Several States Go Farther Than the DOT – Criminalizing Fake Support Animals

The Department of Transportation offered final guidance on its enforcement priorities with respect to emotional support animals.

They haven’t issued regulations – they’ve just told airlines the conditions under which they aren’t going to do anything in the event of a complaint by a passenger, essentially giving airlines license to deny carriage to emotional support animals of certain kinds, to place limits on the number of animals an individual may bring on, and to require paperwork from passengers claiming to need a support animal.

A year and a half ago airlines began to impose restrictions on a practice that had clearly gotten out of control, anyone bringing on anything – without behavioral or size standards – and seemingly were doing so in consultation with the Department of Transportation (who then offered preliminary guidance along these lines).

While the new rules do prohibit blanket bans on dog breeds (Delta can’t have a pit bull ban), for the most part airlines got what they were looking for. The Department of Transportation listened to stakeholders, reviewed the law, and laid out guidelines that allow airlines to balance operational needs, the comfort needs of all passengers, while ensuring restrictions don’t preclude having mental health needs met.

Some states though are going further and criminalizing misrepresenting a pet as a service animal. This is largely in further of state benefits.

Pet owners in Alabama are getting a new law to heed.

Beginning in September, anyone who attempts to pass off their pet as a service animal in the state could be facing misdemeanor charges.

“Making false claims will be a Class C misdemeanor resulting in a $100 fine and 100 hours of community service to be performed with an organization that serves people with disabilities or one approved by the court,” AL.com reported on Wednesday.

…According to the law, signs posted in public will read: “Service animals are welcome. It is illegal for a person to misrepresent an animal in that person’s possession as a service animal.”

Alabama will be joining 24 other states in the US that make misrepresenting a pet as a service animal a crime, with all violations classified as “misdemeanor offenses or civil infractions,” according to Michigan State University’s Animal Legal and Historical Center.

Here’s my question since it’s outside of my area of expertise. To the extent passengers have to represent their pets as emotional support animals in order to take them on an aircraft without charge, and in contravention of the airline’s usual rules for traveling with pets (such as size and weight restrictions, and the requirement to keep them in a carrier) would making a false statement to an airline to obtain benefits under the Air Carrier Access Act incur state liability under these statutes? I would love for lawyers among my readership to weigh in.

My guess is that there wouldn’t be any such liability (and for certain state laws declaring emotional support animals not to be service animals would certainly have no bearing on claims under the federal Air Carrier Access Act), but it may ultimately be a moot question because DOT guidance allows airlines to require certification from a mental health professional that a passenger has a need for an emotional support animal.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. I think the statues can be used if you lie to an airline about a pet being an emotional support animal.

    It sounds like the state laws on their face do not have an express carve out that says they do not apply to airlines, so the only question would be whether the law is preempted by federal law when applied to air travel. State laws regulating airlines are preempted to the extent that they relate to “rates, routes, or services of any air carrier.” State laws would also be preempted if they conflict with a federal statute or regulation.

    It’s perhaps debatable, but I think the better view is that the regulation does not relate to “services of any air carrier.” The federal preemption was intended to prohibit states from saying what airlines can and can’t do, not prohibit states from regulating misconduct by passengers. (If you punch someone while waiting on a plane, you can be charged under state law, for example.) I also don’t see how this conflicts with any DOT rule. DOT certainly had not said passengers have any right to falsely claim a pet is an emotional support rule. So it you were charged for lying to an airline under one of these statutes, I think you’d have a hard time showing that the statute was preempted by federal law or otherwise inapplicable to lying to airlines.

    So bottom line, yes, I think it could be used against someone who lies to an airline.

  2. But it’s illegal to ask for evidence that the animal is a service animal, right? So totally unenforceable?

  3. @anameoftheguy — DOT guidance allows airlines to require certain documentation for passengers who want to bring service animals. Not sure where you got the idea that it’s illegal for airlines to ask for evidence.

    In any case, I doubt this will rank highly on any law enforcement priority lists so it probably won’t be enforced much. But if someone brings a service animal on board and then it becomes obvious that it’s a pet (say, the passenger just admits that to their seat mate), then they could be charged whether they submitted (false) documentation or not. If you submitted false documentation, you could probably be charged with two crimes — passing off a pet as a service animal, and forgery for the fake documentation. If you avoided an airline fee by doing this you could also be charged with fraud.

    Like a lot of laws I imagine this will mostly be symbolic. Even under existing law you could be charged with fraud if you lie to an airline and thereby avoid a fee on a service animal. But I haven’t heard of anyone charged for that.

  4. There’s really no difference between an ESA for a mental health issue and a fake ESA. They all need to be banned. Service dogs only. No anxiety dogs, no PTSD dogs etc etc.

  5. @John He got the idea that the airline cannot ask because of the ADA rules:

    >>> 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?<<<

    However, as you point out, the DOT explicitly allows airlines to require documentation.

    IMHO, this topic is moot. No airline is going to hide behind the State. If an airline thinks a passenger is faking it to get a free ride for Fido, the DoT has already given the airline the authority to say "no." I hope they say no a lot.

  6. “To the extent passengers have to represent their pets as emotional support animals in order to take them on an aircraft without charge, and in contravention of the airline’s usual rules for traveling with pets (such as size and weight restrictions, and the requirement to keep them in a carrier) would making a false statement to an airline to obtain benefits under the Air Carrier Access Act incur state liability under these statutes?”

    Well, if that is the goal, any legislature would be well advised to draft legislation that specifically incorporates the ACAA. Perhaps “Making a false statement with the intent to obtain benefits under the ACAA, ___ U.S.C. ___, as amended as of the date of such false statement, is a Class ___ Misdemeanor ___.”

    Of course, the viability of the state statute would thereafter turn on the continuance of the ACAA.

  7. “I hope they say no a lot.”

    As do I. You don’t see all these ridiculous dogs and their lying owners on aircraft in Europe and Asia.

    That said, bring on the miniature horses!

  8. ADA rules are actually pretty fair IMHO. Fair Housing on the other hand is what helped perpetrate the ESA scam that has spread to airlines and grocery stores. I don’t much care when it’s well behaved but it seems to over entitle the owner to make other demands from moving seats to taking 5x longer to deplane (and not waiting for others to go first). It’s really a shame for people that actually have a service dog and have to go through extra steps to fly. As someone with a huge dog that I love quite much, I don’t fly commercially with her because she’s not going in the hold. Either fly private or drive. I do love the irony when people need their yappy snapping lap dog because of their “anxiety.” As someone who will be stuck in a metal tube at 30,000 feet, I see you as more of a flight risk than that brown guy politely working on his laptop.

  9. I TOTALLY agree with what Nick says: NO “anxiety” dogs, NO “PTSD” dogs. I think this has gotten way out of hand. I was on a flight where a BIG dog was right behind me, I am extremely allergic to dogs, ended up in the ER. Sent a letter to the CEO of Delta and was told that now I have to ask if a dog is sitting near me, so they would have to move me or them, so.. I asked: what if I’m in business class and this dog is too?, I am not going to move and I’m sure this person isn’t moving either? I was told they hadn’t come across that… I also asked what happened to the time when if you were flying with a pet you had to put it in it’s cage and they would put it with the cargo and I was told that now they can’t do that! I’m sorry, this “politically correct” crap has gone to far! If a person is blind, yes of course have your dog, but that’s it, other people are just plain nuts!

  10. @Gary: :”Several States Go Farther Than the DOT – Criminalizing Fake Support Animals”

    Why are they making the animals criminals? Don’t they know how that feels to a goldfish?

  11. Florida Statutes Sec. 437.08:
    (1) … (d) “Service animal” means an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work done or tasks performed must be directly related to the individual’s disability and may include, but are not limited to, guiding an individual who is visually impaired or blind, alerting an individual who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting an individual who is having a seizure, retrieving objects, alerting an individual to the presence of allergens, providing physical support and assistance with balance and stability to an individual with a mobility disability, helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors, reminding an individual with mental illness to take prescribed medications, calming an individual with posttraumatic stress disorder during an anxiety attack, or doing other specific work or performing other special tasks. A service animal is not a pet. For purposes of subsections (2), (3), and (4), the term “service animal” is limited to a dog or miniature horse. The crime-deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition.
    …(9) A person who knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using a service animal and being qualified to use a service animal or as a trainer of a service animal commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 and must perform 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months.

    This section has application to the extent a person brings a fake service animal into a public facility and represents it as a service animal. It also applies to phony claims of service animal status under the Fair Housing laws to get someone’s pet into a “no pets” condominium. (More than 50% of Florida residents live in condos, coops or HOA’s, which is why Florida regulates them tighter than any other state.) It was designed to counter the common practice of buying a “service animal” blanket for a dog that is a pet, and pretending that it has some special status.

    I don’t think that representing a pet as a service animal to an airline would be covered by the state law — it is most likely preempted. DOT’s regulations “occupy the field” — the broadest form of preemption. The airlines can operate without state interference. But, if the flight originated or terminated in Florida, bringing the animal through the airport before or after the flight without having it in a dog crate would violate the state law. The local and state authorities operate the airport terminals, and can regulate there, likely without risk of the statute being preempted.

  12. @Ampy: My wife is also highly allergic to dog and cat dander (and contrary to the common view, there is so such thing as a “hypoallergenic dog” — it’s merely the amount of dander produced). We carry a letter from her allergist documenting this condition, as well as the fact that the dander triggers her asthma.

    The one time we had a problem, we quietly informed the FA of the issue, showed him the letter, and said that we would consider the airline’s failure to enforce its rules regarding keeping pets in carriers under the seat for the entire flight would constitute a violation of the Americans with Disabilities Act. We then asked that the airline’s Complaint Resolution Officer for ADA complaints meet us upon arrival if there was a violation. (Each airline is required by DOT to have a CRO at each location that the airline boards or deplaned passengers, during normal business hours, and that the CRO have the authority to resolve an ADA complaint if possible. The FA insured that the people with the animal kept it in the carrier under the seat for the entire MSP-SFO flight, and asked us if we needed the CRO to meet the plane. We did not request it, because the FA fixed the problem.

    Moral of the story: (1) Document your disability, and carry it with you. (2) Know your rights, and quietly but firmly assert them. Don’t hesitate to complain.

  13. To “Retired Lawyer”
    Thank you so much for your suggestion and I will certainly get my doctor to give me something in writing. As I stated before, this dog I had behind me for a long flight was a very big dog that just sat at the foot of these people. The woman also had the dog on her lap and was talking to it like one would talk to a baby saying “look out the window” et. My point being also that every single time I’ve had dogs near me in a plane they have been loose and not in a crate!
    The airline is very concerned with this “peanut allergy” and says it over the loud speaker, which they even ask people not to bring or eat any peanut products because of this, but do they care about people like your wife or myself? I don’t think so!

  14. @Retired Lawyer

    You would have been alleging a failure of the ACAA, not ADA, had it occurred during a flight.

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