III-44.2300 Service Animals.

A public accommodation must modify its policies to permit the use of a service animal by an individual with a disability, unless doing so would result in a fundamental alteration or jeopardize the safe operation of the public accommodation.

Service animals include any animal individually trained to do work or perform tasks for the benefit of an individual with a disability. Tasks typically performed by service animals include guiding people with impaired vision, alerting individuals with impaired hearing to the presence of intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or retrieving dropped items.

The care or supervision of a service animal is the responsibility of his or her owner, not the public accommodation. A public accommodation may not require an individual with a disability to post a deposit as a condition to permitting a service animal to accompany its owner in a place of public accommodation, even if such deposits are required for pets.

ILLUSTRATION: An individual who is blind wishes to be accompanied in a restaurant by her guide dog. The restaurant must permit the guide dog to accompany its owner in all areas of the restaurant open to other patrons and may not insist that the dog be separated from her.

A number of States have programs to certify services animals. A private entity, however, may not insist on proof of State certification before permitting the entry of a service animal to a place of public accommodation.

III-4.2300 Service Animals 1994 Supplement

This regulation acknowledges that in rare circumstances, if the nature of the goods and services provided or accommodations offered would be fundamentally altered or the safe operation of a public accommodation jeopardized, a service animal need not be allowed to enter.

ILLUSTRATION: A showing by appropriate medical personnel that the presence or use of a service animal would pose a significant health risk in certain designated areas of a hospital may serve as a basis for excluding service animals in those areas.

The guard at the front door or even a nurse from a nursing station is not qualified to make this determination. Such determinations should be made by an infection control officer. Exclusions must be made on real evidence, not generalization, conjecture, or stereotype.


SECTION 36.302(c)(1) requires that a public accommodation modify its policies, practices or procedures to permit the use of a service animal by an individual with a disability in any area open to the general public. The term "Service Animal" is defined in @36.104 to include guide dogs, or any other animal individually trained to provide assistance to an individual with a disability.

A number of commentaries pointed to the difficulty of making the distinction required by the proposed rule between areas open to the general public and those that are not. The ambiguity and uncertainty surrounding these provisions has led the Department to adopt a single standard for all public accommodations.

SECTION 36.302(c)(1) of the final rule now provides that "generally, a public accommodation shall modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability." This formulation reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals. It is intended that the broadest public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes including transportation. The section also acknowledges, however, that, in rare, circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized.

III-8.3000 INVESTIGATIONS AND COMPLIANCE REVIEWS

The Department of Justice will investigate alleged violations of Title III and undertake periodic reviews of compliance of covered entities. An investigation may be requested by any individual who believes that he or she has been discriminated against or that a specific class of persons has been discriminated against in violation of Title III. Where the Department has reason to believe that there may be a violation, it may initiate a compliance review.

III-8.4000 SUIT BY THE ATTORNEY GENERAL

The Department may bring a civil action in any appropriate United States District Court if it has reasonable cause to believe that-
Any person or group of persons is engaged in a pattern in violation of Title III; OR
Any person or group of persons has been discriminated against in violation of Title III and the discrimination raises an issue of general public importance.

What remedies are available in civil actions brought by the Department of Justice? The remedies available include those available in an action brought by an individual, such as an order granting temporary, preliminary, or permanent relief; requiring that facilities be made readily accessible to and usable by individuals with disabilities; requiring provision of an auxiliary aid or service; or modification of a policy, practice, or procedure.

In addition, in a suit brought by the Department, the Court may award other appropriate relief, including, if requested by the Department, monetary damages that do not include punitive damages. They do include, however, all forms of compensatory damages, including out-of-pocket expenses and damages for pain and suffering.

Also, to vindicate the public interest, the Court may assess a civil penalty against the covered entity in an amount-
     Not exceeding $55,000 for first violation
AND
     Not exceeding $110,000 for any subsequent violation.

How will violations be counted in determining whether a particular violation is "first" or "subsequent"? All violations found in the first suit against a covered entity are considered to be a first violation, so that maximum penalty that may be assessed in that suit is $55,000. A "subsequent" violation would not be found until the Department bought a second suit against the same covered entity. The maximum penalty in each suit after the first suit is $110,000.