2019-090 Accessibility Enforcement for Persons with DisabilitiesDate: April 26, 2019 Report No. 2019-090
INFORMAL STAFF REPORT
TO MAYOR AND CITY COUNCIL
SUBJECT:
Local regulation of state and federal accessibility laws as they relate to persons with disabilities
and service animals.
EXECUTIVE SUMMARY:
On April 10, Council Member Meltzer inquired if the City of Denton had established a complaint
process in the event a commercial establishment refuses service to an individual due to that
individuals service animal. This inquiry is tied to the broader question of whether the City has the
authority or obligation to investigate and enforce violations of state and federal disability statutes.
This report should provide clarity on this issue.
BACKGROUND:
Standards for persons with disabilities in public establishments is regulated at the Federal and state
level.
Federal Disability Law and Enforcement
In 1990, the Americans with Disabilities Act (ADA) was adopted by the United States government
in what was a watershed moment for disability rights. While the provisions of the ADA are
extensive, the Act mandates protections for disabled persons relating to five (5) key areas:
1. Employment;
2. Public Entities;
3. Public Accommodations;
4. Telecommunications; and
5. Other Miscellaneous Provisions.
The public accommodations component of the ADA requires that no person may be discriminated
against on the basis of disability with regards to the full and equal enjoyment of the goods, services,
facilities, or accommodations of any place of public accommodation by any person who owns,
leases, or operates a place of public accommodation. Essentially, any location where a member of
the public is generally allowed access, a person with a disability must be allowed that access and
given reasonable accommodation when requested. Examples of such facilities include hotels,
restaurants, places of recreation or amusement, and retail establishments (among others).
Service animals are covered under these provisions, and a person with a disability must generally
be allowed to bring a service animal into a facility or location where other members of the public
are generally allowed. However, there are some conditions applicable to bringing service animals
to public facilities under the ADA. For example, the ADA provides that service animals must be
harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or
the individual’s disability prevents the person from using these devices. In such instances, the
individual must maintain control of the animal through voice, signal, or other effective controls.
So, a service animal may be turned away, if it is a threat to the safety of others, or the animal is
Date: April 26, 2019 Report No. 2019-090
not in control and cannot be brought under control. Further, it is important to note that the ADA
defines service animals according to the specific services they provide, and as a result, “emotional
support” animals are not similarly protected by the law.
The ADA, as it is a Federal law, is enforced by the U.S. Department of Justice (DOJ) and may not
be enforced or investigated by the Denton Police Department or any other local or state law
enforcement agency. Any violations must be reported to, and investigated by, the DOJ.
Complaints related to the unlawful denial of access may be reported by online form, fax, or mail.
Information relating to the filing of a complaint and the complaint process can be found at:
https://www.ada.gov/filing_complaint.htm. Alternatively, the complainant may choose to explore
a remedy through a civil lawsuit filed against the public establishment.
The ADA is very complex with numerous exceptions made for special cases and both businesses
and persons with disabilities should become familiar with the requirements that apply to their
specific circumstances.
State Statutes
The State of Texas has adopted a few statutes that speak to accessibility and service animals as it
relates to persons with disabilities, specifically the Texas Human Resources Code, Sections
121.003 -121.006 and the Texas Health and Safety Code, Section 437.023.
Chapter 121 of the Texas Human Resources Code provides general protections to persons with
disabilities with respect to access to public places and specifically states that “No person with a
disability may be denied admittance to any public facility in the state because of the person's
disability. No person with a disability may be denied the use of a white cane, assistance animal,
wheelchair, crutches, or other device of assistance” (HRC 121.003c). The state statute overall
mirrors the Federal ADA statute with respect to access to public facilities, the admittance of service
animals into public facilities, and the prohibition of the denial of service or access to any place
where the general public is permitted access due to a person’s disability. Chapter 437 of the Texas
Health and Safety Code provides more specific requirements relating to service animals:
Specifying that service animals in training are protected;
Specifying what questions an establishment may ask to substantiate that an animal qualifies
as a service animal; and
Defines the services that a service animal must provide in order to be protected under the
statute (HSC 437.023).
Local Investigation and Enforcement
The City of Denton through its Police Department has the authority to investigate and enforce the
Texas Human Resources Code statutes listed above, but not the Health and Safety Code statutes.
Section 23-1 of the City of Denton Code of Ordinances provides that Officers of the City of Denton
Police Department have the authority given to them as peace officers under the laws of the State
of Texas and, as well as the power to enforce all City ordinances and regulations within Denton
City limits. Further, under applicable state law (i.e., Texas Criminal Procedure Code, Sections
Date: April 26, 2019 Report No. 2019-090
2.12 and 2.13), a City police officer has a “duty to act to keep the peace and to report to a magistrate
(i.e., a judge) all offenses under state law committed within his jurisdiction.”
So, a person wanting to report a violation of Section 121.003 of the Texas Human Resources Code
pertaining to discrimination or 121.006 (i.e., improper use of statute) may contact the City of
Denton Police Department and make a report. Upon receipt, the Police Department would handle
the report like any other report, including conducting an investigation into the allegations made by
the complainant.
The prosecution of the case would be at the discretion of the prosecutor. The City of Denton
Municipal Court and the Denton County Justice of Peace, Precinct 1, would have concurrent
jurisdiction over an offense arising under Sections 121.003 to 121.006 of the Texas Human
Resources Code, provided the offense occurred within the Denton City limits. An offense under
the Human Resources Code is a misdemeanor punishable by:
A fine not more than $300.00; and
30 hours of community service to be performed for a governmental entity or nonprofit
organization that primarily serves persons with visual impairments or other disabilities, or
for another entity or organization at the discretion of the court.
In respect to Section 437.023 of the Texas Safety and Health Code relating to service animals,
enforcement authority falls under the purview of the County (i.e., County District Attorney’s
Office) or Public Health District where the alleged noncompliance occurred.
Education as an Alternative to Enforcement
A significant number of violations most often occurs due to a simple lack of knowledge of what
the state requires and does not require with respect to accessibility and service animals, rather than
an “intentional or willful” disregard of the law. For these reasons, staff and the Denton Police
Department recommend a steady information campaign to educate businesses and food
establishments about the state and federal laws. Further, it is important to note that the prosecutor
to whom any case is referred must prove the guilt of the accused person “beyond a reasonable
doubt”, as is the standard burden of proof for prosecuting any criminal offense. Unless the officer
who is responding to the complaint directly observes the violation, it will likely be challenging for
a prosecutor to prove the case beyond a reasonable doubt.
One effort staff has initiated is to prepare and distribute informational materials to restaurants by
health inspectors. The information would be distributed during regular health inspections and the
health inspectors would be available to answer any service animal questions as it relates to health
codes.
Once educational material is prepared, the City can also partner with the Denton Chamber of
Commerce to distribute information to non-restaurant and non-food service businesses and
establishments.
Date: April 26, 2019 Report No. 2019-090
CONCLUSION:
Any persons who wishes to report a violation of the Texas Human Resources Code with respect to
accessibility may file a report with the Denton Police Department by calling the non-emergency
number: (940) 349-8181.
The complainant may also file a report with the DOJ to notify Federal authorities of possible
violations of Federal law. As a final option the complainant may pursue a civil action against the
establishment.
ATTACHMENT(S):
n/a
STAFF CONTACT:
Ryan Adams
Deputy Director of Public Affairs/IGR
940-349-8565
Ryan.Adams@cityofdenton.com