was passed later that year as a reaction to that case. See, e.g., Thomas v. Nw. Airlines Corp., No. 08-11580, 2008 U.S. Dist. LEXIS 66864, at *11 (E.D. Mich. Sept. 2, 2008) (discussing the passage of the Air Carrier Access Act).

[FN278] . 49 U.S.C. § 41705.

[FN279] . Id.

[FN280] . See, e.g., 14 C.F.R. § 382.1 (discussing the effective date of the new regulations in the Notes section of the provision); see also 73 Fed. Reg. 27,614 (May 13, 2008) [hereinafter ACAA Final Rule] (setting forth the Final Rule by the Department of Transportation amending its ACAA rules and stating that the effective date for the rule is effective on May 13, 2009).

[FN281] . Guidance Concerning Service Animals in Air Transportation, 68 Fed. Reg. 24,874 (May 9, 2003) [hereinafter Guidance Document]. The provision in this document relating to emotional support animals has been cited as leading to abuses and has come under criticism by some groups representing service animals that perform physical tasks for individuals with disabilities. Beth Landman, Waggin the Dog, and a Finger, N.Y. Times, May 14, 2006, at 91 (quoting Joan Froling of the International Association of Assistance Dog Partners, who stated that the DOT guidance document “was an outrageous decision” and “[i]nstead of clarifying the difference between emotional support animals who provide comfort by their mere presence and animals trained to perform specific services for the disabled, they decided that support animals were service animals”).

[FN282] . ACAA Final Rule, supra note 280, at 27,634 (stating that the subject that attracted the most comments was service animals and the May 2003 guidance document).

[FN283] . Among other issues, the ACAA provides that an air carrier cannot require a passenger with a disability to sign a waiver of liability for the “loss of, death of or injury to service animals.” 14 C.F.R. § 382.35. The air carrier must provide, at the passenger's request, either a bulkhead seat or not a bulkhead seat if such passenger is traveling with a service animal. Id. § 382.81. The seating of passengers with service animals was the basis for the most comments for the new regulations relating to service animals. ACAA Final Rule, supra note 280, at 27,634.

[FN284] . 14 C.F.R. § 382.117(a).

[FN285] . Id. § 382.117(a)(1).

[FN286] . ACAA Final Rule, supra note 280, at 27,635. The DOT's service animal guidance document does address how a carrier can handle situations where airline personnel or other passengers state that they have allergies or animal aversions. See Guidance Document, supra note 281, at 24,877.

[FN287] . 14 C.F.R. § 382.117(d).

[FN288] . ACAA Final Rule, supra note 280, at 27,635.

[FN289] . Guidance Document, supra note 281, at 24,876. If the verbal assurance is not credible, the airline may request documentation. Id.

[FN290] . See ACAA Final Rule, supra note 280, at 27,636.

[FN291] . Id.

[FN292] . Current documentation is defined as “no older than one year from the date of the passenger's scheduled initial flight.” 14 C.F.R. § 382.117(e). The DOT sought comments in response to a request by a group of users of psychiatric service animals to reconsider the current requirements of notice and documentation for psychiatric service animals. Nondiscrimination on the Basis of Disability in Air Travel, 74 Fed. Reg. 47,902, 47,902 (Sept. 18, 2009) (to be codified 14 C.F.R. pt. 382) (notice of proposed rulemaking). The notice specifically stated that the DOT was not initiating rulemaking at this time, and would publish a document regarding the determination of the petition, with the comment period ending on December 17, 2009. Id. at 47,902-03.

[FN293] . Examples of licensed mental health professionals are psychiatrists, psychologists, or licensed clinical social workers. 14 C.F.R. § 382.117(e).

[FN294] . Id. § 382.117(e).

[FN295] . Id. § 382.27(c)(8). If a person wants to have a service animal on a flight segment scheduled to take more than eight hours advance notice may also be required. Id.

[FN296] . ACAA Final Rule, supra note 280, at 27,636.

[FN297] . 14 C.F.R. § 382.117(f).

[FN298] . ACAA Final Rule, supra note 280, at 27,636. There have been at least two instances where airlines have been presented with emotional support goats and at least one emotional support duck has been accommodated. Landman, supra note 281, at 91 (reporting on the increasing numbers of cases relating to emotional support animals).

[FN299] . 42 C.F.R. § 382.117(f).

[FN300] . An unruly pig on a flight in 2000 generated a significant amount of media coverage. See, e.g., Frank Dougherty, FAA: Unruly Pig Was OK US Airways Was Right to Allow Sow, Phil. Daily News, Nov. 29, 2000, at 10; First-Class Pig Raises Stink on Flight, Detroit Free Press, Oct. 28, 2000, at 8A; FAA Sees Nothing Wrong with 300-Pound Pet Pig Aboard 757, Chi. Trib., Nov. 30, 2000, at N8. The pig's flight also appeared to be the inspiration of at least the titles for two scholarly articles. Curtis D. Edmonds, When Pigs Fly: Litigation Under the Air Carrier Access Act, 78 N.D. L. Rev. 687 (2002), Susan D. Semmel, Comment, When Pigs Fly, They Go First Class: Service Animals in the Twenty-First Century, 3 Barry L. Rev. 39 (2002).

[FN301] . 14 C.F.R. § 382.117(f). Other factors to consider are whether such animal would “pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight's destination.” Id. Foreign carriers are not required to carry service animals other than dogs. Id.

[FN302] . Id.

[FN303] . Guidance Document, supra note 281, at 24,876.

[FN304] . See id.

[FN305] . Id. The DOT referenced the fact that some airlines permit qualified trainers to bring service animals in training onto an aircraft as part of the animals' training. Id.

[FN306] . 14 C.F.R. § 382.141 (providing for carriers operating aircraft of nineteen or more passenger seats to train their personnel dealing with the traveling public with the requirements of the ACAA).

[FN307] . None of these cases dealt with the interpretation of whether an animal would qualify as a “service animal.” See, e.g., Christoph v. Nw. Airlines, No. 95-30811, 1996 WL 335549 (5th Cir. May 17, 1996). Christoph alleged that Northwest Airlines violated its own service animal regulations in a negligence suit for damages incurred by the pressure of her service animal against her legs. Id. at *1. The Christoph court rejected Northwest Airlines' argument that such claims were pre-empted by the ACAA and affirmed the lower courts award of damages to Ms. Christoph. Id. at *2. In McGeorge v. Continental Airlines, the blind passenger refused to move to a seat other than assigned to her and brought battery and other claims arising from the dispute. 871 F.2d 952, 952 (10th Cir. 1989). The discussion in McGeorge focused on jurisdictional issues and the state law claims. Id. at 952-55. The cause of the dispute in this case--whether Ms. McGeorge should be required to sit in a bulkhead seat--has been clarified both in the DOT's Guidance Document and in the regulations interpreting the ACAA. See supra note 283. Similarly in the Hingson v. Pacific Sw. Airlines case, an individual who was blind, accompanied by a guide dog, sued after a dispute regarding the seating of that passenger in the front row of the passenger section. 743 F.2d. 1408, 1411 (9th Cir. 1984). Note that the facts of this case arose in 1980, prior to the passage of the ACAA.

[FN308] . Information about complaints is available online with the U.S. Department of Transportation. See Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, Annual Report on Disability-Related Air Travel Complaints, http:// airconsumer.ost.dot.gov/publications/gateway1.htm (last visited Feb. 15, 2010).

[FN309] . This assumes that persons with disabilities will complete the complaint process. Note that the prior reporting process included a category for service animal issues as well. Office of Aviation Enforcement Proceedings, U.S. Department of Transportation, 2009 Report on Complaints Received by Airlines in 2008, http://airconsumer.ost.dot.gov/publications/Gateway1-2008.htm (last visited Feb. 15, 2010) (detailing the complaints by airline).

[FN310] . See id.

[FN311] . Id. (follow “Summary totals for all carriers” hyperlink).

[FN312] . The total number of complaints in 2007 was 15,290, with 154 (approximately one percent) categorized as relating to service animals. Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 2008 Report on Complaints Received by Airlines in 2007, http:// airconsumer.ost.dot.gov/publications/Gateway1-2007.htm (last visited Feb. 15, 2010) (follow “Summary totals for all carriers” hyperlink). The total number of complaints in 2006 was 13,766, with 146 (approximately one percent) categorized as service animals. Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 2007 Report on Complaints Received by Airlines in 2006, http://airconsumer.ost.dot.gov/publications/Gateway1-2006.htm (last visited Feb. 15, 2010) (follow “Summary totals for all carriers” hyperlink). Of the 13,584 complaints received in 2005, only 83 (less than one percent) were related to service animals. Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 2006 Report on Disability-Related Air Travel Complaints (Complaints Received in 2005), http:// airconsumer.ost.dot.gov/publications/Gateway1-2005.htm (last visited Feb. 15, 2010) (follow “Summary totals for all carriers” hyperlink). Of the 11,518 complaints received in 2004, only 71 (less than one percent) were related to service animals. Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 2005 Report on Disability-Related Air Travel Complaints (Complaints Received in 2004), http://airconsumer.dot.. gov/publications/Gateway1-2004.htm (last visited Feb. 15, 2010) (follow “Summary totals for all carriers” hyperlink).

[FN313] . Of course, given the extensive information available to the carriers on these regulations, even fewer issues should arise than what is reported.

[FN314] . Minn. R. 4626.0020 subpt. 86 (2010).

[FN315] . Md. Code Regs. 14.03.02.02(13)(a) (2010) (“‘Service animal’ means a guide dog, signal dog, or other animal, individually trained to do work or perform tasks for the benefit of an individual with a disability....”).

[FN316] . Nev. Rev. Stat. § 426.097 (2007) (defining “service animal”). But see Nev. Admin. Code § 446.036 (2009) (using the term “support animal”).

[FN317] . Cal. Code Regs. tit. 13, § 1866(b)(1) (2010) (providing an exemption to the general prohibition on dogs in state buildings and grounds if such dogs meet the criteria defined under the federal regulations implementing Title III of the ADA).

[FN318] . Minn. R. 4626.0020 subpt. 86; see also 6 Colo. Code Regs. § 1010-2(65) (2009) (using parallel language to the Minnesota rules); Nev. Rev. Stat. § 426.097 (defining service animal as an animal “that has been trained to assist or accommodate a person with a disability”).

[FN319] . See, e.g., Md. Code Reg. 14.03.02.02 (providing examples of the type of tasks that a service animal can perform).

[FN320] . 410 Ind. Admin. Code § 7-24-84 (2009).

[FN321] . Alaska Admin. Code tit. 7, § 43.795(12) (2010).

[FN322] . 510 Ill. Comp. Stat. 70/2.01c (2009).

[FN323] . See, e.g., Kan. Admin. Regs. § 21-70-1(e) (2009).

[FN324] . Kan. Stat. Ann. § 39-1113(b)-(c) (2007). The Kansas statute defines guide dog as “a dog which has been specially selected, trained and tested for the purpose of guiding a person who is legally blind.” Id. § 39-1113(b). A hearing assistance dog is defined as “a dog which is specially selected, trained and tested to alert or warn individuals who are deaf or hard of hearing to specific sounds.” Id. § 39-1113(c).

[FN325] . See, e.g., Md. Code Regs. 14.03.02.02(13)(e)-(f) (2009); N.J. Admin. Code § 13:13-4.2 (2010) (including pulling a wheelchair or retrieving dropped items in its definition of service animal).

[FN326] . See, e.g., Md. Code Regs. 14.03.02.02(13)(c) (using, as an example of the tasks for service animals, “[a]lerting an individual with seizures to the onset of a seizure”).

[FN327] . Wash. Admin. Code § 162-26-040 (2009).

[FN328] . Utah Code Ann. § 62A-5b-102 (2007) (referencing the list of locations in § 62A-5b-102). Note that this law was amended in 2009 to delete the emotional support animal provision in Utah law. S.B. 173, 2009 Leg., Gen. Sess. (Utah 2009). Current Utah law has no reference to emotional support animals in its definition of disability. See Utah Code Ann. § 62A-5b-102 (2009).

[FN329] . See Utah Code Ann. § 62A-5b-102(7) (2007) (including a clause for emotional support animals under the definition of service animal).

[FN330] . N.Y. Comp. Codes R. & Regs. tit. 21, § 1040.2 (2009). Texas recently removed the definition of therapy dog from its administrative code provision relating to rabies. Previously therapy dog was defined as a “dog that helps a person with a diagnosed emotional disorder [to] whom a letter has been issued by a physician stating that the removal of the animal would be detrimental to the person's emotional health.” 25 Tex. Admin. Code § 169.22 (2006). Although using the terminology of therapy dog, the Texas definition appears to really be about emotional support animals. The current definition section in the Texas Administrative Code does not contain the terms therapy dog or emotional support dog. See 25 Tex. Admin. Code § 169.22 (2008).

[FN331] . N.D. Cent. Code § 25-13-01.1 (2007).

[FN332] . Clark County Sch. Dist. v. Buchanan, 924 P.2d 716, 719 (Nev. 1996) (finding that a school would be considered a place for public accommodation and upholding an injunction against a school district that refused to allow a teacher who was training a service dog to have the dog in her classroom).

[FN333] . See, e.g., Utah Code Ann. § 62A-5b-102(3) (2009) (including in the definition of service animal “an animal in training to become an animal described [above]”); Mo. Ann. Stat. § 209.200(2) (West 2007) (defining service dog as a dog “that is being or has been specially trained....”).

[FN334] . See, e.g., N.J. Stat. Ann. § 10:5-29.3 (West 2009) (providing that the trainer must be “engaged in the actual training process and activities of service dogs” and has “the same responsibilities as are applicable to a person with a disability”).

[FN335] . Ga. Code Ann. § 30-4-2(b)(3) (2007).

[FN336] . See infra notes 353-360.

[FN337] . R.I. Gen. Laws § 40-9.1-5 (2009).

[FN338] . What is “accepted” is not defined in the statute. Id. § 40-9.1-5(f).

[FN339] . Id. § 40-9.1-5(b).

[FN340] . Id. § 40-9.1-5(d). There is no definition of “current” in the statute. The certificate of good temperament must be issued by a certified or practicing dog trainer or animal behaviorist, and the training criteria must be “accepted in the field, specifically other pet assisted animal facilitators, veterinarians, dog trainers, animal behaviorists and the state of Rhode Island.” Id.

[FN341] . Id. § 40-9.1-5(e).

[FN342] . Utah Code Ann. § 62A-5b-104(5) (2007). This language in the Utah law was deleted in 2009. S.B. 173, 2009 Leg., Gen. Sess. (Utah 2009). The current provision does not reference psychiatric therapy animals in the course of providing mental health therapy. Utah Code Ann. § 62A-5b-104 (2009).

[FN343] . See, e.g., Ill. Admin. Code tit. 77, § 250.890 (2008); Utah Admin. Code r. 432-100-30 (2008) (setting forth rules if a hospital utilizes pet therapy).

[FN344] . NPRM Title III, supra note 5, at 34,479.

[FN345] . Id.

[FN346] . Id.

[FN347] . Id.

[FN348] . DOJ Proposes New Rules, supra note 5.

[FN349] . See supra notes 175-212 and accompanying text.

[FN350] . See supra note 84. This presumes that such disability meets the standard of limiting a major life activity pursuant to the coverage of the ADA.

[FN351] . See DOJ Proposes New Rules, supra note 5; supra notes 73-174 and accompanying text.

[FN352] . See supra notes 213-276 and accompanying text.

[FN353] . See Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals, 11 Animal L. 69, 90-97 (2005) (discussing the federal rule titled, Pet Ownership in Assisted Rental Housing for the Elderly or Handicapped, the Pet Ownership in Public Housing Act, and similar state laws).

[FN354] . See supra notes 33-49 and accompanying text.

[FN355] . Not all airlines allow companion animals to travel in the cabin. Southwest Airlines previously only allowed “fully trained assistance animals accompanying a person with a disability or being delivered to a person with a disability.” Southwest Airlines Travel Policies, Animals and Pets, http:// www.southwest.com/travel_center/animals.html (last visited Feb. 15, 2010). Southwest Airlines' current policy allows small cats and dogs. Id.

[FN356] . See, e.g., American Airlines, Traveling with Pets, http:// www.aa.com/aa/i18nForward.do?p=/ travelInformation/specialAssistance/travelingWithPets.jsp (last visited Feb. 15, 2010) (allowing only cats and dogs).

[FN357] . Air Tran, Traveling with a Pet, http:// www.airtran.com/policies/pets.aspx?nav_id=220 (last visited Feb. 15, 2010) (allowing birds as well as dogs and cats).

[FN358] . Continental Airlines, In-cabin Pets, http:// www.continental.com/web/en-US/content/travel/animals/in_cabin.aspx (last visited Feb. 15, 2010) (allowing cats, dogs, pet rabbits, and household birds).

[FN359] . See, e.g., American Airlines, Traveling with Pets, http:// www.aa.com/aa/i18nForward.do?p=/ travelInformation/specialAssistance/travelingWithPets.jsp (last visited Feb. 15, 2010) (setting a limit of seven pets on board each flight, two in the first-class cabin and five in coach and/or business class, with service animals excluded from the maximum number of animals allowed in the cabin).

[FN360] . Jet Blue Airlines, Traveling with Pets, http:// help.jetblue.com/SRVS/CGI-BIN/webisapi.dll?New,Kb=askBlue,case=obj(2032) (last visited Feb. 15, 2010) (providing for a twenty pound weight limit for the animal and the animal's carrier).

[FN361] . See, e.g., American Airlines, Traveling with Pets, http:// www.aa.com/aa/i18nForward.do?p=/ travelInformation/specialAssistance/travelingWithPets.jsp (last visited Feb. 15, 2010) (discussing the carrier restrictions and requiring that the “[a]nimal must be able to stand up, turn around and lie down in a natural position in the kennel”).