Two recent Aspen incidents cast spotlight on service dogs and their required roles
June 24, 2015
As dog-friendly and knowledgeable a town Aspen is, public confusion hangs over support animals and the rights of their owners.
Two public incidents involving owners of support dogs have emerged in Aspen over the last two months. One concerns a federal lawsuit over a service dog at an Aspen condominium complex. The other centers around an Aspen man who is forbidden from bringing his dog to a downtown coffee shop.
The private and public sectors must adhere to the Americans with Disabilities Act and the Fair Housing Act when it comes to allowing companion animals.
But, there's a distinguishable difference between service dogs, which are trained to help their owners — who could be blind, have Parkinson's, be seizure prone or have other ailments — and emotional support dogs, which can be untrained but offer a therapeutic benefit to their owners.
The ADA covers service dogs but excludes emotional support animals. The owners of service dogs, while covered by the ADA, are not required to obtain official certification, said Maggie Sims, project manager for the Rocky Mountain ADA Center in Colorado Springs.
Sims noted that it's a fairly easy process to order a certification that says the owner needs the animal for comfort and support. Even so, the Fair Housing Act covers comfort animals, as does the Air Carrier Access Act, which allows passengers to bring them on commercial flights.
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"When we talk about emotional support animals versus a service animal, we have the federal ADA law, which covers government agencies and private businesses," Sims said. "There's a very clear difference between service animals and emotional support animals. But, there are other laws that do recognize (emotional support animals). For instance, the FHA does recognize (emotional support animals), and I think that's part of where some of the confusion comes from."
Mike Kosdrosky, executive director of the Aspen/Pitkin County Housing Authority, said the distinction between the animals can be murky. The issue often takes up staff time, and there are occasions when the Housing Authority doesn't learn that a support dog is inhabiting one of its no-canines-allowed properties until after the fact.
"I think there's a lot of confusion in the public's mind as to what's a legitimate service dog and a legitimate emotional support animal," he said. "And, it makes it very difficult for those of us at the local level to enforce. I've heard the complaint, in the very short tenure that I've been here, that the perception is, whether it's reality or not, is that people abuse it and try to get around the rules by claiming their dog is a service dog, but they are more likely an emotional support pet."
Coffee shop bans man's dog
Earlier this month, The Aspen Times reported about Ivan Lustig, who claims to have a service dog.
On April 30, Ink Coffee notified the Aspen resident that he and his Jack Russell terrier, Kobi, were no longer allowed on the property. The ban came after a patron complained a day earlier to the cafe's management that Kobi was on the lounge area's couch.
In turn, Lustig said he filed a discrimination complaint under the ADA with the U.S. Department of Justice. He said Kobi helps him with his acute anxiety syndrome by providing a "calming effect" when he is in public places or private businesses.
Rachel Burmeister, an environmental-health specialist for the city of Aspen, said Ink rightly banned Lustig and Kobi because the dog wasn't behaving like a trained service animal.
The Rocky Mountain ADA Center's Sims said when canines bark, run around or aren't under control by their owners, a business can legally ask them to leave.
"They should always be under the control of their owner," she said.
When employees see a customer with a dog, they must act according to ADA regulations:
"When it is not obvious what service an animal provides, only limited inquiries are allowed," the ADA says. "Staff may ask two 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 cannot ask about the person's disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task."
Last week, The Aspen Times attempted to do a follow-up interview with Lustig about his pet, seeking more clarification about whether it is a service dog or an emotional support animal.
Kobi wears a tag on its collar that says he is registered with San Diego County, California, where an official confirmed that he once was deemed a service dog. But, the official said, "His dog is no longer considered a service dog here. And, even if he did have a service-dog tag here, it wouldn't be valid in Colorado."
It wouldn't matter under the ADA, either. The U.S. Department of Justice defines a service dog as "any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government."
Lustig declined to discuss Kobi's status, and after multiple attempts from the Times seeking further explanation, he contacted the Aspen Police Department claiming harassment by a reporter.
THE Aspen condo lawsuit
In May, the joint owner of a unit at Aspen View Condominiums sued its association and First Choice Properties & Management under the Fair Housing Act.
Plaintiff Alvaro Arnal claimed that he found a Florida woman to lease out of his unit in late 2013. But, both the HOA and the property manager made it difficult for the woman, who was prone to seizures, to move in the complex that doesn't allow dogs, says the suit, filed in the U.S. District Court of Denver. The HOA demanded documentation about the woman's disability and how the dog would help prevent her seizures. An Aspen doctor provided the HOA board with a letter in March 2014 — months after Arnal leased his unit in November 2013 — saying the woman has a "well-documented seizure disorder" and "benefits greatly" from the dog.
Before the letter, stating on Jan. 31, 2014, the board began fining Arnal $50 a day for permitting the dog to live there, the suit says. And, on June 5, 2014, the board fined Arnal $1,450 and billed him $4,234 for its attorney's fees that came from the dispute. More than a month later, on July 9, the board placed a $5,684 lien on Arnal's unit, says the suit, which was filed by Denver-based Law & Mediation Office of Phyllis A. Roestenberg.
The woman moved out of the unit in March 2014, living there less than five months, the suit says.
Last week, on June 16, the defendants filed an answer and counterclaim to the suit.
The response touched on the apparent ambiguity surrounding support animals: "There is a growing problem of people using fake service dogs, which has a profound and negative effect on the disabled, business and medical communities, and the airline industry … there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly where the dog assists the disabled person by rendering emotional support or where the disabled person does not have readily apparent physical symptoms."
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