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Published 8 September 2019
His name is Brewski, and he was 11-year old Connor Flanagan’s American Bull Dog/Labrador-mix service dog. Connor and his mom, Katrina Flanagan, lived in the village of Tijeras, New Mexico, and adopted the certified service dog from a rescue group in 2015 to help Connor cope with a condition known as apraxia. Apraxia is a motor disorder caused by damage in the brain, and impacts movement and speech.
Unfortunately for Brewski, the village has an ordinance which states in part that “It is unlawful to own or possess in the Village any dog of the breed known as American Pit Bull Terrier,” of which Brewski was one. The ordinance was put in place in 1984 following the severe mauling of a local 8-year old girl, and was upheld by the New Mexico Court of Appeals in 1988. Based on the rulings, the village notified the Flanagans that they were in violation of the ordinance and ordered them to get rid of the dog. The penalty for noncompliance, according to the ordinance, was to seize Brewski and have him euthanized.
After many months of wrangling with the Flanagans, the elected body begrudgingly acquiesced and allowed Brewski to remain in the community. The decision was based on a provision of the Americans with Disabilities Act, which says that “municipalities that prohibit specific breeds of dogs must make an exception for a service animal of a prohibited breed, unless the dog poses a direct threat to the health or safety of others.” Obviously, the village could not meet the legal standard that would have allowed the local councilors to boot Brewski from the village. The ADA isn’t the only law that protects the rights of citizens with disabilities who utilize service animals to cope with daily life.
Under the federal ADA and New Mexico’s Service Animal Act (Chapter 28. Human Rights. Article 11. Service Animals – § 28-11-1.1), people with disabilities have the right to be accompanied by their service animals in restaurants, hotels, stores, theaters and other public places where the general public is welcome. Both acts make a distinction between qualified service animals and emotional support animals, however. Qualified service animal means any qualified service dog or qualified service miniature horse (under 100 pounds) that has been or is being trained to provide assistance to an individual with a disability.
Emotional support animals or comfort or therapy animals on the other hand are allowed access only to apartments and other dwelling units (including those with no-pet policies), airplanes and public places where they’re not otherwise disallowed. For example, American Airlines allows one emotional support animal per person providing the animal is a cat, dog or miniature horse. Those types of animals are utilized to accompany an individual with a disability and does not work or perform tasks for the benefit of an individual with a disability and does always not accompany the individual. With one exception — both federal and New Mexico laws prohibit emotional support animals from accompanying their owners in places where pets are prohibited.
Emotional support animals are allowed to accompany owners if the owner has an official letter from a licensed mental health or medical professional stating that the animal’s handler has an emotional or mental disability, and that the animal helps mitigate specific symptoms of the handler’s disability. No other vests, tags, harnesses or certifications are required.
So, how can business owners, municipalities and landlords determine if an accommodation must be made to allow a particular animal to accompany its owner? The laws are very specific — service animals and emotional support animals are subject to different laws.
Emotional support animals are covered under both the federal Fair Housing Act (42 U.S.C. §3604) and the New Mexico Human Rights Act, however. The federal Fair Housing Act makes it illegal for an owner to refuse to rent to someone or to otherwise discriminate against a tenant on the basis of race, color, religion, sex, familial status, national origin, or handicap and applies to dwellings, including homes, apartments, condominiums, cooperatives, mobile homes, and other manufactured homes. The New Mexico Human Rights Act provides protections to the same classes, but additionally prohibits discrimination on the basis of ancestry, sexual orientation, gender identity and spousal affiliation
Service dog are subject to the rules and regulations of the U.S. Justice Department, “in situations where it is not obvious that the dog is a service animal, staff may ask only two specific questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person’s disability.” In addition, the ADA does not require service animals to wear a vest, ID tag or specific harness.
Under both state and federal statutes, violators can be fined, imprisoned or both if they run afoul of the rules, so it pays for both the people benefiting from the animals and those who are bound to accommodate them to familiarize themselves with the laws.
See you at closing.
Gary Sandler is a full-time Realtor and owner of Gary Sandler Inc., Realtors in Las Cruces. He loves to answer questions and can be reached at 575-642-2292 or Gary@GarySandler.com.
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About Author
Gary Sandler
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