The Service Dog at Outback Steakhouse

I see more confusion with laws covering service animals than almost anything else.  Most surprising is when attorneys are dispensing incorrect information (this article is replete with incorrect information).  Business owners who conduct their own research (even on reputable sites) or consult with their attorney still get conflicting advice.  So, what is the law on service animals for businesses?

First, businesses contemplating their rights and responsibilities regarding service animals are under the coverage of the Americans with Disabilities Act (ADA).  Businesses are “places of public accommodation” under the ADA and include restaurants, hotels, stores, medical offices, theaters, schools, recreation facilities…  If you are thinking about your friend with an emotional support rabbit in her apartment, or the woman who took her emotional support pig on the airplane with her (true story.  Pig defecated in the aisle and caused passengers to get sick), then this post does not apply to you.  The rabbit in the apartment and the pig on the plane are both under coverage of different federal laws.

Second, the only species that businesses are required by the ADA to accommodate are dogs and miniature horses.  Yes, miniature horses are about the size of large dogs, easily trained, and typically have more than double the working life (24 years) than a dog (10 years).

Third, a service animal should be almost invisible to patrons, completely attune to its handler.  A dog running around, decked out in overly-obvious service dog vests, running up to others, is likely not a service dog.  The yellow lab I saw at O’Hana at Disney World that was covered in service dog vest and patches, and had his front paws up on the table while looking at its person and begging for food—not a trained service dog.  The large Great Dane sitting in a booth at Outback Steakhouse, eating off a plate?  Service dog or not, the restaurant was not required to permit the dog to eat at the table and off of a plate.  In these instances, businesses can ask the handler to remove the animal.

Myths about service dogs:

  • They must be registered or certified. (No.)
  • They must have “papers.” (No.)
  • They must wear identifying vests, or other garb. (No.)
  • They must be formally trained.  (No.)
  • They can be made to wait outside while their handler eats or shops inside. (No.)
  • They cannot go into hospitals. (They can go to into hospitals, including staying in the hospital room, accompanying to medical testing.  They can be refused into “sterile’ areas such as operating rooms and burn units.)
  • They cannot go into food prep areas. (If the public can go there, a service dog can go there.  The kitchen, where customers can’t go?  Then no.  The kitchen, like at Buca di Beppo that has a table for dining that is situated basically in the kitchen?  Then a service dog can go to that table.)
  • They can’t be pit bulls. (They can be, and they are.)
  • They aren’t permitted somewhere if someone has allergies or fear of dogs.  (Not true.  The Department of Justice specifically states that allergies and fear of dogs are not valid reasons to exclude.)

With very, very few exceptions, a service animal can go wherever its handler or the public goes.  A service animal is not a pet and is, under the law, no different than other medical equipment such as a wheelchair or oxygen tank.  Federal law such as the ADA trumps state law and local codes, including health codes, zoning laws, city codes, breed ban legislation, and other state and local laws.

Contact me with any questions at julie@juliemillslaw.com.

Authorized user on a dead person’s credit card—“but Dad said I could…”

Dad dies.  His adult daughter is an authorized user on his credit card, and Dad gave her permission to use the card for whatever she wanted.  Dad happily paid the monthly bill.  Dad dies and Daughter keeps using the card, thinking that she has always used it and thought she still could.  Or, in many cases, she is the executor of his will and uses it to pay for bills or other expenses related to Dad’s final expenses.  Permissible?  Obviously (at least to me) not, but it happens frequently.

An authorized user’s use of a credit card after the primary account holder dies is illegal.  Under state law, it is considered fraud, and is no different than finding a stranger’s credit card and using it.  The authorized user could face jail and, or fines.

The terms of use for credit cards state, generally, that an authorized user’s privilege to use the card ends automatically upon the death of the primary cardholder.   If an authorized user continues to use the card after this privilege ends (cardholder dies), such use constitutes the authorized user’s agreement to pay the bill which might include the entire balance, not just what the authorized user bought.

For instances where an executor who is an authorized user with good intentions uses the deceased’s credit card to pay bills, the end result—liability on the authorized user—might not change.  Daughter/Executor cannot use Dad’s credit card after his death to pay any of his outstanding medical bills, credit card bills, utility bills, etc.  Executors must pay expenses and other estate bills from assets of the estate.  If there are no assets of the estate, then the estate is considered insolvent.  Racking up the balance on a credit card of a deceased person, whatever the reason, will result in liability for those charges, and perhaps the entire card balance, on the authorized user, including (in this example) the executor.

If you are an authorized user on a credit card, notify the credit card company immediately upon the death of the primary cardholder.  Using the primary cardholder’s credit card after death when you have no right to do so will likely have no good outcome.

Contact me at julie@juliemillslaw.com or message me through http://www.juliemillslaw.com with any questions.

Can our group hold fundraisers?

Yes.  Really, you can do anything you want.  The question is, should you?

I had a parent of a scout-like troop ask if the group should become a nonprofit in order to hold fundraisers.  The answer depends upon who the group will benefit, what does the group want to offer donors, among other considerations.

  1. A nonprofit is a state-formed entity.  To gain tax-exempt status (group does not pay certain taxes such as federal income tax; donors can take a deduction for donation on their taxes), the nonprofit needs to file for exemption with the IRS.  The typical status you see is a 501(c)(3) charity.
  2. A tax-exempt nonprofit can only be formed to benefit the public (generally).  For example, such an organization can be formed to fight childhood cancer, but cannot be formed to fund just Timmy’s cancer treatments and medical bills, even if you give away any “leftover” funds.
  3. Anyone can fundraise (note that your state’s Attorney General will want to know if you fundraise, likely regardless of whether or not you are a nonprofit, or tax exempt).  The issue is what is offered to a donor.  “Donations are tax deductible” can be offered only if you have tax-exempt status.  You could hold a spaghetti dinner to benefit Timmy above, but if you are not tax exempt, you cannot say to donors that their donations are tax deductible.
  4. Becoming a tax exempt nonprofit is not something to consider unless you are ready to essentially run a business.  You must first incorporate with your state, then apply for tax exempt status with the IRS.  In Ohio, a nonprofit must have a minimum of 3 board of directors, must file articles of incorporation, should have organization bylaws, hold regular meetings and keep corporate minutes.  A nonprofit is a corporate entity (C-corp, LLC, etc.), and by applying for tax-exempt status with the IRS, you are asking the federal government to exempt your corporation from paying certain taxes.

For smaller groups who still want to become tax exempt, the IRS has shortened their application by introducing the form 1023EZ a couple of years ago, see http://www.irs.gov.  For information on forming nonprofit organizations in Ohio, see http://www.sos.state.oh.us/sos/upload/publications/busserv/Nonprofit.pdf.  Also, read what the Ohio Attorney General has to say about nonprofits:  http://www.ohioattorneygeneral.gov/Business/Services-for-Charities.