What did South Carolina's 2015 opinion say a restaurant could ask about a PTSD service dog?

View original AG opinion (PDF)

Plain-English summary

In 2015, the South Carolina Attorney General concluded that a licensed restaurant was a place of public accommodation for the state assistance dog provision discussed in the opinion. It said the Americans with Disabilities Act could cover a dog trained to perform tasks related to post traumatic stress disorder, while a dog's presence for emotional support alone was different. The office did not decide whether the individual in the request met the legal disability definition; it said the disabling effects had to be assessed individually.

For the incident described, the opinion said the restaurant could ask whether the dog was needed because of a disability and what work or task it performed. It said staff could not ask for the person's diagnosis, documentation, or a demonstration by the dog. It also said the restaurant could require removal of a dog that was not controlled or housebroken, while still offering the person food and service after the dog's removal.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was a restaurant covered by the public accommodation provision?
A: The opinion concluded that a state licensed restaurant was included under the related South Carolina statutes it analyzed.

Q: Did a PTSD diagnosis alone establish a disability under the opinion?
A: No. The office said the ADA inquiry focused on the condition's disabling effect in the individual case, and neither state law nor the ADA gave a categorical answer.

Q: Could restaurant staff ask to see a service dog's papers or a task demonstration?
A: The opinion said no. It allowed questions about disability related need and the task the dog performed, but no demand for documentation or demonstration.

Q: Could a restaurant remove an uncontrolled dog?
A: The office said a dog not controlled by leash, voice, signals, or other means, or not housebroken, could be removed. It said the patron still had to be offered food and service without the dog.

Background and legal framework

A legislator asked after a person with PTSD and a dog was asked to leave a restaurant. The office read South Carolina's assistance dog statute alongside the public accommodation law and federal ADA guidance. It distinguished trained work or tasks from emotional support and described the limited inquiries a restaurant could make. The opinion framed disability status and the particular dog's role as fact dependent.

Citations and references

The opinion discussed S.C. Code Ann. § 43-33-20, S.C. Code Ann. § 45-9-10, and the Americans with Disabilities Act.

Official title

Regarding the provisions of Section 43-33-20 as it relates to the rights of physically disabled persons to use public facilities and public spaces in South Carolina.

Requester

The Honorable Larry A. Martin, Chairman, Senate Judiciary Committee.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-9-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/02/Martin-L.-OS-9841-FINAL-Opinion-02-09-2015-Lister-00552762xD2C78.pdf

Original opinion text

Ci^ci)

0/- ¦SOLTtf

i

Alan Wilson
Attorney General

Februar}' 9. 2015

The Honorable Larn' A. Martin

Chairman. Senate Judiciary Committee
PO Box 142
Columbia. SC 29202

Dear Senator Martin:

This Office received your request for an opinion. You slate in your letter: I am writing you to ask for an opinion regarding the provisions of Section 43-33-20 as it relates to the rights of physically disabled persons to use public facilities and public spaces in South Carolina.

This issue

arises from an incident regarding a person with PTSD [post traumatic

stress disorder]' who had a service animal who was asked to leave a restaurant. Alter the person filed a police report concerning her ejection from the restaurant, two issues with the statute were noted by law enforcement. The first is to whom the statute applies. The second is to what establishments does the statute apply.

Since violations of Section

44-33-20 are criminal, I believe there may be a reticence in enforcing the law until its provisions are clear so that law enforcement feels confident in acting. . .

Unfortunately, there seems to have been much confusion about whether this person and their dog were allowed in this restaurant, or whether this

PTSD has been described as follows:

Following a severe trauma, any type of psychiatric illness may develop.

One

type of syndrome which may develop following a serious trauma has been identified and diagnosed as post-traumatic stress disorder, or PTSD. PTSD is the designation assigned to a group of certain identifiable symptoms in the current edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-lll-R). It is a mental disturbance that originates in response to an overwhelming encounter with the possibility of violent death.

PTSD

symptoms may impair an individual's ability to cope, and they may interfere with the individual's routine activities and disrupt family harmony. 49 Am. Jur. Proof of Facts 2d 73 (1987).

R£MBERTC. Dennis Building

. Post OrncE Box 11549

. Collmbia,SC292II-1549

• Telephone 803-734-3970

. Facsimile S03-253-6283

The Honorable Larry A. Martin
Page 2

February 9, 2015

restaurant was a private place of business that was allowed to admit or deny admittance to whomever they desired You appear to be asking whether a person with PTSD is a "handicapped person" pursuant to section 4333-20(c) and whether a restaurant is included in "places of public accommodation" pursuant to section 43-33-20(b). We will answer accordingly. LAW/ANALYSIS:

Section 43-33-20 of the South Carolina Code addresses the rights of handicapped persons and their assistance dogs to use public facilities and accommodations and it provides: (a) The blind, the visually handicapped, and the otherwise physically disabled have the same right as the able-bodied to the full and free use of the streets, highways, sidewalks, walkways, public facilities, and other public places;

(b) The blind, the visually handicapped, and the otherwise physically disabled are entitled to frill and equal accommodations, advantages, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, street cars, boats or any other public conveyances or modes of transportation, hotels, lodging places, places of public accommodation, amusement or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons;

(c) Every handicapped person has the right to be accompanied by an assistance dog, especially trained for the purpose, in any of the places listed in item (b) of this section without being required to pay an extra

charge for the assistance dog. Each handicapped person is liable for any damage done to the premises or facilities by the dog. (d) Every person who is a trainer of an assistance or guide dog, while engaged in the training of an assistance or guide dog, has the same rights and privileges with respect to access to public facilities and accommodations as blind and disabled persons, including the right to be accompanied by an assistance or guide dog or assistance or guide dog in training, in any of the places listed in item (b) of this section without being required to pay an extra charge for the assistance dog. A person who uses premises or facilities accommodations accompanied by a dog under the authority of this item is liable for any damage done to the premises or facilities by the dog.

S.C. Code Ann. § 43-33-20 (1976 Code, as amended).

The Honorable Larry A. Martin
Page3

February 9, 2015

I.

Public Accommodations

The question we will address first is whether a restaurant is included in "places of public accommodation" pursuant to section 43-33-20(b). The Legislature has not provided a definition of what "places of public

accommodation" are in section 43-33-20. In a prior opinion, we discussed some principles of statutory construction and they are as follows: "The cardinal rule of statutory construction is to ascertain and effectuate

the intent of the legislature."
S.E.2d 578, 581 (2000).

Hodges v. Rainev. 341 S.C. 79, 86, 533

"[Courts] will give words their plain and

ordinary meaning, and will not resort to a subtle or forced construction that would limit or expand the statute's operation." Harris v. Anderson County Sheriffs Office. 381 S.C. 357, 362, 673 S.E.2d 423, 425 (2009).

"If a statute's language is plain, unambiguous, and conveys a clear

meaning, then the rules of statutory interpretation are not needed and a court has no right to impose another meaning." Strickland v. Strickland. 375 S.C. 76, 85, 650 S.E.2d 465, 472 (2007). "[Statutes must be read as

a whole, and sections which are part of the same general statutory scheme must be construed together and each one given effect, if

reasonable." State v. Thomas. 372 S.C. 466, 468, 642 S.E.2d 724, 725

(2007). "[C]ourts will reject a statutory interpretation that would lead to an absurd result not intended by the legislature or that would defeat plain legislative intention." State v. Johnson. 396 S.C. 182, 189, 720 S.E.2d 516, 520 (Ct. App. 2011). Where the plain language of a statute is ambiguous or "lends itself to two equally logical interpretations," a court may look beyond the borders of the act itself to determine the Legislature's intent. Kennedy v. S.C. Ret. Svs.. 345 S.C. 339, 348, 549 S.E.2d 243, 247 (2001).

Op. S.C. Attv. Gen.. September 18, 2013, (2013 WL 5494616).

In the past, we have reviewed statutes which are similar in nature in order to determine meaning and the intent of the Legislature. "We also recognize that statutes which relate to the same subject matter or to the same legislative scheme should be construed together and in harmony." Op. S.C. Attv. Gen.. Footnote, 1, July 18, 1991, (1991 WL 633013) (quoting Fidelity and Casualty Insurance Company of New York v. Nationwide Insurance Company. 278 S.C. 332, 295 S.E.2d 783 (1982); Dantzler v. Callison. 230 S.C. 75, 94 S.E.2d 177 (1956)). "It is well settled that statutes dealing with the same subject matter are in pari material and must be construed together, if possible, to produce a single, harmonious result." Op. S.C. Attv. Gen.. June 3, 2014 (2014 WL 2757537) (quoting Joiner ex rel. Rivas v. Rivas. 342 S.C. 102, 109, 536 S.E.2d 372, 375 (2000)). "Different statutes in pan materia, though enacted at different times, and not referring to each other must be construed together as one system and as explanatory of each other." Op. S.C. Attv. Gen.. October 9, 2002 (2002 WL 31728844) (quoting Fishbume v. Fishbume. 171 S.C. 408, 172 S.E. 426 (1934)).

The Honorable Larry A. Martin
Page 4

February 9, 2015

The Public Accommodations Act, S.C. Code Ann. § 45-9-10 et seq., has language very similar to section

43-33-20 and it states:
(A) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations

of any place of public accommodation, as defined in Article 1 of this chapter, without discrimination or segregation on the ground of race, color, religion, or national origin.

(B) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this chapter if discrimination or segregation by it is supported by state action: (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the establishment as his residence;

proprietor

of

such

(2) any restaurant, cafeteria, lunchroom, lunch counter,

soda fountain, or other facility principally engaged in
selling food for consumption on the premises, including,
but not limited to, any such facility located on the

premises of any retail establishment, or any gasoline
station. . .

(C) "Supported by state action" means the licensing or permitting of any establishment or any agent of an establishment listed above, subject to

the exclusion provided in Section 45-9-202, which has or must have a license or permit from the State, its agencies, or local governmental entities to lawfully operate.

S.C. Code Ann. § 45-9-10 (1976 Code, as amended) (emphasis added).

Although it pertains to race, color, religion, or national origin instead of handicap or disability, section 45 9-10 closely parallels section 43-33-20 because they both deal with the same subject matter, discrimination against a certain type of person in public places. The Legislature chose to define "place of public accommodation" in sections 45-9-1 0(b) and (c) and not in section 43-33-20. In view of the obvious close parallel between the two statutes, however, we believe that both of the statutes are governed by the same definition of "place of public accommodation." Therefore, our opinion is that the Legislature intended the definition of "place of public accommodation" under both statutes to include a restaurant which is licensed by the State, its agencies, or by local governmental entities.

2 S.C. Code Ann. § 45-9-20 (1976 Code, as amended) provides that "[t]he provisions of this chapter do not apply to a private club or other establishment not in fact open to the general public. . ."

The Honorable Larry A. Martin
Page5
February 9,2015

n.

Handicapped Person and PTSD

Your next question is whether a person with PTSD is a "handicapped person" pursuant to section 43-3320(c). Section 43-33-20 does not explain who qualifies as a "handicapped person." Therefore, we must

review other provisions of law.
Section 2-7-35 is of assistance in determining who is a "handicapped person" and it provides:

Wherever the term "handicapped person" appears in the laws of this State, unless it is stated to the contrary, it shall mean a person who: (1)

Has

a

physical

or

mental

impairment

which

substantially limits one or more major life activities
including, but not limited to caring for himself,
performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working;
(2) Meets any other definition prescribed by federal law
or regulation for use by agencies of state government

which serve handicapped persons.

S.C. Code Ann. § 2-7-35 (1976 Code, as amended).
We are unable to find any law in South Carolina addressing whether a person who suffers from PTSD is a

"handicapped person." Since section 2-7-35 permits us to review federal law, we look to the Americans

with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (1990), for guidance in interpreting our South Carolina law.

To provide you with some background, "[t]he ADA is meant to protect and prevent discrimination against individuals with disabilities." See Agee v. U.S.. 72 Fed.Cl. 284 (July 28, 2006) (quoting Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices. 95 F.3d 1102, 1105 (Fed .Cir. 1996)). The ADA prohibits discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute, public services, programs, and activities, which are part of Title II, and public accommodations and services operated by private entities, which are covered by title III. See Agee. supra: Holbert v. Greenville Technical College: 2012 WL 2923248 (D.S.C. 2012).

Title III of the ADA appears to be most applicable to the scenario you presented regarding the person with PTSD and her service dog in a restaurant. Title III prohibits discrimination by public accommodations operated by private entities and it provides:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation

The Honorable Larry A. Martin
Page 6
February 9,2015

by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a) (1990).

The definition of "public accommodation" in Title HI parallels the definition in our South Carolina "Public Accommodations Act." 42 U.S.C. § 12181(7) (1990) of Title III provides the following: The following private entities are considered public accommodations for

purposes of this subchapter, if the operations of such entities affect commerce-

(A) an inn, hotel, motel, or other place of lodging, except
for an

establishment located within a building that

contains not more than five rooms for rent or hire and

that is actually occupied by the proprietor of such
establishment as the residence of such proprietor;
(Bl a restaurant bar, or other establishment serving food
or drink. . . .

(emphasis added).

However, we are attempting to determine who is a handicapped person. The ADA defines a handicap or a disability as follows:

The term "disability" means, with respect to an individual™

(A) a physical or mental impairment that substantially
limits one or more major life activities of such
individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as
described in paragraph (3)).

42 U.S.C. § 12102(1) (1990).3

3 The definition of "disability" set forth in the ADA applies to all titles of the ADA. Widomski v. State University of New York (SUNYl at Orange. 748 F.3d 471 (N.Y. 2014). The Widomski Court pointed out that the ADA Amendments Act of 2008, Pub.L. 110-325, 122 Stat. 3353 (2008), modified the definition of a "perceived

disability," which is section 12 102(1 )(C) of the ADA, after the events in the case occurred. That is not applicable to this opinion, however.

The Honorable Lany A. Martin
Page?
February 9, 2015

For the purposes of your question, we will focus on ADA section 12102(1 )(A), which is referred to as the "actual disability" prong and which is similar to our South Carolina section 2-7-35(1). Section 12102(2) defines "major life activities" as: (A) In general For purposes of paragraph (1), major life activities include, but are not

limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions
For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatoiy, endocrine, and reproductive functions. 42 U.S.C. § 12102(2) (1990).

A legal treatise explains Congress's definition of "disability" in the ADA as follows: "[i]n developing the definition of "disability" under the ADA, Congress.

. .decided not to list all possible disabilities in the statute.

Congress

chose instead to let the agencies responsible for implementing the ADA list several impairments as examples in their regulations. This approach focuses on the disabling effect of the condition rather than the specific

diagnosis. In addition, it does not preclude impairing conditions or diseases that may be identified in the future." 33 Am. Jur. Proof of Facts 3d 1.

Congress required the Department of Justice to issue regulations regarding Title III. See 42 U.S.C. § 121 86(b). In DiLorenzo v. Costco Wholesale Corp.. 515 F.Supp.2d 1 187 (W.D. Wash. 2007), the District Court in Washington stated that the Department of Justice's views are "entitled to deference" because it is the "agency directed by Congress to issue implementing regulations, to render technical assistance, and to enforce Title III in court." The Department of Justice issued the following regulation regarding disability under Title III:

Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life

activities of such individual; a record of such an impairment; or being regarded as having such an impairment. (1) The phrase physical or mental impairment means-

The Honorable Larry A. Martin
PageS
February 9, 2015

(i)

Any

physiological

disorder

or

condition, cosmetic disfigurement, or
anatomical loss affecting one or more of
the

following

body

systems:

neurological; musculoskeletal; special
sense organs; respiratory, including
speech

organs;

cardiovascular;

reproductive; digestive;
hemic

and

genitourinary;

lymphatic;

skin;

and

endocrine;
(ii) Any mental or psychological
disorder such as mental retardation,
organic brain syndrome, emotional or
mental illness,
disabilities;
(iii)

The

and

phrase

specific

physical

or

learning

mental

impairment includes, but is not limited
to, such contagious and noncontagious
diseases and conditions as orthopedic,
visual, speech, and hearing impairments,
cerebral
palsy,
epilepsy,
muscular
dystrophy, multiple sclerosis,
heart
disease,
diabetes,

cancer,
mental

retardation, emotional illness, specific
learning
(whether

disabilities,
HIV
symptomatic

asymptomatic),

tuberculosis,

disease
or

drug

addiction, and alcoholism. . .

(2) The phrase major life activities means functions such
as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning,
and working.
28 C.F.R 36.104.

We now look to see whether or not PTSD is a disability under the ADA. "Under the ADA, an individual's disability must be determined on a case-by-case basis." Evola v. City of Franklin. Tenn.. 1 8 F.SuppJd 935 (M.D. Tenn. 2014) (quoting Sebest v. Campbell City School Dist. Bd. of Educ.. 94 Fed.Appx. 320, 326-27 (6th Cir.2004)).

According to the case law, PTSD is an impairment. "There is

no doubt PTSD is a psychiatric impairment which may qualify for disability status under the ADA if the impairment substantially limits a person's major life activities or is regarded by the employer as doing

so." Sherback v. Wright Automotive Group. 987 F.Supp. 433 (W.D. Penn. 1997) (quoting Hatfield v. Quantum Chemical Corn.. 920 F.Supp. 108 (S.D.Tex. 1996); Coaker v. Home Nursing Services. Inc..

The Honorable Larry A. Martin
Page 9

February 9, 2015

1996 WL 316739 (S.D.Ala. 1996)).

"[W]e must assume that Rohan's [the Plaintiffs] depression and

PTSD are mental impairments within the meaning of the ADA." Cf Baird ex rel. Baird v. Rose, 192 F.3d 462, 467 n. 3 (4th Cir.1999) (recognizing depression as an impairment); Hamilton v. Southwestern Bell

Tel. Co., 136 F.3d 1047, 1050 (5th Cir.1998) (recognizing PTSD as an impairment). Rohan v. Networks Presentations. LLC. 375 F.3d 266

Cir. 2004).

PTSD must be more than an impairment to qualify as a disability under the ADA, though. See Pinchot v. Mahoning County Sheriffs Dep't. 843 N.E.2d 1238 (Ohio Ct. App. 2005) (quoting Hamilton v.

Southwestern Bell Tel. Co. (C.A.5 1998), 136 F.3d 1047)) ("It has been held that PTSD with impairment, standing alone, is not necessarily a disability contemplated by the ADA."). The PTSD must substantially limit one or more major life activities. Based on the differing facts of each case, some courts have held

that PTSD is a disability under the ADA while others have held otherwise. See Rohan, supra (depression and PTSD did not limit a major life activity); Sherback. supra (genuine issue of material fact as to whether plaintiff is disabled as a result of PTSD, within the meaning of the ADA); Pinchot. supra

(Pinchot [plaintiff] is not disabled as defined under R.C. Chapter 41 12 [Ohio law] and the ADA).4 In conclusion, the ADA does not provide a definite answer as to whether a person with PTSD is a

"handicapped person" since each case is decided on an individual basis. As discussed earlier. Congress intended the focus to be on the disabling effect of PTSD and other conditions rather than the specific diagnosis. HI.

Service Animals

It is understood that restaurant owners, managers, and employees in South Carolina need guidance on how to handle the person with PTSD and her service animal in the scenario you provided. Accordingly,

this Office will examine the law on service animals. As stated above, section 43-33-20(c) provides: (c) Every handicapped person has the right to be accompanied by an assistance dog, especially trained for the purpose, in any of the places listed in item (b) of this section without being required to pay an extra charge for the assistance dog. Each handicapped person is liable for any damage done to the premises or facilities by the dog. S.C. Code Ann. § 43-33-20(c), supra.

"Assistance dog" is not defined by South Carolina law. However, there is evidence to suggest that an "assistance dog" equates with a "service animal" under South Carolina law. "It is well settled that the

4 The events in Pinchot and Sherback occurred prior to the ADA Amendments Act of 2008, Pub.L.No. 1 10-325, 1 12 Stat. 3353 (2008), which expanded the coverage of the ADA. See Evola. supra ([a]fter a [sic] court decisions construing the term "disability" too restrictive, in 2008 Congress passed the ADA Amendments Act ("ADAAA") that requires the term "disability" to be construed broadly.)) The courts may rule differently if these cases were heard today.

The Honorable Larry A. Martin
Page 10

February 9,2015

title or caption of an act may be considered to aid in the construction of a statute and to show the intent of the Legislature." Op. S.C. Attv. Gen.. July 25, 2014 (2014 WL 3886690) (quoting Lindsay v. Southern Farm Bureau Cas. Ins. Co.. 258 S.C. 272, 188 S.E.2d 374 (1972). University of S.C. v. Elliott. 248 S.C.

218, 149 S.E.2d 433 (1966)). The title to Act No. 147 of 1987 provides:

An Act to Amend Sections 43-33-20 and 43-33-70, Code of Laws of South Carolina,

1976, Relating to the Rights of Blind and Other

Physically Disabled Persons to Equal Access to Public Accommodations

and Housing, so as to Extend the Rights Allowed Blind and Deaf Persons with Guide Dogs to AH Handicapped Persons Requiring Assistance Dogs; and to Amend Section 43-33-30, Relating to the Duties of Drivers in Approaching Persons with White Canes or Guide Dogs, so as to

Extend the Provisions to Include Assistance Dogs Accompanying Any Handicapped Person.

Act Number 147 states that the rights allowed blind and deaf persons with guide dogs will be extended to all handicapped persons requiring assistance dogs. Section 47-3-920 defines a "guide dog" as "a dog that

is trained for the purpose of guiding blind persons or a dog trained for the purpose of assisting hearing impaired persons." S.C. Code Ann. § 47-3-920(1) (1976 Code, as amended). So, a "guide dog" can not assist all handicapped people since it only assists blind and deaf people. However, a "service animal" is "an animal that is trained for the purposes of assisting or accommodating the sensory, mental, or physical disability of a disabled person" (see S.C. Code Ann. § 47-3-920(4) (1976 Code, as amended)) and therefore can assist all handicapped people. Therefore, our determination is that an assistance dog and a service animal have the same duties; to assist all handicapped people.

This is supported by S.C. Code Ann. Regs. 61-25, section 1-201 .10 (1 12) (1976 Code, as amended), dealing with retail food establishments, which defines a "service animal" as "an animal such as a guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability per the Americans for Disabilities Act.''''

The South Carolina Code of Regulations permits a service animal to enter a retail food establishment under certain circumstances. The regulation provides: (A) Except as specified in (B) and (C) of this section, live animals may not be allowed on the premises of a retail food establishment.

(B) Live animals may be allowed in the following situations if the contamination of food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles can not result. . .

(3) In areas that are not used for food preparation and
that are usually open for customers, such as dining and
sales areas, service animals as defined by the Americans
with Disabilities Act that are controlled by the disabled
employee or person, if a health or safety hazard will not

The Honorable Larry A. Martin
Page 1 1

February 9, 2015

result from the presence or activities of the service
animal
S.C. Code of Regulations R. 61-25, section 6-501.1 15 (1976 Code, as amended).

Therefore, restaurant owners and managers have a duty under South Carolina law to admit service

animals to the premises if it will not endanger the health or safety of the general public. Since South Carolina law does not provide any more guidance, we will now examine the ADA for assistance. The Department of Justice issued a regulation in which it defined "service animal" as follows: Service animal means any dog that is 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens,

retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities bv preventing or interrupting impulsive or The crime deterrent effects of an animal's destructive behaviors.

presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

28 C.F.R. 36.104 (emphasis added).

For purposes of implementing the ADA, the Department of Justice has additionally provided the following regarding the definition of service animals:

Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder fPTSDl during an anxiety attack, or performing other duties. . .

The Honorable Larry A. Martin
Page 12

February 9, 2015

United States Department of Justice, ADA Requirements:

Service Animals (July 2011), available at

www.ada.gov/service animals 2010.htm (emphasis added).
28 C.F.R. Pt. 36, App. A elucidates on the tasks that service animals provide for disabled people who

have mental illnesses. It explains:
It is the Department's view that an animal that is trained to "ground" a person with a psychiatric disorder does work or performs a task that would qualify it as a service animal as compared to an untrained emotional support animal whose presence affects a person's disability. It is the fact that the animal is trained to respond to the individual's needs that distinguishes an animal as a service animal. The process must have two steps: Recognition and response.

For example, if a service animal

senses that a person is about to have a psychiatric episode and it is

trained to respond, for example, by nudging, barking, or removing the

individual to a safe location until the episode subsides, then the animal has indeed performed a task or done work on behalf of the individual with the disability, as opposed to merely sensing an event. . . The Department reiterates that psychiatric service animals that are

trained to do work or perform a task for individuals whose disability is covered

by the ADA

regulatory approach.

are protected

by the

Department's present

Psychiatric service animals can be trained to

perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects. Tasks performed

by psychiatric service

animals may

include

reminding

individuals to take medicine, providing safety checks or room searches for individuals with PTSD. interrupting self-mutilation, and removing disoriented individuals from dangerous situations. . . (emphasis added).

The ADA makes it clear that a service animal can be used to assist a person with PTSD. But the service animal can not be used for emotional support purposes. Instead, the service animal must recognize when the person with PTSD needs assistance and perform work or tasks directly related to the PTSD. Courts have been given the difficult responsibility of determining whether or not dogs are service animals. The most helpful cases are Stamm v. N.Y.C. Transit Authority. 201 1 WL 1315935 (E.D.N.Y. 2011); Miller v. Ladd. supra: and Delanev v. Cherokee Health Systems. 2012 WL 5986349 (E.D. Tenn. 2012).

In Stamm. the plaintiff, who claimed she suffered from PTSD and major depressive disorder, argued that her dogs were service dogs and not emotional support animals. She claimed that her service dogs were able to alert her when she began to disassociate and assist her "in staying in the present." She said that one of the dogs was trained to alert her by pawing her leg upon sensing that she was emotionally upset

The Honorable Larry A. Martin
Page 13
Februaiy 9,2015

and that the pawing refocused her and kept her from disassociating. As a result, she rarely had flashbacks while using a service dog. She said that she trained all three of her dogs to mitigate her posttraumatic stress disorder by ignoring her triggers in a way that virtually eliminated her flashbacks.

The court

reasoned that this evidence may be sufficient to establish that the tasks which these dogs had been trained to perform fit within the category of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effect. In Miller, the Court ruled that a restaurant patron who suffered from a variety of conditions, including

anxiety disorder and post traumatic stress disorder, had sufficient evidence to present a genuine issue as to whether her dog qualified as a service animal. The patron testified at her deposition that she researched service animals before obtaining a service dog and had selected her dog from the shelter after the shelter

staff had helped her identify the animal most suited to service work. She further testified that she began training the dog as soon as she got her, obtained professional help to train the dog, and began training the dog to alert her when the patron was starting or having a panic attack and that the dog alerted her to her anxiety attacks and sleep attacks.

In Delanev. the Court dismissed the plaintiffs complaint. The Court reasoned that the plaintiff did not allege any particular function that her alleged service dog provided and did not allege that the dog was trained to do anything for the plaintiff at all. The court noted that the plaintiff alleged the dog mitigated

her condition but both the condition and the dog's role in mitigating the condition was unclear.

The Department of Justice has stated in a regulation that service animals must be allowed in certain areas

of a public accommodation.

However, the regulation provided certain responsibilities for both the

disabled person and the public accommodation and it explained when a service animal can be required to leave the premises. The regulation provides: (c) Service animals—

(1) General. Generally, a public accommodation shall
modify policies, practices, or procedures to permit the

use of a service animal by an individual with a

disability.5
(2) Exceptions. A public accommodation may ask an
individual with a disability to remove a service animal
from the premises if:

(i) The animal is out of control and the
animal's handler does not take effective
action to control it; or
(ii) The animal is not housebroken.
5

The Department of Justice is pretty clear that the ADA trumps state law. "Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises." United States Department of Justice, ADA Requirements: Service Animals (July 201 1), supra.

The Honorable Larry A. Martin
Page 14

February 9, 2015

If an animal is properly excluded. If a public
accommodation properly excludes a service animal
under § 36.302(c)(2), it shall give the individual with a
(3)

disability the opportunity to obtain goods, services, and
accommodations without having the service animal on
the premises.
(4) Animal under handler's control. A service animal
shall be under the control of its handler. A service
animal shall have a harness, leash, or other tether, unless
either the handler is unable because of a disability to use

a harness, leash, or other tether, or the use of a harness,
leash, or other tether would interfere with the service
animal's safe, effective performance of work or tasks, in
which case the service animal must be otherwise under
the handler's control (e.g., voice control, signals, or other
effective means).

(5) Care or supervision. A public accommodation is not
responsible for the care or supervision of a service
animal.

(6) Inquiries. A public accommodation shall not ask
about the nature or extent of a person's disability, but
may make two inquiries to determine whether an animal
qualifies as a service animal. A public accommodation

may ask if the animal is required because of a disability
and what work or task the animal has been trained to
perform. A public accommodation shall not require
documentation, such as proof that the animal has been

certified, trained,6 or licensed as a service animal.
6 Congress does not require service animals to have any type of specific training under the ADA. Miller v. Ladd. 2010 WL 2867808 (N.D. Cal. 2010) explains:

Courts that have considered the training requirement for service animals recognize that federal regulations do not set forth any standards or requirements specifying the amount or type of training that an animal must receive to qualify as a service animal, nor the type or amount of work a service animal must provide for the disabled person. Id ("the issue of whether the horse is a service animal does not turn on the amount or type of training"). See also Bronk v. Ineichen, 54 F.3d 425, 430-31 (7th Cir.1995) (federal law does not require the service animal to be trained at an accredited training school); Green v. Housing Auth. ofClackamas Co., 994 F.Supp. 1253, 1256 (D. Oregon 1998) ("there is no

federal ... certification process or requirement for hearing dogs, guide dogs, companion animals, or any type of service animal."); Vaughn v. Rent-A-Center, Inc., 2009 WL 723166 at ?10 (S.D.Ohio 2009). The relevant question for the

The Honorable Larry A. Martin
Page 15
February 9, 2015

Generally, a public accommodation may not make these
inquiries about a service animal when it is readily

apparent that an animal is trained to do work or perform
tasks for an individual with a disability (e.g., the dog is
observed guiding an individual who is blind or has low
vision, pulling a person's wheelchair, or providing
assistance with stability or balance to an individual with

an observable mobility disability). 7
Access to areas of a public accommodation.
Individuals with disabilities shall be permitted to be
accompanied by their service animals in all areas of a
place of public accommodation where members of the
public, program participants, clients, customers, patrons,
(7)

or invitees, as relevant, are allowed to go.

(8) Surcharges. A public accommodation shall not ask or
require an individual with a disability to pay a surcharge,
even if people accompanied by pets are required to pay
fees, or to comply with other requirements generally not
applicable to people without pets. If a public
accommodation normally charges individuals for the
damage they cause, an individual with a disability may
be charged for damage caused by his or her service

animal

28 C.F.R. 36.302(c).

The problem for owners, managers, and employees of restaurants is recognizing whether a dog is a service animal or is merely used for emotional support. In the fact pattern you provided regarding the person with PTSD and her service animal, the restaurant was allowed to ask whether the dog was used because of a disability and what work or task the dog performed. The restaurant could not ask the person with PTSD the nature of her disability nor could it ask for proof, such as documentation or a demonstration by the animal.

Furthermore, the restaurant had the right to ask the person with PTSD to remove the service animal from the premises if the person with PTSD did not control the dog by leash, voice control, signals, or other means or if the service animal was not housebroken. However, the restaurant still had the duty to provide

court is whether the animal helps the disabled person perform tasks to ameliorate the ADA disability. Vaughn, 2009 WL 723166 at *10 (citing Access Now. Inc., 268 F.Supp.2d at 980; Bronk, 54 F.3d at 431).

7 The Department of Justice has also limited inquiries to the following: "[w]hen it is not obvious what service an animal provides. . .Staff cannot. . .ask that the dog demonstrate its ability to perform the work or task." United States Department of Justice, ADA Requirements: Service Animals (July 201 1), supra.

The Honorable Larry A. Martin
Page 16
February 9,2015

the person with PTSD the opportunity to obtain food and service once the dog had been removed from the restaurant.

CONCLUSION:

In conclusion, this Office believes that the law is as follows: 1.

Since section 43-33-20 and section 45-9-10 deal with the same subject matter, discrimination

against a certain type of person in public places, both of the statutes are governed by the same definition of "place of public accommodation." Our opinion is that the Legislature intended the definition of "place of public accommodation" under both statutes to include a restaurant which is licensed by the State, its agencies, or by local governmental entities. 2.

Neither South Carolina law nor the Americans with Disabilities Act ("ADA") provides a definite answer as to whether a person with PTSD is a "handicapped person." Under the ADA, each case is decided on an individual basis and Congress intended the focus to be on the disabling effect of PTSD and other conditions rather than the specific diagnosis.

3.

Restaurant owners and managers have a duty under South Carolina law to admit service animals

to the premises if it will not endanger the health or safety of the general public. However, the United States Department of Justice is clear under the ADA that "[ejstablishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises."

4.

5.

The ADA indicates that a service animal can be used to assist a person with PTSD.

In the fact pattern you provided regarding the person with PTSD and her service animal being asked to leave the restaurant, the restaurant was allowed to ask whether the dog was used because

of a disability and what work or task the dog performed. The restaurant was not allowed to ask the person with PTSD the nature of her disability nor could it ask for proof, such as documentation or a demonstration by the animal. Furthermore, the restaurant had the right to ask the person with PTSD to remove the service animal from the premises if the person with PTSD did not control the dog by leash, voice control, signals, or other means or if the service animal was not housebroken. However, the restaurant still had the duty to provide the person with PTSD the opportunity to obtain food and service once the dog had been removed from the restaurant.

Please be aware that this is only an opinion as to how this Office believes a court would interpret the law in this matter. Sincerely,

Elinor V. Lister

Assistant Attorney General

^

The Honorable Larry A. Martin
Page 17

February 9, 2015

REVIEWED AND APPROVED BY:

Dbert D. Cook
Solicitor General