Has Your Neighborhood Grocery Store Gone to the Dogs?

Pearl District neighbors have a bone to pick with Safeway. It seems that the Safeway located at 1303 NW Lovejoy has earned the reputation of being the dog-friendly grocery store in the neighborhood—something that doesn't sit well with many of its customers:

I live in the Pearl district and have been appalled to find Safeway shoppers in the Pearl District store with their dogs in the meat department sniffing in the meat cases, walking the aisles and licking food at nose level. I asked management about it and they told me there is nothing they can do about it, that it has been this way since the store opened and they are assuming these dogs are “service” or “companion” dogs. But wait, what about the woman with the rabbit she brought into the store—is that a service animal too? I could not believe my eyes.

According to Vance Bybee, Administrator of Food Safety at Oregon Department of Agriculture, the agency’s top complaint is animals in food establishments. He explains that much of the confusion about animals in food establishments is due to the liberal scope of the Americans with Disabilities Act (ADA) service animal provision, which was designed to stop discrimination against the disabled.

Chapter 7 of Retail Food Code [OAR 603-025-0030], adopted by Oregon Department of Agriculture, provides that live animals are not allowed on the premises of a food establishment, except for service animals, in accordance with ADA provisions [as authorized by ORS 346.620 and 346.650]. The U.S. Department of Justice, which oversees ADA, provides the following definition of service animal:

The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

Businesses and Service Animals

Oregon food establishments are obligated, by law, to keep live animals off their premises. Service animals are given access, because they have been trained to assist a disabled individual in some capacity. The type of animal is left to the discretion of the disabled individual and the animal is trained to perform some of the functions and tasks that the individual with a disability cannot perform for him or herself. Most of us are familiar with seeing eye dogs, but service animals can perform other, less common, tasks such as alerting persons with hearing impairments to sounds or assisting persons with mobility impairments with balance. Suffice to say: Pets are not service animals. [Still have questions? See Commonly Asked Questions About Service Animals in Places of Business.]

Service animals are not required to be licensed or certified or otherwise identified, so that leaves businesses with only one option to determine if an animal is a service animal or pet: they must ask.

Businesses are legally able to ask one of two questions:
• What task is your animal trained to perform?
• Is this a service animal?

Don’t Ask, Don’t Tell

Many Portland neighbors have spotted what they identify as pets in local food establishments. This isn't specific to one particular grocery brand or location, but there are definitely hot spots, such as the Pearl District Safeway.

A persistent Pearl neighbor received the following response from Safeway when he questioned why live animals are allowed in their store:

Thank you for your recent correspondence regarding animals at your local Safeway store. We are truly sorry for the delayed response. We sent you the response previously but do to a system concern, it appears you did not receive the response. Here is the response that we attempted to send:

The Americans with Disabilities Act (ADA) defines service animals as any animal individually trained to do work or perform tasks for the benefit of an individual with a disability. If an animal meets this broad definition, it is considered a service animal. It does not have to be licensed or certified by a state or local government or a training program.

Federal, State and Local laws require that a modification be made to a "No Pet" policy to permit the use of a service animal by an individual with a disability, unless doing so would result in an unreasonable financial or administrative burden.

Service Animals are not considered pets and do not need to wear any special identification, including tags, harnesses or capes. A person with a disability uses a service animal as an auxiliary aid. Common Service Animals include dogs, cats, birds, ponies, etc. Employees must always assume that any animal with a customer is a Service Animal. If employees are not certain that an animal is a service animal, they may ask the person who has the animal if it is a service animal required because of a disability. You can not request or require any proof of a person's disability, or identification or certification of the service animal's status. Not all disabilities are visible. The nature of the person's disability is a private matter, and employees are not entitled to inquire for details.

If you would like to discuss this further, please reply to this email or call our toll free number at 1-877-723-3929. One of our associates will be happy to assist you.

We appreciate your business and look forward to seeing you soon. Thank you for shopping at Safeway.

Obviously, the service animal issue is sensitive and it puts food establishment employees in a potentially awkward situation—denying access to a service animal can result in a costly lawsuit. On the other hand, not asking and allowing live animals on site is prohibited by law and can result in a food safety violation.

Neighborhood Notes spoke with representatives from Safeway, Whole Foods Market and Little Green Grocer about their service animal policies. Both Whole Foods Market and Little Green Grocer make a point of asking customers about animals that are brought into their stores. Safeway, however, has adopted a "don't ask, don't tell" style policy that directs employees to assume that all animals are service animals. According to Dan Floyd, Director of Public Affairs and Government Relations at Safeway, “It’s a tough situation when you have to confront a customer.”

In all fairness, Safeway does allow employees to ask an individual about their animal—but, they're simply not doing it at the Pearl Safeway.

While many shoppers at Pearl Safeway are taking advantage of its passive stance on the pet issue, other shoppers are incredibly frustrated with the lax enforcement—a stance that isn't winning many fans at competitor grocery stores either. Pearl grocers who do confront customers about their animals often look like the bad guy. “When we ask that pets be removed from our store, “ explains an grocery employee (who wishes to remain anonymous), “customers complain that Safeway lets them bring their pets in the store.”  

What You Can Do

According to Vance Bybee, there are three simple, but effective things that you can do if you feel a food establishment is violating the law by allowing live animals—other than service animals—on site:

1. Complain to store management.
2. File a complaint with the Department of Agriculture.
3. Shop somewhere else.

If you're one of many neighbors bringing your pet into food establishments: don't. It's against the law.

Education Campaign in Development

The Oregon Departments of Agriculture and Public Health are developing an education campaign to assist food establishments with the pet proliferation problem. They are developing friendly, dog-shaped posters that can be affixed to grocery entrances. The posters will bear a firm warning that pets are not allowed in the store, provide a description of a service animal—and its difference from a pet—offer a warm greeting to individuals with service animals, and direct customers with questions to store employees. The agencies are developing an educational pamphlet that store employees will be able to pass along to its customers. This campaign is expected to launch in early 2010.

Proposed Amendments to Regulations

Meanwhile, the US Justice Department is contemplating proposed amendments to regulations. Last summer, the Justice Department put out a notice of proposed rulemaking, which raised the service animal issue for public comment. Like the Oregon Department of Agriculture and food establishments, the Justice Department received a large amount of complaints and decided that clarification was necessary.

The Department continues to receive a large number of complaints from individuals with service animals. It appears that many covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals. At the same time, some individuals with impairments--who would not be covered as individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation. Another trend is the use of wild, exotic, or unusual species, many of which are untrained, as service animals. The Department is proposing amendments to its regulation on service animals in the hope of mitigating the apparent confusion.

As a result, the Justice Department is considering the following issues:

Permissible Service Animals

In the original regulation implementing title III, "service animal'' was defined as "any guide dog, signal dog, or other animal,'' and the Department believed, at the time, that leaving the species selection up to the discretion of the person with a disability was the best course of action. Due to the proliferation of animals used by individuals, including wild animals, the Department believes that this area needs some parameters. Therefore, the Department is proposing to eliminate certain species from coverage even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals

Under the Department's present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or perform tasks excluded all individuals with mental disabilities from having service animals. Others have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA. The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for individuals whose disability is covered by the ADA are protected by the Department's present regulatory approach. The Department is proposing new regulatory text in Sec. 36.104 to formalize its position on emotional support/comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.''

Proposed training standards.

The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process. While some groups have urged the Department to modify this position, the Department does not believe such a modification would serve the array of individuals with disabilities who use service animals.

According to Alejandro Miyar, a Public Affairs official at US Department of Justice, the agency did not issue a final rule in the last Administration. At the beginning of the Obama Administration, the Department posted this notice on the ADA website:

On January 21, 2009, the Department of Justice notified the Office of Management and Budget (OMB) that the Department has withdrawn its draft final rules to amend the Department’s regulations implementing title II and title III from the OMB review process. This action was taken in response to a memorandum from the President’s Chief of Staff directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama. No final action will be taken by the Department with respect to these rules until the incoming officials have had the opportunity to review the rulemaking record. Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act.

Miyar says that the Justice Department is now in the process of reviewing the proposed ADA regulations and the public comments that the Department received and anticipates that it will issue final ADA rules this year.

Not a moment too soon.

Do you think your local grocery store has gone to the dogs?