Does Tennessee's service-dog law for restaurants and stores still hold up after the 2013 update, or does the federal ADA preempt it?

Subject

Opinion No. 13-59, Admission of Service Dogs in Places of Public Accommodation, July 26, 2013

Plain-English summary

The Americans with Disabilities Act prohibits discrimination on the basis of disability in places of public accommodation. 42 U.S.C. § 12182(a). The 2011 federal regulations spelled out specific service-animal rules at 28 C.F.R. § 36.302(c), including:

• Public accommodation must modify policies to permit use of a service animal.
• Limited exceptions: animal out of control with no handler intervention, or not housebroken.
• Service animals must be under control (harness, leash, or other tether) unless disability or work requires otherwise.
• The public accommodation may make only two inquiries: is the animal required because of a disability, and what work or task is the animal trained to perform. Documentation cannot be required.
• No surcharge or special fee.

Tennessee's older service-animal statute required disabled persons to "first have presented for inspection credentials issued by an accredited school for training dog guides" before admittance. That conflicted with federal law. In 2013 the General Assembly passed Tenn. Pub. Acts, ch. 69, amending Tenn. Code Ann. § 62-7-112 effective July 1, 2013, specifically to align with the federal regulations. The amended statute now mirrors the federal scheme: no documentation requirement, control-by-handler standard, and the two-prong "out of control / not housebroken" exclusion.

Sen. Jim Kyle asked the AG whether the updated statute actually achieved its alignment goal, or whether some remaining conflict means the ADA still preempts. The AG concluded the alignment is sufficient. No preemption.

One narrow non-conflict: § 62-7-112(a)(2)(A) still requires a credential from an "accredited school for training dog guides" for a trainer bringing a dog guide in training into a public accommodation. The AG explained why that's not preempted: the ADA defines "service animal" at 28 C.F.R. § 36.104 to mean only dogs that are "individually trained." A dog still in training isn't yet a service animal under the ADA, so the federal rules don't reach it. Tennessee can therefore regulate access for in-training dogs separately. The credential requirement applies to the trainer, not to a person with a disability using a finished service animal.

The AG walked through the Supremacy Clause and preemption framework using Leggett v. Duke Energy Corp., 308 S.W.3d 843 (Tenn. 2010), and concluded that under the presumption against preemption of state police powers, Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008), no conflict survives.

Currency note

This opinion was issued in 2013. 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.

The ADA service-animal regulations at 28 C.F.R. § 36.302(c) have remained substantively similar since 2011 with refinements (including DOJ guidance on miniature horses as a separate accommodation, distinct from service dogs). Tennessee's § 62-7-112 has been amended further. Anyone advising a current public accommodation should consult the current federal regulations and the current Tennessee statute, not the 2013 framework.

Background and statutory framework

Federal scheme.

• 42 U.S.C. § 12182(a): "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."
• 42 U.S.C. § 12182(b)(2)(A)(ii): Discrimination includes failure to make reasonable modifications to policies, practices, or procedures necessary to afford access, unless doing so would fundamentally alter the nature of the goods/services.
• 28 C.F.R. § 36.104 (2011) defines "service animal" as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability." Emotional support, comfort, and crime-deterrent presence don't qualify.
• 28 C.F.R. § 36.302(c) (2011) sets out the operating rules summarized above.

Tennessee scheme (2013 amendments). Tenn. Pub. Acts, ch. 69, amended § 62-7-112(a)(1) effective July 1, 2013. The amended statute prohibits public accommodations from refusing entry to a blind, physically disabled, deaf, or hard-of-hearing person accompanied by a dog guide, requires that "[a] dog guide shall be under the control of its handler," and expressly bars requiring documentation. § 62-7-112(a)(2)(A) addresses dog guides in training and their trainers separately, requiring trainers to carry credentials from an accredited school. § 62-7-112(a)(3) allows public accommodations to ask a person to remove a dog guide or dog-in-training if out of control or not housebroken.

Supremacy Clause and preemption. U.S. Const. art. VI, cl. 2. Leggett v. Duke Energy Corp., 308 S.W.3d 843, 852-54 (Tenn. 2010), summarizes the federal preemption framework: express preemption, direct conflict preemption (impossibility of dual compliance), purposes-and-objectives conflict preemption (Hines v. Davidowitz, 312 U.S. 52, 67 (1941)), and field preemption (Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988)). Giggers v. Memphis Housing Auth., 363 S.W.3d 500, 504-05 (Tenn. 2012). Courts apply a presumption against preemption of state police powers. Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008); Pendleton v. Mills, 73 S.W.3d 115, 127-28 (Tenn. Ct. App. 2002).

Why the trained vs. in-training distinction matters. ADA "service animal" requires a finished animal that is "individually trained" to perform tasks. A dog still in training isn't yet covered by the federal access rules, so the state can impose modest credential requirements on the trainer accompanying that untrained animal without conflicting with the federal scheme.

Common questions

I run a restaurant. A customer says her dog is a service dog. What can I ask?

Two questions: (1) Is the dog required because of a disability? (2) What work or task has it been trained to perform? You can't ask about the disability, demand documentation, or require a vest/badge. The dog must be under the handler's control. You may exclude the dog (only) if it's out of control and the handler doesn't act, or it isn't housebroken.

What about emotional support animals?

Not service animals under the ADA, 28 C.F.R. § 36.104 (2011). Tennessee's § 62-7-112 tracks the federal definition for the post-2013 amendments. Emotional support animals don't enjoy the same access rights at public accommodations. (Separate rules apply for housing under FHA and for air travel under DOT regulations.)

A trainer brings a dog-in-training. Can I ask for credentials?

Yes, under § 62-7-112(a)(2)(A). Tennessee specifically requires trainers to present credentials from an accredited dog guide school. Without those credentials, you can deny entry to the trainer-and-dog combo. This rule does not apply to a person with a disability using a trained service dog; they cannot be asked for documentation.

Can I charge a cleaning fee for a service dog?

No. 28 C.F.R. § 36.302(c)(8) prohibits surcharges, and Tennessee tracks the federal rule. If your standard policy is to charge for damage caused by any animal, you can charge the handler for damage the service dog actually causes.

What if the service dog is being disruptive?

You can ask the handler to take effective action to control the dog. If the handler can't or won't, you may exclude the dog. Same if the dog isn't housebroken. The handler must be allowed to obtain goods and services without the dog if you properly exclude it (28 C.F.R. § 36.302(c)(3)).

Does the state law preempt the ADA, or does the ADA preempt the state law?

Neither. The amended state law parallels the ADA and adds the in-training rule (which the federal rules don't address). Both can apply, and the more protective standard governs in any specific situation.

Citations

Tenn. Code Ann. § 62-7-112, including (a)(1), (a)(2)(A), (a)(3). Tenn. Pub. Acts, ch. 69 (2013). 42 U.S.C. § 12182(a), (b)(2)(A)(ii); § 12181. 28 C.F.R. § 36.104 (2011) (service animal definition); § 36.302(c) (2011) (operating rules). U.S. Const. art. VI, cl. 2. Cases: Leggett v. Duke Energy Corp., 308 S.W.3d 843 (Tenn. 2010); Giggers v. Memphis Housing Auth., 363 S.W.3d 500 (Tenn. 2012); Altria Group, Inc. v. Good, 555 U.S. 70 (2008); Pendleton v. Mills, 73 S.W.3d 115 (Tenn. Ct. App. 2002); Narragansett Elec. Co. v. Burke, 119 R.I. 559, 381 A.2d 1358 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); English v. Gen. Elec. Co., 496 U.S. 72 (1990); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000); Hines v. Davidowitz, 312 U.S. 52 (1941); Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-059.pdf

Original opinion text

July 26, 2013

Opinion No. 13-59

Admission of Service Dogs in Places of Public Accommodation

QUESTION

Does the federal Americans with Disabilities Act conflict with, and preempt, the provisions of Tenn. Code Ann. § 62-7-112 addressing the admission of service dogs to places of public accommodation?

OPINION

No.

ANALYSIS

The Americans with Disabilities Act ("ADA") provides that "[n]o 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." 42 U.S.C. § 12182(a). Discrimination includes "a failure [by an entity] to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations being offered." 42 U.S.C. § 12182(b)(2)(A)(ii).

Effective March, 15, 2011, the federal regulations related to the ADA were revised to address how a place of public accommodation must address the use of service animals by an individual with a disability, stating in relevant part as follows:

(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.

(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.

(3) 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 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, or licensed as a service animal. 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, 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) (2011). See generally Jay M. Zitter, Annotation, What Constitutes "Service Animal" and Accommodation Thereof, Under Americans with Disabilities Act (ADA), 75 A.L.R. Fed.2d 49 (2013).

The Tennessee General Assembly in 2013 amended the language of Tenn. Code Ann. § 62-7-112 for the purpose of making this statute consistent with the aforementioned federal regulations. Tenn. Pub. Acts, ch. 69 (2013) (the caption to Chapter 69 specifically states that this bill is intended "to amend Tennessee Code Annotated, Title 62, relative to consistency with the service animal control and inquiry provisions of the federal regulations implementing Title III of the Americans with Disabilities Act (ADA)"). Effective July 1, 2013, Tenn. Code Ann. § 62-7-112(a) now provides:

(1) No proprietor, employee or other person in charge of any place of public accommodation, amusement or recreation, including, but not limited to, any inn, hotel, restaurant, eating house, barber shop, billiard parlor, store, public conveyance on land or water, theater, motion picture house, public educational institution or elevator, shall refuse to permit a blind, physically disabled or deaf or hard of hearing person to enter the place or to make use of the accommodations provided when the accommodations are available, for the reason that the blind, physically disabled or deaf or hard of hearing person is being led or accompanied by a dog guide. A dog guide shall be under the control of its handler. A place of public accommodation shall not require documentation, such as proof that the animal has been certified, trained or licensed as a dog guide.

(2)(A) No proprietor, employee or other person in charge of any place of public accommodation, amusement or recreation, including, but not limited to, any inn, hotel, restaurant, eating house, barber shop, billiard parlor, store, public conveyance on land or water, theater, motion picture house, public educational institution or elevator, shall refuse to permit a dog guide trainer to enter such place or to make use of the accommodations provided in those places, when the accommodations are available, for the reason that the dog guide trainer is being led or accompanied by a dog guide in training; provided, that the dog guide in training, when led or accompanied by a dog guide trainer, is wearing a harness and is held on a leash by the dog guide trainer or, when led or accompanied by a dog guide trainer, is held on a leash by the dog guide trainer; and provided, further, that the dog guide trainer shall first have presented for inspection credentials issued by an accredited school for training dog guides.

(B)(i) For purposes of this section, "dog guide in training" includes dogs being raised for an accredited school for training dog guides; provided, however, that a dog being raised for that purpose is:

(a) Being held on a leash and is under the control of its raiser or trainer, who shall have available for inspection credentials from the accredited school for which the dog is being raised; and

(b) Wearing a collar, leash or other appropriate apparel or device that identifies the dog with the accredited school for which it is being raised.

(ii) "Dog guide in training" also includes the socialization process that occurs with the dog's trainer or raiser prior to the dog's advanced training; provided, that the socialization process is under the authorization of an accredited school.

(3) A place of public accommodation may ask a person to remove a dog guide or dog guide in training from the premises if:

(A) The dog guide or dog guide in training is out of control and its handler does not take effective action to control it; or

(B) The dog guide or dog guide in training is not housebroken.

Tenn. Pub. Acts, ch. 69 (2013).

The question posed is whether Tenn. Code Ann. § 62-7-112(a) has met its stated goal of being consistent with federal ADA requirements for the admission of service dogs by individuals with a disability into places of public accommodation. Any conflict between this State statute and the ADA could result in the partial or complete preemption of the State statute under the Supremacy Clause of the United Constitution. U.S. Const., art. VI, ¶ 2. The Tennessee Supreme Court recently explained the concept of preemption and the judicial standards utilized to determine whether a state law is preempted by federal law:

Article VI, paragraph 2 of the United States Constitution (the "Supremacy Clause") provides as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(Emphasis added.) Pursuant to the Supremacy Clause, federal law sometimes pre-empts otherwise permissible state laws, rendering the state laws without force. . . . "When Congress legislates in an area within the federal domain, it may, if it chooses, take for itself all regulatory authority over the subject, share the task with the states, or adopt as federal policy the state scheme of regulations." Narragansett Elec. Co. v. Burke, 119 R.I. 559, 381 A.2d 1358, 1361 (1977) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Courts have historically recognized both "express pre-emption" and "implied pre-emption." Express pre-emption occurs when Congress "define[s] explicitly the extent to which its enactments pre-empt state law." English v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) . . . Even when there is no explicit textual reference to pre-empting state law, pre-emption may be implicit. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (quoting English, 496 U.S. at 78, 110 S.Ct. 2270) . . . Implied pre-emption typically falls into one of three categories: direct conflict pre-emption; "purposes and objectives" conflict pre-emption; and field pre-emption. Conflict pre-emption is based on the rule that "state law is pre-empted to the extent that it actually conflicts with federal law." English, 496 U.S. at 79, 110 S.Ct. 2270. Direct conflict pre-emption occurs when there is an inescapable contradiction between state and federal law—for example, "where it is impossible for a private party to comply with both state and federal law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372–73, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Even when there is no direct contradiction, however, state law may be pre-empted by federal law when it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Field pre-emption occurs when federal regulation of a field is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Rice, 331 U.S. at 230, 67 S.Ct. 1146. If the context and substance of the congressional enactments "indicate an intent to occupy a given field to the exclusion of state law," field pre-emption precludes intrusion by the state. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988).

Leggett v. Duke Energy Corp., 308 S.W.3d 843, 852-54 (Tenn. 2010). See also Giggers v. Memphis Housing Auth., 363 S.W.3d 500, 504-05 (2012).

Courts, in conducting any preemption analysis, must begin "with the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Leggett, 308 S.W.3d at 854 (quoting Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008)). See Pendleton v. Mills, 73 S.W.3d 115, 127-28 (Tenn. Ct. App. 2002) (observing that that "the proper approach is to reconcile the federal and state law . . . rather than to seek out conflict where none clearly exists").

Applying these principles to Tenn. Code Ann. § 62-7-112(a) as amended by Chapter 69, no conflict exists between this statute and the ADA and its implementing regulations. Tenn. Code Ann. § 62-7-112(a) as amended became effective July 1, 2013 and eliminates the prior law's requirement that a disabled person operating a guide dog "shall first have presented for inspection credentials issued by an accredited school for training dog guides" before admittance to a place of public accommodation. Compare Tenn. Code Ann. § 62-7-112(a)(1)(A) (2001) with Tenn. Code Ann. § 62-7-112(a)(1). The statute now expressly prohibits such an inquiry: "A place of public accommodation shall not require documentation, such as proof that the animal has been certified, trained or licensed as a dog guide." Tenn. Code Ann. § 62-7-112(a)(1). The statute also deletes any requirement that the guide dog wear a harness and be held on a leash; instead, "[a] dog guide shall be under the control of its handler." Compare Tenn. Code Ann. § 62-7-112(a)(1)(2001) with Tenn. Code Ann. § 62-7-112(a)(1). These revisions to Tenn. Code Ann. § 67-7-112(a)(1) mirror the requirements for admission of guide dogs of disabled persons to places of public accommodation established by the federal ADA regulations. Compare Tenn. Code Ann. § 67-7-112(a)(1) with 28 C.F.R. § 36.302(c) (2011).

The provisions of Tenn. Code Ann. § 67-7-112(a)(2)(A) do state that a trainer bringing a dog guide in training to a place of public accommodation must, to be admitted, present "for inspection credentials issued by an accredited school for training dog guides." The ADA definition of service animals, set forth at 28 C.F.R. § 36.104 (2011), expressly states that the term service animals only includes dogs that are already "individually trained." A dog that is not yet trained thus is not covered by the ADA standards for how places of public accommodation must address the admission of service animals assisting disabled persons. Accordingly Tenn. Code Ann. § 67-7-112(a)(2)(A), which only affects the admission of "dogs in training," does not conflict with the ADA and its underlying regulations.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LINDSAY H. SISCO
Assistant Attorney General

Requested by:

The Honorable Jim Kyle
State Representative
318 War Memorial Building
Nashville, TN 37243-0028