By Erin Sherbert
By Howard Cole
By Erin Sherbert
By Erin Sherbert
By Leif Haven
By Erin Sherbert
By Chris Roberts
By Kate Conger
Not long ago, Charles Esler's Chihuahua, Tita, chased a woman clear across Dolores Park. The dog "just gets fixated," he says nonchalantly. "It's only with females that she'll chase." Evidently, this has happened plenty of times.
Not long after that, Tita barked and lunged at a guard at the Social Security Administration, sparking a confrontation in which security attempted to bodily eject Esler from the Federal Building. He blames the incident on the guard standing over his dog.
The day before Esler met with SF Weekly, Tita bit his primary care provider. "It's only because he stood over her. He harassed her."
Finally, during our interview, while we were reaching for one of Esler's legal documents in his cramped Polk Street SRO hotel room, Tita snarled, lunged, and bit this reporter, too. We must have done something.
"She's vicious," Esler says with a smile, cradling the dog, which licks his face with abandon. "If you were to approach a guide dog without acknowledging yourself, I'm sure a guide dog would bark, too."
Actually, no. It would likely not. But Esler's problematic dog is legally recognized as every bit as much of a service dog as any seeing-eye Labrador or golden retriever with years of rigorous training. Esler, who suffers from bipolar disorder, has a note deeming Tita a vital component of his treatment regimen, penned by his psychiatrist — whom Tita has not yet bit — and has registered the dog with the City of San Francisco as a service animal. He is entitled, via federal, state, and city law, to live with her in any pet-free building, and take his churlish Chihuahua virtually anywhere he wishes: on public transportation, into stores, businesses, private and government offices; and even restaurants.
Tita was one of 500 animals to receive service dog tags in San Francisco last year from Animal Care and Control. Without ever laying eyes on the creature in question, Animal Control staff is legally mandated to grant the service tags to anyone who brings in a note on the letterhead of a doctor or therapist and then signs an affidavit stating he or she is not committing fraud. The doctors or therapists are not contacted, and Animal Control staff is not permitted to make decisions based upon the content of the note.
Shelter office supervisor Judy Choy recalls one man who brought in a letter from his dentist, claiming he needed to have a dog with him at all times to mitigate stress conditions that could lead to lockjaw. He was granted the tags.
Animal Control director Rebecca Katz notes that her staff is "not using any kind of discretion on whether to give or not give" the tags. This is what the staff prefers — and state law demands. Incidentally, San Francisco's tally of 500 service tags issued in 2008 dwarfs other California totals: San Diego, with nearly three times the inhabitants, issued only 352; Los Angeles, almost four times bigger, a scant 96.
When the landmark Americans with Disabilities Act (ADA) was signed into law by President George H.W. Bush in 1990, its creators certainly did not consider that their legislation — which defines a service creature as "any animal individually trained to do work or perform tasks for the benefit of an individual with a disability" — would pave the way toward allowing someone to walk an antisocial dog that had not received formal training into a library. In the nearly 20 ensuing years, the applicable definition of what constitutes a "disability" has expanded — as has the very definition of a "service animal." In many cases, this has worked out to be a great thing. Agoraphobics and AIDS patients, for example, have been compelled to leave their homes and socialize because of the needs of their service creatures. Some homeless people have quit drinking and drugs to be able to properly care for their animals. But the ADA's amorphousness — and its daunting penalties for those who deny the rights of the disabled — has allowed the envelope to be pushed very far indeed.
In San Francisco, snakes, lizards, pit bulls, chickens, pigeons, and rodents have all been declared service animals, hauled onto public transportation, housed legally in city apartments, and, essentially, given the full run of the city.
No one would say rules regarding service animals weren't created with the best of intentions. But in densely populated, pet-crazed San Francisco, where the canines outnumber the children, many argue these well-meaning laws have gone to the dogs.
Cosmie Silfa is a short, cherubic man with a disarming smile — but that's not why he stands out on the bus. Silfa often takes his service animal, Skippy, on the 14 when he heads from his SOMA SRO room to the Mission to shop; naturally, he takes Skippy into the markets as well, or the occasional jaunt to Jack in the Box. And he frequently walks Skippy around the corner from his home to a dog park on Folsom. Skippy, by the way, is an iguana.
"To whom it may concern, I am the treating psychiatrist of Mr. Cosmie Silfa," reads the well-worn letter written on his behalf by Dr. Cynthia Resendez. "I have been treating Mr. Silfa for depression. His pet iguana, Skippy, helps him to maintain a stable mood as she provides companionship and motivation for him to stay well. She is an essential component of our treatment plan, and I recommend she continue to be able to live with Mr. Silfa in his apartment."
Resendez' note also entitles Silfa to take Skippy out, too — it's an all-access pass. And if you can ignore the surreal notion of a man toting a forearm-sized lizard, capable of using its tail as a whip, about town as part of his treatment regimen, it could be argued that Silfa is quite the success story. As late as 2005, he was a homeless drug addict living in Golden Gate Park. He entered city programs, cleaned up, received medication for his depression, and got a job at KFC through a city agency. He entered public housing, and now lives in a warm and cozy SRO room. In fact, it's exceedingly warm — Silfa keeps the thermostat between 80 and 90 degrees to better accommodate his small army of reptiles. Whatever room isn't occupied by reptiles is crammed with books, magazines, and promotional material on reptiles, knickknacks in the shape of reptiles, and reptile food. He's often seen walking Skippy on a leash into Bay Area Amphibian and Reptile Society meetings. One of his fellow members owns service tortoises — caring for them focuses their stroke-victim owner — and another has a service boa constrictor that calms her when she has panic attacks.
As the number of service animals tucked in purses, led onto buses, and walked into restaurants has proliferated, so has rancor from organizations representing the sight-impaired users of "traditional" service dogs. In recent years, a consortium of guide dog organizations has aggressively lobbied the federal government to clarify its aforementioned operating definition of a service creature to deny "emotional support animals" such as Skippy or Tita the same legal classification and level of deference as a meticulously trained guide dog. This has sparked a contentious and awkward internecine battle within the disabled community. Proponents of the status quo accuse guide dog users of a trait, interestingly, synonymous with canines — territoriality.
"I suppose maybe I am a little territorial," admits Ann Kysor, the president of Guide Dog Users of California. "This [public access] is something we fought to gain over the years — and a lot of us feel like our quality of life is being eroded away by being constantly interfered with by out-of-control animals out there. And it makes us look bad if some so-called service animal is in a store running amok, and the next time the owner says, 'No, no, I don't want any dogs in here.'"
San Francisco is a nexus of animal lovers, disabled people, and extreme sensitivity to the treatment of the disabled. A number of guide dog users told SF Weekly that they have never navigated a minefield of yowling service animals the way they regularly do in this city. Having their guide dogs barked at or lunged at by a fellow service animal has come to be an almost daily occurrence — and for a guide dog user, this isn't just inconvenient, but dangerous. When asked how they know the animal hassling their guide dog is a service animal, a common refrain among the sight-impaired is that the owner of the offending creature often shouts, "It's a service animal!" as if this excuses aggressive behavior. Gallingly, the follow-up to "It's a service animal!" is not infrequently, "Where can I get a harness like yours?"
Actually, you can buy dog harnesses at a plethora of sites on the Internet, along with custom-made placards declaring your pet to be a service animal. This feeds into guide dog users' other complaint — rules meant to accommodate the use of service dogs in public are so lax that any disingenuous person can elude them with the greatest of ease. Federal laws do not require service animals to wear vests or any other form of identification (tags such as those issued by Animal Control are not mandatory). Therefore, the city policy recommended by the Mayor's Office on Disability — and practiced by Muni — is for a business owner or bus driver to ask a patron, "Is that your pet?" If the answer is "No" or "It's a service animal," then the conversation is over.
"I could go down to the SPCA, pick up a German shepherd that was dropped off there because he was aggressive, slap a little coat on him, take him on Muni, and say, 'This is my service animal,'" says guide dog user Jonathan Lyens, who works in the Mayor's Office of Public Policy and Finance. "And you can't say anything to me." (Actually, Lyens is wrong. You don't need the "little coat.")
Such a scenario is not all that far-fetched. Security guards at chic stores, restaurateurs, and, especially, Muni drivers have learned not to push this issue. On any given day, numerous dogs, some adorned with ostentatious Red Cross tags or official-looking ID cards, can be spotted on public transit. Approached by SF Weekly, quite a few of these riders candidly admitted that they are in no way disabled and these animals are pets — but they enjoy taking them on the bus or train for free. "It got to be a hassle to have to pay the $1.50 and put a muzzle on him," one twentysomething woman on the 22 Fillmore said of her Chihuahua–rat terrier mix. She whipped out a laminated placard identifying the dog as a service animal that she'd printed up at home: "I went on Dogster.com. It was easy."
In June 2008, the Department of Justice issued a Notice of Proposed Rulemaking regarding potential changes to the Americans with Disabilities Act. The bulletin stated that many "have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA." This, the Department of Justice continued, was never the intention of the law — "Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not 'service animals.'"
And yet decades of legal rulings have soundly established the rights of the disabled to demand "reasonable accommodation" for animals that alleviate their hardships through the mere act of being animals. It could be argued that the creators of the ADA should have predicted the current situation would come to pass, as many of those cases were decided years before the law's creation in 1990. In 1979, for example, a mentally ill Georgia woman named Laura Majors sued the housing authority of DeKalb County for refusing to alter a no-pets policy to accommodate her toy poodle, Sparky, on whom she had "an emotional dependence." A Fifth Circuit Court judge ruled in 1982 that Majors had "a mental disorder requiring the companionship of the dog," and that the county housing authority had violated the federal Rehabilitation Act — the ADA's legal predecessor.
In 2004, the California Court of Appeal similarly found that an Auburn condominium association had "unlawfully discriminated" against a mentally ill couple in refusing to allow their dog, Pookie, on the premises. The ruling noted that "it was the innate qualities of a dog, in particular a dog's friendliness and ability to interact with humans, that made it therapeutic here."
(It warrants mentioning that no fewer than three federal agencies enforce rules regarding service animals: The Department of Housing and Urban Development, the aforementioned Department of Justice, and the Department of Transportation — meaning a disabled person with a service animal who leaves her apartment, takes a bus or cab to the airport, and gets on a plane has navigated through three different federal sets of rules and regulations.)
Following the "Pookie Case," San Francisco landlord attorneys reported a spike in the number of tenants demanding reasonable accommodation for a cornucopia of service animals — and statistics bear this out. Beth Rosen-Prinz, the deputy director of the state's Department of Fair Employment and Housing, affirmed the number of complaints regarding disability discrimination in housing has exploded over the past half a dozen years; it's now the number one complaint her office receives, outstripping even claims of racism. "I'd be reluctant to say there's increased [disability] discrimination," she said. "I think disability rights groups have been very diligent and successful in informing their constituency of their rights to demand reasonable modification."
Many of the city's top landlord attorneys — people who are all but burned in effigy by San Francisco's tenant activists — have a surprising strategy for their property-owning clients when confronted with service animal demands: acquiesce. In all but the most outlandish of cases, lawyer after lawyer told SF Weekly that it was neither legally nor financially worthwhile to fight tenants' demands. "It always starts out the same way. The landlord catches the tenant with a pet they're not supposed to have, words or writings are exchanged, and, before too long, the tenant ends up with a letter from a doctor," attorney Clifford Fried says. "At that point, it's game over." Cases involving dogs, cats, birds, or multiple combinations thereof — even a woman who produced a doctor's note stating her inability to conceive and express her maternal instinct necessitated her to breed hamsters — were all waved through.
Landlords can even be sued by people who are not their tenants. Lawyer Martin Snitow handled a case in which a woman in a wheelchair and her self-proclaimed service dog showed up at a local apartment to fill out an application. When the manager asked for a document proving the dog to be a service animal, the woman rolled out without even putting pen to paper — the dog was not registered, and she claimed to have trained it herself. She filed a discrimination complaint in San Francisco federal court; Snitow recalls the settlement was "in the low five digits."
While it would be hyperbole to claim San Francisco is inundated with service creatures, within certain communities the number of animals has grown to be significant. James Holland is the director of property management for the Tenderloin Housing Clinic, overseeing 16 SRO hotels with an average of 88 units apiece. He estimates fully one-quarter of his tenants have service animals, and the more folks get them, the more he says everyone wants one.
In fact, since service animals are not legally considered "pets," disabled would-be renters are legally entitled to claim they have no pets when filling out apartment applications, then lawfully move in with their service animals. "I always tell people that they have the right not to ask for [accommodation for service animals] until they're in the building," notes Sara Malan, a housing attorney at the AIDS Legal Referral Panel.
Even in situations such as the one described by Fried, in which a renter — perhaps disingenuously — slips pets into the building, San Francisco officials still aggressively push for allowing the animals to stay. Cases involving recalcitrant landlords are often referred to the city's Human Rights Commission. Ed Illumin, the commission's fair housing and public accommodation compliance officer, said anyone busted with pets should follow their landlord's orders and move them off the premises — at first. "Come to the landlord, say 'They're gone,' and once that's established, get a doctor's statement declaring you have a disability and part of the prescription to treat your disability is to have service animals," he says. "And the law is on your side."
Stubborn landlords with money to burn and a good attorney "stretch things out," he says. "But, ultimately, they all fail. ... Ultimately they have to comply with the law."
At the start of the year, a ripple went through the nation's disabled community, as the previously noted changes to the ADA were rumored to be imminent. In addition to narrowing the definition of a service animal, the new rules would also have eliminated certain species from consideration, including "wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents."
As quickly as the hue and cry went out among supporters of the mentally ill, the proposals died with a whimper in late January. Rahm Emanuel, President Obama's chief of staff, ordered the Department of Justice to hold off from implementing any changes until the incoming administration could amply review them. It's a safe bet that reviewing these proposals — or even appointing the personnel to do so — is not a top priority of the Obama administration.
But even if the ADA's potential new rules are adopted, Charles Esler and Cosmie Silfa will still likely be able to take their animals anywhere in San Francisco they wish. Critics have long assailed the ADA for its amorphousness — and its potential changes offer new amorphous language to replace the old. While the proposed regulations offer distinctions between untrained "comfort animals" such as Tita the Chihuahua and "psychiatric service animals," exploiting this difference seems to merely be a matter of semantics.
Though the ADA and guide dog community obsess over the notion of recognizing only "animals that do work or perform a task," the notion of what constitutes "work" or a "task" is open for debate. Animal Control director Katz, a former deputy city attorney, notes it could be something as mundane as a cat purring to alleviate its owner's mental condition — and the law appears to allow for this type of wiggle room. It's entirely conceivable that a mentally ill person now granted a service animal because he merely grows anxious in public could just as well claim that he has "trained" the animal to calm him when it senses the onset of his mental disability.
Additionally, changes to the ADA may never be felt in San Francisco because the federal law is intended to ensure a minimum level of protection for the disabled, not the maximum. California laws already surpass the ADA in providing a far broader definition of the term "disabled." Even if Skippy the iguana is in the future no longer granted ADA protection, state and local rules need not follow suit.
As for the suggestion made by many guide dog organizations that service animals must meet a behavior standard before being legally recognized, this proposal is dead on arrival in every conceivable way. First, the Department of Justice has expressed no interest in wading into this morass. Second, the creation of new bureaucracy to administer a yet-to-be-created standardized test was untenable even before the economic downturn. And, finally, no government agency desires to be legally on the hook for approving an animal that later gravely misbehaves in public. Carl Friedman, the former longtime director of San Francisco Animal Care and Control, notes that the city's service dog tag program was painstakingly crafted to avoid this situation; receiving tags doesn't denote the city has recognized an animal as a service dog but simply that its owner has signed an affidavit swearing it to be so.
Perhaps the two men in San Francisco most frustrated with the lax and counterintuitive rules governing service animals are Sergeant Bill Herndon and Officer John Denny, who work the police department's Vicious and Dangerous Animals unit. Herndon notes that there is nothing preventing a dog designated by the city as "vicious and dangerous" being declared a service animal. He recalls a number of cases involving large, menacing pit bulls tied to wheelchairs or walked onto the bus and has, on multiple occasions, had to order the euthanization of service dogs that attacked people.
"The federal law needs to be redone. It's so abused," Herndon says. He believes that most of the folks seen walking animals into stores or onto buses are flouting the law — but he'll never know, because the ADA specifically states "a public accommodation shall not require documentation, such as proof that the animal has been certified or licensed as a service animal." To do so would be "inappropriate and burdensome." While you have to sign the aforementioned affidavit to receive service dog tags, and California law forbids anyone from falsely claiming to be a service dog user, officials at Animal Control and the San Francisco Police Department couldn't recall anyone ever being accused, let alone found guilty, of such infractions.
Landlords, transit drivers, health inspectors, security guards, and even the police told SF Weekly that the possibility of being on the wrong end of a federal disability lawsuit keeps them turning a blind eye to all but the most disruptive creatures claimed by their owners to be service animals. "I get cops calling telling me someone's dog has bit somebody, or someone isn't cleaning up their dog's poop, or is walking unleashed, and [the excuse] is, 'It's a service dog,'" Denny says. "What are you gonna do? I don't want to end up in federal court." The officer expects to see more service animals in San Francisco in the coming years: "The barn door is open."
Heather Morris is as painfully thin and frail as her dog, Fiona, is large and powerful. In early April, the 33-year-old had lashed the 125-pound Italian mastiff to a park bench, unmuzzled — something Animal Control officers had specifically ordered her not to do. The dog leaped onto 62-year-old Sarah Hardies and clamped onto her right breast, sending the nurse practitioner to General Hospital with five puncture wounds. One week later, Morris frenetically wrung her hands during a hearing of Vicious and Dangerous Dog Court adjudicated by Herndon as the charges were leveled against Fiona.
Investigating the biting, Denny turned up a disturbing string of incidents. It seemed that everyone on Morris' Bernal Heights block had a story about Fiona biting them, lunging at them, or uncontrollably dragging the petite woman down the street. A pair of neighbors claimed the dog ripped into their hands, and three others said it lunged toward them. Morris' elderly landlady and her caretaker said the dog snapped at them every time it saw them. Numerous witnesses described seeing Morris' hands frequently riddled with dog bites — and Morris later told SF Weekly that Fiona routinely behaves aggressively toward her and bites her. These are not flattering details to be read into evidence during a hearing at which the mortality of your dog is at stake, and Morris knew it.
In a quiet voice, she implored Herndon to give her one more chance. A recovering addict — she says she's been in Alcoholics Anonymous since November — with a history of mental illness, she says she needs this dog and is in the process of having it declared a service animal. "Please," she implored in nearly a whisper, "Don't kill my dog."
After the last case of the day, the public cleared out of the City Hall hearing room and the police and Animal Control officers shot the breeze. Herndon, however, could only shake his head. That dog? A service dog? Regarding the law, he fumed, "This is just a lack of common sense. Here we have a dog that obviously presents a danger to the public, and [Morris] wants to get service dog tags and expose more members of the public in more and more dangerous areas. I don't know about you, but I don't want to be in a restaurant next to that dog."
Yet Herndon had no say on whether Morris could declare her dog a service animal; nor did anyone else. He did have a say on whether the dog would be destroyed, however. But, no, Herndon did not kill Morris' dog. Fiona was officially registered as a "vicious and dangerous dog" with the city, neutered, and released to her grateful owner several days later with strict instructions to keep the dog publicly muzzled at all times. Within a month, she had been both warned and cited for not muzzling the dog — and, according to Denny, during one confrontation with an Animal Control officer, Morris panicked and fled the scene, leaving Fiona's leash in the hands of the shocked officer.
At the same time, the police and Animal Control were called to Morris' apartment after complaints of rat hoarding; Animal Control memos note 47 rats being kept on the premises. Morris says she rehoused all but four of the rodents with friends by the end of April. Meanwhile, several people in her neighborhood complained to the police in May about their yards suddenly being infested with white-and-black rats.
"I've been on antipsychotics for a long time, but I stopped taking pills," Morris told SF Weekly. "I feel normal with my animals." Without her dog, rats, and turtles (of which she says there are just two), "I don't feel whole."
When asked whether she still planned to declare Fiona a service animal, Morris' response was instantaneous: "Oh, I totally am." At the church dining rooms she visits, "all the other kids have" service dogs. She wants one, too. When she gets around to visiting a doctor or therapist who will provide her with a letter, she will take it to San Francisco Animal Care and Control. She will fill out the forms and be presented with the tags. Director Katz confirmed there is nothing she can do to keep this from happening. She has no discretion in the matter.