Summer gives us "Al Fresco" dining. And sometimes "Al" has a dog.
It is more and more common to see diners at restaurant patios with their canine companions, lying contentedly under the table, often with a bowl of water supplied by the restaurant.
This is apparently illegal, though some would argue otherwise.
The 219-page Food Code seems pretty clear. It prohibits live animals "on the premises of a food establishment" except in limited circumstances: fish in aquariums, crustaceans on ice, security patrol dogs accompanying officers, guard dogs outside, and:
"In areas that are not used for food preparation and that are usually open for customers, such as dining and sales areas, service animals that are controlled by the disabled employee or person, if a health or safety hazard will not result from the presence or activities of the service animal."
Lawyers for the dogs will look for the exceptions: (1) What exactly is a "food establishment?" (2) What are "premises?" and (3) Don't forget about service animals!
Let's start with #1. A "food establishment" is defined as one that "stores, prepares, packages, serves, vends food directly to the consumer, or otherwise provides food for human consumption such as a restaurant." So what about a coffee shop? I talked to the local environmental health supervisor and one of her inspectors, and they generally don't consider a coffee shop's outdoor tables to be included under this provision, because there's no service out there and presumably just coffee. (Though most coffee shops around my office provide pastries and even soups and sandwiches.) Still, you'll frequently see dogs on the patios of coffee shops; and in some of them, they'll even accompany their humans indoors, lining up to order at the counter.
Exception #2 is that outdoor patios, especially if part of the sidewalk and not fenced in, may not be strictly included in the definition of "premises," which are "The physical facility, its contents, and the contiguous land or property under the control of the permit holder." Others will respond that the outdoor patio is, indeed, land or property under the restaurant's control.
Then there's #3, which is the exception for service animals. This goes far beyond leader dogs for the blind, and can apply to a critters lending both physical and emotional support. The federal government's ADA guidance defines service animals "as dogs that are individually trained to do work or perform tasks for people with disabilities." It is not always obvious whether a dog is a service animal. Often they are provided as emotional or mental health support to a person who may otherwise "appear" physically typical. The government only allows two questions by restaurant staff:
"... (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person's disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task."
Washtenaw County environmental health supervisor Kristen Schweighoefer notes that "you can't tell what is a service animal. There's no requirement that they be physically marked or identified in any special way." One of her inspectors added, "We take their word for it."
When I asked whether I could have a service monkey, Schweighoefer told me "sorry, no" - but she knew of a case in northern Michigan where someone had a "miniature horse." And indeed, the government's ADA guidance now includes them along with dogs, as a dog may not be suitable due to allergies, religion or other reasons. Service horses, typically the size of a large dog, must be allowed where they may be reasonably accommodated, including whether the horse is housebroken and under the owner's control.
Legislation has been introduced in the state legislature over the past three years to clarify that dogs may be allowed on outdoor patios at a restaurant's option; but has been stalled in committee. In the meantime, Schweighoefer notes, dog-friendly restaurants have the legal option to apply for a local variance. But she couldn't think of any applications off hand.
The reality seems to be that everyone is looking the other way, like the gambling taking place at Rick's American Café in Casablanca. Washtenaw County doesn't go searching for violations, responding only to specific calls. But Schweighoefer admits "we're not seeing a lot of complaints," vaguely recalling perhaps one citation for a dog on restaurant premises. This is surprising, as she acknowledges "Dogs are polarizing more than anything even smoking (in restaurants)." Indeed, an MLive article in 2013 drew 100s of pointed comments and over 1000 poll responses, just about evenly split.
So when you see that child riding her miniature pony to dinner with her parents, don't assume it's illegal, don't complain - and just hope that it's housebroken.
--------
Nick Roumel is a principal with Nacht & Roumel PC, a firm in Ann Arbor.
Published: Tue, Sep 06, 2016
