La Jollans love their pets. They seem to take them everywhere — including where they are not legally allowed to.
The scope of the problem of service-animal fraud is unclear, since no organization keeps records. However, we’ve all seen likely abuses while shopping. The Nextdoor app is full of complaints.
“I’ve seen a guy with three Pit bulls with heavy chains as collars, inside the market disregarding the rules,” wrote one La Jollan Nextdoor poster. “He’s not the only one. People place them in the shopping carts meant for groceries. The rules are there because it’s a health issue!”
La Jolla resident Melody Cloud was so fed up, she sent the Light a video, taken with a cell phone, of a bearded man in a T-shirt, shorts and flip-flops, visiting the salad bar at an upscale market in La Jolla while cradling a white poodle.
“No one asked this person to leave and employees clearly saw him walking around the store with a PET!” Cloud wrote in her e-mail, in which she also forwarded the complaint she sent to the San Diego County Health Department reporting “consistent” fake-service dog sightings inside that store.
“My neighbors who shop different days and hours have also seen this as a reoccurring health issue,” Cloud wrote.
The laws regarding service animals in California are a confusing tangle of state and federal regulations that conflict on key issues. For instance, California requires all service dogs to be identified by a tag on their collar or harness, according to Terisa Harju, supervisor of licensing for the San Diego Humane Society, which now licenses all pets in the City of San Diego. In the City, the Humane Society issues a circular metal tag to animal owners who provide a doctor’s note or prescription reading, according to Harju: “ ‘I’m treating so-and-so and their condition would improve greatly with use of a service dog.’ ”
However, federal Americans with Disabilities Act (ADA) law states that service dogs are not required to be identified in any way when out in public. Nor are they required to be registered or certified by any organization. And, because federal law supersedes state law, establishments may be reluctant to confront customers with suspicious service animals.
“Most businesses will tolerate the illegitimate service dog coming into the store for fear they can be sued or be the subject of bad publicity,” Harju said.
The health code
Live animals are not permitted inside a food-handling facility, according to California Health and Safety Code Article 6, Section 114259.5. The exceptions include police dogs, animals intended for consumption and service animals that are controlled by a disabled employee or person. (The Health Department did not get back to the Light by press time to reveal the penalty a business faces per code violation.)
The question becomes how a food-handling business is expected to identify a service animal. According to County communication officer Jessica Northrup, ADA guidelines “put responsibility on the owner of the food facility to check with the owner of the animal to ensure it is a service animal, and to also check what service the animal is trained to provide, before allowing them into the customer areas of their food facility.”
In fact, when an establishment suspects an animal entering its premises of not being a service animal, all it can to ensure compliance with the County Health Code is ask these two questions. Any other question (such as about the nature of the person’s disability or how the dog was trained) is a violation of the ADA, punishable in California by a fine of $2,500.
Realistically, therefore, any County resident can expect to be able to walk a dog into any food establishment, claim it is a service animal trained for a certain purpose, and not be asked to prove it. All they need to do is lie in response to the two questions they might be asked.
“Unfortunately, yes,” Harju confirmed. Businesses only have a right to ask a customer with an animal to leave if the customer admits it is not a service animal or, Harju said, if the animal is “out of control and cannot be brought under control either through voice command or leash, or if they are not housebroken.”
Of course, the liars are committing service-dog fraud, which — as defined by Section 365.7 of the California Penal Code — is a misdemeanor punishable by a $1,000 fine, six months in prison or both. That’s the toughest such law in the country. But it’s apparently all bark and no bite, since neither Harju nor the Light could not identify a single case of its enforcement.
La Jolla Open Aire Farmers Market founder Sherry Ahern says the few dogs you will ever see being walked through the Sunday marketplace — which have spurred their own Nextdoor complaints because food is served and “no dogs allowed” signs posted — are all service or therapy dogs whose paperwork has been checked at least once.
“The truth is we could have (non-service) dogs in the market, but they can’t be near the food,” Ahern said, “and that’s not a slope I’m willing to go down.” So, Ahern said, for years she has had dog-walking service Dogzenergy offer to dog-sit out front, and to monitor any dogs being walked in.
“It is so rare that we ever see a dog and approach them to find they’re not supposed to be in there,” Ahern said, “but thank you to those of you who are observant.”
Here’s where it gets fuzzy again: The ADA does not recognize emotional-support dogs, therapy dogs or comfort dogs as service dogs — except those that comfort veterans suffering from Post-Traumatic Stress Disorder. Therefore, therapy dogs would be in violation of County Health Code — which, according to Northrup, defers to federal law — if they get near the food.
Ahern said she was unaware of this. But her confusion is understandable due to the definition of a service animal according to Section 113903 of California Code. It seems to include therapy dogs, defining a service animal as “individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability, or that is in training to do that work or perform those tasks.” (Only dogs can qualify as service animals under ADA — although miniature horses are also recognized.)
Harju called the issue “very complicated.” She said: “Basically, a legitimate service animal is either leading a blind person or helping someone with their balance. They are smelling a person’s low-blood sugar or when they’re about to have a seizure and alerting them. If they’re out with their handler, they’re working.”
According to a 2015 UC Davis study, too many emotional-support and therapy tags have been issued by California — a 1,000 percent increase between 2002 and 2015 — and many have been issued incorrectly.
“The Assistance Dog Identification tags were mistakenly issued to some dogs which do not fall within the definition of assistance dogs under the law, such as emotional-support animals,” the study said. “This indicates that the state governmental registering system does not work properly.”
Health department responds
Cloud eventually received a response to her Health Department complaint. Staffer Leah Anderson replied that she spoke to a manager at the upscale market, who told her that the store policy “is to ask the customer to take any non-service animal outside the store immediately, and they will also sometimes have an employee hold the dog outside, so that the customer is able to shop.”
In the e-mail, Anderson wrote that she directed the manager to train the employees “to ensure that everyone is aware of and following the non-service animal policy.” (Read below to see how the market fared when the Light attempted to browse there with a non-service animal.)
“It is unfortunate that some members of the public, in order to bring their dogs along with them, try to pass them off as service dogs,” Harju said. “When they do this, not only are they breaking the law, they do an injustice to individuals who truly rely on their service dogs to function as independent members of society.”
DID SLATER GET AWAY WITH IT?
Slater is not a service animal. Therefore, California Health Code does not allow him inside a food-handling establishment. So, on a random Saturday afternoon, this La Jolla Light reporter brought his pet (a Dachshund/Miniature Pincher mix, in case you wondered) grocery-shopping to test whether anyone would ask questions. To enhance suspicion, Slater was walked on a leash instead of cradled or placed in the child seat of a shopping cart.
Slater was walked around the produce section, back and forth along the front of the cashier lines, and then by prepared foods, where employees scooped fried chicken and rolled raw fish behind glass. Never in seven years had he seen an entire building dedicated to such deliciousness.
During a total of eight minutes inside the supermarket, at least half of the 30 employees Slater passed stared at him, but not one asked whether he was a service animal and what service he provided — not even the employee wearing a white coat and wheeling a cart containing two roasted chickens around, who nearly crashed it into Slater because he wasn’t expecting a dog down there.
In contrast, Slater was only walked around the upscale market for four minutes before an employee approached by the salad bar.
“Is this dog a service animal required by a disability?” he asked.
When informed that Slater was not, he politely motioning toward the exit and said: “Then I’m afraid I’m going to have to ask you to leave the premises.”
Judging by his wide eyes and wagging tail, Slater wanted to know when the next investigation would be.