Amendment to Animals (Article 161of the NYC Health Code) Regarding Service Tags for Animals

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, July 24, 2017
Download Copy of Proposed Rule (.pdf): 
 

Statement of Basis and Purpose

Service Dog Tags

As part of a comprehensive review and update of the Health Code, on March 16, 2010, the Board of Health adopted several amendments to Article 161 of the Health Code.  The amendments included  adding a definition of the term “service dog” in section 161.02 and a new subdivision (d) in section 161.04 that authorizes the Department to provide, at an additional cost, a second tag in addition to a regular license to the owner of a service dog.  Such tags were available in other parts of the State.  The amendments were intended to make them similarly available to people with disabilities residing in the City who might want to alert others that their dogs were service animals and thus should be allowed to accompany them.

 

            While the provisions of the Health Code allowing the Department to issue service dog tags were well-intentioned, their existence may actually be frustrating the purposes of the ADA[1] and New York State and City Human Rights Laws.[2] [3]  The ADA prohibits places of business or other public accommodation, landlords, and employers from discriminating against people with disabilities.  Such discrimination includes refusal to allow entrance of a service animal, which the ADA defines as any dog that is individually trained to do work or perform tasks for the benefit of an individual with disabilities, without regard to whether the animal has a specific tag identifying it as a service dog.[4]  Because the Department offers the optional service dog tags, some entities are confused and mistakenly only accommodate individuals whose service dogs are wearing them.  Similarly, the Department has been informed that some individuals with disabilities mistakenly believe they must have service dog tags in order to exercise their rights under the law.  Indeed, the ADA regulations specifically provide that a public accommodation or entity “shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.”[5]  Thus, rather than facilitating compliance with disability laws, the tags may impede individuals from exercising their rights and might inadvertently lead a business to refuse service to a person with a disability whose dog does not have a tag.

 

  In order to remove the inadvertent barriers created by the service dog tag provision of the Health Code, the Department therefore proposes that the Board of Health repeal the provision and remove the definition of “service dog” from Article 161 of the Health Code. The Mayor’s Office for People with Disabilities and the City Commission on Human Rights agree that the Department should stop issuing service dog tags because the tags are not necessary; both agencies are concerned that the tags could actually work to the disadvantage of people with disabilities and tend to confuse some business owners, leading them to unintentionally violate the ADA.

 

Simplifying language and other amendments

            The Mayor’s Office of Operations, working with the City’s rulemaking agencies, the Law Department, and the Office of Management and Budget, conducted a retrospective review of the City’s rules to identify rules that should be, among other possible changes, simplified to help support public understanding and compliance. The proposed amendments to sections 161.15 and 161.17 were identified through this initiative. 

 

            As part of this text simplification process, the Department proposes to alleviate confusion whether small animals may be sold, groomed, trained, or boarded in homes.  This confusion has arisen due to the use of the word “room” in Health Code subdivision 161.15(a) rather than the word “dwelling.” The definition of “home occupation” in section 12-10 of the New York City Zoning Resolution[6] specifically provides that commercial animal kennels are not permitted as “home occupations.”  Health Code section 161.02 defines a “boarding kennel business” as a facility other than an animal shelter where animals not owned by the proprietor are sheltered, harbored, maintained, groomed, exercised, fed, or watered in return for a fee.  The Department therefore proposes that the Board amend subdivision 161.15(a) to replace the word “room” with the word “dwelling” and adding the phrase “in return for a fee” to clarify where the sale, boarding, grooming, and/or training of small animals for a fee is allowed.

 

Similarly, the other changes in this proposed rule, except the following two amendments, would improve clarity.  The two substantive changes being proposed are:

     1.     Proposed changes to Health Code subdivision 161.15(d)

            Currently, subdivision (d) only prohibits the sale or holding for sale, boarding, grooming or training any dog or cat that has, or has been exposed to, a communicable disease.  The Department proposes the Board replace the phrase “a dog or cat” with “any animal” so that communicable disease among all types of animals can be better controlled and avoided.

     2.     Proposed changes to Health Code section 161.17

            The Department proposes that the Board add parasites communicable to other animals and humans to the conditions prohibited for dogs and cats in group socialization or play areas operated by permitted entities.  The goal of this addition is to better protect the health of animals and humans from communicable conditions.

 

Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 of the Charter empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of Department extends. Section 1043 grants the Department rulemaking authority. 

 




[1] Americans with Disabilities Act of 1990, Pub. L. No. 101-336 (1990).

[2] NYS Executive Law § 290, et seq.; see §§ 296(2) and 296(14); NYS Civil Rights Law §§ 47 and 47-b.

[3] NYC Administrative Code § 8-107(4).

[4] 28 C.F.R. § 36.104; see also at § 35.104.  As noted recently by the New York City and State Bar Associations Joint Task Force on Service Animals in New York State (accessible online at http://documents.nycbar.org/files/guide-to-the-use-of-service-animals-in-new-york-state.html#_edn1), the New York City Human Rights Law does not define “service animal.”

 

[5] 28 C.F.R. § 36.302(c)(6); see also at § 35.136(f). 

Public Hearing
Subject: 

Proposed resolution to amend Article 161 (Animals) of the New York City Health Code regarding service tags for animals.

Public Hearing Date: 
Monday, July 24, 2017 - 10:00am
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101