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2014-008 Pit Bull Prohibition Exceptions; YMC Amending 6.18.020 (B) and Adding Section (C)
l ORDINANCE NO. 2014 -008 AN ORDINANCE amending the City of Yakima pit bull dog ordinance to provide certain specific exceptions to the prohibition on possessing pit bull dogs within the City; amending YMC 6.18.020 (B) and adding new Section (C). BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Section 6.18.020 of the Yakima Municipal Code is amended to read as follows: 6.18.020 Keeping of pit bull dogs prohibited. A. It is unlawful to keep, or harbor, own or in any way possess a pit bull dog within the city of Yakima. Violation of this section is a gross misdemeanor. The minimum fine for a violation of this section shall be two hundred fifty dollars for the first offense and five hundred dollars for a second or subsequent offense, which fine shall not be suspended or deferred. For purposes of this section, proof of a prior violation shall not require proof that the same pit bull dog is involved. Each day of violation shall be a separate offense. B. This chapter shall not apply to pit bull dogs which: (1) do not reside in the city of Yakima, (2) are brought into the city for the purposes of participating in a dog show or canine sporting event for which the owner is able to show proof of entry, (3) do not remain in the city of Yakima for a period exceeding ninety -six consecutive hours, or (4) otherwise meet the specific conditions of an exception to this prohibition in accord with Subsection C., below. C. The prohibition on possessing pit bull dogs within the City shall not apply to the extent applicable in the specific exceptions set forth below. The definitions in Subsections I shall apply for purposes of Subsections II through V. I. Definitions. (a) "Immediate family" for purposes of this chapter, includes the owner's spouse, child, parent or sibling. (b) "Handler" for purposes of this chapter, means an individual with a disability who is utilizing a service dog, as that term is defined in this chapter, to do work or perform tasks directly related to the individual's disability. If over the age of 18, the handler must also be the owner of the service dog. If under the age of 18, the handler's legal guardian must be the owner of the service dog. (c) "Muzzle" for purposes of this chapter, shall mean a restraining device made of metal, plastic, leather, cloth or a combination of these materials that, when fitted and fastened over a snout/mouth /head, prevents the dog from biting but allows room for the dog to breath and pant. The muzzle must be made in a manner that will not cause injury to the dog or interfere with its vision or respiration, but must prevent it from biting any person or animal. (d) "Pit bull service animal ", for purposes of this chapter, is defined as any dog that meets the definition of "pit bull dog" provided in YMC 6.18.010, and 1 which also qualifies as a service animal in accord with the Americans with Disabilities Act (ADA) Service Animal requirements. (e) "Secure temporary enclosure" for purposes of this chapter, is a secure enclosure used for purposes of transporting a pit bull and which includes a top and bottom permanently attached to the sides except for a "door" for removal of the pit bull. Such enclosure must be of such material and secured with a keyed or combination lock so that the pit bull cannot exit the enclosure on its own. (f) "Secure pen or enclosure" for the purposes of this chapter, shall mean a six -sided structure designed to prevent entry of a child or escape of a pit bull. Such pen or structure must have minimum dimensions of five -feet by ten - feet per animal housed within and must have secure chain -link sides, a secured top and a secure bottom. The enclosure must provide protection from the elements for the dog. All structures erected to house a pit bull must comply with all zoning and building ordinances and regulations of the city and shall be kept in a clean and sanitary condition. The gate of the pen or enclosure shall be secured with a keyed or combination lock. (g) "DNA testing" DNA (Deoxyribonucleic Acid) is the genetic blueprint that contain most of the genetic instructions for every canine's body make up (height, weight, size etc.). DNA testing means a genetic analysis to identify key single - nucleotide polymorphisms marker locations (genetic markers) that may detect the breed, type and variety of a dog and may show the ancestral breed composition of a particular dog. (h) "DNA test evidence" an owner may, at the owner's expense, submit a DNA sample of a dog to a veterinarian or other professional to test for the genetic history of a dog. Such test should look for the genetic markers for the following breeds: American Pit Bull Terrier, American Staffordshire Terrier, and Staffordshire Bull Terrier. In order to be considered a pit bull the DNA testing must demonstrate a genetic blueprint in excess of 50 percent of pit bull. The DNA test results shall constitute evidence which the court may consider in establishing that a dog is other than a breed banned by this section. DNA testing results shall override any subjective evidence including observational findings to the contrary. If an owner indicates to a judge that a DNA test will be performed, the court may issue appropriate orders as to the release of the dog with any additional conditions that the court believes will minimize any danger to the community during the pendency of the testing and obtaining the results. II. Exceptions. The pit bull prohibition stated in subsection (A.) shall not apply to pit bull service animals and pit bull dogs within the City under the following circumstances. The failure of a person in possession of a pit bull dog within the City under the following exceptions to comply and remain in compliance with all of the following terms and conditions of this exception may subject the pit bull to immediate impoundment and disposition. (a) An owner of any pit bull used as service animal within the City of Yakima shall apply for a pit bull service animal license from the City Licensing Department. Pit bull service animal licenses shall be subject to approval by the City Code Administration Manager and to all provisions of this exception. The owner of a qualifying pit bull who has applied for and received a pit bull service 2 animal license in accord with the terms of this Section and who maintains the pit bull service animal at all times in compliance with the pit bull service animal license requirements of subsection (III) of this Section may keep a pit bull service animal within the city. (b) The animal control division may temporarily transport and harbor any pit bull for purposes of enforcing the provisions of this chapter. (c) Any veterinarian while treating or grooming a pit bull, or holding such pit bull after treatment until claimed by the owner or released to an animal care officer. (d) The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license in accordance with subsection (III) of this section, and who maintains the pit bull at all times in compliance with the pit bull service animal license requirements of subsection (III) of this section, together with and all other applicable requirements of this chapter, may keep a pit bull service animal within the city. If a city animal control officer or other authorized city code enforcement or law enforcement officer makes contact with an owner /handler of a pit bull not licensed pursuant to this section and the owner /handler asserts that his or her dog is a service animal, the owner /handler shall be informed of this section and instructed to obtain a pit bull license pursuant to subsection (III), below, within 72 hours of the initial contact. Failure to obtain a pit bull license within the permitted period of time after receiving said advisement shall result in impoundment of the dog pursuant to subsection (IV) of this section. (e) A non - resident owner /handler may temporarily transport into and hold in the city a pit bull that is the owner /handler's service animal for a period not exceeding two weeks. During such temporary transport or holding, the owner /handler shall keep the pit bull muzzled and securely leashed with a leash sufficient to control the dog, no longer than four feet in length and held by the owner /handler who requires the use of the service animal. In the event the handler, because of a disability, is not able to use a muzzle or leash no longer than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of its service work or tasks, the service animal must be otherwise under the handler's absolute control at all times. III. License. The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license shall be allowed to keep said pit bull within the city. As a condition of issuance of a pit bull service animal license the owner shall, at the time of application, comply with or otherwise provide sufficient evidence to demonstrate to the City Code Administration Manager that the owner is in compliance with all of the following regulations: (a) The owner of the pit bull service animal shall provide proof of a current rabies vaccination. (b) The owner of the pit bull service animal shall renew the license annually to maintain its currency. The pit bull service animal license is not transferable or renewable except by the licensee or by a member of the immediate family of the licensee. A pit bull service animal license tag shall be issued to the owner at the time the license is issued. The license tag shall be 3 attached to the pit bull service animal by means of a collar or harness which must be worn by the animal at all times. The license tag shall remain clearly visible and shall not be attached to any pit bull other than the pit bull service animal for which the license was issued. (c) The owner must be at least 18 years of age. (d) The owner shall, at the owner's expense, have the pit bull service animal spayed or neutered and shall present to the City Code Administration Manager or his designee documentary proof from a licensed veterinarian that this sterilization has been performed. (e) The owner shall, at the owner's expense, have a microchip containing an identification number, as defined in YMC 6.20.010(13), implanted into the pit bull and shall provide proof of such registration to the animal control division and the Licensing Department. The Licensing Department shall maintain a file containing the registration numbers and names of the pit bull service animals and the names and addresses of the owners. The owner shall immediately notify the Licensing Department of any change of address. (f) Except as stated below and at all times when a pit bull service animal is at the owner's property, the owner shall keep the pit bull confined. When outdoors, all pit bull service animals shall be confined in a locked secure enclosure, as defined in this Section, or kept within the rear yard of the owner's property, said rear yard enclosed by a six foot fence maintained in a manner to prevent the pit bull service animal from leaving the back yard without the owner's accompaniment. When away from the owner's property the pit bull service animal shall be accompanied by its owner /handler or an adult at least 18 years of age at all times. (g) At all times when a pit bull service animal is away from the property of the owner, the owner shall keep the pit bull service animal muzzled and either in a secure temporary enclosure or securely leashed with a leash no longer than four feet in length held by someone 18 years of age or older who is capable of effectively controlling the dog. Extension -style leashes may not be used. Leashes may not be attached to inanimate objects. In the event the handler, because of a disability, is not able to use a leash equal to or less than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of work or tasks, the service animal must remain under the handler's complete control at all times when away from the owner's property, the manner of control to be fully described to the code enforcement and Animal Control officer at the time of licensing. This regulation and the means for controlling the pit bull may be modified for service animals by the Code Administration Manager or designee as determined necessary and reasonable. Any such modification of the means of control set forth herein shall be memorialized in the licensing documentation upon issuance of said license. (h) The owner shall not sell or otherwise transfer the pit bull service animal to any person residing within the city. (i) The owner shall immediately notify the animal control division in the event that the pit bull is loose, stolen, at- large, unconfined, has mauled, bitten, attacked, threatened, or in any way menaced another animal or human, or has died. 4 (j) No person applying for a pit bull service animal license shall be granted a breeders permit for such pit bull service animal. (k) Failure to comply with any of these conditions shall result in a revocation of the license, impoundment and disposition pursuant to subsection (IV) of this section. IV. Impoundment. The animal control division is authorized to immediately impound any pit bull service animal found within the city limits which does not qualify for the exception stated within this Section, subject to all of the procedures and processes set forth in YMC 6.18.025 -.026 and YMC 6.20.300- .330. If the dog is found not to be a pit bull as a result of DNA testing, evidence obtained at the owner's option and sole expense, or if the dog is determined to be a service animal, the dog shall be released to the owner, subject to full compliance with every requirement of this Chapter. Notwithstanding a finding that the dog is not a pit bull or a finding that the dog is a service animal, a dog may be impounded and the owner /handler may be held responsible for violations of this section or any other applicable state or local law. V. Penalty. Any person found guilty of violating this Section relating to exceptions to pit bull prohibitions within the City, upon conviction, shall be subject to all of the penalty provisions of this Section. Section 2. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 15 day of April, 2014. 414 EST: * " Micah Cawley Mayor �n D ' City Clerk o . 4 , Publication Date: April 18, 2014 N � *i Effective Date: May 18, 2014 5 : 1("IN BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 11 For Meeting of: 4/15/2014 ITEM TITLE: Ordinance amending the City of Yakima pit bull dog prohibition to provide certain specific exceptions to the prohibition and permit possession of pit bull dogs within the City under certain conditions; amending YMC 6.18.020 (B) and adding new Section (C). SUBMITTED BY: Jeff Cutter, City Attorney /575 -6030 SUMMARY EXPLANATION: The City has had an ordinance prohibiting pit bull dogs within the City limits since 1987. Recently circumstances have arisen, locally and nationally, that appear to justify specific exceptions to the City's prohibition on possession of pit bull dogs. One of the primary changes motivating this proposed revision concerns the federal Americans with Disabilities Act (ADA) recognizing and authorizing the personal use of trained service animals that perform specific tasks for people with disabilities. The ADA requires that service animals be harnessed, leashed or tethered, unless such devices would interfere with the tasks the service animal performs or the individual's disability prevents the use of these devices. In the latter cases the individual must maintain control of the animal through voice, signal or other effective control. The tasks performed by trained service animals include, but are not limited to, guiding visually impaired individuals, alerting hearing impaired individuals, pulling wheelchairs, alerting and protecting individuals experiencing seizures, reminding the mentally ill to take prescribed medication and calming persons with Post Traumatic Stress Disorder. Under the ADA, it is unlawful to require proof of a claimed disability or certification for the training a service animal has received. However, the ADA does permit a person or business to ask a service dog owner if the dog is required due to the dog owner's disability and what task the service animal has been trained to perform. To provide the framework by which, under limited and controlled conditions, pit bull service dogs trained to perform specific tasks and to behave properly in places of public accommodation may be permitted within the City despite the general prohibition, the City proposes certain revisions to the current ordinance prohibiting pit bull dogs in the City. The amendments proposed in the attached ordinance will continue the general prohibition on the possession of pit bull dogs within the City but will provide the terms and conditions necessary to allow exceptions to the general prohibition to address the recent changes in the law, particularly with regard to service animals. This amendment is consistent with actions taken by other municipalities across the country and provides the oversight and control necessary to permit the presence of pit bull service animals within the City in as safe a condition as is reasonably possible for both the dog owners and the general public. The conditions proposed in the ordinance amendment have been considered by the Federal courts and /or addressed by well reputed ADA advisory groups and determined to be reasonable, necessary requirements for service animal owners. Resolution: Ordinance: X Other (Specify): Contract: Contract Term: Start Date: End Date: Item Budgeted: No Amount: Funding Source /Fiscal Impact: Strategic Priority: Public Safety • Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: City Manager RECOMMENDATION: Approve the amendment. ATTACHMENTS: Description Upload Date Type Ordinance -Pit Bull Ord - Service Animal ❑ Amendment - FINAL -3 -2014 4/7/2014 Ordinance Ordinance -Pit Bull Ord - Service Animal Amendment- redline -3 -2014 4/7/2014 Ordinance ❑ ADA & Pit Bulls - Backup Material -Part 1 4/10/2014 Backup Material ❑ ADA & Pit Bulls- Backup Material -Part 2 4/7/2014 Backup Material ❑ ADA & Pit Bulls- Backup Material -Part 3 4/7/2014 Backup Material ORDINANCE NO. 2013 - AN ORDINANCE amending the City of Yakima pit bull dog ordinance to provide certain specific exceptions to the prohibition on possessing pit bull dogs within the City; amending YMC 6.18.020 (B) and adding new Section (C). BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Section 6.18.020 of the Yakima Municipal Code is amended to read as follows: 6.18.020 Keeping of pit bull dogs prohibited. A. It is unlawful to keep, or harbor, own or in any way possess a pit bull dog within the city of Yakima. Violation of this section is a gross misdemeanor. The minimum fine for a violation of this section shall be two hundred fifty dollars for the first offense and five hundred dollars for a second or subsequent offense, which fine shall not be suspended or deferred. For purposes of this section, proof of a prior violation shall not require proof that the same pit bull dog is involved. Each day of violation shall be a separate offense. B. This chapter shall not apply to pit bull dogs which: (1) do not reside in the city of Yakima, (2) are brought into the city for the purposes of participating in a dog show or canine sporting event for which the owner is able to show proof of entry, (3) do not remain in the city of Yakima for a period exceeding ninety -six consecutive hours, or (4) otherwise meet the specific conditions of an exception to this prohibition in accord with Subsection C., below. C. The prohibition on possessing pit bull dogs within the City shall not apply to the extent applicable in the specific exceptions set forth below. The definitions in Subsections I shall apply for purposes of Subsections II through V. Definitions. (a) "Immediate family" for purposes of this chapter, includes the owner's spouse, child, parent or sibling. (b) "Handler" for purposes of this chapter, means an individual with a disability who is utilizing a service dog, as that term is defined in this chapter, to do work or perform tasks directly related to the individual's disability. If over the age of 18, the handler must also be the owner of the service dog. If under the age of 18, the handler's legal guardian must be the owner of the service dog. 1 (c) "Muzzle" for purposes of this chapter, shall mean a restraining device made of metal, plastic, leather, cloth or a combination of these materials that, when fitted and fastened over a snout/mouth /head, prevents the dog from biting but allows room for the dog to breath and pant. The muzzle must be made in a manner that will not cause injury to the dog or interfere with its vision or respiration, but must prevent it from biting any person or animal. (d) "Pit bull service animal ", for purposes of this chapter, is defined as any dog that meets the definition of "pit bull dog" provided in YMC 6.18.010, and which also qualifies as a service animal in accord with the Americans with Disabilities Act (ADA) Service Animal requirements. (e) "Secure temporary enclosure" for purposes of this chapter, is a secure enclosure used for purposes of transporting a pit bull and which includes a top and bottom permanently attached to the sides except for a "door" for removal of the pit bull. Such enclosure must be of such material and secured with a keyed or combination lock so that the pit bull cannot exit the enclosure on its own. (f) "Secure pen or enclosure" for the purposes of this chapter, shall mean a six -sided structure designed to prevent entry of a child or escape of a pit bull. Such pen or structure must have minimum dimensions of five -feet by ten -feet per animal housed within and must have secure chain -link sides, a secured top and a secure bottom. The enclosure must provide protection from the elements for the dog. All structures erected to house a pit bull must comply with all zoning and building ordinances and regulations of the city and shall be kept in a clean and sanitary condition. The gate of the pen or enclosure shall be secured with a keyed or combination lock. (g) "DNA testing" DNA (Deoxyribonucleic Acid) is the genetic blueprint that contain most of the genetic instructions for every canine's body make up (height, weight, size etc.). DNA testing means a genetic analysis to identify key single - nucleotide polymorphisms marker locations (genetic markers) that may detect the breed, type and variety of a dog and may show the ancestral breed composition of a particular dog. (h) "DNA test evidence" an owner may, at the owner's expense, submit a DNA sample of a dog to a veterinarian or other professional to test for the genetic history of a dog. Such test should look for the genetic markers for the following breeds: American Pit Bull Terrier, American Staffordshire Terrier, and Staffordshire Bull Terrier. In order to be considered a pit bull the DNA testing must demonstrate a genetic blueprint in excess of 50 percent of pit bull. The DNA test results shall constitute evidence which the court may consider in establishing that a dog is other than a breed banned by this section. DNA testing results shall override any subjective evidence including observational findings to the contrary. If an owner indicates to a judge that a DNA test will be performed, the court may issue appropriate orders as to the release of the dog with any additional conditions that the court believes will minimize any danger to the community during the pendency of the testing and obtaining the results. II. Exceptions. The pit bull prohibition stated in subsection (A.) shall not apply to pit bull service animals and pit bull dogs within the City under the following circumstances. The failure of a person in possession of a pit bull dog within the City under the following exceptions to comply and remain in compliance with all of the following terms and conditions of this exception may subject the pit bull to immediate impoundment and disposition. (a) An owner of any pit bull used as service animal within the City of Yakima shall apply for a pit bull service animal license from the City Licensing Department. Pit bull service animal licenses shall be subject to approval by the City Code Administration Manager and to all provisions of this exception. The owner of a qualifying pit bull who has applied for and received a pit bull service animal license in accord with the terms of this Section and who maintains the pit bull service animal at all times in compliance with the pit bull service animal license requirements of subsection (III) of this Section may keep a pit bull service animal within the city. (b) The animal control division may temporarily transport and harbor any pit • bull for purposes of enforcing the provisions of this chapter. (c) Any veterinarian while treating or grooming a pit bull, or holding such pit bull after treatment until claimed by the owner or released to an animal care officer. (d) The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license in accordance with subsection (III) of this section, and who maintains the pit bull at all times in compliance with the pit bull service animal license requirements of subsection (III) of this section, together with and all other applicable requirements of this chapter, may keep a pit bull service animal within the city. If a city animal control officer or other authorized city code enforcement or law enforcement officer makes contact with an owner /handler of a pit bull not licensed pursuant to this section and the owner /handler asserts that his or her dog is a service animal, the owner /handler shall be informed of this section and instructed to obtain a pit bull license pursuant to subsection (III), below, within 72 hours of the initial contact. Failure to obtain a pit bull license within the permitted period of time after receiving said 3 advisement shall result in impoundment of the dog pursuant to subsection (IV) of this section. (e) A non- resident owner /handler may temporarily transport into and hold in the city a pit bull that is the owner /handler's service animal for a period not exceeding two weeks. During such temporary transport or holding, the owner /handler shall keep the pit bull muzzled and securely leashed with a leash sufficient to control the dog, no longer than four feet in length and held by the owner /handler who requires the use of the service animal. In the event the handler, because of a disability, is not able to use a muzzle or leash no longer than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of its service work or tasks, the service animal must be otherwise under the handler's absolute control at all times. III. License. The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license shall be allowed to keep said pit bull within the city. As a condition of issuance of a pit bull service animal license the owner shall, at the time of application, comply with or otherwise provide sufficient evidence to demonstrate to the City Code Administration Manager that the owner is in compliance with all of the following regulations: (a) The owner of the pit bull service animal shall provide proof o f a current rabies vaccination. (b) The owner of the pit bull service animal shall renew the license annually • to maintain its currency. The pit bull service animal license is not transferable or renewable except by the licensee or by a member of the immediate family of the licensee. A pit bull service animal license tag shall be issued to the owner at the time the license is issued. The license tag shall be attached to the pit bull service animal by means of a collar or harness which must be worn by the animal at all times. The license tag shall remain clearly visible and shall not be attached to any pit bull other than the pit bull service animal for which the license was issued. (c) The owner must be at least 18 years of age. (d) The owner shall, at the owner's expense, have the pit bull service animal spayed or neutered and shall present to the City Code Administration Manager or his designee documentary proof from a licensed veterinarian that this sterilization has been performed. 4 (e) The owner shall, at the owner's expense, have a microchip containing an identification number, as defined in YMC 6.20.010(13), implanted into the pit bull and shall provide proof of such registration to the animal control division and the Licensing Department. The Licensing Department shall maintain a file containing the registration numbers and names of the pit bull service animals and the names and addresses of the owners. The owner shall immediately notify the Licensing Department of any change of address. (f) Except as stated below and at all times when a pit bull service animal is at the owner's property, the owner shall keep the pit bull confined. When outdoors, all pit bull service animals shall be confined in a locked secure enclosure, as defined in this Section, or kept within the rear yard of the owner's property, said rear yard enclosed by a six foot fence maintained in a manner to prevent the pit bull service animal from leaving the back yard without the owner's accompaniment. When away from the owner's property the pit bull service animal shall be accompanied by its owner /handler or an adult at least 18 years of age at all times. (g) At all times when a pit bull service animal is away from the property of the owner, the owner shall keep the pit bull service animal muzzled and either in a secure temporary enclosure or securely leashed with a leash no longer than four feet in length held by someone 18 years of age or older who is capable of effectively controlling the dog. Extension -style leashes may not be used. Leashes may not be attached to inanimate objects. In the event the handler, because of a disability, is not able to use a leash equal to or less than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of work or tasks, the service animal must remain under the handler's complete control at all times when away from the owner's property, the manner of control to be fully described to the code enforcement and Animal Control officer at the time of licensing. This regulation and the means for controlling the pit bull may be modified for service animals by the Code Administration Manager or designee as determined necessary and reasonable. Any such modification of the means of control set forth herein shall be memorialized in the licensing documentation upon issuance of said license. (h) The owner shall not sell or otherwise transfer the pit bull service animal to any person residing within the city. 5 (i) The owner shall immediately notify the animal control division in the event that the pit bull is loose, stolen, at- large, unconfined, has mauled, bitten, attacked, threatened, or in any way menaced another animal or human, or has died. (j) No person applying for a pit bull service animal license shall be granted a breeders permit for such pit bull service animal. (k) Failure to comply with any of these conditions shall result in a revocation of the license, impoundment and disposition pursuant to subsection (IV) of this section. IV. Impoundment. The animal control division is authorized to immediately impound any pit bull service animal found within the city limits which does not qualify for the exception stated within this Section, subject to all of the procedures and processes set forth in YMC 6.18.025 -.026 and YMC 6.20.300 -.330. If the dog is found not to be a pit bull as a result of DNA testing, evidence obtained at the owner's option and sole expense, or if the dog is determined to be a service animal, the dog shall be released to the owner, subject to full compliance with every requirement of this Chapter. Notwithstanding a finding that the dog is not a pit bu!l or a finding that the dog is a service animal, a dog may be impounded and the owner /handler may be held responsible for violations of this section or any other applicable state or local law. V. Penalty. Any person found gu ilt y of violating this Section relating to cnL.cptioi to pit bull prohibitions within the City, upon conviction, shall be subject to all of the penalty provisions of this Section. Section 2. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 15 day of April, 2014. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 6 ORDINANCE NO. 2013 - AN ORDINANCE amending the City of Yakima pit bull dog ordinance to provide certain specific exceptions to the prohibition on possessing pit bull dogs within the City; amending YMC 6.18.020 (B) and adding new Section (C). BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Section 6.18.020 of the Yakima Municipal Code is amended to read as follows: 6.18.020 Keeping of pit bull dogs prohibited. A. It is unlawful to keep, or harbor, own or in any way possess a pit bull dog within the city of Yakima. Violation of this section is a gross misdemeanor. The minimum fine for a violation of this section shall be two hundred fifty dollars for the first offense and five hundred dollars for a second or subsequent offense, which fine shall not be suspended or deferred. For purposes of this section, proof of a prior violation shall not require proof that the same pit bull dog is involved. Each day of violation shall be a separate offense. B. This chapter shall not apply to pit bull dogs which: (1) do not reside in the city of Yakima, (2) are brought into the city for the purposes of participating in a dog show or canine sporting event for which the owner is able to show proof of entry, aid --(3) do not remain in the city of Yakima for a period exceeding ninety -six consecutive hours, or (4) otherwise meet the specific conditions of an exception to this prohibition in accord with Subsection C., below. C. The prohibition on possessing pit bull dogs within the City shall not apply to the extent applicable in the specific exceptions set forth below. The definitions in Subsections I shall apply for purposes of Subsections II through V. Definitions. (a) "Immediate family" for purposes of this chapter, includes the owner's spouse, child, parent or sibling. (b) "Handler" for purposes of this chapter, means an individual with a disability who is utilizing a service dog, as that term is defined in this chapter, to do work or perform tasks directly related to the individual's disability. If over the age of 18, the handler must also be the owner of the service dog. If under the age of 18, the handler's legal guardian must be the owner of the service dog. 1 (c) "Muzzle" for purposes of this chapter, shall mean a restraining device made of metal, plastic, leather, cloth or a combination of these materials that, when fitted and fastened over a snout/mouth /head, prevents the dog from biting but allows room for the dog to breath and pant. The muzzle must be made in a manner that will not cause injury to the dog or interfere with its vision or respiration, but must prevent it from biting any person or animal. (d) "Pit bull service animal ", for purposes of this chapter. is defined as any dog that meets the definition of "pit bull dog" provided in YMC 6.18.010, and which also qualifies as a service animal in accord with the Americans with Disabilities Act (ADA) Service Animal requirements. (e) "Secure temporary enclosure" for purposes of this chapter, is a secure enclosure used for purposes of transporting a pit bull and which includes a top and bottom permanently attached to the sides except for a "door" for removal of the pit bull. Such enclosure must be of such material and secured with a keyed or combination lock so that the pit bull cannot exit the enclosure on its own. (f) "Secure pen or enclosure" for the purposes of this chapter. shall mean a six -sided structure designed to prevent entry of a child or escape of a pit bull. Such pen or structure must have minimum dimensions of five -feet by ten -feet per animal housed within and must have secure chain -link sides, a secured top and a secure bottom. The enclosure must provide protection from the elements for the dog. All structures erected to house a pit bull must comply with all zoning and building ordinances and regulations of the city and shall be kept in a clean and sanitary condition. The gate of the pen or enclosure shall be secured with a keyed or combination lock. (q) "DNA testing" DNA (Deoxyribonucleic Acid) is the genetic blueprint that contain most of the genetic instructions for every canine's body make up (height, weight, size etc.). DNA testing means a genetic analysis to identify key single- nucleotide polymorphisms marker locations (genetic markers) that may detect the breed. type and variety of a dog and may show the ancestral breed composition of a particular dog. (h) "DNA test evidence" an owner may, at the owner's expense, submit a DNA sample of a dog to a veterinarian or other professional to test for the genetic history of a dog. Such test should look for the genetic markers for the following breeds: American Pit Bull Terrier, American Staffordshire Terrier. and Staffordshire Bull Terrier. In order to be considered a pit bull the DNA testing must demonstrate a genetic blueprint of excess of 50 percent of pit bull. The DNA test results shall constitute evidence which the court may consider in establishing that a dog is other than a breed 2 • banned by this section.. DNA testing results shall override any subjective evidence including observational findings to the contrary. If an owner indicates to a judge that a DNA test will be performed, the court may issue appropriate orders as to the release of the dog with any additional conditions that the court believes will minimize any danger to the community during the pendency of the testing and obtaining the results. 11. Exceptions. The pit bull prohibition stated in subsection (A.) shall not apply to pit bull service animals and pit bull dogs within the City under the following circumstances. The failure of a person in possession of a pit bull dog within the City under the following exceptions to comply and remain in compliance with all of the following terms and conditions of this exception may subject the pit bull to immediate impoundment and disposition. (a) An owner of any pit bull used as service animal within the City of Yakima shall apply for a pit bull service animal license from the City Licensing Department. Pit bull service animal licenses shall be subject to approval by the City Code Administration Manager and to all provisions of this exception. The owner of a qualifying pit bull who has applied for and received a pit bull service animal license in accord with the terms of this Section and who maintains the pit bull service animal at all times in compliance with the pit bull service animal license requirements of subsection (III) of this Section may keep a pit bull service animal within the city. (b) The animal control division may temporarily transport and harbor any pit bull for purposes of enforcing the provisions of this chapter. (c) Any veterinarian while treating or grooming a pit bull, or holding such pit bull after treatment until claimed by the owner or released to an animal care officer. (d) The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license in accordance with subsection (III) of this section, and who maintains the pit bull at all times in compliance with the pit bull service animal license requirements of subsection (III) of this section, together with and all other applicable requirements of this chapter, may keep a pit bull service animal within the city. If a city animal control officer or other authorized city code enforcement or law enforcement officer makes contact with an owner /handler of a pit bull not licensed pursuant to this section and the owner /handler asserts that his or her dog is a service animal, the owner /handler shall be informed of this section and instructed to obtain a pit bull license pursuant to subsection (III), below, within 72 hours of the initial contact. Failure to obtain a pit bull license within the permitted period of time after receiving said 3 advisement shall result in impoundment of the doq pursuant to subsection (IV) of this section. (e) A non - resident owner /handler may temporarily transport into and hold in the city a it bull that is the owner /handler's service animal for a period not exceeding two weeks. During such temporary transport or holding, the owner /handler shall keep the pit bull muzzled and securely leashed with a leash sufficient to control the doq, no longer than four feet in length and held by the owner /handler who requires the use of the service animal. In the event the handler, because of a disability, is not able to use a muzzle or leash no longer than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of its service work or tasks, the service animal must be otherwise under the handler's absolute control at all times. III. License. The owner /handler of a pit bull service animal who has applied for and received a pit bull service animal license shall be allowed to keep said pit bull within the city. As a condition of issuance of a pit bull service animal license the owner shall, at the time of application, comply with or otherwise provide sufficient evidence to demonstrate to the City Code Administration Manager that the owner is in compliance with all of the following regulations: (a) The owner of the pit hull service animal s h a ll provide p r oo f o f a current rabies vaccination. (b) The owner of the pit bull service animal shall renew the license annually to maintain its currency. The pit bull service animal license is not transferable or renewable except by the licensee or by a member of the immediate family of the licensee. A pit bull service animal license tag shall be issued to the owner at the time the license is issued. The license tag shall be attached to the pit bull service animal by means of a collar or harness which must be worn by the animal at all times. The license tag shall remain clearly visible and shall not be attached to any pit bull other than the pit bull service animal for which the license was issued. (c) The owner must be at least 18 years of age. (d) The owner shall, at the owner's expense, have the pit bull service animal spayed or neutered and shall present to the City Code Administration Manager or his designee documentary proof from a licensed veterinarian that this sterilization has been performed. 4 (e) The owner shall, at the owner's expense, have a microchip containing an identification number, as defined in YMC 6.20.010(13), implanted into the pit bull and shall provide proof of such registration to the animal control division and the Licensing Department. The Licensing Department shall maintain a file containing the registration numbers and.names of the pit bull service animals and the names and addresses of the owners. The owner shall immediately notify the Licensing Department of any change of address. (f) Except as stated below and at all times when a pit bull service animal is at the owner's property, the owner shall keep the pit bull confined. When outdoors, all pit bull service animals shall be confined in a locked secure enclosure, as defined in this Section, or kept within the rear yard of the owner's property, said rear yard enclosed by a six foot fence maintained in a manner to prevent the pit bull service animal from leaving the back yard without the owner's accompaniment. When away from the owner's property the pit bull service animal shall be accompanied by its owner /handler or an adult at least 18 years of age at all times. (q) At all times when a pit bull service animal is away from the property of the owner, the owner shall keep the pit bull service animal muzzled and either in a secure temporary enclosure or securely leashed with a leash no longer than four feet in length held by someone 18 years of age or older who is capable of effectively controlling the dog. Extension -style leashes may not be used. Leashes may not be attached to inanimate objects. In the event the handler, because of a disability, is not able to use a leash equal to or less than four feet in length, or in the event the use of a muzzle or a leash no longer than four feet in length would interfere with the service animal's safe, effective performance of work or tasks, the service animal must remain under the handler's complete control at all times when away from the owner's property, the manner of control to be fully described to the code enforcement and Animal Control officer at the time of licensing. This regulation and the means for controlling the pit bull may be modified for service animals by the Code Administration Manager or designee as determined necessary and reasonable. Any such modification of the means of control set forth herein shall be memorialized in the licensing documentation upon issuance of said license. (h) The owner shall not sell or otherwise transfer the pit bull service animal to any person residing within the city. 5 (i) The owner shall immediately notify the animal control division in the event that the pit bull is loose, stolen, at- large, unconfined, has mauled, bitten, attacked, threatened, or in any way menaced another animal or human, or has died. (i) No person applying for a pit bull service animal license shall be granted a breeders permit for such pit bull service animal. (k) Failure to comply with any of these conditions shall result in a revocation of the license. impoundment and disposition pursuant to subsection (IV) of this section. IV. Impoundment. The animal control division is authorized to immediately impound any pit bull service animal found within the city limits which does not qualify for the exception stated within this Section, subject to all of the procedures and processes set forth in YMC 6.18.025 -.026 and YMC 6.20.300 -.330. If the dog is found not to be a pit bull as a result of DNA testing. evidence obtained at the owner's option and sole expense, or if the dog is determined to be a service animal, the dog shall be released to the owner, subject to full compliance with every requirement of this Chapter. Notwithstanding a finding that the dog is not a pit bull or a finding that the dog is a service animal, a dog may be impounded and the owner /handler may be held responsible for violations of this section or any other applicable state or local law. V. Penalty. Any person found qi silty of violating this Section relating to exceptions to pit bull prohibitions within the City, upon conviction, shall be subject to all of the penalty provisions of this Section. • Section 2. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 15 day of April, 2014. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 6 CITY OF YAKIMA LEGAL DEPARTIVIEVT ZOSatilliniStreetYakima,Wxhingkin59331 (Ec9yrzaeorcoccio MEMORANDUM March, 31, 2014 TO: Jeff Cutter, City Attorney FROM: Bronson Faul, Assistant City Attorney SUBJECT: ADA and Pit bulls Attached you will find information about the Americans with Disabilities Act (ADA) as it relates to service animals and specifically to the use of pit bull dogs as ADA approved service animals. A service animal is a dog (or in limited instances miniature horses) individually trained to do work or perform tasks for the benefit of an individual with a disability. The ADA description of service animals includes no breed restrictions; pit - bull dogs may qualify as service animals. Companion Animals, therapy animals, and emotional support animals do not meet the ADA's definition of a service animal. Courts considering what elements must be met for a service animal to be entitled to the protections provided by the ADA have held that ADA service animals must demonstrate something more than merely being a presence that provides comfort, companionship, or interaction with an individual. The service dog must be trained to perform specific tasks or work such as, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. The City of Yakima generally prohibits pit bull dogs within the City. The proposed ordinance amendment would allow the presence of ADA compliant pit bull service animals in the City and will reconcile the general city -wide ban on the breed with the requirements of the ADA by including some safety restraints on the use of service pit bull dogs. The only restrictions specifically provided in the ADA for service animals generally are 1) the animal must be under the control of its handler, generally requiring the dog to be harnessed, leashed or tethered and 2) the animal must be housebroken. Therefore, the question is whether the City's additional restraints on pit bull service dogs will be acceptable under the ADA. Memorandum March 31, 2014 Page 2 The Delta Society is an organization often cited as an authority in the field of service animals. The organization published a document titled the "Minimum Standards for Service Dogs ", providing the Society's recommended characteristics and minimum skills for ADA compliant service animals, as well as addressing the health and safety of the public, the handler and the dog. Although the Delta Society's stated standards are not law, they are frequently referenced and relied upon as establishing base line requirements supported by significant expertise in animal services for the disabled, including on the panel a team of service dog trainers, animal behaviorists, people with disabilities and veterinarians. The Society's minimum requirements include, but are not limited to service animals 1) always being spayed or neutered, 2) possessing the proper temperament, 3) having regular physical exams, and 4) matching dogs with the tasks needed. Courts are unsettled on the propriety of placing additional requirements on pit bull dogs that are service animals than are required of other more typically accepted service animals. A federal court in Iowa held that additional restrictions placed on pit bull service animals would improperly impede the effective use of the animal for the service required. However, a federal court in Colorado has held that it would be the burden of the service animal owner to demonstrate how any additional breed- specific requirements, such as a muzzle, would render the dog unable to provide the required service. The City's proposed ordinance amendment does allow for modification of the restrictions stated if they would actually interfere with the service animal's performance of its service work or tasks. In some cases, it is difficult to immediately recognize a dog as a service animal. The ADA only permits two questions to be asked to determine if a particular dog is actually a service animal. An inquiring party may ask the dog owner 1) if the animal in question is a service animal required because of a disability, and 2) what work or tasks the animal has been trained to perform. Further inquiries about the type or nature of the disability, medical documentation, special identification /training certificates or evidence of the tasks actually performed are not permissible. ADA Training Requirements Page 1 of 2 • IAADP International Association of Assistance Dog Partners ADA Training Requirements QUESTION: Thy don't Companion Animals, Emotional Support Animals or Therapy Animals meet ADA 's training requirements? ANSWER: In spite of diligent efforts over the last decade by the U.S. Department of Justice to educate the estimated 54 million Americans with a disability about the important difference between "service animals" and tens of millions of pets in the disabled connmunity, misunderstanding still arise. The Definition of a Service Animal under the Americans With Disabilities Act and Guidance documents from the U.S. Department of Justice have established two training requirements for a Service Animal. The first is that a service animal must be individually trained to perform tasks or work for the benefit of • a disabled individual. The second is that a service animal must be trained to behave properly in places of public accommodation. Inappropriate behavior that disrupts the normal course of business or threatens the health or safety of others is automatic grounds for excluding the team from the premises. Most animals, including but not limited to those labeled Companion Animals, Emotional Support Animals and Therapy Animals or pets are NOT service animals according to ADA's Definition, as they have NOT been individually trained to perform disability mitigating tasks. Thus their handlers do not legally qualify for public access rights. Typically these animals also lack the months of training on obedience and manners needed to behave properly under challenging conditions in places of public accommodation. The owner of a non task trained dog, whatever the label given to that dog, is NOT eligible to join IAADP as a Partner Member to receive our benefits for working assistance dogs that perform trained tasks. IAADP appreciates the role that an emotional support animal or therapy companion animal may play in the life of a disabled individual. Such an animal can provide unconditional love, comfort, serve as a crime deterrent or perhaps in some way enhance someone's physical or mental health by their presence. While these benefits will not qualify a disabled handler for public access rights, other laws may apply insofar as housing or travel by air. Congress passed a law to permit companion animals in public housing for elderly and disabled citizens. More information can be found on the Delta Society website.about this at www.deltasociety.org. You might also contact the Fair Housing office, HUD - Housing and Urban Renewal office or perhaps the • Human Rights Commission in your state for information on housing access • http: /hwwu.iaadp.org /iaadp -ada- training- requirennents.html 03/24/2014 ADA Training Requirements rage 2 or rules for non - task - trained animals. The Department of Transportation guidance document for the Air Carrier Access Act will permit travel in the plane cabin with a therapy companion animal / emotional support animal if the handler carries documentation of a psychiatric disability on letterhead stationary, less than one year old, from a licenced mental health professional and tells the gate agent the animal is an emotional support animal needed due to the disability. You should always contact the airline before attempting to travel to ask what kind of documentation your airline requires for an emotional support animal and to asic if they require a health certificate. We hope this information has been helpful in clarifying the differences between a service animal and other kinds of animals. Please feel free to contact us if you have more questions. Returnto IAADP Membership Application I Return to IAADP Home Pane • II i http: / /www.iaadp.org /iaadp -ada- training- requirements.htnnl 03/24/2014 DELTA SOCIETY' The Human- Animal Health Connection • Minimum = 1�` „, fruit !: ,. - A Product of the Service Dog Education System Revision 2 November 2002 • Minimum Standards for Service Dogs uoppight 7 2002 Delta Society All rights reserved, including the right to reproduce this book in whole or in pad, in arty four.. 1st Edition, November 2002 Cover photograph by Jerry Davis Copyright© 2000 For information contact: Delta Society® 580 Naches Avenue SW, Suite 101 Renton, WA 98055-2297 (425) 226 -7357 (voice) Email: info @deltasociety.org Web site: http : / /www.deltasociety.org ISBN 1-889785-18-0 Mined in the United States ofAmeriea i . Final Rev 2 November 2002 [i ©Delta Society 2002. All Rights Reserved. Minimum Standards far Service Dogs : Acknowledgements Delta Society gratefully acknowledges the generous financial support of the following sponsors in developing the Minimum Standards for Service Dogs. • American Humane Association • Elinor Patterson Baker Trust Fund • Dogwood Foundation • The Charles Engelhard Foundation • The William H. and Mattie Wattis Harris Foundation • Medina Foundation • • Nestle Purina Petcare • The Pet Care Trust • PETsMART Charities • The Mrs. Cheever Porter Foundation • Scaife Family Foundation • The Hadley and Marion Stuart Foundation • The Swigert Foundation • Two Mauds, Inc. ©delta Society 2002. All Rights Reserved, 6i Final Rev 2 November 2002 Minimum Standards for Service Dogs Atcknwiedgeirn • Delta Society expresses its appreciation to the people listed below who spent many hours in the development, revision and editing of this document. The input and critical review provided by this diverse group of experts is essential to the quality of the Service Dog Education System (SDES). Jennifer Arnold Bruner & Kent Bruner, DVM Carol King Canine Assistants Oceanside, CA Alpharetta, GA Jean King Shari Burke Independence Dogs, Inc. Discovery Dogs Chadds Ford, PA San Rafael, CA Glenn Martyn Major Perry Chumley, DVM San Francisco SPCA AIM HI Service Dog Training Center San Francisco, CA Ft. Knox, KY Brenda Mosley Debi Davis CHIP Tucson, AZ Canton, OH Mark Engen, DVM Lynn & Scott Quade American College of Veterinary Surgeons Retrievers ASAP Kirkland, WA Janesville, WI Nancy Fierer Pamela J. Reid, PhD. Susquehanna Service Dogs ASPCA Hanisburg, PA New York, NY Sue Ford, RN Elizabeth Rudy, DVM Euless, TX Seattle, WA Jeanne Hampl, RN Helen Rudy Gig Harbor, WA Campbell, OH Suzanne Hetts, Ph.D. George Salpietro Animal Behavior Associates, Inc. Fidelco Guide Dog Foundation Littleton, CO Bloomfield, CT Sunny Weber Manners for Mutts Greenwood Village, CO Final Rev 2 November 2002 iv ©Delta Society 2002. All Rights Reserved. Minimum Standards for Service Dogs introduction Purpose The Minimum Standards for Service Dogs (Minimum Standards) documents the recommended characteristics and minimum set of skills required of all service dogs . The Minimum Standards also address the health and safety of the public, handler, and dog. • Background Development The Minimum Standards were developed by a team of service dog trainers, animal behaviorists, people with disabilities, and veterinarians. Service Dog Behaviors vs. Tasks As the Team began analyzing the work to be performed by service dogs (e.g., turn on a light switch, alert to the doorbell, guide the handler down the sidewalk), the Team determined that the specific service dog tasks (may be better thought of as "applications ") were actually chains (or sequential combinations) of component behaviors such as "sit," "moving with handler," and "focus on handler." In other words, a task is a set or combination of behaviors joined or chained together into a sequence. Service dog tasks, which are primarily activities of daily living and instrumental activities of daily kiving are so numerous and individualized that it is impractical to list all of them. The Team decided that the first step was to identify all the component behaviors that a dog needs to know before learning how to combine (or chain) them together into tasks. The Team identified an extensive list of component behaviors by breakcing down several sample tasks. In addition to defining the component behaviors, the team recognized the need to identify the various contexts in which the behaviors and tasks need to be The iccm'service animal," as defined in the Americans with Disabilities Act (ADA), is any animal individually trained to do work or perform tasks for the benefit of a person with a disability. This can include guiding a person with impaired vision, alerting aperson with impaired hearing to the presence ofpeople or sounds, pulling awheelchair, retrieving dropped items, etc. Delta Society uses the term service dog' to be consistent with theADA definition of "service animal ". 2 Activities of daily riving include bathing, dressing, eating, walking, and other personal functioning activities. lnstrnmemtal activities of daily living include preparing meals, shopping, using the phone, doing laundry, and other measures of living independently. ©2002 Delia Society. All rights reserved 1 Final Rev 2 November 2002 Minimum Standards for Service Dogs Se_ Dog Characteristics Candidate dogslor service training - must have passed enttyscreening-for aptitude and health with consideration for age physical soundness, soundness of temperament, breed /breed=type characteristics, size, expected longevity, stewardship issues, behavioral issues, and behavior history. The dogs will vary in age, breed, training experience, activity level, and temperament. The source of the dogs will also vary. They may come from animal shelters, breed rescue groups, breeding programs, or the handlers' household. They may have been raised specifically to be service dogs. A variety of training methods may have been used with the dogs. The dogs may have been highly affected by previous training methods. In some cases, little or nothing may be known about the background of the dogs. tHealiN Aptitude; and'Physicai ]Requirements To perform successfully as a service dog, a dog must meet minimum health, aptitude, and physical requirements When screening dogs for these requirements, those r g the e r consider the tasks the dogs may be expected ttose peri performing llle screenings 11L: AJ. er; t n�..tel �v may j to perform for their prospective handlers and the environments in which the clogs will be routinely expected to work. For example, a dog that assists a person with mobility tasks may need different physical characteristics from one that provides sound alerting assistance. The dog's characteristics roust be matched with a handler's requirements, whether the dog is selected for a specific handler or matched with a handler after it has started training. The following are requirements that the dog must meet by the time it has completed service dog training: o Basic physical exam performed by a veterinarian and other appropriate animal health care professionals - Each dog shall pass a basic physical exam that includes, at a minimum, the following: o Eyes - Eyes shall be clear, free from disease, and fully functional. A veterinary ophthalmologist who will look for breed - related defects and indicators of other congenital or hereditary eye problems should check the dog. ©2002 Della Society. All rights reserved. 3 Final Rev 2 November 2002 • Minimum Standards for Service Dogs ® Hearing - Ears shall be clean, free from disease, congenital problems and functional such that the dog can peifonn required tasks. • Skeletal/Muscles - The dog shall have the normal skeletal/muscle structure and function within nonnal limits for its breed or predominant breed. There shall be no structural faults or deficiencies that would prevent it from performing the expected tasks. All dogs that weigh 40 lbs. or more shall be evaluated for dysplasia of the hips and elbows (OFA or PennHip). Dogs shall also be radiographed for OCD of the hips and elbows. It is highly recommended that the dogs also be checked for OCD of the shoulders, hocks and knees. • Blood panel - The dog shall be screened for heart and for • nonnal blood results. • • All immunizations - The dog shall have had all immunizations appropriate for the area of origin and for eventual placement. • Stool - The dog's stool shall be examined and be free from ova, parasites and blood. • Slcin - The dog's skin shall be free of fleas, ticks, dermatitis /allergic reactions, mange, and other common ailments. • Respiration - The dog shall have normal lung sounds, respiratory rate and rhythm, • Heart - Based on a heart screening, the dog shall have normal heart sounds and there shall be no heart conditions detectable on exam that would prevent it from performing the expected tasks. o Abdominal organs - The dog shall have normal results from the palpation of abdominal organs. • Teeth/Gtuns The dog shall have clean and healthy teeth and gums free of infections or other dental problems. o Pedigree - Every attempt should be made to review the pedigree of the dog to ensure it is free from hereditary diseases. When this cannot be done, the dog should be examined for hereditary diseases in possible mixes, such as collie eye in collie dogs and hearing loss for breeds in which it is historically found. o Owner identification - Ownership must have been properly transferred to the person/organization supplying the dog. This includes checking the dog for the presence of all microchip systems and tattoos and other accepted methods of determining ownership o Temperament - The dog should be- screened-for temperaments ajipropriatefor the tasks it willbc performing and under the conditions Final Rev 2 November 2002 4 ©Delta Society 2002. All Rights Reserved. Minimum Standards for Service Dogs it will perform them. At a minimum, the dog should behave in a friendly manner to both people and other animals, should not display inappropriately fearful reactions to normal experiences, and should not behave in an excessively submissive or assertive manner. The dog should display confidence and a willingness to interact with people in a novel environment. o Spay / neuter;: -A11 service dogsmustbe spayed-or neutered prior.to placementwitlrthehandler. o Physically suited to tasks required - The dog must possess the physical size, strength, conditioning, physical structure, etc. to be able to perform the expected tasks. The dog shall not be overweight or underweight, as determined by the examining veterinarian. o Able to handle the conditions of worlcing/living in the area in which it will eventually be placed - For example, a dog placed in Montana would have to be able to pet its tasks in conditions such as temperature extremes, snow, ice, and rain. o Age - The dog's age should be identified as best as possible. This may be difficult with dogs corning from shelters or rescue organizations, hut a reasonable estimate should be possible. A thoughtful review of the dog's age in relation to expectations must be made. The clog must be at least 12 months old and physically mature enough to perform required tasks at the time of placement with the handler. The dog should have an expected worlcing life of at least 6 years. o Local animal control laws vary and should be considered when selecting and placing a service dog. ©2002 Delta Society. All rights reserved. 5 Final Rev 2 November 2002 Revised ADA Requirements: Service Animals Page 1 of 3 U.S. Department of Justice Civil Rights Division Disability Rights Section a ADA Requjrernehts Service Animals The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) on September 15, 2010, in the Federal Register. These requirements, or rules, clarify and refine issues that have arisen over the past 20 years and contain new, and updated, requirements, including the 2010 Standards for Accessible Design (2010 Standards). Overview This publication provides guidance on the term "service animal" and the service animal provisions In the Department's new regulations. Beginning on March 15, 2011, only dogs are recognized as service animals under titles !land 111 of the ADA. is A service animal Is a dog that is Individually trained to do work or perform tasks for a person with a disability. Generally, title II and title III entitles must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go. How "Service Animal" is Defined Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who Is having a seizure, reminding a person with mental Illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person's disability. Dogs whose sole function Is to provide comfort or emotional support do not qualify as service animals under the ADA. This definition does not affect or limit the broader definition of 'assistance animal" under the Fair Housing Act or the broader definition of "service animal" under the Air Carrier Access Act. Some State and local laws also define service animal more broadly than the ADA does. Information about such laws can be obtained from the State attorney general's office. Where Service Animals Are Allowed Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. For example, in a hospital it would be inappropriate to exclude a service animal from areas such as intp://www,ada.gov/service_anirnals_2010.htm 03/20/2014 - _ l Revised ADA Requirements: Service Animals Page 2 of 3 patient rooms, clinics, cafeterias, or examination rooms. However, it may be appropriate to exclude a service animal from operating rooms or burn units where the animal's presence may compromise a sterile environment. Service Animals Must Be Under Control Under the ADA, service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal's work or the Individual's disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. Inquiries, Exclusions, Charges, and Other Specific Rules Related to Service Animals is When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (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. II Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility. Is A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog Is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal's presence. go Establishments that sell or prepare food must allow service animals in public areas even If state or local health codes prohibit animals on the premises. a People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, It must waive the charge for service animals. • IV if a business such as a hotel normally charges guests for damage that they cause, a customer with a disability may also be charged for damage caused by himself or his service animal. el Staff are not required to provide care or food for a service animal. • Miniature Horses In addition to the provisions about service dogs, the Department's revised ADA regulations have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. (Miniature horses generally range in height from 24 Inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist entities In determining whether miniature horses can be accommodated in their facility. The assessment factors are (1) whether the miniature horse is housebroken; (2) whether the miniature horse under the owner's t; (3). whether ,t,rnia�ui c horse is u�,uc, ' u,o �vv„c� a control; (3) wiiether ui6 facility can ai;ixrrnitfodate the miniature horse's type, size, and weight; and (4) whether the miniature horse's presence will not compromise legitimate safety requirements necessary for safe operation of the facility. For more information about the ADA, please visit our website or call our toll -free number, http://www,ada.gov/service_animals_2010.htm 03/20/2014 Revised ADA Requirements: Service Animals Page 3 of 3 ADA Website www.ADA.gov To receive a -mall notifications when new ADA information is available, visit the ADA Website's home page and click the Zink near the top of the middle column. ADA Information Line 800 - 514 -0301 (Voice) and 800 -514 -0383 (TTY) 24 hours a day to order publications by mail. M -W, F 9:30 a.m. — 5:30 p.m., Th 12:30 p.m. - 5:30 p.m. (Eastern Time) to speak with an ADA Specialist. Ali calls are confidential. For persons with disabilities, this publication is available in alternate formats. Duplication of this document is encouraged. July 2011 - PDF Version of this Document July 12, 2011 http://ww 03/20/2014 • • Page 2ofl0 I � WW Page 1 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) litigation. U.S.C.A. Const. Art. 3. United States District Court, D Cotorarin_ [21 Federal Courts 170B 02105 Allen GRIDER; Glenn Belcher; and Valerie Piltz, Plaintiffs, l 70B Federal Courts v. 170BI11 Case or Controversy Requirement CITY AND COUNTY OF DENVER; and City of 170BIII(A) In General Aurora, Defendants. 170Bk2105 k. Injwy, harm, causation, and redress. Most Cited Cases Civil Action No. 10— cv- 00722— MSK —MJW. (Formerly 170Bk12.1) July 25, 2013. To establish a case or controversy required for Article TTT etanrlin a plaintiff ha.arc the hiirrien of Background: Disabled individuals who used pit demonstrating three elements: (1) it has suffered an bull dogs as service animals brought failure to injury in fact that is (a) concrete and particularized accommodate action under the Americans with and (b) actual or imminent, not conjectural or Disabilities Act (ADA) against cities with hypothetical; (2) the infiny is fairly traceable to the ordinances prohibiting the breed. Cities moved to challenged action of the defendant; and (3) it is dismiss for lack of subject matter jurisdiction. likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Holdings: The District Court, Marcia S. Krieger, U.S.C.A. Coast. Art. 3. Chief Judge, held that: (1) owners lacked standing to seek prospective relief; [3J Federal Civil Procedure 170A €103.2 (2) one owner lacked standing to seek retrospective relief; but 170A Federal Civil Procedure (3) another owner possessed standing to sue for 170AI1 Parties retrospective relief. 170AI1(A) In General 170Ak103.1 Standing in General Motion granted in part and denied in part. 170Ak103.2 k. In general; injury or interest. Most Cited Cases WestHeadnotes Each plaintiff must have Article III standing to • seek each form of relief in each claim. U.S.C.A. ;11 Federal Civil Procedure 170A €. X103,2 Const..Art. 3. 1 70A Federal Civil Procedure [4] Federal Civil Procedure 170A X103.2 170AII Parties 170AII(A) In General 170A Federal Civil Procedure 170Ak103.1 Standing in General 170A11 Parties 170Ak103.2 k. In general; injury or 170A1I(.A)In General interest. Most Cited Cases 170A1c 103.1 Standing in General Article III standing is not merely a pleading 170Ak103.2 k. In general; injury or requirement; each element of standing must be interest. Most Cited Cases supported with the manner and degree of evidence The injury in fact requirement for Article III required at the pertinent, successive stages of the standing is satisfied differently depending on whether the plaintiff seeks prospective or retrospective relief. U.S.C.A. Const. Art. 3. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. coin / print /printstt ?rs= WLW14.01 &destination= atp &n1t =W... 03/24/2014 Page 3 of 10 Page 2 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) • ]5] Federal Civil Procedure 170A 0103.2 78k1333 Injwy and Causation 78k1333(6) k. Other particular cases 170A Federal Civil Procedure and contexts. Most Cited Cases 170A11 Parties For purposes of Article III standing in a denial 170AII(A) In General of benefits claim under the ADA, to the extent the 170A1 :103.1 Standing in General plaintiffs allege an injury in fact, that injury must 170Ak103.2 k. In general; injury or be fairly traceable to the defendants' challenged interest. Most Cited Cases conduct of denying the benefits of or access to local To have Article 1II standing required to seek government services;. however, the threshold prospective relief, the plaintiff must suffer a standing inquiry does not depend on the merits of continuing injury or be under a real and immediate the plaintiffs' contention that the challenged threat of being injured in the future; the threatened conduct is illegal. U.S.C,A. Const. Art. 3; injury must be certainly impending and not merely Americans with Disabilities Act of.1990, § 202, 42 speculative. U.S.C.A. Const. Art. 3. U.S.C.A. § 12132. • • 161 Federal Civil Procedure 170A .103.2 [9] Civil Rights 78 C=1331(6) 170A Federal Civil Procedure 78 Civil Rights 170A1I Parties 78111 Federal Remedies in General 170AII(A) In General 78k1 328 Persons Protected and Entitled to Sue 170Ak103.1 Standing in General 78k1331 Persons Aggrieved, and Standing 170Ak103.2 k. In general; injury or in General interest. Most Cited Cases 78k1331(6) k. Other particular cases For purposes of Article III standing, a claimed and contexts. Most Cited Cases injury that depends on speculation or conjecture is Disabled pit bull dog owners who used their beyond the bounds of a federal court's jurisdiction, dogs as service animals lacked Article III standing U.S.C.A. Const. Art. 3. to seek prospective relief against city under the ADA for its alleged denial of service based on its [7J Federal Civil Procedure 170A X103.2 ban of the pit bull clog breed, where city had made an exception for the breed when used for service. 170A Federal Civil Procedure U.S.C.A. Const. Art. 3; Americans with Disabilities 170AI1 Parties Act of 1990, § 202, 42 U.S.C.A. § 12132. 170AI1(A) In General 170Ak103.1 Standing in General [10] Civil Rights 78 € 1333(6) 170Ak103.2 k, In general; injury or interest. Most Cited Cases 78 Civil Rights A plaintiff seeking retrospective relief satisfies 7811I Federal Remedies in General the injury in fact requirement for Article III 78k1328 Persons Protected and Entitled to Sue standing if she suffered a past injury that is 78k1333 Injury and Causation concrete and particularized. U.S.C.A. Const. Art. 3. 78k1333(6) k. Other particular cases and contexts. Most Cited Cases ]8] Civil Rights 78 6=1333(6) Disabled pit bull dog owner who used his dog as a service animal, and who lived very close to the 78 Civil Rights border of a city, lacked standing to bring an action 781I1 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 • Page 4 of 10 Page 3 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) for retrospective relief against the city based on 78 Civil Rights denial of service in violation of the ADA, where he 78E1 Federal Remedies in General failed to allege that he suffered any past injury as a 78k 1328 Persons Protected and Entitled to Sue result of city's ban on pit bulls. U.S,C.A. Const. 78k1331 Persons Aggrieved, and Standing Art. 3; Americans with Disabilities Act of 1990, § in General 202, 42 U.S.C.A. § 12132. 78k1331(6) k. Other particular cases and contexts. Most Cited Cases 1111 Civil Rights 78 €1333(6) Disabled pit bull dog owner, who used his dog as a service animal, lacked Article III standing to • 78 Civil Rights seek prospective relief against city under the ADA 781I1 Federal Remedies in General for its alleged denial of service based on its ban of 78k1328 Persons Protected and Entitled to Sue the pit bull breed, where city permitted restricted 78k1333 Injury and Causation use of pit bulls as service animals. U.S.C.A. 78k1333(6) k. Other particular cases Const. Art. 3; Americans with Disabilities Act of and contexts, Most Cited Cases 1990, § 202, 42 U.S.C.A. § 12132. Disabled pit bull dog owner, who was told by city to get rid of his dog or move, lacked Article III [14] Civil Rights 78 €1333(6) standing to sue city for retrospective relief based on denial of service in violation of the ADA, where 78 Civil Rights allegations failed to demonstrate how dog owner 78I11 Federal Remedies in General was injured, since he continued to live in the city 78k1328 Persons Protected and Entitled to Sue with his dog. U.S.C.A. Const. Art. 3; Americans 78k1333 Injury and Causation with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 78k1333(6) k. Other particular cases 12132. and contexts. Most Cited Cases Disabled pit bull dog owner, who used his dog [12] Civil Rights 78 0 1333(6) as a service animal which was seized pursuant to city's ban on the breed, stated an injury in fact 78 Civil Rights required for standing to bring action seeking 7811I Federal Remedies in General retrospective relief against the city under the ADA 781:1328 h ers T....l._.. 1 and Entitled (�.__ 1.... .denial f • based ' re of t h e .1..... onl.)co Persons Srllt3 rlutct. ect atr. 11t1.1041 to Sue iui rental G service ua,cu 0,i ri., BciZU.., ui the dog. 78k1333 Injury and Causation U.S.C,A. Const. Art. 3; Americans with Disabilities 78k1333(6) lc. Other particular cases Act of 1990, § 202, 42 U.S.C.A. § 12132. and contexts. Most Cited Cases Disabled pit bull owner, who used pit bull as 1151 Civil Rights 78 01331(6) service clog and who occasionally visited city that banned pit bulls, lacked Article III standing to sue 78 Civil Rights city for retrospective relief based on denial of 78111 Federal Remedies in General service in violation of the ADA, where owner was 78k1328 Persons Protected and Entitled to Sue never injured since city never enforce ban against 78k1331 Persons Aggrieved, and Standing her. U.S.C.A. Const. Art. 3; Americans with in General Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 78k 1331(6) k. Other particular cases and contexts. Most Cited Cases [13] Civil Rights 78 C =1331(6) Disabled pit bull dog owner, who used his dog 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /pzintstream.aspx ?rs =WLW 14.01 &destination — alp &mt =W... 03/24/2014 1 Page 5 of 10 Page 4 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) • as a service animal, lacked Article III standing to THIS MATTER comes before the Court on seek either prospective or retrospective relief two motions to dismiss: (1) Defendant City and against city for denial of service in violation of the County of Denver's Motion to Dismiss for Lack of ADA, where he allegedly only had to keep the dog Subject Matter Jurisdiction (# 137), and (2) hidden in a building while visiting the city, and Defendant City of Aurora's Motion to Dismiss could apply for a license for the dog as a service Plaintiff Belcher's *1265 and Plaintiff Piltz's Claims animal under an exception to the ban. U.S.C.A. for Lack of Subject Matter Jurisdiction (# 140). The Const. Art. 3; Americans with Disabilities Act of Plaintiffs filed a combined Response (# 161), and 1990, § 202, 42 U.S.C.A. § 12132. the Defendants each filed a Reply ( 163, 164). 1161 Civil Rights 78 C=1331(6) L Background As alleged in the Amended Complaint (# 85) 7S Civil Rights and detailed in previous orders, both Denver and 78I11 Federal Remedies in General Aurora ban the possession of pit bull dogs.r"I 78k1328 Persons Protected and Entitled to Sue The Plaintiffs, Allen Grider, Glenn Belcher, and 78k1331 Persons Aggrieved, and Standing Valerie Piltz, each claim to be a disabled individual in General protected by the Americans with Disabilities Act (A • 78k1331(6) k. Other particular cases DA), 42 U.S.C. § 12101 et seq., and to use a pit • and contexts. Most Cited Cases bull as a service animal to assist with the tasks of Disabled pit bull dog owner, who used her dog daily living. as a service animal, lacked Article III standing to seek prospective or retrospective relief' against city FN I. Denver's pit bull ban is found in the based on denial of service in violation of the ADA Denver Municipal Code § 8 -55. Aurora's for city's ban on the breed, where owner was not a ban is found in the Aurora Code of resident of the city, received an exception to travel Ordinances § 14 -75. there with her dog for a clog show, and did not indicate that she would return to city at any point in As a result of ruling on earlier motions, see the near future. U.S.C.A. Const. Art. 3; Americans Order at Dkt. # 100, this action has only one legal with Disabilities Act of 1990, § 202, 42 U.S.C.A. § claim —for a failure to accommodate in violation of 12132. the ADA and 28 C.F.R. § 35.130(6)(7), in that the • Defendants refused to modify their ordinances as *1264 Jay Wayne Swearingen, Kimberly I. necessary to accommodate the Plaintiffs' Danielson, Jennifer Reba Edwards, Wheat Ridge, disabilities. In reality, however, there are six CO, for Plaintiffs. claims —each Plaintiff asserts a claim against each Defendant. The Plaintiffs seek both damages and Jonathan Marshall Abramson, Nancy Cornish injunctive relief in the form of modification of the Rodgers, Richard P. Kissinger, Kissinger & Defendants' ordinances. Felhnan, P.C., Denver, CO, for Defendants. The Defendants now challenge the Plaintiffs' standing to assert their claims, The City of Denver OPINION AND ORDER GRANTING argues that none of the named Plaintiffs have DEFENDANTS' MOTIONS TO DISMISS FOR standing to seelc either retrospective or prospective LACIC OF SUBJECT MATTER JURISDICTION relief against it. The City of Aurora makes the same MARCIA S. KRIEGER, Chief Judge. argument with regard to Plaintiffs Belcher and Piltz r" The Defendants contend that because the Plaintiffs have not sufficiently alleged their © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. con /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page 6 of l0 • Page 5 958 F.Supp.2d 1262 (Cite as; 958 F.Supp.2d 1262) standing, their claims must be dismissed under i-J'ildlife, 504 U.S. at 561, 112 S.Ct. 2130. Fed.R.Civ.P. 12(b)(1) for lack of subject matter Each element of standing must be jurisdiction. supported with the "manner and degree of evidence required at the pertinent, FN2. Aurora does not challenge Plaintiff successive stages of the litigation." Id. Grider's standing to assert his claim against Thus, were this proceeding at the summary it. The Court will address it in this opinion, judgment stage, the Plaintiffs would be however, because constitutional standing required to establish the elements of necessary to the Court's jurisdiction and standing through specific facts, by must be addressed before proceeding to the affidavit or other evidence. Id. merits. See Robe v. Shapiro, Maricntos & Cejda, L.L.C., 434 F.3d 1208, 1211 (10t11 Where, as here, the original complaint has been Cir.2006). The Court is aware of Aurora's superseded by an amended complaint, "1266 the pending Motion for Summary Judgment (# court examines the amended complaint in assessing 141) as to Plaintiff Grider's claim, the allegations supporting standing. Mink v. Slithers, 482 F.3d 1244, 1254 (10th Cir.2007). 11. Standard of Review However, standing is determined at the time the When 1 iff_ brought, and it l [ I] VY tlt'll evaluating a plaintiffs � standing at the action was v,vL ani, courts generally ,��.. to pleading stage of the litigation, the Court "must wh the complaint was first filed, not to accept as true all material allegations of the subsequent events, to determine if a plaintiff has complaint, and must construe the complaint in standing. See Palma, 707 F,3d at 1153. favor of the complaining party." TVar•th v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 III. Analysis (1975). At the same time, the Court may allow the [2][3] The jurisdiction of federal courts is plaintiff to supply affidavits that further limited to actual cases or controversies. U.S. Const. particularize allegations of fact deemed supportive art. Iin, § 2 c1.1. To establish a case or controversy, of the plaintiff's standing. id The Court construes a plaintiff bears the burden of demonstrating tluee statements made in such affidavits in the light most elements: (1) it has suffered an "injury in fact" that favorable to the plaintiff. Southern Utah Wilderness is (a) concrete and particularized. and (b) actual or ! R 1 -. 7 07 1 1 13 1152 (10t not conjectural hypothetical; (2) the hl(rfilii;:= ,. C.'. Ul CI V. F.3d ;,Ft 3, 112 h �.VU imminent, nt l.Vrr�I.LLLtt alt or ,: (2) _ Cir.2013). At the pleading stage, "general factual injury is fairly traceable to the challenged action of allegations of injury resulting from the defendant's the defendant; and (3) it is likely, as opposed to conduct may suffice," for on a motion to dismiss, merely speculative, that the injury will be redressed the Court presumes that "general allegations by a favorable decision. Bronson v. Swensen, 500 embrace those specific facts that are necessary to F.3d 1099, 1106 (loth Cir.2007) (citing Friends of support the claim." M. (quoting Lu %an r'. Defenders the Earth, Inc. v. Laidiaw Envtl, Seas,, Inc., 528 of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 U.S. 167, 180 -81, 120 S.Ct. 693, 145 L.Ed.2d 610 L.Ed.2d 351 (1992)). If, however, the plaintiff's (2000)). Each plaintiff must have standing to seek standing does not adequately appear from the each form of relief in each claim. Id. materials of record, that being the complaint and additional affidavits submitted by the plaintiff, the [4][5][6][7] The " injwy in fact" requirement is claim must be dismissed.no Mirth, 422 U.S. at satisfied differently depending on whether the 502, 95 S.Ct. 2197. plaintiff seeks prospective or retrospective relief. See Tandy v. City of Wichita, 380 F.3d 1277, 1283 FN3. However•, standing is not merely a (10th Cir.2004) (citing Cilp of Los Angeles v. pleading requirement. See Defenders of Lvwrs, 461 U.S. 95, 101 -02, 103 S.Ct. 1660, 75 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. http: / /web2.westlaw.coin /print /printstream.aspx ?rs =WLW 1 4.01 &destination= atp &mt =W... 03/24/2014 Page 7of10 Page 6 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) L.E(1.2d 675 (1983)). To seek prospective relief, the this action, Denver issued a written policy plaintiff must suffer a continuing injury or be under modifying its procedures for enforcing the ban. See a real and inunediate threat of being injured in the Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th future. The threatened injury must be "certainly Cir.2006) (court may take judicial notice of facts impending" and not merely speculative. Laiclaw, that are a matter of public record without 528 U.S. at 190, 120 S.Ct. 693. A claunednrjury converting a motion to dismiss into a motion for • that depends on speculation or conjecture is beyond sununary judgment). The modification states that the bounds of a federal court's jurisdiction. A Denver will not impound pit bulls that are plaintiff seeking retrospective relief, on the other identified by their handler as a service dog. Thus, to hand, satisfies the "injury in fact" requirement if whatever extent any of the Plaintiffs allege that she suffered a past injury that is concrete and they cannot go to Denver out of fear that their dog particularized. Tandy, 380 F,3d at 1284. will be impounded, those allegations do not permit an inference that they are under any real and [8] Here, the Plaintiffs' failure to accommodate immediate threat of future injury. Accordingly, claims are brought under Title II of the ADA, none of the Plaintiffs have standing to seek which provides that no disabled person "shall, by prospective relief against Denver. . reason of such disability, be excluded from participation in or be denied the benefits of the The Court now turns to the Plaintiffs' services, programs, or activities of a public entity." allegations of past injuries caused by Denver. 42 U.S.C. § 12132. Thus, to the extent the Plaintiffs allege an injury in fact, that injury must be fairly 1. Plaintiff Grider traceable to the Defendants' challenged conduct of [ 10] Mr. Grider lives in Aurora, Colorado. In denying the benefits of or access to local the complaint and affidavits, he makes numerous govermnent services. However, the threshold allegations of past injury against Aurora. His only standing inquiry does not depend on the merits of references to Denver, however, are that (1) he is the Plaintiffs' contention that the challenged "afraid of the City of Denver taking [his] service conduct is illegal. Whitmore v. Arkansas, 495 U.S. dog for an alleged violation of its pit bull 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). ordinance or its 2011 Animal Care & Control Policy regarding pit bull service dogs," and (2) he Because each Plaintiff asserts a separate claim lives "very close" to the border of Denver does not against each of the two Defendants, the Court ]snow where the exact boundary line is. These separately examines the standing of each Plaintiff allegations only imply the possibility of future as to each Defendant. The facts as set forth below injury, not past injury. indeed, Mr. Guider makes no are taken from the Amended Complaint (# 85) and allegation that he suffered any past injury traceable additional affidavits attached to the Plaintiffs' to Denver. Accordingly, Mr. Crider lacks standing Response (# 161), and are viewed in the light most to seek retrospective relief against Denver, and his favorable to the Plaintiffs. claim against Denver is dismissed. A. Standing as to Claims against Denver 2. Plaintiff Belcher [9] As an initial matter, the Court finds that no [ 1 1 ] Mr. Belcher moved to Denver in October Plaintiff has standing to seek ='1267 prospective 2009, but he does not live there anymore. After relief against Denver. The Plaintiffs request moving to Denver, he contacted the Director of prospective relief n the form of an order requiring Animal Control to seek approval to keep his dog in Denver to modify its breed restriction ordinance to city limits. He was told by the Director that he I make an exception for service dogs. However, the would have to either get rid of his dog or move out . Court takes notice of the fact that since the filing of of Denver, i . © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page 8of10 Page 7 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) The Court finds that Mr. Belcher's allegations in which she could have been injured. Such are insufficient to allege a past injury attributable to allegations are insufficient to establish a concrete Denver: Mr. Belcher alleges that Denver denied and particularized injury in fact. Accordingly, Ms. hire "approval" to keep his dog, but does not allege Piltz lacks standing to seek retrospective relief how the "denial" actually injured him. Instead, the against Denver, and her claim against Denver is allegations indicate that despite the ordinance, Mr. dismissed. Belcher lived in Denver with his dog and without any interruption from Denver. Mr. Belcher B. Standing as to Claims against Aurora hypothesizes that if he had needed to call the police 1. Plaintiff Gilder or the fire deparhnent to his home, Denver would [13] Mr. Grider, a resident of Aurora, alleges have found his dog and impounded it, while also that his pit bull service dog is trained to assist him giving him a fine and /or jail time. But, importantly, with his disability, Post Traumatic Stress Disorder he does not allege that any of these things ever . (PTSD). He alleges that in 2009, Aurora Animal happened. Accordingly, Mr. Belcher Lacks standing Control seized his service dog and kept her seek . .i relief _ _' -._t D and his impounded f-.. 10 days. dog then released .._ to seek retrospective reuer agarusc Denver, auu ni5 impounded rUl 10 uays. The uvg was u�ci, icica�cu claim against Denver is dismissed. to Mr. Grider's friend, who does not live in Aurora. As a result, Mr. Grider was without his service dog 3, Plaintiff Piltz for over 5 months, He alleges that without his dog, [12] Ms. Piltz does not reside in Colorado. In he suffered severe anxiety, had difficulty sleeping, • 2010, she visited Colorado to attend the United and was confined to his home. (His clog was Kennel Club Dog Show held in Aurora. During her allegedly returned to him after the filing of this visit, she stayed with her sister who lives in lawsuit.) Denver. Before Mr, Piltz's arrived, her sister (on Ms, Piltz's behalf) contacted the Director of Denver In March 2010, Aurora sent Mr. Grider a letter Animal Control, seeking an accommodation for Ms. informing him that his pit bull service dog would be Piltz's service dogs while she was in town. Ms. allowed in Aurora if he complied with a number of Piltz's sister was told that unless Ms. Piltz is blind requirements. One" such requiiremehf" that "the or deaf, she could not have her dogs in Denver. clog - must - be confined °itran enclosure- in hiseyard Despite what her sister was told, Mr. "1268 Piltz Mr. Grider asserts that this requirement restricts his travelled to Denver with her dogs: During her stay, use of one of his ring's services, which is that "she she was "extremely concerned" that her dogs would be free to walls into an area before [him], so that the be taken from her. dog can determine whether any people are outside his residence and alert hi m, if necessary, before Like Mr, Belcher, the Court finds that Ms. Piltz [he] goes into the back yard." Mr, Grider also has not sufficiently alleged a past injury attributable complains that requiring him to put a warning sign to Denver. She alleges that Denver did not on his entry gates stigmatizes him and calls accommodate her to allow her dogs to be in attention to his disability: He alleges that he has not Denver, but she does not allege how the denial complied with Aurora's requirements in order to get impacted her during her stay. She makes conclusory his dog licensed to be in the city. Although Mr. allegations that she was denied the "ability to Grider lives in Aurora with his dog, he alleges that possess, use and travel with her service dogs" and he is afraid to call the police or fire department to that she was denied "the legal right to freely to and his home for fear that they would confiscate his stay [in] Denver," but she makes no allegation of dog. Mr. Grider generally alleges that he fears any concrete and particularized injury. Like Mr. having his dog taken from him if he simply walks Belcher, Ms. Piltz merely hypothesizes about ways down a city street or goes to a park. © 2014 Thomson Reuters. No Clain to Orig. US Gov. Works. http: ilweb2 .westlaw.comlprint /printstream. aspx ?rs =WL W 14.01 &destination= atp &rt =W... 03/24/2014 Page 9of10 Page 8 958 F.Supp.2d 1262 (Cite as 958 F.Supp.2d 1262) The Court finds that Mr. Grider lacks standing afraid that she would be taken and euthanized. He to seek prospective relief against Aurora. The Court does not live in Aurora, but he states that he has takes _notice -of Aurora' s.. .breed.xestiction..ordivance, friends in Aurora and that he needs to be in Aurora § 14 -75; Which° perrnits _t11e.,owner /handler,.of a..pit with his dog "as part of this case." bull .service .aaiinal_.to._apply,,.fors and receive. a, • license..ta keep their pit bull. in the city,- Imorder to The Court finds that Mr. Belcher does not have receive such license, the -owner must satisfy several standing to seek any form of relief against Aurora. requirements. One -requirement-is that -when -the.. pit His allegation that he had to keep his dog hidden ball -is on the - owner 's - outdoor- property;..itmust be while in an Aurora building does not establish a confined in an- enclosure or with ~its ownerrand` the concrete and particularized past injury, thus he does `•`rear -.yard enclosed -by- a -six• foot fetice:iaintained not have standing to seek retrospective relief As to in accordance with 'chaptef146' of this Code." future injury, Mr. Belcher generally alleges that he Aurora Code of Ordinances § 14- 75(4)(7). Mr. will have to return to Aurora at some unknown Grider does not allege any reason as to why he point in time, either to visit friends or for a matter cannot comply with this requirement. Indeed, it is associated with this case. However, Aurora's unclear from the allegations whether he does or ordinance allows a "non - resident owner/handler" to does not have such fence already. Another licensing have a pit bull service dog in the city for up to two requirement is that a "warning sign shall be affixed weeks. See Aurora Code of Ordinances § to the gate of the structure notifying people a pit 14- 75(c)(7). Mr. Belcher does not allege that he pull is contained within." Id. *1269 Although Mr. needs to be in Aurora for more than two weeks at Grider complains about this requirement, the any point in tune. Thus, his allegations are ordinance states that the requirement "shall be insufficient to allege any immediate threat of future waived for a pit bull that is a service animal." Id. injury, Accordingly, Mr. Belcher has not alleged an •As - -_ to the additional requirements, Mr; •Grider injury in fact and he lacks standing to seek any makes no allegation that he cannot satisfy them, or form of relief against Aurora. His claim against that by -doing so, the service provided by his dog is Aurora must be dismissed. rendered useless, Thus, although Mr. Grider alleges that he cun•ently does not have a license for his 3. PlaintifPiltz dog, the Court finds that such license is available to [16] Ms, Piltz visited Aurora for a dog show in him to avoid the threat of his dog being seized. For 2010. Aurora permitted Ms. Piltz to have her dogs that reason, Mr. Grider has not alleged an injury in the city for a three -day "approved" period, which • that is "certainly impending." was set forth in a letter issued to her. Ms. Piltz had to cany with her a copy of the Letter so that she [14] As to retrospective relief', the Court finds could present it if confronted by authorities. She • that Mr. Grider has sufficiently alleged a past was also informed that he dogs would have to be injury. He alleges that as a result of Aurora seizing muzzled at all times. Ms. Piltz lives out of state, but his dog, he was confused to his home. The Court she states that she travels to Colorado several times finds these allegations sufficient to confer standing per year and stays with her sister, who lives near to seek retrospective relief against Aurora. Aurora. 2. Plaintiff Belcher The Court finds that Ms. Piltz has not alleged [15] As to Aurora, Mr. Belcher alleges that, at an injury in fact. As to past injury, she does not some unspecified tine, he went to Aurora for an allege how Aurora actually injured her in the form appointment about his government benefits. During of denying her access to any government services the visit, he kept his dog hidden because he was or programs."' She claims to have been required to eany a letter around with her and that her dogs • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westIaw. com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page l0of10 • • Page 9 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) needed to be muzzled, but she does not allege how 958 F.Supp.2d 1262 those requirements in any way impeded her ability to travel `1270 through Aurora and to attend the END OF DOCUMENT dog show. As to future injury, Ms. Piltz does not allege that she intends to return to Aurora for any definite amount of time, let .aione a period exceeding two weeks. Thus, she has not alleged any threat of future injury. Accordingly, Ms. Piltz lacks standing to seek any form of relief against Aurora, and her claim must be dismissed, FN4. Ms. Piltz alleges. that she was required to disclose specific information about her disability to Aurora, in violation of the ADA. To whatever extent that allegation can be read to allege an injury in fact, the alleged injury is not fairly traceable to the challenged conduct of the defendant—that is, a denial of govermnent services. 1V. Conclusion For the forgoing reasons, the Defendant City and County of Denver's Motion to Dismiss for Lack of Subject Matter Jurisdiction (# 137) and the Defendant City of Aurora's Motion to Dismiss Plaintiff Belcher's and Plaintiff Piltz's Claims for Lack of Subject Matter Jurisdiction (# 140) are GRANTED. All claims by the Plaintiffs Belcher and Piltz are dismissed. Likewise, Mr, Glider's claim against the City and County of Denver is dismissed. The only remaining claim going forward in this case is Mr. Grider's claim against the City of Aurora. However, Mr. Grider is limited to seeking retrospective relief for past injuries. All future pleadings shall omit reference to the City and County of Denver as a Defendant in this case. Because the Plaintiffs have previously amended their complaint and have also been given sufficient opportunity to submit affidavits to cure pleading deficiencies, the Court does not grant them leave to amend. • D.Colo.,2013. Grider v. City and County of Denver © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http. //web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14,01 &destination= atp &mt =W... 03/24/2014 Page 2 of 24 • WeSt[aw1 • • Page 1 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) C district court granting preliminary injunction are not United States District Court, binding at trial on merits. Fed.Rules Civ.Proc.Rule 65, N.D. Iowa, 28 U.S.C.A. Western Division. James SAK and Peggy Leifer, Plaintiffs, [2] Injunction 212 X1109 v . • The CITY OF AURELIA, IOWA, Defendant. 212 Injunction 212II Preliminary, Temporary, and Interlocutory No. C 11 -4111 MWB. Injunctions in General Dec. 28, 2011. 212II(B) Factors Considered in General 21 2k ] 101 Injury, Hardship, Harm, or Effect Background: Permanently disabled retired police 212k1109 k. Balancing or weighing officer, who had part pit bull certified service dog, and hardship or injury. Most Cited Cases his wife brought § 1983 action against city, alleging that In each case in which preliminary injunction is city ordinance prohibiting pit bull dogs in city violated sought, district courts must balance competing claims of his rights under Americans with Disabilities Act injury and must consider effect on each party of (ADA), and seeking preliminary injunction barring granting or withholding of requested relief. Fed.Rules enforcement of ordinance. Civ.Proc.Rule 65, 28 U.S.C.A. Holdings: The District Court, Mark W. Bennett, J., held [3] Injunction 212 €1039 that: (1) wife did not have standing to pursue ADA claim; 212 Injunction (2) officer was likely to succeed on merits of ADA claim; 212I Injunctions in General; Permanent Injunctions (3) officer would suffer irreparable harm absent in General injunction; 212I(B) Factors Considered in General (4) balance of equities was in favor of injunctive relief; 212k1039 k. Public interest considerations. (5) national public interest in enforcement of ADA Most Cited Cases "trumped" more local public interest in public health In exercising their sound discretion, courts of and safety reflected in ordinance; and equity should pay particular regard for public (6) appropriate amount of bond was one dollar. consequences in employing extraordinary remedy of injunction. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. Preliminary injunction granted. [4] Lnjunction 212 €1092 West Headnotes 212 Injunction • [1] Injunction 212 € 1598 2121I Preliminary, Temporary, and Interlocutory Injunctions in General 212 Injunction 21211(B) Factors Considered in General 212V Actions and Proceedings 212k1092 k. Grounds in general; multiple 212V(G) Determination factors. Most Cited Cases 212k1598 k. Operation and effect. Most Cited When evaluating whether to issue preliminary Cases injunction, district court should consider four factors: Findings of fact and conclusions of law made by (1) threat of irreparable harm to movant, (2) state of balance between this harm and injury that granting injunction will inflict on other parties, (3) probability 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs—WLW14.0 1 &destination= atp &mt =W... 03/24/2014 Page 3 of 24 r1 �T'n Page 2 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) that movant will succeed on merits, and (4) public General interest. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 78k1331(6) k. Other particular cases and contexts. Most Cited Cases [51 Injunction 212 X1075 Wife of disabled retired police officer who had certified service dog that was part pit bull did not have 212 Injunction standing to pursue Americans with Disabilities Act 21211 Preliminary, Temporary, and Interlocutory (ADA) claim against city challenging ordinance Injunctions in General prohibiting pit bulls in city, since she was not herself 2121I(A) Nature, Fonn, and Scope of Remedy disabled. Americans with Disabilities Act of 1990, § 212k1075 k. Extraordinary or unusual nature 202, 42 U.S.C.A. § 12132. • of remedy. Most Cited Cases [8] Civil Rights 78 X1044 Injunction 212 €1563 78 Civil Rights 212 Injunction 78I Rights Protected and Discrimination Prohibited 2! \I Actions e General and Prnraarlin Ll n 212V(E) Evidence vv 78k1043 Public Accommodations 212k1563 k. Presumptions and burden of 78k1044 k. In general. Most Cited Cases proof. Most Cited Cases Preliminary injunction is extraordinary remedy and Civil Rights 78 €1053 burden of establishing propriety of injunction is on movant. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 78 Civil Rights 781 Rights Protected and Discrimination Prohibited [61 Federal Courts 170B C3616(2) in General 78k1051 Public Services, Programs, and Benefits 17013 Federal Courts 78k 1053 k. Discrimination by . reason of 170BXVII Courts of Appeals handicap, disability, or illness. Most Cited Cases 170BXVII(K) Scope and Extent of Review Main difference between Titles II and III of 170BXVII(K)2 Standard of Review Americans with Disabilities Act (ADA) is that Title II 170Bk3612 Remedial Matters applies to public entities, whereas Title III applies to 170Bk3616 injunction private entities. Americans with Disabilities Act of 170Bk3616(2) k. Preliminary 1990, § 202, 42 U.S.C.A. § 12132. injunction; temporary restraining order. iviost Cited Cases (Formerly 170Bk815) 191 Civil Rights 78€=.1053 Appellate court reviews denial of preliminary injunction for abuse of discretion, which may occur 78 Civil Rights when district court rests its decision on clearly 78I Rights Protected and Discrimination Prohibited erroneous factual findings or erroneous legal in General conclusions. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 78k1051 Public Services, Programs, and Benefits 78k1053 k. Discrimination by reason of [71 Civil Rights 78 X1331(6) handicap, disability, or illness. Most Cited Cases Pursuant to Americans with Disabilities Act (ADA) 78 Civil Rights regulation requiring public entities to provide 781II Federal Remedies in General accommodations to persons with disability, failure to 78k1328 Persons Protected and Entitled to Sue accommodate is independent basis for liability under 78k1331 Persons Aggrieved, and Standing in Title II of ADA. 28 C.F.R. § 35.130(b)(7); Americans © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • I;t p://web2.riestlaw.eom/ print /printstream.aspx ?rs= WLW14.01 &destination= atp &tnt =W... 03/24/2014 • Page 4 of 24 • Page 3 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) with Disabilities Act of 1990, § 201(2), 42 U.S.C.A. § [12] Injunction 21241;3=1096 12131(2). 212 Injunction [10] Civil Rights 78 C=1053 212I1 Preliminary, Temporary, and Interlocutory Injunctions in General 78 Civil Rights 212I1(B) Factors Considered in General 781 Rights Protected and Discrimination Prohibited 212k1094 Entitlement to Relief in General 212k1096 k. Likelihood of success on 78k1051 Public Services, Programs, and Benefits merits. Most Cited Cases • 78k1053 k. Discrimination by reason of handicap, disability, or illness. Most Cited Cases Injunction 212 •1109 Americans with Disabilities Act (ADA) regulation requiring public entities to provide accommodations to 212 Injunction persons with disability makes clear that accommodation 212II Preliminary, Temporary, and Interlocutoiy only is required when necessary to avoid discrimination Injunctions in General on basis of disability, and that any accommodation must 212II(B) Factors Considered in General be reasonable one. 28 C.F.R. § 35.130(b)(7); Americans 212k1101 Injury, Hardship, Harm, or Effect with Disabilities Act of 1990, § 201(2), 42 U.S.C.A. § 212k1109 k. Balancing or weighing 12131(2). hardship or injury. Most Cited Cases Likelihood of success in context of preliminary [11] Civil Rights 78 €`?1457(7) injunction is meaningless in isolation and must be examined in context of relative injuries to parties and 78 Civil Rights public. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 78III Federal Remedies in General 78k1449 Injunction [131 Injunction 212 X1106 78k1457 Preliminary Injunction 78k1457(7) k. Other particular cases and 212 Injunction contexts. Most Cited Cases 212II Preliminary, Temporary, and Interlocutory Disabled retired police officer, who had part pit Injunctions in General bull certified service dog, was likely to succeed on 212II(B) Factors Considered in General merits of his claim that city's ordinance prohibiting pit 212k1101 Injury, Hardship, Hann, or Effect bulls in city and refusal to grant exception for officer's 212k1106 k. Irreparable injury. Most Cited dog violated "public entities" provisions of Americans Cases with Disabilities Act (ADA), as supported issuance of preliminary injunction enjoining city from enforcing Injunction 212 01113 ordinance with respect to dog; ordinance and enforcement of ordinance likely fell within scope of 212 Injunction conduct of public entity regulated by ADA, dog was 21211 Preliminary, Temporary, and Interlocutory likely " service animal " within meaning of ADA, and Injunctions in General substitution of non -pit bull service animal was likely 21211(B) Factors Considered in General not reasonable accommodation, since dog had been 212k1110 Availability and Adequacy of Other individually trained for officer's individual needs over Remedies as much as two years. 28 C.F.R. §§ 35.130(b)(7), 212k1113 k. Adequacy of remedy at law. 35.136; Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Most Cited Cases Americans with Disabilities Act of 1990, § 202, 42 "Irreparable harm," as prerequisite for issuance of U.S.C.A. § 12132. prel ininary injunction, occurs when party has no adequate remedy at law, typically because its injuries © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 • Page 5 of 24 Page 4 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) cannot be fully compensated through award of damages. against city. 28 C.F.R. §§ 35.130(b)(7), 35.136; Fed.Rules Civ.Proc,Rule 65, 28 U.S.C.A. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § [14] Civil Rights 78 €'1457(7) 12132. 78 Civil Rights [16] Injunction 212 €1100 78I1I Federal Remedies in General 78k1449 Injunction 212 Injunction 78k 1457 Preliminary Injunction 21211 Preliminary, Temporary, and Interlocutory 78k1457(7) k. Other particular cases and Injunctions in General contexts. Most Cited Cases 212I1(8) Factors Considered in General Disabled retired police officer, who had part pit 212k1100 k. Public interest considerations. bull certified service dog, would suffer irreparable harm Most Cited Cases absent preliminary injunction enjoining city from In determining whether preliminary injunction is in enforcing ordinance prohibiting pit bulls in city as to his public interest, district court must consider both what dog, as supported issuance of injunction, hi officer's public interests might be injured and what. public Americans with Disabilities Act (ADA) action against interests might be served by granting or denying city; officer suffered degradation of his quality of life as injunction. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. result of exclusion of dog from city, loss of dog had negative impact on his relationship with his wife, as he [17] Civil Rights 78 X1457(7) was more dependent on her, and wife was unable to leave him alone, and officer would experience 78 Civil Rights difficulties in obtaining and training appropriate 78I11 Federal Remedies in General substitute animal. 28 C.F.R. §§ 35.130(b)(7), 35.136; 78ki449 Injunction Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Americans 78k1457 Preliminary Injunction with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 78k1457(7) k. Other particular cases and 12132. contexts. Most Cited Cases National public interest in enforcement of [15] Civil Rights 78 C=1457(7) Americans with Disabilities Act (ADA) "trumped" more local public interest in public health and safety 78 Civil Rights reflected in city's ordinance prohibiting pit bulls within 78111 Federal Remedies in General city, as supported issuance of preliminary injunction 78k1449 Injunction enjoining city from enforcing ordinance as to disabled 78k1457 Preliminary Injunction retired police officer's part pit bull certified service dog. 78k1457(7) k. Other particular cases and 28 C.F.R. §§ 35.130(b)(7), 35.136; Fed.Rules contexts. Most Cited Cases Civ.Proc.Rule 65, 28 U.S.C.A.; Americans with Balance of weak or illusory injury to public health Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. or safety if city's ordinance prohibiting bull dogs in city was suspended or modified as to disabled retired police [18] Injunction 212 <1816 officer's part pit bull certified service dog, against very real threat of irreparable injury to officer if dog 212 Injunction continued to be excluded from city and, consequently, 212V111 Wrongful Injunction could not provide necessary services to officer, was 212VIII(A) Nature and Grounds of Liability unequivocally in favor of preliminary injunctive relief 212k1816 k. Effect of bond or lack thereof; enjoining city from enforcing ordinance as to dog, in exclusivity of remedy. Most Cited Cases officer's Americans with Disabilities Act (ADA) action Bond posted under federal civil procedural rule © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westiaw.comiprint /printstream.aspx ?rs= WLW14.01 &destination= atp &mt =W... 03/24/2014 Page 6 of 24 • Page 5 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) governing injunctive relief is security device, not limit 78k1457(7) k. Other particular cases and on the damages defendants may obtain against plaintiffs contexts. Most Cited Cases if facts warrant such award. Fed.Rules Civ.Proc.Rule Appropriate amount of bond required before issuance of 65(c), 28 U.S.C.A. preliminary injunction enjoining city, under ADA, from enforcing ordinance prohibiting pit bulls in city as to 1191 Federal Courts 170B €3616(2) disabled retired police officer's part pit bull certified service dog, was one dollar; amount of potential 170B Federal Courts damages was extremely limited, as city would not likely 170BXVII Courts of Appeals incur any costs or damages if ordinance was preliminary 170BXVII(K) Scope and Extent of Review enjoined only as to officer's dog, and officer's rights, 170BXVII(K)2 Standard of Review improperly impinged by ordinance, were of such gravity 170Bk3612 Remedial Matters that protection of those rights should not be contingent 170B k3616 Injunction upon his ability to pay bond. Americans with 170Bk3616(2) k. Preliminary Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. injunction; temporary restraining order. Most Cited Cases (Formerly 170Bk815) `1029 Sharon K. Malheiro, Michael C. Richards, Although Eighth Circuit Court of Appeals allows Michele L. Warnock, Davis, Brown, Koehn, Shors & district court much discretion in setting bond in Roberts, PC, Des Moines, IA, for Plaintiffs. connection with issuance of preliminary injunction, it will reverse district court's order if it abuses that George W. Wittgraf, Sayre — Wittgraf, Cherokee, IA, for discretion due to some improper purpose, or otherwise Defendant. fails to require adequate bond or to make necessary findings in support of its determinations, Fed.Rules Civ.Proc.Rule 65(c), 28 U.S.C.A. MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION FOR [20] Civil Rights 78 €1457(7) PRELIMINARY INJUNCTION MARK W. BENNETT, District Judge. 78 Civil Rights 78II1 Federal Remedies in General 78k1 449 Injunction 78k1457 Preliminary Injunction TABLE OF CONTENTS I INTRODUCTION 1031 A. Factual Background 1031 1. The parties 1031 2. The parties' dispute 1031 a. Tlr epkaintiffs'pit brill dog 1031 b. The City's "no pit brill dogs" ordinance 1033 c. Action by the City 1034 B. Procedural Background 1035 1. The Complaint 1035 2. The Motion For Preliminary Injunction • 1036 © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. comlprint /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page7of24 Page 6 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) 3. The hearing 1036 IL LEGAL ANALYSIS 1037 A. Standards For A Preliminary Injunction 1037 B. Likelihood Of Success On The Merits 1038 1. The scope of Title Il of the ADA 1038 2. "Service animal" regulations under Title 11 1040 3. Analysis 1041 C. Irreparable Harm To Sac 1045 D. Balance Of Equities 1046 E. The Public Interest 1046 F. Surnrnary 1047 . III. THE BOND REQUIREMENT 1047 IV CONCLUSION 1048 *1030 The one absolutely unselfish friend that man 1927 -1989) can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or Does the Americans with Disabilities Act entitle a treacherous, is his dog.... He will kiss the hand that seriously disabled plaintiff, James Sak, and his part pit has no food to offer; he will lick the wounds and bull certified service dog, Snickers, FN'_ banned from sores that come in encounter with the roughness of the City of Aurelia by a municipal ordinance prohibiting the world.... When all other friends desert, he remains. pit bull dogs in the city, to a preliminary injunction barring enforcement of the ordinance as to Snickers and — George G. Vest, "Vest's Eulogy to the Dog" reuniting Sak and his best friend? The *1031 plaintiffs (from his closing argument to a jury in an 1872 argue that the city's ordinance and refusal to grant an case involving the illegal shooting of a hunting exception for Sak's registered service animal violate the dog), 1943 -44 Official Manual State of Missouri "public entities" provisions of the Americans with 1 1 29 Disabilities A (A D A \ Title 11 42 U.S.C. 12 1 31 11 ' ✓:3C3Lr1rL1l.J Act �AL'.Z Title .1, ';L VJ§ �i 1J1 et seq., and applicable regulations and rules. The city argues that the ordinance does not prevent the plaintiffs FN1. Quoted in Miller v. C /ark County, 340 from having a service animal of a different breed, so F.3d 959, 967 n. 13 (9th Cir.2003); Murray v. that it does not discriminate against an individual with a Leyshocic, 915 F.2d 1 196, 1202 n. 1 (8th disability, and that the plaintiffs have failed to show that Cir.1990) (Bright, Sr. C.J., dissenting); see also the city discriminated on the basis of disability as to any Bowvlm v. Deschutes Coun0 712 F.Supp. 803, program, service, or activity of the city. After expedited 809 (D.Or.1988) (attributing the quotation to a proceedings, I issue this ruling on the plaintiffs' speech George Vest later made as a U.S. December 22, 2011, Motion For Preliminary Injunction Senator in 1884). (docket no. 2). When a man's best friend is his dog, that dog has a FN2. Snickers was presumably named after the problem. famous candy bar, which was, in turn, named after a favorite race horse owned by candy — Edward Abbey (American environmentalist, maker Franklin Clarence Mars and his wife. The horse had died just a month before the 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westiaw.com /print /printstream.aspx ?rs =WL W 14.01 &destination= atp &mt =W... 03/24/2014 • Page 8 of 24 Page 7 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) candy bar was created. Mars, who was a victim Defendant City of Aurelia is, according to its website, of polio as a child, could not run around like www. aureliaia. com, a municipality with a population most children, so he developed his interest in of "nearly 1,100 people" in Cherokee County in candy, instead. See http: // www. helium. com/ northwest Iowa. items/ 1387617— snickers— candy— bar— frank — mars— mars— candy. 2. The parties' dispute a. The plaintiffs' pit bull dog L INTRODUCTION Sak has had a dog, named Snickers, who is believed A. Factual Background to be a pit bull mix, since the dog was ten weeks old. [1] I am mindful of the general rule that "the Complaint, ¶¶ 16, 24; Stipulated Facts, ¶ 10. According findings of fact and conclusions of law made by a court to Sak, Snickers, who is now five- and -a -half years old, granting a preliminary injunction are not binding at trial has absolutely no history of aggression. Complaint at ¶ on the merits." University of Texas v, Camenisch, 451 17 -18. Sak adopted Snickers in a private, informal sale, U.S. 390, 395, 101 S.Ct. 1830, 68 L.EcL2d 175 (1981); see Complaint at ¶ 15; Stipulated Facts at ¶ 9, from a accord United States Sec. and &change Comm'n v. "backyard breeder," Plaintiffs' Brief In Support Of Zahareas, 272 F.3d 1102, 1105 (8th Cir.2001) ( "[W]e Plaintiffs' Motion For Preliminaiy Injunction (Plaintiffs' have long held that 'findings of fact and conclusions of Brief) (docket no. 2 -1), 2. law made by a court granting a preliminary injunction are not binding.' ") (quoting Patterson v. Masem, 774 Although Snickers was originally a family pet, see F.2d 251, 254 (8th Cir.1985)); National Credit Union Plaintiffs' Brief at 2, after Sak's stroke, Snickers was Admin. Bd. v. Johnson, 133 F.3d 1097, 1103 ri. 5 (8th trained and certified by Sak's physical therapist as a Cir.1998) (quoting this principle from Camenisch ); "service *1032 animal" to assist Sak with everyday Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 tasks. Quite recently, on November 28, 2011, Snickers (8th Cir.1995) (citing this statement from Camenisch as became a "Certified Service Annual" on the National the "general rule" for findings of fact and conclusions Service Animal Registy (NSAR). See id, Exhibit A of law in preliminary injunction rulings). Thus, all (NSAR Certificate); Hearing Exhibit A (same). More findings of fact and conclusions of law in this ruling are specifically, Snickers's NSAR certificate states, in provisional. For purposes of the preliminary injunction pertinent part, the following: motion only, the parties have agreed upon certain facts. See Joint Hearing Exhibit K (Stipulated Facts). This document affirms that " SNICKERS " (NSAR Furthermore, the City does not dispute the facts as database ID C12694, see adjacent photo) is certified averred by the plaintiffs in the "Facts" section of their as a qualified service dog and registered with brief. National Service Animal Registry (NSAR) on the date listed below [November 28, 2011]. This service 1. The parties dog has been trained to assist P LEIFFR [sic], the Plaintiff James Sak is a retired police officer, who confirmed disabled handler, The handler and service recently moved with his wife, plaintiff Peggy Leifer, to dog are listed in the National Service Animal Registry Aurelia, Iowa, from Chicago, Illinois. Sak and Leifer, (NSAR) database and may be found on the following who man•ied in 2009, moved to Aurelia in November website: www. nsai com/ database. html. 2011 to care for Leifer's elderly mother, who is an Aurelia resident. In November 2008, prior to the Service dogs are dogs that are specifically trained couple's marriage and their move to Aurelia, Sak to perform important life tasks for people who have suffered a hemorrhagic stroke, which has left him difficulty performing or are unable to perform the permanently disabled, with no control over the right task themselves. These tasks are directly related to the side of his body, and confined to a wheelchair. handler's disability. Service dogs are working animals, not pets. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com /print/printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 • Page 9 of 24 • Page 8 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) NSAR Certificate; Stipulated Facts at ¶ 13. Sak and when he falls by letting Sak hold on to his collar to roll Leifer tested that, although they did not believe that over or get back up or into his wheelchair; and any such certificate was required, they obtained this accompanies Sak when he sits outside in his backyard. NASR Certificate for Snickers after the City expressed Sak testified that he is "lost" without Snickers, and concerns about him, hoping to make the City's Leifer testified that she does not feel able to leave Sak if decisionmakers more "comfortable" or "feel better" Snickers is not with him. Leifer testified that the about Snickers's presence in the City. plaintiffs do not intend to use Snickers to assist Sak with trips away from the home. As explained in a letter from Sak's physical therapist, Aileen Eviota, at the University of Illinois *1033 b. The City's "no pit bull dogs" ordinance Medical Center, dated December 2, 2011, to the Aurelia The City of Aurelia, however, has an ordinance, City Council, Sak requires Snickers's assistance with Chapter 58, which provides, in pertinent part, as follows: routine tasks made difficult by his limitations after his stroke: 58.02 KEEPING OF NT BULL DOGS PROHIBITED. It is unlawful to keep, or harbor, Due stroke, Sak L__ __.�___ limitations ___.._ _ d_ any -- Pi t n Do... within the LUG to his SlrU1CG, James ilali has certain lltll liZttl UllD own or in [I11�' way klUJJGJJ Q S�JL Bull Dog W1tll111 the regarding his entire right side of his body. In order to City of Aurelia. • help alleviate these difficulties, and to enhance his quality of life, well being, and ongoing recovery, Complaint, Exhibit D (Ordinance). This q � �' g> ng s" ' r5'J � ��- portion of p requires a service dog, Snickers. As mentioned the Ordinance does not include any fines, penalties, or before, I have been involved in his care for more than other remedies for a violation. 2 years. Ow therapy sessions have also included rehabilitation with James Sak and Snickers, in which '`Pit Bull Dog" is defined in the ordinance as follows: I was personally involved in [sic]. James and Snickers have worked together under my supervision in which 58.01 DEFINITIONS. For use in this chapter the his ability to live independently has improved. following teens are defined as follows: Snickers has been individually trained to assist James with tasks which mitigate his disability, including 1. "Pit Bull Dog" shall mean any dog over the age walking, balance, and retrieving items around the house. of six (6) months known by the owner to be a Pit Bull Terrier. Pit Bull Terrier shall mean any Bull Complaint (docket no. 1), Exhibit B (Physical Terrier, American Pit Bull Terrier, Staffordshire Therapist's Letter); Hearing Exhibit B (same); Bull Terrier, or American Staffordshire Bull Terrier Stipulated Facts at ¶¶ 14 -15. breed of dog or any mixed breed of dog which contains as an element of its breeding the breed of I find that Snickers was individually trained by Bull Terrier, American Pit Bull Terrier[,] Sak's physical therapist to assist Sak with his specific Staffordshire Bull Terrier, or American needs and limitations. More specifically, Sak testified, Staffordshire Bull Terrier so as to be identifiable as without contradiction, that Snickers helps him when he partially of the breed Bull Terrier, American Pit walks short distances within his home; recognizes when Bull Terrier, Staffordshire Bull Terrier, or he suffers tremors on the right side of his body and American Staffordshire Bull Terrier. either lays on the affected part of the body to stop the tremor or gets Leifer to assist Sak; pushes Sak against Ordinance § 58.01. Leifer testified that the the wall to prevent him from falling if he has tremors or plaintiffs believe that Snickers is a pit bull mix based-on balance problems while walking in the home; gets the opinion of the backyard breeder from whom they Leifer to assist Sak in other circumstances; helps Sak obtained Snickers and the opinion of a veterinarian at 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. nttp: / /web2.westiaw. com/ print /printstream. aspx ?rs =W L W 14.01 &destination =atp &net =W... 03/24/2014 • • Page 10 of 24 Page 9 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) the University of Illinois at Chicago Veterinary c. Action by the City Medicine School. There does not appear to be any Sak and Leifer were asked to attend an Aurelia City dispute that Snickers is a "Pit Bull Dog" within the Council meeting on November 21, 2011, because of the meaning of this provision, because he is believed to be a City's Ordinance prohibiting the possession of a pit bull pit bull mix. dog. According to the plaintiffs, they brought Snickers along to that meeting, and Snickers sat quietly at their The Ordinance includes a "grandfather clause," feet throughout, only crying or whining quietly when making the Ordinance inapplicable to "owners, keepers, his name was mentioned. Sak and Leifer contend that, or harborers of Pit Bull Dogs licensed with the City of in the course of the November 21, 2011, meeting, a Aurelia before the effective date of this chapter," with petition was presented, signed by 36 residents, asking other requirements for "[t]he keeping of licensed dogs." for enforcement of the Ordinance against Snickers. The Id. at § 58.03(1) (" KEEPING OF LICENSED PIT petition in question does not refer specifically to BULL DOGS " section, subsection pertaining to Snickers, however. Instead, it states the following: "licensed" pit bulls). Those_,other:,requirements =include a..prohillitio ,on,the_,sale.oi Jransfer of a,. =dog;. We the undersigned citizens of the City of Aurelia do removal, of .offspring to:- hcensed,p .hull dogs..from respectfully request /urge the Aurelia City Council the" Cityy' within.. six. , weeks - Hof_,birth _repor=ting , of :.the;., retain as written an[d] without exception the existing removal= or, of asicensed.,p t.bulI dog City of Aurelia Ordinance, Chapter 58 — "Pit Bull offspring =a)r- licensed pit:., bull_- dog change,of Dogs." It is our concern that a change or any address .of the owner, within the city,limits;,leashingand • exceptions to the .Ordinance could cause an unwanted muzzling requirements;;_ confinement_ -" and safety/hazai d to the general public, specifically/ requirements =fcirL identiflication-photographs .and..tattoos. especially our children. Ordinance, § 58.03(1)(A) -(G). The Ordinance also provides as follows: Complaint, Exhibit E (Petition); Hearing Exhibit E. 2. Failure To Comply. It shall be unlawful for the The pertinent portion of the minutes of the owner, keeper, or harborer of a Pit Bull Dog licensed November 21, 2011, meeting of the Aurelia City with the City of Aurelia to fail to comply with the Council reflect that the Council did not take any action requirements and conditions set forth in this chapter. toward Sak, Leifer, or Snickers at that time. Instead, Each day of violation shall be a separate offense, Any what the minutes do reflect is the following: Pit Bull Dog found to be the subject of a violation of this chapter shall be subject to imniediate James Sak and Peggy Leifer appeared before Council confiscation by the Animal Control Officer. Such concerning registering their mix breed pitbull. The animal shall be humanely destroyed within seven (7) City of Aurelia Ordinance Chapter 58 "Pit Bull Dog" days, unless a Judge of a Court of competent states it is unlawful to harbor a pit bull or any mixed jurisdiction orders its release or the owner provides breed of pit bull. Nelson [a council member] made adequate proof to the Animal Control Officer that motion to table until next month's meeting in order to such licensed dog shall no longer reside in the City of receive more input from longer term council Auurelia members, second [ed] by Schulenberg [another council member]. All members present voting "aye ", Ordinance, § 58.03(2) (emphasis added). Although motion carried. the italicized language appears to apply to "any Pit Bull Dog found to be the subject of a violation of this Complaint, Exhibit C (November 21, 2011, chapter," it is found in a section of the Ordinance *1034 Minutes), at 2 -3. Leifer testified that it was her otherwise devoted entirely to "licensed" Pit Bull Dogs. understanding that nothing would be done by the City until the next meeting. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2.westlaw. com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Dage 11 of 24 Page 10 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) Nevertheless, on November 28, 2011, the plaintiffs Aurelia City limits pending legal advice from the obtained the NASR Certificate for Snickers. Also, on City's Attorney. December 2, 2011, Sak's physical therapist, Aileen Eviota, provided the letter to the Aurelia City Council, There being no further business to discuss, meeting quoted in part above, explaining Sak's need for adjourned. Snickers's assistance. See Physical Therapist's Letter. Als o n ri 20 11 the plaint` s and Hearing Exhibit F. It doe of appear that there , , was attorney that they had hired met with representatives of any discussion of whether amendment of the Ordinance the City to discuss rewriting the Ordinance to include an was required by Title II of the ADA or any other state amendment to add a new section, proposed by the or federal Iaw. plaintiffs, to provide an exception for service dogs and disabled persons. On December 7, 2011, the plaintiffs' Sak and Leifer complied with the Council's attorney provided the City with a "copy of a proposed directive, and, since the December 14, 2011, meeting, amendment. See Hearing Exhibit 1. Snickers has been boarded at a veterinary's office outside the City of Aurelia, at their expense. Although Sak and Leifer received a telephone call from the Sak and Leifer asserted in briefing that, because of the City Clerk notifying them of a special meeting of the Christmas holiday, the veterinarian kenneling Snickers City Council on December 14, 2011, a little over 24 informed them that he had no capacity for Snickers after hours before that meeting. According to Leifer, the December 23, 2011, no evidence was offered as to Clerk told her she was not at liberty to discuss the whether or not they were required to or did find other purpose of the meeting when Leifer asked. accommodations for Snickers after that date. Nevertheless, Leifer admits that she understood that the meeting related to Snickers and the Ordinance. At that Sak suffered a fall from his wheelchair on meeting, the plaintiffs were told that they had 24 hours December 15, 2011, and was unable to pull himself to remove Snickers from the City. Complaint, ¶ 26; back into his chair without the assistance of Snickers. Stipulated Facts at ¶ 20. The minutes of the December Consequently, he called 911 for assistance, and a law 14, 2011, see Hearing Exhibit F, reflect that the City enforcement officer arrived at his residence to assist Council discussed the plaintiffs' proposed amendment to him. Sak testified that he fell again about two days later, the Ordinance, entitled "Service Dog & Disabled Person but that he was eventually able to get onto a couch Exception "; reviewed a letter from a law firm indicating w itho u t r 911. Sak and T P if er • also allege that concerns of Aurelia *1035 citizens who requested that Leifer's ability to care for her elderly mother has been Snickers be removed by enforcing the existing compromised by her inability to leave Sak alone, for Ordinance; and reviewed the Petition. The minutes fear of another fall or injury, because Snickers is not conclude as follows: available. Sak asserts that he has been deprived of both the medical and emotional benefit provided by Snickers After hearing from everyone in attendance, Mayor since December 15, 2011. Keith respectfully requested the Council discuss and consider all input received. Following further The plaintiffs offered and I received into evidence a discussion, Bowen made motion to uphold the current letter dated December 23, 2011, from one signatory of City of Aurelia Ordinance # 58 "Pit Bull Dog" as it the Petition to the plaintiffs' counsel retracting her stands, second by Nelson. Roll Call Vote "aye" signature to the Petition. See Hearing Exhibit L. The Nelson, Schulenberg, Bowen "nay" Fredricksen, plaintiffs also testified that they received telephone calls Lindgren. Motion carried 3-2. from other signatories after the City Council's action on December 14, 2011, indicating that the callers no longer Mayor Keith respectfully informed James Sak and supported the Petition. Peggy Leifer to have the dog kenneled out of the 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 • Page 12 of 24 Page 11 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) B. Procedural Background § 12133. Thus, the substantive provision on 1. The Complaint which the plaintiffs' claim is based is 42 U.S.C. On December 22, 2011, Sak and Leifer filed their § 12132. Complaint (docket no. 1) initiating the present lawsuit, naming the City of Aurelia as the only defendant. They 2. The Motion For Preliminary Injunction assert that the actions of the City, a "public entity," Also on December 22, 2011, Sak and Leifer filed violate Title II of the Americans with Disabilities Act, the Motion For Preliminary Injunction (docket no. 2), even though the City knew that Sak required Snickers's which is now before me. In that motion, they seek an assistance because of his disability, and that the City's order from the court to the following effect: (1) ordering discrimination against Sak on the basis of his disability an immediate return of Snickers to Sak; (2) enjoining has damaged Sak.fN They seek declaratory judgment the City from enforcing its Ordinance prohibiting pit that the City's policies, regulations, practices, and bulls with respect to Snickers; (3) ordering that the City conduct of interfering with Sak's ability to '1036 utilize is precluded from enforcing its Ordinance restrictions his service dog and its refusal •to remove the breed against Snickers that apply to pit bulls in Aurelia, Iowa, restrictions for his service dog from its Ordinance are that are "grandfathered in," because Snickers, as a contrary to and in violation of the ADA. They also seek service dog, cannot be held to the unreasonable injunctive relief "restraining the City of Aurelia from restrictions that appear in the Ordinance if he is to do enforcing the city ordinance prohibiting pit bulls, with his job of protecting and assisting Sak; and (4) respect to Mr. Sak's service dog and an immediate scheduling an evidentiary hearing on the motion within return of the service dog, Snickers [,] to Mr. Sak"; five days. "order[ing] [the City] to permit service dog Snickers to be immediately returned to Plaintiffs"; and "order[ing] The City filed a Brief In Resistance To Plaintiffs' that [the City] is precluded from enforcing its city Motion For Preliminary Injunctive Relief (docket no. ordinance restrictions against Snickers that apply to pit 10) on December 27, 2011. In its Resistance, the City bulls in Aurelia, Iowa[,] that are `grandfathered in.' " challenges Peggy Leifer's standing to assert an ADA Complaint, ¶¶ 50, 52 -53. The plaintiffs also seek claim, where she is not disabled; the viability of a cause damages for Leifer's loss of spousal consortium, on the of action for loss of spousal consortiutn under the ADA; ground that Leifer has lost the value of services of Sak, and the viability of James Sak's ADA claim, where he and has been unable to attend to her mother or depend has not identified any particular public service, upon her husband as a result of the loss of Snickers, and program, or activity of the City that he has been unable Sak is now substantially more dependent, requiring to use as a result of the City's Ordinance, and the increased care that affects Leifer's ability to tend to Ordinance does not bar hum from having a non -pit bull other matters. They also seek an award of emotional service animal, which would reasonably accommodate distress damages for the discrimination pursuant to the his disability, if he had been barred from any service, ADA, attorney's fees and costs, and such other relief as program, or activity. the court deems just and appropriate under the circumstances. They seek a jury trial on their claims. 3. The hearing Owing to the intervening Christmas holiday and the FN3. The Complaint alleges "violation of 42 need for the City to obtain counsel to respond to the U.S.C. § 12133," but that section of the statute Motion For Preliminary Injunction, I set an evidentiary simply provides the same remedies, hearing on the Motion for the sixth day after it was procedures, and rights set forth in 29 U.S.C. § filed, December 28, 2011. At that hearing, the plaintiffs 794a to any person alleging discrimination by a were represented by Sharon Malheiro and Michele public entity on the basis of disability in Warnock of Davis, Brown, Koehn, Shors & Roberts, violation of 42 U.S.C. § 12132. See 42 U.S.C. P.C., in Des Moines, Iowa. The City of Aurelia was represented by Douglas Phillips of the Klass Law Firm • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2. westlaw. com / print /printstream.aspx ?rs= WLW14.01 &destination= atp &mt =W... 03/24/2014 Page 13 of 24 • Page 12 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) in Sioux City, Iowa. At the hearing, Sak and Leifer both factors: (1) the threat of irreparable harm to the testified, and the City did not present any witnesses. movant; (2) the state of the balance between this harm The plaintiffs also offered, and I received, several and the injury that granting the injunction will inflict exhibits, and the City did not offer any additional on other parties; (3) the probability that the movant exhibits, will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, At the conclusion of the hearing, I announced that a 114 (8th Cir.198 (en banc). A preliminary preliminary injunction would issue upon the payment of injunction is an extraordinary remedy and the burden $1 in *1037 security, with an order explaining my of establishing the propriety of an injunction is on the rationale for such a preliminary injunction to follow. I movant. See Watkins, Inc. v. Lewis, 346 F.3d 841, 844 filed the Preliminary Injunction (docket no. 11), the text (8th Cir.2003). We review the denial of a preliminary of which also appears at the end of this decision, shortly injunction for abuse of discretion. Id. An abuse of after the hearing. This order explains my rationale for discretion may occur when the district court rests its that preliminary injunction. decision on clearly erroneous factual findings or erroneous legal conclusions. TCF Nat'l Bank v. I L. GAL A( ALYSI S Be,'nanke, 643 F.3d 1158, 1162-63 (8th Cir.2011). A. Standards For A Prelim/rutty Injunction [2][3] The Supreme Court recently reiterated that Roudachevski v. All - American Care Centers, Inc., "[a] preliminary injunction is an extraordinary remedy 648 F.3d 701, 705 -06 (8th Cir.2011). The " Datapiiase never awarded as of right." Winter v. Natural Resources factors," quoted just above and generally relied upon in Defense Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, the Eighth Circuit, are consistent with the factors 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 relevant to success on a motion for preliminary U.S. 674, 689 -690, 128 S.Ct. 2207, 171 L.E(1.2d 1 injunction articulated by the Supreme Court in Winter. (2008)). As the Court explained, See Sierra Club v. United States Army Corps of Engineers, 645 F.3d 978, 989 (8th Cir.2011). More In each case, courts "must balance the competing specifically, as the Supreme Court explained in Winter, claims of injury and must consider the effect on each "A plaintiff seeking a preliminary injunction must party of the granting or withholding of the requested establish [1] that he is likely to succeed on the merits, relief." Amoco Production Co. [v. Gambell ], 480 [2] that he is likely to suffer irreparable harm in the U.S. [531,] 542, 107 S.Ct. 1396 [94 L.Ed.2d 542 absence of preliminary relief, [3] that the balance of (1987) ]. "In exercising their sound discretion, courts equities tips in his favor, and [4] that an injunction is in of equity should pay particular regard for the public the public interest." Winter, 555 U.S. at 20, 129 S.Ct. consequences in employing the extraordinary remedy 365. The relevant factors must be balanced: of injunction." [Weinberger v.] Romero- Barcelo, 456 Specifically, the Court clarified in Winter that, where U.S. [305,] at 312, 102 S.Ct. 1798 [72 L.Ed.2d 91 the defendant's interests and the public interest (1982) ]; see also Railroad Conun'n of Tex. v. outweighed the movant's interests, as demonstrated by Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 the movant's showing of irreparable harm, it was L.Ed.971 (1941). unnecessary to consider whether the plaintiff had established a sufficient likelihood of success on the Winter, 555 U.S. at 24; 129 S.Ct. 365. merits. See id at 23 -24, 129 S.Ct. 365; Sierra Club, 645 F.3d at 992 -93. [4][5][6] As the Eighth Circuit Court of Appeals has since explained, *1038 The Eighth Circuit Court of Appeals has recognized that " `[t]he primary function of a When evaluating whether to issue a preliminary preliminary injunction is to preserve the status quo injunction, a district court should consider four © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http : /i we'b2.westlaw. corn /print /printstream.aspx ?rs = W LW i 4.01 & destination= atp &mt =W... 03/24/2014 Page 14 of 24 Page 13 832 F.Supp.2d 1026, 44 NDLRP 125 • (Cite as: 832 F.Supp.2d 1026) until, upon final hearing, a court may grant full where she is not herself disabled. See 42 U.S.C. § 12132 effective relief.' " Sanborn Mfg. Co. v. Campbell (prohibiting discrimination by a public entity against a Hausfeld /Scott Fetzer Co., 997 F.2d 484, 490 (8th "qualified individual with a disability"). I also find that Cir.1993) (quoting Rathnrann Group v. Tanenbaum, 889 there is likely no claim for loss of spousal consortium F.2d 787, 789 -90 (8th Cir.1989), in turn quoting under the ADA. See, e.g., Franz v. Kernan, 951 F.Supp. Ferr). Morse Seed Co. v. Food Corn, Inc., 729 F.2d 159, 162 (E.D.Mo.1996); Dunham v. City of O'Fallon, 589, 593 (8th Cir.1984)). Thus, the court observed that Mo., 945 F.Supp. 1256, 1263 (E.D.Mo.1996), affd, 124 "[r]equiring [the defendant] to take affirmative action ... F.3d 207 (8th Cir.1997) (table op.). Thus, I will focus before the issue has been decided on the merits goes on Sak's likelihood of success on the merits of his beyond the purpose of a preliminary injunction." Id. claim. Sak's likelihood of success on the merits, here, (emphasis in the original). The court explained that, turns on the extent to which Title II of the ADA and /or • where a movant seeks on its motion for prelhninary applicable regulations and rules require a municipality injunction substantially the same relief it would obtain to make exceptions for a particular "service animal" of after a trial on the merits, the movant's burden is a particular breed to a prohibition on the presence of particularly "heavy." Id. (citing Dakota Indus., Inc. v. that particular breed of dog within the city limits in a Ever Best Ltd., 944 F.2d 438, 440 (8th Cir.1991)). city ordinance. I find that Sak has sufficient likelihood of success to weigh in favor of the preliminary I will consider each of the pertinent Dataphase/ injunctive relief that he seeks. See id. Winter factors in turn, beginning with "likelihood of success on the merits." 1. The scope of Title II of the ADA [8] "Title II [of the ADA] provides that `no B. Lihelilrood Of Success On The Merits qualified individual with a disability shall, by reason of "Success on the merits has been referred to as the such disability, be excluded from participation in or be most important of the four factors." Roudachevski, 648 denied the benefits of the services, programs," or F.3d at 706. In Winter, the Court noted that, as to the activities of a public entity, or be subjected to "likelihood of success" factor, "the standard for discrimination by any such entity.' " X1039 Baribeau v. preliminary injunctive relief requires a showing of a City of Minneapolis, 596 F.3d 465, 484 (8th Cir.2010) `likelihood of success on the merits rather than actual (quoting 42 U.S.C. § 12132) r" A "public entity" success' as necessary for permanent relief." Sierra Club, means, inter alia, "any State or local government." 42 645 F.3d at 993 (quoting Winter, 555 U.S. at 32, 129 U.S.C. § 12131(1)(A). A "qualified individual with a S.Ct. 365, in turn quoting Amoco Prod. Co., 480 U.S. at disability" within the meaning of Title II of the ADA is 546 n. 12, 107 S.Ct. 1396). The Eighth Circuit Court of defined as "an individual with a disability who, with or Appeals has noted that this "preferred wording" of the without reasonable modifications to rules, policies, or standard for success differs somewhat from the "once practices, the removal of architectural, communication, familiar" formulation in Dataphase requiring the or transportation barriers, or the provision of auxiliary plaintiff to show that, "at the very least," the plaintiff aids and services, meets the essential eligibility had "established a fair ground for litigation." Id at 993. requirements for the receipt of services or the The question is not, however, whether the district court participation in programs or activities provided by a uses the preferred wording, but whether, in light of the public entity." 42 U.S.C. § 12131(2). There does not evidence, the district court correctly concludes that the appear to be any dispute that the City of Aurelia is a plaintiff is likely to succeed on at Least some of its "public entity" or that Sak is a "qualified individual claims. Id. at 993 -94. with a disability" within the meaning of Title II of the ADA. [7] I think it likely, at least at this preliminary stage of the proceedings, that the City is correct that Peggy FN4. The main difference between Titles II and Leifer does not have standing to pursue an ADA claim, © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream. aspx ?rs =WL W14.01 &destination= atp &mt =W... 03/24/2014 D - 1Cn -r 2A to v ✓ vl -r Page 14 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) III of the ADA is that Title II applies to public Milwaukee, 465 F.3d 737, 751 n. 10 (7th Cir.2006) (en entities, whereas Title III applies to private bane ). Other courts have also held that, because entities. Gaona v. Town & Coiintty Credit, 324 Congress directed the Attorney General (or Department F.3d 1050, 1056 (8th Cir.2003) ( "Title III of of Justice (DOD) to "elucidate Title II [of the ADA] the ADA prohibits discrimination on the basis with implementing regulations, DOJ's views at least of disability in public accommodations, while would 'warrant respect' and might be entitled to even section 504 of th R Act (a,,.1 4 o more re-co" 1;.- ..,,,., v. /';t„ of A,.l;,,,-,t,,,, 65'7 F A 2 II of the ADA) prohibit discrimination on the 215, 225 (5th Cir.2011); Armstrong v. Schwarzenegger, basis of disability by public entities, " 622 F.3d 1058, 1065 (9th Cir.2010) (" 'Department of (emphasis added)); see also Buchanan v. Justice regulations interpreting Title II should be given Maine, 469 F.3d 158, 170' (1st Cir.2006) controlling weight unless they are "arbitrary, capricious, (discussing titles of the ADA). Individual or manifestly contrary to the statute." ' " (quoting members of the Aurelia City Council, in their McGwy v. City of Portland, 386 F.3d 1259, 1269 n. 6 personal capacities, "are not subject to suit (9th Cir.2004), in turn quoting Chevron U.S.A. Inc. v. under Title II, which provides redress only Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 from public entities," Baribeau, 596 F.3d at S.Ct. 2778, 81 L.Ed.2d 694 (1984))). 484, and they have not been named as defendants here. The plaintiffs presumably The Attorney General's authority to promulgate could have brought suit against the individual regulations to implement Title 1r of the ADA is City Council members, in their official important here, because, as the Seventh Circuit Court of capacities, and that suit would have been Appeals has also explained, "Title II of the ADA does treated as a suit against the City. See Baribeau, not contain a specific accommodation requirement. 596 F.3d at 484. Again, the plaintiffs did not Instead, the Attorney General,'''1040 at the instruction sue the individual City Council members or of Congress, has issued an implementing regulation [28 any other City officials in their official capacities. C.F.R. § 35.130(b)(7) ] that outlines the duty of a public entity to accommodate reasonably the needs of the Section 12134 of the ADA also authorizes the disabled." Wisconsin Community Servs., Inc., 465 F.3d Attorney General to promulgate regulations to at 750 -51; accord Frame v. City of Arlington, 657 F.3d implement Title II. 42 U.S.C. § 12134(a). In an en banc 215, 231 (5th Cir.2011) (noting that Title II does more d the Seventh Cirrnoit Court o f [appeals explained, than proh dicahility discrinrinatinn by a publir. entity, because it "imposes an 'obligation to The Supreme Court never has decided whether these accommodate,' or a 'reasonable modification regulations are entitled to the degree of deference requirement,' " but expressing no opinion "as to described in Chevron, U.S.A. Inc. v. National whether (or when) a failure to make reasonable [Natural] Resource[s] Defense Council, Inc., 467 accommodations should be considered a fonn of U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) intentional discrimination, a form of disparate impact . Nevertheless, the Court has said that, "[b]ecause the discrimination, or something else entirely "); Pena v. Department of Justice is the agency directed by Bexar County, Texas, 726 F.Supp.2d 675, 683 Congress to issue regulations implementing Title II ... (W.D.Tex.2010) (Title II of the ADA "imposes upon its views warrant respect." Olmstead v. L.C., 527 U.S. public entities an affirmative obligation to make 581, 597 -98, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) reasonable accommodations for disabled individuals ") (internal citations omitted). (citing Bennett Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir.2005)). Wisconsin Community Servs., Inc. v. City of [9][10] The regulation requiring public entities to © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &rnt =W... 03/24/2014 • • • Page 16 of 24 • • Page 15 832 F.Supp.2d 1026, 44 NDLR P 125 • (Cite as: 832 F.Supp.2d 1026) provide accommodations to persons with disability the opportunity to participate in the service, program, states the following: or activity without having the service animal on the premises. A public entity shall make reasonable modifications in policies, practices, or procedures when the (d) Animal under handle•'s control. A service animal modifications are necessary to avoid discrimination shall be under the control of its handler. A service on the basis of disability, unless the public entity can animal shall have a harness, leash, or other tether, demonstrate that making the modifications would unless either the handler is unable because of a fundamentally alter the nature of the service, disability to use a harness, Leash, or other tether, or program, or activity. the use of a harness, leash, or other tether would interfere with the service animal's safe, effective 28 , C.F.R. § 35.130(b)(7). Pursuant to this performance of work or tasks, in which case the regulation, "failure to accommodate is an independent service animal must be otherwise under the handler's basis for liability under the ADA." Wisconsin control (e.g., voice control, signals, or other effective Community Servs., Inc., 465 F.3d at 751 (emphasis in means). the original). This regulation "makes clear that an accommodation only is required when necessary to ''1041 (e) Care or supervision. A public entity is not avoid discrimination on the basis of disability," and responsible for the care or supervision of a service "that any accommodation. must be a reasonable one." animal. Id. (emphasis in the original). (f) Inquiries. A public entity shall not ask about the 2. "Service animal" regulations under Title 11 nature or extent_ of a person's disability, but may make The Attorney General recently promulgated a two inquiries to determine whether an animal regulation specifically requiring public entitles to qualifies as a service animal. A public entity may ask accommodate disabled individuals' use of "service if the animal is required because of a disability and animals," 28 C.F.R. § 35.136. That regulation, in what work or task the animal has been trained to pertinent part, provides as follows: perform. A public entity shall not require documentation, such as proof that the animal has been § 35.136 Service animals. certified, trained, or licensed as a service animal. Generally, a public entity may not make these (a) General. Generally, a public entity shall mods' its inquiries about a service animal when it is readily policies, practices, or procedures to permit the use of apparent that an animal is trained to do work or a service animal by an individual with a disability. perform tasks for an individual with a disability (e.g., • the clog is observed guiding an individual who is (b) Exceptions. A public entity may ask an individual blind or has low vision, pulling a person's wheelchair, with a disability to remove a service animal from the or providing assistance with stability or balance to an premises if— individual with an observable mobility disability). (1) The animal is out of control and the animal's (g) Access to areas of a public entity. Individuals with handler does not take effective action to control it; or disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's (2) The animal is not housebroken. facilities where members of the public, participants in services, programs or activities, or invitees, as (c) If an animal is properly excluded. If a public relevant, are allowed to go. entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability (h) Surcharges. A public entity shall not ask or © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &znt =W... 03/24/2014 ra g2 ii 1�2�r Page 16 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) require an individual with a disability to pay a 28 C.F.R. § 35.104. surcharge, even if people accompanied by pets are required to pay fees, or to comply with other 3. Analysis requirements generally not applicable to people [11] The City's first challenge to Sak's contention without pets. If a public entity normally charges that he is likely to succeed on *1042 the merits of his individuals for the damage they cause,,an individual ADA claim is that he has not shown that the City -with _ disability- _i_ y 1__ charged L_.. ....._-_ _______l discriminated _1 the ba 1 disability in as 1 any W 1111 [i IILJGUlllly 111Qy be GlldI �GLL for LL[l1LLd ` caused LL1JG1 LL11111C1tGU on LllG basis of V1JQVlllI�' qJ to any by his or her service animal, program, service, or activity of the City. The City argues that the purpose of Title II of the ADA is to 28 C.F.R. § 35.136 (published September 15, 2010, guarantee people with disabilities the same access to and effective March 15, 2011) (emphasis added); and public services or employment as people without compare Pena, 726 F.Supp.2d at 685 (noting that, at the disabilities. The City argues that, in Heather K. v. City time of its decision, June 21, 2010, the Department of of Mallard, lolva, 946 F.Supp. 1373, 1389 -90 Justice had not issued any regulations regarding (N.D.Iowa 1996), I recognized that, to violate Title 11 of "service animals" pursuant to Title II of the ADA). the ADA, a municipality's ordinance or regulation must have a discriminatory effect on a plaintiffs ability to In pertinent regulations, the Attorney General take advantage of municipal services, programs, or defined "service animal" for purposes of the ADA as facilities, but that the evidence shows that Sak does not follows: and does not intend to use Snicicers to access any public services, or even any public places. Service animal means any dog that is individually trained to do work or perform tasks for the benefit of The City's reading of Heather K. is selective. In an individual with a disability, including a physical, that decision, I held, first, that, as a matter of law, Title sensory, psychiatric, intellectual, or other mental II of the ADA will reach a city ordinance " if the City's disability. Other species of animals, whether wild or ordinance has a discriminatory effect on the ability of domestic, trained or untrained, are not service animals persons with disabilities to take advantage of City for the purposes of this definition. The work or tasks services, programs, or facilities," but I also held that the performed by a service animal must be directly regulation of any activity by a city, by an ordinance, is, related to the individual's disability. Examples of itself, a program, service, activity, or benefit of the City .1 tasks include, but not limited to, assisting that Title TT of the ADA will reach. Hea L� 946 wo:tC or tasks uLCl'u'u�, vu: are :C•c i iuul -ed t0, aS5_Stu'l tna ,_ �, � v t i u:v `r` ✓u_ sv _ individuals who are blind or have low vision with F.Supp. at 1389 -90. Other courts have also held that navigation and other tasks, alerting individuals who municipal zoning qualifies as a public "program" or are deaf or hard of hearing to the presence of people "service," and that the enforcement of those rules is an or sounds, providing non - violent protection or rescue "activity" of a local government, within the meaning of work, pulling a wheelchair, assisting an individual Title II of the ADA, Wisconsin Community Servs., during a seizure, alerting individuals to the presence Inc., 465 F.3c1 at 750 (citing as examples Bay Area of allergens, retrieving items such as medicine or the Addiction Research v. City of Antioch, 179 F.3d 725, telephone, providing physical support and assistance 730 -32 (9th Cir.1999) (applying Title II to a city's with balance and stability to individuals with mobility zoning requirements); Innovative Health Sys., Inc. v. disabilities, and helping persons with psychiatric and City of White Plains, 117 F.3d 37, 48-49 (2d Cir.1997) neurological disabilities by preventing or interrupting (same)). If an ordinance regulating open burning, as was impulsive or destructive behaviors. The crime at issue in Heather K., or a zoning ordinance and zoning deterrent effects of an animal's presence and the enforcement fall within the scope of the conduct of a provision of emotional support, well - being, comfort, public entity that can be regulated by Title U of the or companionship do not constitute work or tasks for ADA, it follows that an ordinance that prohibits the the purposes of this definition. CO 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs= WLW14.01 &destination= atp &mt =W... 03/24/2014 Page 18 of 24 Page 17 832 F.Supp2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) presence of certain animals within city limits and tasks for Sak that are directly related to his disability, enforcement of that ordinance, as are at issue here, including assisting him with walking, balancing, would likewise fall within the scope of conduct of a retrieving items around the house, and assisting him public entity regulated by Title II of the ADA FN when he falls out of his wheelchair, Sak has demonstrated a Iikelihood of success on the issue of FN5. I am not persuaded that Salc's stated whether or not Snickers is a "service animal" within the intention not to use Snickers outside of his meaning of Title II of the ADA and 28 C.F.R. §§ 35.104 home or yard means that a prohibition on his and 35.136. See Sierra Club, 645 F.3d at 993 (requiring pit bull service dog cannot violate Title II of "likelihood of success" to obtain a preliminary the ADA. A zoning ordinance that barred injunction, quoting Winter, 555 U.S. at 32, 129 S.Ct. handicapped access ramps into or within a 365). Where Sak has presented evidence that, residence or a zoning ordinance requiring notwithstanding a specific request to do so, the City has doorways in a residence too narrow for refused to modify its policies, practices, or procedures, wheelchairs or enforcement of such ordinances as embodied in the Ordinance concerning pit bull dogs, would undoubtedly violate Title II of the ADA, to permit the use of a pit bull dog mix as a service because such ordinances and their enforcement animal by an individual with a disability, as required by would effectively bar disabled individuals from 28 C.F.R. § 35.136(a), and there is no evidence that living in a city or zone of a city, even though either of the exceptions to the City's obligation to do so the ordinances and their enforcement would in 28 C.F.R. § 35.136(b) apply in this case, Sak has directly regulate only those individuals' shown, at the very least, a likelihood of success on his activities in their homes, not their activities claim that the City is violating Title II of the ADA. See outside of their homes or their access to public Sierra Club, 645 F.3d at 993. areas. Moreover, the restrictions in 28 C.F.R. § 35.136 on Furthermore, 42 U.S.C. § 12132 prohibits more the extent to which a public entity can impose specific than just discrimination on the basis of disability in the limitations on the way that service animals are handled services, programs, or activities of a public entity. It or permitted access to areas of a public entity, see 28 also states that "no qualified individual with a disability C.F.R. § 35.136(c) and (g), demonstrate that the shall, by reason of such disability ... be subjected to requirements even for "grandfathered," "licensed" pit discrimination by any such entity." 42 U.S.C. § 12132. bulls in the Ordinance would improperly impede Thus, this prohibition on discrimination by a public effective use of Snickers as a service animal. See entity is not dependent upon conduct or regulations of a Ordinace, § 58.03(1)(D) (leashing and muzzling city that impinge upon a disabled individual's ability to requirements), (E) (confinement requirements), (F) enjoy the benefits of public services, programs, or (confinement indoors requirements). Thus, Sak has activities. sufficient likelihood of showing that these provisions of the Ordinance also violate Title II of the ADA to At the very least, the DOJ's regulations for warrant preliminary injunctive relief. implementation of Title II of the ADA "warrant respect" as to their requirements that public entities The frill extent to which Sak's proposed must accommodate "service animals" necessary for modifications of the Ordinance's prohibition on pit bull disabled individuals. See Wisconsin Community Sews., dogs or the requirements for "grandfathered," Inc., 465 F.3d at 751 n. 10; '''1043Frarne, 657 F.3d at "licensed" pit bull dogs are reasonable may ultimately 225; ,4rmstrong, 622 F.3d at 1065. Where the evidence be a fact question. See Crowder v. Kitagmva, 81 F.3d presented in support of the plaintiffs' Motion For 1480, 1485 -86 (9th Cir.1996); see also Heather K., 946 Preliminary Injunction demonstrates that Snickers has F.Supp. at 1387 -89 (also relying on Crowder, 81 F.3d been individually trained to do work and to perform © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com /print/printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page 19 of 24 Page, 18 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) at 1485 -87, for the proposition that the reasonableness no breed restrictions. Others have restrictions that, of modifications may be a fact question). Nevertheless, while well - meaning, have the unintended effect of Sak has made sufficient showing that he is likely to screening out the very breeds of dogs that have succeed on a demand for some modifications to warrant successfully served as service animals for decades preliminary injunctive relief without a history of the type of unprovoked aggression or attacks that would pose a direct threat, it is no impediment to preliminary injunctive relief e.g., German Shepneals. VLL1Gt juiisuietiuus prohibit to argue that the Ordinance does not bar service annuals animals over a certain weight, thereby restricting at all, just use of full or mixed breed pit bull dogs as breeds without invoking an express breed ban. In service anirnals, as the City also argues. The DOS has addition, deference to breed restrictions contained in addressed such a contention in its Guidance To local laws would have the unacceptable consequence Revisions To ADA Regulation On Nondiscrimination of restricting travel by an individual with a disability On The Basis Of Disability In State And Local who uses a breed that is acceptable and poses no Government Services (Guidance To Revisions), which safety hazards in the individual's home jurisdiction provides a section -by- section analysis and response to but is nonetheless banned by other jurisdictions. State public comments concerning the revisions to its and local government entities have the ability to regulations that included 28 C.F.R. § 35.136. See 28 determine, on a case -by -case basis, whether a C.F.R. Pt. 35, App. A. Among other things, the particular service animal can be excluded based on Guidance To Revisions addresses the argument that it that particular animal's actual behavior or should be permissible for a municipality to exclude history —not based on fears or generalizations about certain breeds of dogs, even when used as service how an animal or breed might behave. This ability to animals: exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health . Breed limitations. A few commenters suggested that and safety. certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Guidance To Revisions (emphasis added). Department should defer to local laws restricting the breeds of dogs that individuals who reside in a While the Guidance To Revisions is not, itself, a community may own. Other commenters opposed "final rule," entitled to the full deference due a AAA breed stating breed regulation i o_l- g a a•,, t h v "Luwq cieeu restrictions, s.a.urg that the, ✓iccu of a .,,,c1L, aS Yam mau%u in his U1F .L in support of dog does not determine its propensity for aggression his Motion For Preliminary Injunction, it is, and that aggressive and non - aggressive dogs exist in nevertheless, an authoritative response to comments on all breeds. the DOD's proposed regulation requiring accommodation of service animals by public entities. Just as The Department does not believe that it is either importantly, I find that the reasons offered by the DOS appropriate or consistent with the ADA to defer to in the Guidance To Revisions for rejection of breed - local laws that prohibit certain breeds of dogs based specific prohibitions on service animals under Title II of on local concerns that these breeds may have a the ADA are persuasive. See e.g., Olmstead v. L.C., 527 history of unprovoked aggression or attacks. Such U.S. 581, 597 -98, 119 S.Ct. 2176, 144 L.Ed.2d 540 deference would have the effect of Limiting the rights (1999) ( "The well- reasoned views of the agencies of persons with disabilities under the ADA who use implementing a statute constitute a body of experience certain service animals based on where they live and informed judgment to which courts and litigants rather than on whether the use of a particular animal may properly resort for guidance. "); Aver v. Robbins, poses a direct threat to the health and safety of 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 others. Breed restrictions differ significantly from (1997) (holding that an agency's interpretation of its jurisdiction to jurisdiction. Some jurisdictions have © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • • http: / /web2.westlaw. com/print/printstream.aspOrs=WLW14.01&destination=atp&mt=W... 03/24/2014 Page 20 of 24 Page 19 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) regulations is "controlling unless plainly en or Sales allegations of "irreparable harm." See Winter, 555 inconsistent with the regulation "). The record also U.S. at 20, 129 S.Ct. 365; Roudachevski, 648 F.3d at shows that Sak has sufficient likelihood of showing that 705 (citing Dataphase, 640 F.2d at 114). substitution of a non -pit bull service animal is not a reasonable accommodation, because Snickers has been [13] The movant must show that "he is Iikely to individually trained for his individual needs over as suffer irreparable harm in the absence of preliminary much as two years, and there would, consequently, be relief." Winter, 555 U.S. at 20, 129 S.Ct. 365. In Winter, significant loss of time and difficulties involved in the Supreme Court clarified that, even where a plaintiff obtaining and adequately training an appropriate demonstrates a strong likelihood of prevailing on the substitute animal, with the loss of security to Sak and merits, the plaintiff must do more than show a potential for injury in the meantime. Thus, Salc is "possibility" of irreparable harm; rather, the proper sufficiently likely to prevail on a claim that a breed- standard "requires plaintiffs seeking preliminary relief specific ordinance that incidentally bars him from to demonstrate that irreparable injury is likely in the having a pit bull dog as a service animal violates Title absence of an injunction." Id. at 22,, 129 S.Ct. 365 II of the ADA and that substitution of a * non -pit bull (emphasis in the original) (rejecting as "too lenient" the service animal is not a reasonable accommodation for "possibility" of irreparable harm standard used by the this factor to weigh in favor of injunctive relief. Ninth Circuit Court of Appeals and the district court in the case below). " `Irreparable harm occurs when a I conclude that Sak has made sufficient showing of party has no adequate remedy at law, typically because likelihood of success on an "accommodation" claim its injuries cannot be fully compensated through an pursuant to 28 C.F.R. § 35.130(b)(7) for this factor to award of damages.' " Rogers Group, Inc. v. City of weigh heavily in support of preliminary injunctive Fayetteville, Ark., 629 F.3d 784, 789 (8th Cir.2010) relief, where he has marshaled evidence that his (quoting General Motors Corp. v. Harry Brown's, requested accommodations (i. exceptions to the L.L.C., 563 F.3d 312, 319 (8th Cir.2009)). The Eighth Ordinance) are necessary to avoid discrimination on the Circuit Court of Appeals has stated that, "[t]o succeed basis of Sak's disability, and the requested restrictions in demonstrating a threat of irreparable harm, `a party are reasonable. Wisconsin Community Servs., Inc., 465 must show that the harm is certain and great and of such F.3d at 751. imminence that there is a clear and present need for equitable relief.' " Roudachevski, 648 F.3d at 706 C. Irreparable Harm To Sak (quoting Iowa Utils. Bd. v. Federal Conunc'ns Com111 n, [12] "Likelihood of success" is " `meaningless in 109 F.3d 418, 425 (8th Cir.1996)). isolation ... [and] must be examined in the context of the relative injuries to the parties and the public.' " [14] Sak identifies the irreparable harm that he is Rouclachevski, 648 F.3d at 706 (quoting General Motors suffering as a result of the exclusion of Snickers from Corp. v. Harry Bror+'n's L.L,C., 563 F.3c1 312, 319 (8th the City of Aurelia, in the first instance, as degradation Cir.2009)); accord Winter, 555 U.S. at 23 -24, 129 S.Ct. of his quality of life. Sak showed that he has already 365 (there is no need to reach the "likelihood of fallen from his wheelchair twice, without Snickers to success" factor, if the balance of interests weighs aid his recovery, and that he was forced to call 911 for against the injunction). Thus, even though I have found assistance on one of those occasions. He also showed that Sak has sufficient likelihood of success on the that, without Snickers, he experiences greater fears, merits of his Title 11 claim to weigh in favor of insecurity, and increased chances of injury from his preliminary injunctive relief, I must still consider and disability, and is less able to operate in society. Sak balance the other Dataphase/ Winter factors to decide argued that taking away his service dog inflicts injury whether or not to issue a preliminary injunction. on hire comparable to taking away his wheelchair, Therefore, I begin that balancing process by examining which is also a necessity. He also demonstrated that the © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. con /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 • Page 21 of 24 P__- 20 Page w 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) loss of Snickers has had a negative impact *1046 on his trained and certified "service animal" has a history of relationship with Leifer, as he is now more dependent aggression or causing injury to persons or property, upon Leifer and less able to assist her, and Leifer is however, that claim of injury rings hallow. Because unable to leave him alone, for fear of another fall or even preliminary injunctive relief to the full extent injury. I also note that simply replacing Snickers with requested by Sak would not void the Ordinance or make another service animal is not only not a reasonable it unenforceable as to any other pit bull dog, and the accommodation, but that the loss of Snickers is likely to City would retain the ability to determine, on a case - cause irreparable harm, because Snickers has been by -case basis, whether this particular service animal individually trained for Sak's individual needs. The loss can be excluded based on his actual behavior or history, of time and the difficulties involved in obtaining and not based on fears or generalizations about how a pit training an appropriate substitute animal, with the loss bull mix might behave, any purported injury to public of security to Sak and potential for injury in the health and safety is illusory. See Guidance To meantime, also demonstrate that Sak's loss is Revisions. Moreover, the balance of the weak or irreparable. Thus, I find that Sak has demonstrated harm illusory injury to public health and safety, if the that is " irrenarable." and that if i' not inct "nnccihla" (lr/linanrq is s"sranrlPA n or - ,1 - !Sr as to r irltarc but "likely" in the absence of injunctive relief. Winter, against the very real threat of irreparable injury to Sak, 555 U.S. at 22, 129 S.Ct. 365. It is doubtful that the if Snickers continues to be excluded from the City and, injuries to Sak could possibly be fully compensated consequently, cannot provide necessary services to Sak, through an award of damages. Rogers Group, Inc., 629 is unequivocally in favor of preliminary injunctive relief. F.3d at 789. Finally, such injuries are sufficiently imminent that there is a clear and present need for E. The Public Interest equitable relief. Rouclachevski, 648 F.3d at 706. [16] The last Dataphase/ Winter factor requires me to consider whether an injunction is in the public This factor also weighs heavily in favor of interest. Winter, 555 U.S. at 20, 129 S.Ct. 365; preliminary injunctive relief, Rouclachevski, 648 F.3d at 705 -06. I must consider both what public interests might be injured and what public D. Balance Of Equities interests might be served by granting or denying a The next Dataphase/ Winter factor is whether the preliminary injunction. See Sierra Club, 645 F.3d at balance of equities tips in favor of preliminary 997 -98. The Eighth Circuit Court of Appeals has `1047 injunctive relief. Winter, 555 U.S. at 20, 129 S.Ct. 365; recognized that "the determination of where the public Roudachevski, 648 F.3d at 705 -06 (stating the interest lies is also dependent on the determination of Dataphase factor as "the state of the balance between likelihood of success on the merits," because it is in the [the movant's irreparable] harm and the injury that public interest to protect rights. Phelps —Roper v. Nixon, granting the injunction will inflict on other parties" 545 F.3d 685, 690 (8th Cir.2008) (First Amendment (citing Datapbcrse, 640 F.2d at 114)). "In each case, rights case). courts `must balance the competing claims of injury and must consider the effect on each party of the granting or [17] There is some cogency to the argument that the withholding of the requested relief.' " Id. at 24, 129 Ordinance reflects a public interest in health and safety, S.Ct. 365 (quoting Amoco Production Co., 480 U.S. at but the regulations under Title II of the ADA reflect an 542, 107 S.Ct. 1396). apparently conflicting public interest in allowing disabled individuals access to and use of their service [15] The competing injury that the City asserts animals. The Ninth Circuit Court of Appeals addressed appears to be that the lack of enforcement of its a similar apparent conflict between a local public health Ordinance as to Snickers underrnines the public safety law and Title II of the ADA in Crowder v. Kilogram, 81 concerns that prompted the ban on pit bull dogs in the first place. In the absence of any evidence that this © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.cotn /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page 22 of 24 Page 21 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) F.3d 1480 (1996), a case involving a claim that Hawaii's appropriate terms, has issued. 120 —day quarantine on carnivorous animals entering that state, which was designed to prevent importation of 111. THE BOND REQUIREMENT rabies, violated Title II of the ADA when applied to [18][19] Subsection (c) of Rule 65 of the Federal service animals for the visually impaired. The court in Rules of Civil Procedure requires the movant to give Crowder found that " `the general intent of Congress' security for the issuance of a preliminary injunction. See was `to ensure that individuals with disabilities are not FED.R.CIV.P. 65(c) ( "The court may issue a separated from their service animals,' such as guide preliminary injunction or a temporary restraining order dogs." Crowder, 81 F.3d at 1485 (citing 28 C.F.R. Pt. only if the movant gives security in an amount that the 36, Appendix B, at 616) (service annuals in public court considers proper to pay the costs and damages accommodations); 135 Cong. Rec. D956 (Statement of sustained by any party found to have been wrongfully Sen. Simon) ( "As an auxiliary aid, the use of assistive enjoined or restrained. "). As I have explained, "The animals is protected by the Americans With Disabilities bond posted under Rule 65(c) `is a security device, not a Act, in public accommodations as well as public limit on the damages the [City] may obtain against [the services (including schools). "). The court then observed, plaintiffs] if the facts warrant such an award.' " *1048 Branstad v. Glicknan, 118 F.Supp.2d 925, 944 We are mindful of the general principle that courts ( N.D.Iowa 2000) (quoting Minnesota Mining & Mfg. will not second -guess the public health and safety Co. v. Rauh Rubber, Inc., 130 F.3d 1305, 1309 (8th decisions of state legislatures acting within their Cir.1997)). Furthermore, "[a]lthough [the Eighth Circuit traditional police powers. See Queenside Hills Really Court of Appeals] allow[s] the district court much Co. v. Saxl, 328 U.S. 80, 82 -83, 66 S.Ct. 850, discretion in setting bond, [it] will reverse [the district 851 -52, 90 L.Ed. 1096 (1946). However, when court's] order if it abuses that discretion due to some Congress has passed antidiscrimination laws such as improper purpose, or otherwise fails to require an the ADA which require reasonable modifications to adequate bond or to make the necessary findings in public health and safety policies, it is incumbent upon support of its determinations." Hill v. Xyguad, Inc., 939 the courts to insure that the mandate of federal law is F.2d 627, 632 (8th Cir.1991) (citing Rathmann Group v. achieved. Tanenbaum, 889 F.2d 787, 789 (8th Cir.1989)); accord United Healthcare Ins. Co. v. AdvancePCS, 316 F.3d Crowder, 81 F.3d at 1485. To put it another way, 737, 745 (8th Cir.2002) ( "We review the amount of the the national public interest in _ enforcement of the ADA bond for an abuse of discretion." (citing Rathmann "humps" the more local public interest in public health Group, 889 F.2d at 789)). and safety reflected in the Ordinance prohibiting pit bull dogs within the City of Aurelia. [20] In Interbake Foods, L.L.C. v. Toinasiello, 461 F.Supp.2d 943 (N.D.Iowa 2006), I noted that courts F. Summary were inconsistent on whether or not some security is I conclude that all of the relevant Dataphase/ always required before issuance of a preliminary Winter factors weigh in favor of issuing a prelhninary injunction, but I reiterated my prior conclusion that, in injunction against enforcement of the Ordinance against light of the mandatory language of Rule 65(c), " Snickers. See Winter, 555 U.S. at 23 -24, 129 S.Ct. 365; `requiring a bond in some amount before issuing a Sierra Club, 645 F.3d at 992 -93. In these preliminary injunction is far the better course.' " circumstances, it is appropriate to employ the Interbake Foods, 461 F.Supp.2d at 979 (quoting Curtis extraordinary remedy of a preliminary injunction to bar 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1279 enforcement of the Ordinance against Snickers. Winter, (N.D.lowa 1995)). However, in this case, as in 555 U.S. at 24, 129 S.Ct. 365; Rorulachevski, 648 F.3d Interbake Foods, I find that the amount of potential at 705 -06. Such a preliminary injunction, on damages is extremely limited, because the City will not © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.cozn/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 n- ge 23 ....en 4 Page 22 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) likely incur any costs or damages if the Ordinance is IT IS SO ORDERED. preliminarily enjoined only as to Snickers. Id. I also conclude that Sak's rights, improperly impinged by the *1049 PRELIMINARY INJUNCTION Ordinance, are of such gravity that protection of those WHEREAS, this matter came before me pursuant rights should not be contingent upon his ability to pay to the December 22, 2011, Motion For Preliminary the bond. Cf. Doctor John's, Inc. v. City of Sioux City, Injunction by plaintiffs James Sak and Peggy Leifer, T__.._ 3nc n____ nJ 1 IAAf AA n.T f T_..._ 2004) /UU'U, .)U.) f.JUpp.LU 1ULL, IVYJ -`-FY `1V.1J.tU 4VQ LUUYJ (waiving the payment of any bond for this reason). AND WHEREAS, I find that enforcement actions Under the circumstances, I find that the appropriate of the City of Aurelia, Iowa, or any of its subdivisions, amount of the bond required before issuance of the administrative departments, agents, employees, or preliminary injunction is $1.00. See Interbake Foods, officials, pursuant to City of Aurelia Ordinance Chapter 461 F.Supp.2d at 979 (also imposing a bond of only 58, Pit Bull Dog, against the service animal $1.00). "SNICKERS," identified in the National Service Animal Registry database as ID C12694, and or IV. CONCLUSION plaintiff James Sak would impose irreparable harm or I noted at the beginning of this decision that injury or the threat of such irreparable harm or injury "[w]hen a man's best friend is his dog, that dog has a upon James Sak, arising from a potential violation of problem." When a service dog is excluded by a city's James Sak's rights under Title II of the Americans with breed - specific pit bull ban, that dog might have a Disabilities Act, 42 U.S.C. § 12131 et seq., and upon problem but for Congress's passage of the ADA and the further consideration of all other relevant factors, Attorney General's regulations and guidance on service dogs and breed limitations. The ADA was enacted "to THE CITY OF AURELIA, IOWA, and any of its provide a clear and comprehensive national mandate for subdivisions, administrative departments, agents, the elimination of discrimination against individuals employees, or officials, are hereby preliminarily • with disabilities." 42 U.S.C. § 12101(b)(1). Included enjoined from pursuing, instituting, continuing, or within this mandate was Congress's intention to ensure completing any and all enforcement actions pursuant to that disabled individuals, like Sak, are not separated City of Aurelia Ordinance Chapter 58, Pit Bull Dog, from their service animals, Thus, I fund that, whatever against the service animal "SNICKERS," identified in the legal bark of the City's Ordinance prohibiting pit the National Service Animal Registry database as ID a general matter of public health and safety, C126 and/or plaintiff James Sak until such time bull dogs as a genena ueu: i' v pu health _ u � �, _i-r, n yr p ui James as it is sufficiently likely that enforcement of that this preliminary injunction is dissolved or vacated, by Ordinance against Snickers would take such an this court or a reviewing court. The preliminary impermissible bite out of Title I1 of the ADA and the injunction against enforcement of City of Aurelia regulations and guidance promulgated to implement it Ordinance Chapter 58, Pit Bull Dog, against the service that a preliminary injunction is warranted, There is also animal "SNICKERS," identified in the National Service sufficient showing that enforcement of the Ordinance Animal Registry database as ID C12694, and/or against Snickers is causing and will cause irreparable plaintiff James Sak, includes, but is not limited to, the harm to Sak. Granting the injunction is not following: counterbalanced by any harm to the City. Finally, in my view, the public interest in allowing Sak to keep and use 1. Enforcement as to "SNICKERS" and /or plaintiff his certified and registered service dog, Snickers, James Sak of the prohibition on keeping, harboring, substantially outweighs the City's interest in banning owning, or in any way possessing a Pit Bull Dog Snickers. This is one small, but vital step for Sak, one within the City of Aurelia, pursuant to Ordinance § giant leap for pit bull service dogs. 58.02; 2. Enforcement as to "SNICKERS" and /or plaintiff © 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/24/2014 Page 24 of 24 Page 23 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) James Sak of any requirements for or restrictions on licensed Pit Bull Dogs, pursuant to Ordinance § 58.03; and /or • 3. Interference in any way with the immediate return of "SNICKERS" to Mr. Sak or Mr. Sak's use of "SNICKERS" as a service dog, either in his home or anywhere within the limits of the City of Aurelia. This preliminary injunction shall be binding upon the parties to this action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of this order. Pursuant to the security provisions of Rule 65(c) of the Federal Rules of Civil Procedure, this preliminary injunction shall issue upon the payment of security in the amount of $1.00. IT IS SO ORDERED. N.D.Iowa,2011. Sak v. City of Aurelia, Iowa 832 F.Supp.2d 1026, 44 NDLR P 125 END OF DOCUMENT • 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com / print /printstream.aspx ?rs= WLW14.01 &destination= atp &mt =W... 03/24/2014 n Page 2 of i Westlaw. Page 1 Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) surroundings. Plaintiff suffers from autism, panic Only the Westlaw citation is currently available. attacks, a head injury, asthma and has hearing problems. United States District Court, E.D. Washington. On June 17, 2005, Plaintiff was traveling with Pamela A. BAUGHER, Plaintiff, Bun from Seattle, Washington to Sunnyside, v. Washington on I -90, when she decided to stop at CITY OF ELLENSBURG, WA, The Broadway the Flying J convenience store in Ellensburg, Group, Defendants. Washington. She entered the store with Bun in tow. As she neared the open deli case, a store clerk No. CV -06- 3026 -RHW. approached her, expressed concern that Bun was March 19, 2007. near the food, and asked if she could help Plaintiff retrieve any food items. She also asked Plaintiff to Pamela A. Baugher, Seattle, WA, pro se. keep Bun away from the food. Charles Dana Zimmerman, Ogden Murphy Wallare Plaintiff told the store .clerk that Bun was a PLLC, Wenatchee, WA, Edward George Johnson, service animal, and therefore, could remain in the Law Offices Raymond W. Schutts, Spokane, WA, store. Plaintiff informed the store personnel that the Raymond W. Schutts, Raymond Schutts Law Americans with Disabilities Act (ADA) and the Offices, Liberty Lake, WA, for Defendants. Washington Law Against Discrimination required access for medical service dogs. The store clerk and the store manager denied this right, asserting that ORDER GRANTING THE BROADWAY company policy and health regulations prevented GROUP'S MOTION FOR SUMMARY Bun from being near the deli case. Plaintiff asked JUDGMENT; GRANTING TIIE CITY OF that the police be called to enforce the Washington ELLENSBURG'S MOTION FOR SUMMARY criminal statutes that make it a crime to deny access JUDGMENT because of the use of a service dog and to separate ROBERT H. WI-IALEY, Chief United States a service dog from a user. District Judge. *1 Before the Court is Defendants' Motions for Plaintiff was asked to leave the store by the Surrunary Judgment (Ct.Recs,25, 30). A hearing store manager. She refused. Eventually, the police was held on the motions on February 20, 2007, in were called. When they arrived, Plaintiff, the Yakima, Washington. Plaintiff participated pro se manager, and the police stepped outside the store. telephonically; Defendant City of Ellensburg was The police asked Plaintiff for her name and represented by Charles Zimmerman; Defendant The identification, which she refused to give. The police Broadway Group was represented by Raymond notified her that they were investigating her for Schutts. criminal trespass. Plaintiff became angry and started to walk away. The police asked her to stay BACKGROUND and she refused. Ultimately, two police officers The following facts are viewed in the light grabbed Plaintiff and handcuffed her. One of the most favorable to Plaintiff, the non - moving party. police officers removed Bun from Plaintiffs grasp. Once she was handcuffed, Plaintiff fell to the Plaintiff routinely travels with her dog "Bun." ground and started crying for help. She complained Bun accompanies Plaintiff to assist her with of chest pains, and she expressed concern that Bun alertness to the need for medication and alertness to © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http:// web2. westlaw. com/ print /printst eam.aspx ?utid= 2 &prft= HTMLE &Vr 2.0 &destinati... 03/24/2014 Page 3 of 7 Page 2 Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) was going to die, due to the heat. An ambulance material fact and that the moving party is entitled to • was called to the scene, and Plaintiff was judgment as a matter of law." Fed.R.Civ.P. 56(c). transported to the emergency room. One of the There is no genuine issue for trial unless there is officers retrieved Plaintiffs medication from her sufficient evidence favoring the non - moving party purse, which was in the front seat of the car. While for a jury to return a verdict in that party's favor. in the ambulance, Plaintiff refused all medical Anderson v. Liberty Lobby; Inc., 477 U.S. 242, 250 assistance, but continued to complain of chest (1986). The moving party had the initial burden of pains. At the emergency room, she continued to showing the absence of a genuine issue of fact for refuse all medical assistance. Eventually, she was trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 released from the ER, and was brought by the (1986). If the moving party meets it initial burden, police to the Animal Shelter to retrieve Bun FNI, the non - moving party must go beyond the pleadings and then was returned to the car. and "set forth specific facts showing that there is a genuine issue for trial. Id. at 325; Anderson, 477 FNI. After being taken from Plaintiff, Bun U.S. at 248. as placed in a patrol car. The officer who placed Bun in the car testified that he made In addition to showing that there are no sure that Bun was in the shade, the questions of material fact, the moving party must windows were rolled down and the air also show that it is entitled to judgment as a matter conditioning was running. Bun 'was then of law. Smith v. Univ. of Washington Law School, transported to the nearest animal shelter.. 233 F.3d 1188, 1193 (9th Cir.2000). The moving party is entitled to judgment as a matter of law `2 As a result of this incident, Plaintiff is when the non - moving party fails to make a seeking two million dollars in damages. sufficient showing on an essential element of a claim on which the non - moving party has the DISCUSSION burden of proof. Celotex, 477 U.S. at 323. Plaintiff is proceeding pro se; thus, the Court will liberally construe her pleadings. Ortez v. When considering a motion for summary Washington County, 88 F.3d 804, 807 (9th judgment, a court may neither weigh the evidence Cir.1996). It appears that Plaintiff is making the nor assess credibility; instead, "the evidence of the following claims: (1) violation of the Americans non - movant is to be believed, and all justifiable with Disabilities Act (ADA); (2) violation of the inferences are to be drawn in his favor." Washington Law Against Discrimination, Wash, Anderson, 477 U.S. at 255. Rev.Code § 49.60; (3) violation of Wash. Rev.Code §§ 9.91.170 and 70.84.070; (4) violation of 28 II. The Broadway Group's Motion for Summary C.F.R. § 35.134; and (5) section 1983 claim based Judgment on unreasonable search and seizure. Plaintiffs Defendant The Broadway Group argues that complaint does not differentiate between the claims summary judgment is appropriate for all of asserted against the two Defendants. The Court Plaintiffs claims asserted against it. construes Plaintiffs complaint as asserting the five claims against both Defendants. (1) Americans with Disabilities (ADA) Claim Plaintiff is relying, in part, on the Americans I. Standard of Review with Disabilities Act in support of her claim for Summary judgment is appropriate if the damages. Pursuant to Title III of the ADA, private "pleadings, depositions, answers to interrogatories, entities, such as gas stations and establishments that and admissions on file, together with the affidavits, sell food, cannot discriminate against individuals if any, show that there is no genuine issue as to any based on their disability. 42 U.S.C. § 12182(a). © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.coin /print /printstream. aspx?utid=2 &pr ft— HTMLE &vr =2.0 &destinati... 03/24/2014 Page 4 of 7 Page 3 Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) . (Cite as: 2007 WL 858627 (E.D.Wash.)) Monetary damages, however, are not 'recoverable 28 C.F.R. § 36.206 provides: under Title III of the ADA -only injunctive relief. Wander v. Kaus, 304 F.3d 856, 858 (9th Cir.2002). (a) No private or public entity shall Here, Plaintiffs complaint is clear. She is seeking discriminate against any individual because that only monetary damages. Thus, summary judgment individual has opposed any act or practice made in favor of Defendant The Broadway Group with unlawful by this part, or because that individual ., t 1 ,. Plaintiffs ADA A 1 ' t., made Ch testified assisted, artirir.aterr regard w i 14L11111 o nLn SdIUUll is appropriate. ii... .. u Charge, ..o . ....., »� d .,. ... : p... in any any manner in an investigation, proceeding, or (2) 28 C.F.R. § 35.134 hearing under the Act or this part. . Plaintiff cites to 28 C.F.R. § 35.134 in support of her claim against Defendants. 28 C.F.R. (b) No private or public entity shall coerce, § 35.134 prohibits retaliation or coercion on the intimidate, threaten, or interfere with any part of state and local government services; which individual in the exercise or enjoyment of, or on is part of Title II of the ADA. Specifically, it account of his or her having exercised or enjoyed, provides: or on account of his or her having aided or encouraged any other individual in the exercise (a) No private or public entity shall or enjoyment of, any right granted or protected discriminate against any individual because that by the Act or this part. individual has opposed any act or practice made unlawful by this part, or because that individual ©) Illustrations of conduct prohibited by this made a charge, testified, assisted, or participated section include, but are not limited to: in any manner in an investigation, proceeding, or hearing under the Act or this part. (1) Coercing an individual to deny or limit the benefits, services, or advantages to which he or (b) No private or public entity shall coerce, she is entitled under the Act or this part; intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on (2) Threatening, intimidating, or interfering account of his or her having exercised or enjoyed, with an individual with a disability who is or on account of his or her having aided or seeking to obtain or use the goods, services, encouraged any other individual in th exercise facilitieg priviieges addvantagec or or enjoyment of, any right granted or protected accommodations of a public accommodation; by the Act or this part. (3) Intimidating or threatening any person 28 C.F.R. § 35.134. because that person is assisting or encouraging an individual or group entitled to claim the rights To the extent that the ADA applies to private granted or protected by the Act or this part to entities, it is through Title III of the ADA. Thus, exercise those rights; or this C.F.R. section does not apply to Defendant The Broadway Group in this context. (4) Retaliating against any person because that person has participated in any investigation or Part 36 of Title 28 of the CFR however, covers action to enforce the Act or this part. Nondiscrimination on the Basis of Disability by Public Accommodations and • in Commercial 28 C.P.R. § 36,206. Facilities. Part 36 contains a similar provision that prohibits retaliation and coercion in public *4 This regulation is based on 42 U.S.C. § accommodations and in commercial facilities. 12203(b), which provides: • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx? utid= 2 &prft= HTMLE &vr= 2.0 &destinati... 03/24/2014 Page 5 of 7 Page 4 Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) It shall be unlawful to coerce, intimidate, to extend supplemental jurisdiction to the threaten, or interfere with any individual in the remaining state claims. See 28 U.S.C. § 1367 ©); exercise or enjoyment of, or on account of his or see also Carnegie- Mellon Univ. v. Cohill, 484 U.S. her having exercised or enjoyed, or on account of 343, 350 n. 7 (1988) ( "[I]n the usual case in which his or her having aided or encouraged any other all federal -law claims are eliminated before trial, individual in the exercise or enjoyment of any the balance of factors to be considered under the right granted or protected by this chapter. pendent jurisdiction doctrine- judicial economy, convenience, fairness, and comity-will point toward 42 U.S.C. § 12203(b). declining to exercise jurisdiction over the remaining state -law claims. "); United Mine Even if the. Court were to liberally construe Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Plaintiffs complaint to allow her to state a claim under 42 U.S.C. § 12203(b) and 28 C.F.R. § 36.206 III. Defendant City of Ellensburg , Plaintiffs retaliation claim does not survive because compensatory and punitive damages are (1) Americans with Disabilities Claim (ADA) not available for retaliation claims under the ADA. See Kramer v. Banc of America Securities, L.L.C., Title II of the ADA applies to any state or local 355 F.3d 961, 965 (7th Cir.2004). government. 42 U.S.C. § 12131. Title II authorizes suits by private citizens for money damages against (3) Section 1983 Claim Based on the Fourth public entities that violate § 12132. See 42 U.S.C. § Amendment 12133 (incorporating by reference 29 U.S.C. § 794a Section 1983 creates a cause of action against ); see United States v. Georgia, 126 S.Ct. 877, 879 any person who, acting under color of state law, (2006). Plaintiff cannot bring an ADA claim violates the constitutional rights of another person. against the police officers in their individual 42 U. S.C. § 1983; Mabe v. • San Bernardino capacity under Title II. Alsbrook v. City of County, Dept of Pirblic Soc. Serv., 237 F.3d 1101, Maaunelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999). 1106 (9th Cir.2001). To succeed on a section 1983 claim, Plaintiff must show that (1) the conduct *5 In order to state a claim of disability • complained of was committed by a person acting discrimination under Title II, Plaintiff must allege under color of state law; and (2) the conduct four elements: (1) she is an individual with a deprived her of a constitutional right. Long v. disability; (2) she was otherwise qualified to County of Los Angeles, 442 F.3d 1178, 1185 (9th participate in or receive the benefit of some public Cir.2006). entity's services, programs, or activities; (3) she was either excluded from participation in or denied Here, there is nothing in the record that would the benefits of the public entity's services, support a finding that the employees of The programs, or activities, or was otherwise Broadway Group were acting under color of state discriminated against by the public entity; and (4) law. Thus, to the extent Plaintiff is asserting a such exclusion, denial of benefits, or discrimination section 1983 clans against Defendant The was by reason of her disability. McGary v. City of Broadway Group, summary judgment is appropriate. Portland, 386 F.3d 1259, 1265 (9th Cir.2004). (4) Remaining State Law Claims The Court liberally construes Plaintiffs Plaintiff alleges a number of state claims. complaint as bringing two claims under Title II:(1) . . Because the Court has granted summary judgment the City of Ellensburg violated the ADA when it with respect to all federal claims, the Court declines failed to enforce her right to bring a service dog into a public accommodation; and (2) the City of © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw.com/ print/ printstream. aspx? utid= 2 &prft= HTMLE &vr= 2. &destinati... 03/24/2014 Paa ti of 7 • Page 5 Not Reported in F.Supp.2d, 2007 WL 858627 ( E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) . Ellensburg violated the ADA when its police animal:- -that -. provided :__minimal, -- protection and officers arrested her on account of her disability. retrieved:.smaL1:. dropped for a quadriplegic, who used a wheelchair for mobility. 370 F.3d 837, Defendant City >':ef -- Ellensburg! doe 's iiot`.dispute 839 (9th Cir.2004). that = Plaintiff may __ have° =::a :.qualifying '--disability; - rather r - it argues (that: PlaintifLeannot: establish .`a Defendants argue that personal training vio.1 at�r.. bf the..: eDA'lje.^.u�tt e h1n" di e° het`qua1ify cou pl e d w th ev id e n c e of o tside nhadienr io. n as :a service anunal• and because she was not training and actual observation of the animal discriminated against because she was disabled. exhibiting the learned behavior is required in order to qualify the animal as a service animal. The Court 'Pursuant to the : - •ADA,. a.. service.- animal :is• -: agrees..-that: there. must be:some - evidencerto-set a defined : as: -- •service;,,animal-_apart, from,. ,an ordinary: :pet but disagrees =that there-must be= - documented'= evidence Service animal means any guide dog,- signal. of individual training. In this case the issue - -with dog,: or. other:, animal individually 'trained to do regard -to ° -whether ._ -Bun. is considered a "service work: _•or: perform: tasks, ..for .the.. benefit- of -an anunal" .does . not .necessarily- turn - -on- documented individual _!with__a ..disability,- including but not evidenee,_:but• whether-- Bun - -was - trained to der- wo11C- limited to, guiding individuals with unpaired ot_.-perform,tasks -for the benefit of an individual vision, alerting individuals with impaired hearing with a disability. Plaintiff asserts that the presence to intruders or sounds, providing minimal of Bun assisted her in her daily life. However, the protection or rescue work, pulling a wheelchair, record is- devoid of: any-specific, work or tasks that or fetching dropped items. Bun.:: was - °-trained, .to:.- perform for the benefit of Plaintiff, other than to be a presence that would 28 C.F.R § 36.104. remind Plaintiff to take her medication, or to stay . focused.FN Plaintiff asserts that Bun cued her to In support_.of their argument, Defendants rely take her medicine. Plaintiff does not explain the 'onAllashington.case- -law; and a federal district court specific cue that Bun was trained to provide when case- Prindable v. Assn of Apartment Owners of the need to take her medicine arose, nor is there 2987 Kalakaua, 304 F.Supp.2d 1245 (D.Haw.2003) anything in the record that explains the cues that In th cases th district corn•t held that theremirst Bun was trained to provide to Plaintiff to keep her be. some _ evidence :_of- individual-training- to.set the focused. Nor does Plaintiff explain how _Bun was service: animal. apart. from the ordinary pet: Id at trained to provide these cues. `The:lCourtAoes `i of 1256. Although the Ninth Circuit affnmed the doubt: that ::Biwa: :provided; Plaintiff ; -with =a °sense; of- granting of summary judgment in that case, it security and comfort :and helped he ,cope with her V . . specifically declined to rule on whether the disability,_ but does:.; not_. meet_. the %statutory•' plaintiffs must prove that the dog is an individually definition of a service anuiial as defined_ by the trained service animal. See DuBois v. Assn of ADA ?:The Court reads the ` :regulation as egwring Apartment Owners of 2987 Kalakaua, 453 F.3d something more than.` merely bein' a g. presence that 1175, 1179 n. 2 (9th Cir.2006) ( [W]e need not and prov_•'ides`,;comrfoit, co m mpanionship, :-;or,,interaction do not reach other issues addressed by the district with.., an individual The regulation is clear The - court, including whether the plaintiffs must prove service dog must be trained to perform specific:. that [tire dog] is an individually trained service tasks or wank and there is nothng the record to animal. "). Moreover; in Lentini v. California: suggest, that,.: Bun was trained; to .perform;.,apecific' , Center for the = , Arts, Escondido; the Circuit tasks or rvor'k for the benefit of Plaintiff: Plaintiff . concluded,— without comment, that: a small,-- has not presented any admissible evidence that sets Shih..- Tzu/Poodle mix.- named.. Jazz, -was a service © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. coin/ print/ printstream. aspx? utid= 2 &prft =HTMLE &vr= 2.0 &destinati... 03/24/2014 Page7of7 Page 6 Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 ( E.D.Wash.)) • Bun apart from the ordinary pet. Soc. Services, 436 U.S. 658, 691 (1978). Plaintiff has not presented any evidence of any official FN2. In opposition to Defendants' motions, government policy or custom that authorizes Plaintiff submitted a letter from Dr. Janet unlawful searches and arrests. See Hart v. Parks, Arnold, dated March 30, 2004. In the 450 F.3d 1059, 1071 (9th Cir.2006) (holding that letter, Dr. Arnold states that Plaintiff is her dismissal of Monell claims were proper where patient, and Plaintiff uses a medical service police had probable cause to arrest and where dog `Bun." Dr. Arnold wrote that she has plaintiff failed to provide any evidence showing witnessed that Bun "cues" Plaintiff to take that the police department had a policy or custom her prescribed medications for her asthma, allowing unconstitutional arrests). Thus, summary emphysema and panic attack disorders. judgment with respect to her section 1983 claim Pursuant to Fed.R.Civ.P. 56(e), supporting against the City of Ellensburg is appropriate. affidavits shall be made on personal knowledge and shall set forth such facts as (4) Remaining State Claims would be admissible in evidence. Dr. For the reasons stated above, the Court declines Arnold's letter is not admissible because it to exercise supplemental jurisdiction over the is hearsay. Moreover, Dr. Arnold's letter remaining state claims. does not address how Bun was trained to provide these cues. Accordingly, IT IS HEREBY ORDERED: *6 Accordingly, Plaintiff has failed to show 1. Defendant The Broadway Group's Motion that Bun is a service dog as defined by the ADA. for Summary Judgment (Ct .Rec.25) is GRANTED. As such, the City of Ellensburg did not violate the ADA by failing to enforce her right to bring a 2. Defendant City of Ellensburg's Motion for service dog into a public entity because Bun was Summary Judgment (Ct .Rec.30) is GRANTED. not a service animal as defined by the ADA. Additionally, the City of Ellensburg did not violate IT IS SO ORDERED. The District Court • the ADA because its police officers did not arrested Executive is directed to enter this Order, forward her on account of her disability, because she was copies to Plaintiff and counsel, and close the file. not entitled to have Bun in the Flying J. E.D.Wash.,2007. (2) 28 C.F.R. § 35.134 Baugher v. City of Ellensburg, WA To the extent Plaintiff is asserting a retaliation Not Reported in F.Supp.2d, 2007 WL 858627 claim against Defendant City of Ellensburg, her ( E.D.Wash.) claim does not survive because compensatory and punitive damages are not available for retaliation END OF DOCUMENT claims under the ADA. Kramer, 355 F.3d at 965. • (3) Section 1983 Claims Based on the Fourth Amendment Plaintiff is bringing her section 1983 claim against the City of Ellensburg only, and not against the individual officers. A municipality may be held liable under § 1983 only for constitutional violations occurring pursuant to an official govermnent policy or custom. Monet! v. Dep't of 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. com/print/prultstream. aspx? utid= 2 &prft= HTMLE &vi= 2.0 &destinati... 03/24/2014 . Page 2 of 14 • • vWe Page 1 • 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) 78I Rights Protected and Discrimination United States District Court, Prohibited in General W.D. Washington. 78k1043 Public Accommodations Rebecca DILORENZO, Plaintiff, 78k1049 k. Place of Business or Public v. R P enrt Mncf - Pr1 races COSTCO WHOLESALE CORPORATION, Store employees did not exceed the boundaries • Defendant. of a permissible inquiry in an effort to determine whether a store patron's dog was a bona fide service No. C06- 0727 -JCC. animal entitled to accompany the patron into the Oct. 2, 2007. store pursuant to the Americans with Disabilities Act (ADA) requirements governing public Background: Store patron who suffered from a accommodations; one employee made a standard variety of ailments arising after her service in the "task or function" inquiry by asking whose dog it armed forces sued the store owner, claiming was and what task it performed, and a subsequent violations of the Americans with Disabilities Act letter sent by the store's attorney also posed (ADA), the Washington Law Against standard "task or function" questions by asking Discrimination (WLAD) and the Washington who the dog was trained to assist, and what training Consumer Protection Act (CPA), as well as claims it had received. Americans with Disabilities Act of of negligent infliction of emotional distress and 1990, § 302(a), 42 U.S.C.A. § 12182(a); 28 C.F.R. outrage, all in connection with her interactions with § 36.302(a), (c)(1). store employees on two separate shopping trips on • which she was accompanied by her dog. Owner [2] Civil Rights 78 •1049 moved for summary judgment. 78 Civil Rights Holdings: The District Court, John C. Coughenour, 781 Rights Protected and Discrimination J., held that: Prohibited in General (1) employees did not exceed the boundaries of a 78k1043 Public Accommodations permissible inquiry in an effort to determine 78k1049 k. Place of Business or Public whether a store patron's dog was a bona fide service Resort. Most Cited Cases animal; Fact that a store made a second "task or (2) store employees' conduct did not constitute function" inquiry by letter in an effort to determine negligent infliction of emotional distress; whether a disabled store patron's dog was a bona (3) store employees' conduct did not rise to the tort fide service animal entitled to accompany the of outrage; and patron into the store pursuant to the Americans with (4) the damage to business or property element of a Disabilities Act (ADA), and that the patron's future claim under the WCPA was not satisfied. admittance into the store was apparently conditioned upon her answers, did not harass or Motion granted. discourage the patron from availing herself of the public accommodation, so as to violate the ADA; a West Headnotes number of factors raised legitimate suspicions about whether the dog was indeed a service animal [1] Civil Rights 78 €.,---)1049 , and it was not unreasonable to send the follow -up letter seeking further clarification. Americans with 78 Civil Rights Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 rage . 01 i+ Page 2 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) 12182(a); 28 C.F.R. § 36.302(a), (c)(1). 1151II(A) Direct or Remote, Contingent, or Prospective Consequences or Losses [3] Civil Rights 78 €1049 115III(A)2 Mental Suffering and Emotional Distress 78 Civil Rights 115k57.13 Negligent Infliction of 78I Rights Protected and Discrimination Emotional Distress Prohibited in General • 115k57.14 k. In General. Most 78k1043 Public Accommodations Cited Cases 78k1049 k. Place of Business or Public Under Washington law, for purposes of a claim Resort. Most Cited Cases for negligent infliction of emotional distress, a Analysis governing a store patron's Americans defendant's obligation to refrain from particular with Disabilities Act (ADA) claim also applied to conduct is owed only to those who are foreseeably her claim under the Washington Law Against endangered by the conduct and only with respect to Discrimination (WLAD) in an action arising from those risks or hazards whose likelihood made the inquiries made by store employees in an effort to conduct unreasonably dangerous. determine whether the patron's dog, who accompanied her into the store, was a bona fide [6] Negligence 272 €210 service animal. Americans with Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § 12182(a); West's 272 Negligence RCWA 49.60.030(1)(b). 27211 Necessity and Existence of Duty 272k210 k. In General. Most Cited Cases [4] Damages 115 X57.14 Negligence 272 '1692 115 Damages 115I11 Grounds and Subjects of Compensatory 272 Negligence Damages 272XVI1I Actions 1151II(A) Direct or Remote, Contingent, or 272XVII1(D) Questions for Jury and Prospective Consequences or Losses Directed Verdicts 115III(A)2 Mental Suffering and 272k1692 k. Duty as Question of Fact or Emotional Distress Law Generally. Most Cited Cases 115k57.13 Negligent Infliction of Under traditional negligence principles of Emotional Distress Washington law, whether a particular class of 115k57.14 k. In General. Most defendants owes a duty to a particular class of Cited Cases • plaintiffs is a question of law and depends on mixed Under Washington law, the tort of negligent considerations of logic, common sense, justice, infliction of emotional distress requires a showing policy, and precedent. that: (1) the defendant owed a duty of care to plaintiff; (2) defendant breached that duty; (3) there [7] Negligence 272 (:›210 was proximate cause between breach and damages; and (4) damages did indeed inhere. 272 Negligence 27211 Necessity and Existence of Duty [5] Damages 115 X57.14 272k210 k. In General. Most Cited Cases 115 Damages Negligence 272 x')215 115I11 Grounds and Subjects of Compensatory Damages 272 Negligence 27211 Necessity and Existence of Duty • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 raga -t 01 i't Page 3 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) 272k215 k. Balancing and Weighing of Infliction of Emotional Distress; Outrage Factors. Most Cited Cases 115k57.21 k. Elements in General. Under Washington law, the primary Most Cited Cases consideration in deciding whether a duty is owed is Under Washington law, to establish a claim for whether the conduct in' question is unreasonably the tort of outrage, a plaintiff must show (1) dangerous; conduct is "unreasonably dangerous" extreme and outrageous conduct, (2) intentional or when the risks of harm outweigh the utility of the reckless infliction of emotional distress, and (3) activity. severe emotional distress on the part of the plaintiff. [8] Damages 115 057.18 [10] Damages 115 X208(6) 115 Damages 115 Damages 115I11 Grounds and Subjects of Compensatory 115X Proceedings for Assessment Damages 115k208 Questions for Jury 115III(A) Direct or Remote, Contingent, or 115k208(6) k. Mental Suffering and Prospective _ _t__._ Co____uences or T emotional Distress Mo Cited Case Yl UJlJ Gl+l1VG 1.V11JGltUG11GGJ vi Losses ' 115III(A)2 Mental Suffering and Under Washington law, for purposes of a claim Emotional Distress of outrage, while the question of outrageousness is 115k57.13 Ne Infliction of normally one for the jury to decide, it is for the Emotional Distress court to make the initial detennination of whether 115k57.18 k. Particular Cases, reasonable minds could differ on whether conduct Most Cited Cases was sufficiently extreme to result in liability. Letter from a store patron's psychologist did not to indicate a high likelihood of risk attached to [11] Damages 115 €57.23(1) future questioning of the patron in an effort to determine whether her dog was a bona fide service 115 Damages animal, so as to make such conduct "unreasonably 115III Grounds and Subjects of Compensatory dangerous" for purposes of a claim for negligent Damages infliction of emotional distress; the letter did not 1151II(A) Direct or Remote, Contingent, or say anything about a "panic disorder," and its Prospective Consequences or Losses general description of the patron's ailments could 115111(A)2 Mental Suffering and not reasonably instruct a lay person that an Emotional Distress ordinarily unobjectionable course of conduct, an 115k57.19 Intentional or Reckless inquiry made in public space, would be Infliction of Emotional Distress; Outrage unreasonably dangerous. 115k57.23 Nature of Injury or Threat 115k57.23(1) k. In General. [9] Damages 115 €57.21 Most Cited Cases 115 Damages Damages 115 G -57.24 1151II Grounds and Subjects of Compensatory Damages 115 Damages 115I1I(A) Direct or Remote, Contingent, or 115111 Grounds and Subjects of Compensatory Prospective Consequences or Losses Damages 115I11(A)2 Mental Suffering and 115III(A) Direct or Remote, Contingent, or Emotional Distress 115k57.19 Intentional or Reckless © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westiaw.com /print /printstreani.aspx ?rs =WI,W 14.01 &destination= atp &mt =W... 03/20/2014 ragc a vl1 4 r 1 ■ Page 4 515 F.Supp.2d 1187 • (Cite as: 515 F.Supp.2d 1187) Prospective Consequences or Losses Injury, Loss, or Damage. Most Cited Cases 115III(A)2 Mental Suffering and Washington Consumer Protection Act (WCPA) Emotional Distress requires, among other things, that a plaintiff show 115k57.19 Intentional or Reckless injury to her business or property. West's RCWA Infliction of Emotional Distress; Outrage 19.86.020. 115k57.24 k. Humiliation, Insults, and Indignities. Most Cited Cases [14] Antitrust and Trade Regulation 29T C=7 239 Under Washington law, for purposes of a claim of outrage, conduct which is merely insulting or 29T Antitrust and Trade Regulation annoying, or even threatening will not trigger 29TIII Statutory Unfair Trade Practices and liability. Consumer Protection . 29TII1(C) Particular Subjects and Regulations [12] Damages 115 X57.25(1) 29Tk239 k. Other Particular Subjects and Regulations. Most Cited Cases 115 Damages Damage to business or property element of a 115111 Grounds and Subjects of Compensatory claim under the Washington Consumer Protection Damages Act (WCPA) was not satisfied by alleged injury to 1151II(A) Direct or Remote, Contingent, or the "daily shopping trade" of a store patron who Prospective Consequences or Losses was questioned by store employees seeking to 115111(A)2 Mental Suffering and determine whether the patron's dog was a bona fide Emotional Distress service animal entitled to accompany the patron 115k57.19 Intentional or Reckless into the store. West's RCWA 19.86.020. Infliction of Emotional Distress; Outrage 115k57.25 Particular Cases 1189 David Carl Cottingham, Bellingham, WA, 115k57.25(1) k. In General. for Plaintiff. Most Cited Cases Store employees' efforts to determine whether a Adam G. Cuff, Steven H. Winterbauer, store patron's dog was a bona fide service animal Winterbauer & Diamond, P.L.L.C., Seattle, WA, entitled to accompany the patron into the store did Charles A. Valente, Margaret Lavanish, Krasnow not constitute the tort of outrage under Washington Saunders Comblath, Chicago, IL, for Defendant. law; even if the employees were impolite and confrontational, they never called the patron a "liar," and even if the encounter created a false ORDER impression that the patron was suspected of JOHN C. COUGHENOUR, District Judge. shoplifting, the employees never called her a "thief." This matter comes before the Court ou Defendant's Motion for Summary Judgment (Dkt. [13] Antitrust and Trade Regulation 29T EC 138 No. 41 -1), Plaintiffs Response (Dkt. No. 46 -1), and Defendant's Reply (Dkt. No. 50 -1). Having 29T Antitrust and Trade Regulation considered the papers submitted by the parties and 29TIII Statutory Unfair Trade Practices and determined that oral argument is unnecessary, the Consumer Protection Court hereby finds and rules as follows. 29TI11(A) In General 29Tk133 Nature and Elements L BACKGROUND 29Tk138 k. Reliance; Causation; Plaintiff alleges that she is a disabled individual who suffers from a variety of ailments © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs= WLW &destination= atp &mt =W... 03/20/2014 rug v OA .1. 't Page 5 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) arising after her service in the armed forces. With (Pl.'s Dep. 111:4 -14 (Dkt. No. 41 -2).) Prior to the support of her treating psychologist, Plaintiff reaching the cash registers, Plaintiff was began to employ the assistance' of a dog, who approached by store manager Adele Wolcott, who Plaintiff asserts is "a service animal trained to asked Plaintiff on whose behalf the dog acted as a assist her in resisting and responding to the service animal, as well as what task it performed. difficulties raised by her conditions." (Am. Compl. Plaintiff responded that Dilo was hers and that he ¶j 2.1 -22 (Dkt_ No. 23).1 Plaintiff acquired the "alert[ed] [her] to -for spells." Id. at 112:1 -5. Ms. dog, a pug named Dilo, in approximately March Wolcott then walked away and Plaintiff proceeded 2004, when it was an untrained eight month -old through the check -out line. While approaching the puppy. (Pl.'s Dep. 65:13 -24 (Dkt. No. 41 -2).) warehouse exit, Plaintiff and her party were Plaintiffs claims arise from interactions with confronted by Ms. Wolcott and Ken Burnham, Castro store employees on two separate shopping another manager, who asked to speak with her. Id. trips with Dilo in her company. First, on or around at 114:19 -22. According to Plaintiff, Ms. Wolcott April 30, 2004, Plaintiff entered Defendant's said she believed the dog belonged to Plaintiff's Bellingham warehouse and informed an employee husband, apparently because he had brought Dilo at by ._t,. the warehouse o . Mc the entrance that Plaintiff was aGCUrrrpYl[lleu into ttw tic warehouse • on a previous ..., ......• -- .. �• - an animal that was in the process of being trained Wolcott also asserted that the dog's vest was not as a " service animal." (Am. Compl. ¶ 2.16 (Dkt. "regulation." Id at 116:12 -13; 117:16 -19. Finally, No. 23).) At that *1190 time Dile was about twelve Ms. Wolcott objected to the fact that Plaintiff had weeks old and was not wearing any accessory carried the dog around the warehouse. The tone of indicating he was a service animal. (Pl.'s Dep. this interaction, according to Plaintiff, was not 92:13 (Dkt. No. 41 -2).) Plaintiff was asked to "nice," but rather "inappropriate ... loud ... proceed to a podium where she was given copies of embarrassing ... humiliating ... degrading." Id. at Costco's Service Animal Policy and a Department 118:2 -5. At that point, Burnham informed Plaintiff of Justice Business Brief on service animals. that companion animals were not allowed in the (Def.'s Mot. 2 (Dkt. No. 41 -1).) Plaintiff showed an warehouse and that in the future Plaintiff could "sit employee at the podium a copy of a letter from her in [her) car with [her] dog," Id. at 118:18 -20. psychologist, which briefly described her Plaintiff asserts that Defendant's employees' actions disabilities and attested to Plaintiffs suitability for constituted harassment, as they were, in her words, owning a service animal. (Perini Letter (Dkt. No. accusing her of being a "liar." Id. at 213:9 -11. 41 -3).) PIaintiff did not leave a copy of the letter or Plaintiff also claims that the encounter may have any other information about herself for future created the false impression for passers -by, some of reference, nor did the employee ask her to do so. whom may have been acquaintances, that she was ( Def.'s Mot. 2 -3 (Dkt. No. 41 -1).) suspected of shoplifting. Id. 218:1 -7. Feeling uncomfortable, Plaintiff took note of Ms. Wolcott On a second visit to the Bellingham warehouse and Mr. Burnham's contact information and left the on July 3, 2004, Dile was wearing a vest that read warehouse. "service dog in training," (Am. Compl. 2.18 (Diet. No. 23).) Defendant's employee described the vest According to the parties, each made subsequent as being, at least in part, "homemade." (Adele atternpts to contact the other to follow up on the Wolcott Dep. 3:7 -15 (Dkt. No. 46 -2).) Plaintiff, her July 3, 2004 incident. Plaintiff claims she left husband and Dilo entered the warehouse several messages with Costco employees which unmolested and while shopping in the meat section, were never returned. Id. at 125:12 -13. Defendant's Plaintiff began to carry Dilo in her arms to avoid lawyer sent, and Plaintiff did receive, a letter injury to the dog from the crowd of shopping carts. asking her to provide further information about her © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream. aspx ?rs =WLVv' 14.01 &destination= atp &mt =W... 03/20/2014 . Page 6 515 F.Supp.2d 1187 • (Cite as: 515 F.Supp.2d 1187) dog's training and the tasks it performs (Kaplan In addition to demonstrating that there are no Letter (Dkt. No. 41 -3).) The purpose of the letter questions of material fact, the moving party must was to "determine whether the dog was a bona fide also show that it is entitled to judgment as a matter service animal." (Def.'s Mot. 4 (Dkt. No. 41 -1).) of law. Smith v. Univ. of Washington Law School, Plaintiff never responded to this Letter and claims 233 F.3d 1188, 1193 (9th Cir.2000). The moving that it constituted further harassment. (Pl.'s Dep. party is entitled to judgment as a matter of law 140:23 (Dkt. No. 41 -2).) when the nonmoving party fails to make a sufficient showing on an essential element of a *1191 Finally, from the available record, it claim for which the nonmoving party has the appears that Costco may have deviated from its burden of proof. Celotex Corp. v. Catrett, 477 U.S. policies regarding service animals at the time. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Plaintiff asserts, and Defendant does not clearly refute, that the relevant policy stated that service B. Americans with Disabilities Act ( "ADA ") Claim animals visually identifiable as such would not be [1] Plaintiffs second cause of action alleges subject to further scrutiny. Furthermore, no that Defendant failed to comply with its obligations distinction was drawn between service animals and as a public accommodation under the ADA. Title service animals in- training. (Pl.'s Resp. 4 (Dkt. No. III of the ADA states that "[n]o individual shall be 46 -1).) The foregoing set of events is the basis upon discriminated against on the basis of disability in which Plaintiff brings her claims under state and the full and equal enjoyment of the goods, services, federal law, each of which the Court addresses facilities, privileges, advantages, or below in turn. accommodations of any place of public accommodation ..." 42 U.S.C. § 12182(a). The II. DISCUSSION statute further instructs the Attorney General to issue regulations .implementing the non - A. Standard of Review transportation provisions of the ADA. 42 U.S.C. § 12186(b). Accordingly, the Department of Justice Summary judgment is appropriate where "the ( "DOJ ") regulations state that: pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, A public accommodation shall make reasonable if any, show that there is no genuine issue as to any modifications in policies, practices, or material fact and that the moving party is entitled to procedures, when the modifications are necessary judgment as a matter of law." FED. R. CIV. P. to afford goods, services, facilities, privileges, 56(c); Anderson v. Libergy Lobby, Inc., 477 U.S. advantages, or accommodations to individuals 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). with disabilities, unless the public There is no genuine issue for trial unless there is accommodation can demonstrate that making the sufficient evidence to support a jury verdict in favor modifications would fundamentally alter the of the nonmoving party. Anderson, 477 U.S. at 250, nature of the goods, services, facilities, 106 S.Ct. 2505. The moving party has the burden of privileges, advantages, or accommodations. demonstrating the absence of a genuine issue of material fact. Id. at 257, 106 S.Ct. 2505. 28 C.F.R. § 36.302(a). With regard to service Furthermore, the Court must draw all reasonable animals in particular, the regulations state: inferences in favor of the nonmoving party. See "Generally, a public accommodation shall modify F. D.I. C. v. O'tlMelveny & Myers, 969 F.2d 744, 747 policies, practices, or procedures to permit the use (9th Cir.1992), rev'd on other grounds, 512 U.S. of a service animal by an individual with a 79, 114 S.Ct. 2048, 129 L.Ed.2c167 (1994). disability." *11921d. at § 36.302(c)(1). © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.coin /print /printstream.aspx?xs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 1 CtVV V Vl IT o C Page 7 515 F.Supp.2d 1187 • (Cite as: 515 F.Supp.2d 1187) Furthermore, a "service animal" is defined as: entry into the warehouse with her dog, because she [a]ny guide dog, signal dog, or other animal was admitted on every occasion in question. In her individually trained to do work or perform tasks deposition testimony, Plaintiff states that the for the benefit of an individual with a disability, conduct she deemed illegal was the "harassment" of including, but not limited to, guiding individuals being questioned about her dog on July 3, 2004. with impaired vision, alerting individuals with (Pl.'s Dep. 123:1 -18 (Dkt. No. 41 -2)) While this impaired hearing to intruders or sounds, may not serve as the operative legal statement of providing minimal protection or rescue work, her claim, her response brief does little to clarify pulling a wheelchair, or fetching dropped items. the matter, as it simply quotes provisions of the ADA without any discussion of how they apply to Id. at § 36.104. Furthermore, as the "agency the facts of this case. Under these circumstances, directed by Congress to issue implementing the Court interprets Plaintiffs ADA claim as regulations, to render technical assistance, and to challenging the legitimacy of the inquiry about her enforce Title III in court, the Department's views dogs qualifications, in so far as it may have are entitled to deference." Bragdon v. Abbott, 524 impeded her "full and equal enjoyment" of n 1 9� 1 4 1 L.Ed.2d 2d 54 c f n d an t s acilitieS 42 7 r c r 121 82(a). Since U.J. 624, 646, 118 S.Ct. 2196, 141 L.L.U. D LIt ✓'tV li �.l��iuuu�� (1998) (internal citations omitted). Defendant indicated in its letter that Plaintiff would need to respond to further questioning before being In her second cause of action, Plaintiff asserts admitted with her dog in the future, the analysis that Defendant discriminated against her in necessarily includes the legitimacy of this further violation of the ADA by failing or refusing "to inquiry subsequent to the July 3, 2004 encounter. FN' modify its policies, practices and procedures when such modifications were necessary" to allow her FN 1. In its Reply brief, Defendant points access to its goods, services, facilities, privileges, to the ambiguity of Plaintiffs position and advantages, and accommodations. Such asserts that the focus upon unreasonable modification she asserts, should have included questioning in her response constitutes a making allowance for her service animal, which "subtl[e] shift." Based upon the brief helped her cope with the consequences of her recitation of ADA statutory provisions in disability. (Am. Compl. ¶¶ 2.37 -2.39 (Dkt. No. the Amended Complaint, it is unclear from 23).) Defendant responds by asserting that what starting point Plaintiff could have Plaintiffs dog was not a service • animal under the shifted. For the reasons stated above, the governing regulations at the time in question, and Court believes Plaintiffs claim is best that in any case, Plaintiff refused to respond to a understood as challenging the inquiry reasonable inquiry which would have allowed rather than an exclusion that never occurred. Costco to determine the dog's qualifications. (Def. Mot. 6 -10 (Dkt. No. 41 -1).) Once Plaintiffs claim is understood in this way, there are two issues raised by the parties that It is not entirely clear what specific acts or confuse the question before the Court. First, omissions by Defendant form the basis of Plaintiffs Plaintiffs emphasis *1193 on Costco's service ADA claim. The Amended Complaint cites the animal policy is misplaced for the purposes of the statutory language regarding the obligation of a ADA analysis. That is, the question of Costco's public accommodation to make "reasonable compliance with its own policy does not obviate the modifications" to its polices, but does not describe fundamental inquiry into whether its actions what Defendant specifically did or failed to do. ( See Am. Compl. ¶¶ 2.37 -2.39 (Dkt. No. 23).) The modification sought cannot be to have allowed © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. coin iprintiprintstream.aspx "rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 Ias..iv..a - r Page 8 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) violated the statute. Whether a given policy sets Therefore, as of July 3, 2004, the dog forth standards of conduct within statutory bounds arguably was not "individually trained to is a question of facial validity, which in the case of do work or perform tasks for the benefit of Costco's service dog policy, was upheld in Grill v. an individual with a disability." 28 C.F.R. Costco Wholesale Corp., 312 F.Supp.2d 1349 § 36.104. (W.D.Wasli.2004). The existence of a legal policy notwithstanding, a public accommodation can still Plaintiffs ADA claim ultimately depends on act in a manner that violates the ADA, which is whether Defendant exceeded the parameters of a precisely the question raised in this case. Either legitimate inquiry in confronting Plaintiff about her way, Costco does not violate the ADA simply by dog. That Costco had a right to make an inquiry in violating its own policy. the first place cannot seriously be questioned. This follows from DOJ interpretations regarding Second, Defendant's emphasis on Dilo's lack of "legitimate inquiry," the Grill case, as well as qualifications as a service dog at the time in common sense. In operating its business, Costco question does not address the entire issue. That is has the authority to exclude ordinary pets from its because a violation of the statute can occur by facilities, and yet must also comply with federal virtue of the manner by which an inquiry is anti - discrimination law, which under most conducted. As discussed in Grill, cited by circumstances includes permitting service animals Defendant, the DOJ has issued guidance as to what into its warehouses. Given these two co- existing constitutes a legitimate inquiry as to a particular conditions, an occasion for some kind of inquiry is animal's qualifications. See Grill, 312 F.Supp.2d at bound to arise. In Grill, the court examined the 1352. It appears that Costco employees were aware limitations on inquiry about service animal's of such limitations based on Ms. Wolcott's qualifications, citing a DOJ business brief deposition testimony, in which she stated that "[w]e providing that a "[b]usiness may ask if an animal is cannot ask their disability, but Costco does have the a service animal or ask what tasks the animal has right to ask them what function the animal does been trained to perform, but cannot require special perform." (Adele Wolcott Dep. 42:20 -22 (Dkt. No. ID cards for the animal or ask about the person's 46 -2).) Thus, Defendant does not defeat Plaintiffs disability." Grill, 312 F.Supp.2d at 1352. This is ADA claim by simply showing that Dilo was not a referred to as a "task or function" inquiry and is the bona fide service animal at the time of the inquiry, Ivey method for distinguishing a service dog from a FN2 since the manner in which it went about pet. verifying such a fact could have violated the law. Based upon this standard, Defendant's FN2, It appears highly questionable employees did not exceed the boundaries of a whether Dilo was a "service animal" as of permissible inquiry by their conduct on July 3, the July shopping trip. Plaintiff states that 2004. They never asked Plaintiff to state her she got Dilo in March 2004 and the task he disability, nor did they demand proof of special performs is he "alerts [her] for panic training. In the encounter prior to Plaintiff entering attacks and anxiety attacks." (Pl.'s Dep. the checkout line, Ms. Wolcott made a standard 74:17 -18 (Dkt. No. 41 -2).) Elsewhere in 4 '1194 "task or function" inquiry by asking whose her deposition however, Plaintiff dog it was and what task it performed. (Pl.'s Dep. acknowledges that it took six to seven 112 :1 -5 (Dkt. No. 41 -2).) As for the content of the months before the dog was able to subsequent letter sent by Costco's attorney, it too recognize and alert her for a panic attack posed standard "task or function" questions by on its own. (Id at 70:23 -25; 71:1 -2). asking who the dog was trained to assist, and what • • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw. coin /print/printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 1 456. 1 V V 1 1-r Page 9 515 F.Supp.2d 11 87 (Cite as: 515 F.Supp.2d 1187) training it had received. (Kaplan. Letter (Dkt. No. No. 41 -2)); (2) Plaintiffs husband appears to have 41 -3).) The letter also asked whether the dog was a brought Dilo into the warehouse on at least one "seizure alert dog" or a "comfort dog." Id. While it occasion prior to July 3, 2004, claiming that it is not clear why these were the only available served as a "comfort animal" to him (Kaplan Letter options, presumably Plaintiff could have responded (Dkt. No. 41 -3)); (3) Plaintiff carried Dilo in her that her dog was neither and it would not have arms for an extended period of time while shopping disqualified Dilo as a service animal. on July 3, 2004 (Pl.'s Dep. 111:4 -14 (Dkt. No. 41 -2)); and (4) As of the date in question, Dilo was [2] The fact, in and of itself, that Defendant unable to independently perform his task (as a made a second "task or function" inquiry by letter, service animal) of alerting for panic attacks without and that Plaintiffs future admittance was apparently prompting from Plaintiffs husband. (Pl.'s Dep. conditioned upon her answers is a separate 69:21 -23 (Diet. No. 41 -2)) While Defendant's question. Clearly an inquiry would cease to be employees did not know this latter fact at the time, legitimate if it was used to harass or discourage it is safe to say they could not witness the dog people with disabilities from availing themselves of performing any task to assist Plaintiff with her public , nodation In thi way u nd u ly disability. Tinder these circumstances, it was not repetitive questioning, after an adequate answer has unreasonable or illegitimate for Defendant to have been given, could suggest a pretext for. expressed doubts about Dilo's status, or to have sent discrimination constituting an illegitimate inquiry. a follow -up letter seeking further clarification. Had However, a similar course of action to what Plaintiff responded by affirming that the dog was Defendant took here has been recognized as her service animal and that it was individually legitimate in the housing context. In Princlable v. trained to alert her for panic and anxiety attacks, it Assn ofAparhnent Owners, the court concluded that: is not clear on what basis Defendant could object in the future. As this did not occur, however, the In any event, there is no evidence that Defendants Court concludes that Costco's actions did not ever denied Plaintiffs' request for a service exceed the boundaries of a legitimate inquiry under animal. Beginning with their response to Dr. the ADA, and thus Defendant is entitled to Kalauawa's May 17, 2000 letter, the AOAO judgment as a matter of law on this claim. merely requested additional, appropriate information from Prindable and his treating C. Washington Law Against Discrimination physicians. ( "WLAD ") claim [3] Similar to the anti- discrimination scheme of 304 F.Supp.2d 1245, 1260 (D.Haw.2003). The the ADA, Washington law protects *1195 "[t]ire Court finds this reasoning analogous to the present right to the full enjoyment of any of the case. accommodations, advantages, facilities, or privileges of any place of public resort, Furthermore, in evaluating Defendant's conduct accommodation, assemblage, or amusement." here, other facts surrounding the encounter cannot WASH. REV.CODE. § 49.60.030(1)(b). Denial of be ignored. The following factors, which Plaintiff "full enjoyment" under the statute includes causing has either explicitly acknowledged or not disputed, someone to be "treated as not welcome, accepted, clearly raised legitimate suspicions about whether desired, or solicited ". Id. at § 49.60.040(9). Dilo was indeed a service animal: (1) The first time Furthermore, the law prohibits acts which "directly Plaintiff brought her dog into the warehouse as a or indirectly result in ... the refusing or withholding "service dog in training," it was an untrained from any person the admission, patronage, custom, twelve week -old puppy (Pl.'s Dep. 92:11 -13 (Dkt. presence, frequenting, dwelling, staying, or lodging © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http : / /web2.westlaw.eoTn/ print /printstream. aspx ?rs =WLW 14.01 &destinations atp &mt =W... 03/20/2014 1 C15., 1 1 Vl 1T Page 10 515 F.Supp.2d 1187 • (Cite as 515 F.Supp.2d 1187) • • in any place of public resort, accommodation, inhere. Hunsley v. Girard, 87 Wash.2d 424, 553 assemblage, or amusement." Id. at § 49.60.215. P.2d 1096, 1102 (1976). In Hunsley, the state These protections explicitly extend to "the use of a supreme court made clear that in applying this test, trained dog guide or service animal by a person "Mot every act which causes harm results in legal with a disability." Id. A service animal is defined as liability," since "[o]ur experience tells us that "an animal trained for the purpose of assisting or mental distress is a fact of .life." Id. at 1102 -03. accommodating a person's sensory, mental, or Accordingly, a defendant's "obligation to refrain physical disability." WASH. ADMIN. CODE § from particular conduct is owed only to those who 162.26.040(2). Washington state courts have are foreseeably endangered by the conduct and only recognized that disability discrimination under state with respect to those risks or hazards whose law "substantially parallels federal law" on the likelihood made the conduct unreasonably subject, and therefore have indicated that "courts dangerous." Id at 1103. should look to interpretations of federal anti- discrimination laws, including the ADA, when [6][7] "Under traditional negligence principles, applying the WLAD." Grill v. Costco Wholesale whether a particular class of defendants owes a Corp., 312 F.Supp.2d 1349, 1354 duty to a particular class of plaintiffs is a question (W.D.Wash.2004) (citing Matthews v. NCAA, 179 of law and depends on mixed considerations of F.Supp.2d 1209, 1229 (E.D.Wash.2001).) `logic, common sense, justice, policy, and precedent.' " Keates v. Vancouver, 73 Wash.App. The circumstances under which the Court. finds 257, 869 P.2d 88, 92 (1994) (quoting Hartley v. that Plaintiffs ADA claim fails, are equally State, 103 Wash.2d 768, 698 P.2d 77, 83 (1985)). applicable to her WLAD claim.. Plaintiff presents "In deciding whether a duty is owed the primary no authority for the proposition that a different consideration is *1196 whether the conduct in analysis governs her state law discrimination claim, question is unreasonably dangerous." Id. at 93 such that Defendant would be subject to a different (citing Con.igal v. Ball & Dodd Funeral Home, legal standard than that which obtains under the Inc., 89 Wash.2d 959, 577 P.2d 580 (1978)). ADA for inquiring about a service animal. Having "Unless the defendant's conduct is unreasonably detennined that Defendant did not exclude Plaintiff dangerous, the defendant owes no duty." Id. (citing and her dog from their warehouse, and that it Hzarsley, 553 P.2d at 1103). "Conduct is conducted a legitimate inquiry under the ADA as to unreasonably dangerous when the risks of harm whether, the dog functioned as a service animal in outweigh the utility of the activity." Wells v. light of circumstances that suggested otherwise, Vancouver, 77 Wash.2d 800, 467 P.2d 292, 298 Plaintiffs WLAD claim presents no genuine issue (1970) (quoting Raymond v. Paradise Unified of material fact and fails as a matter of law. School Dist., 218 Cal.App.2d 1, 31 Cal.Rptr. 847 . (1963)). D. Negligent Infliction of Emotional Distress ( "NIED ") claim [8] Plaintiff's claim for N1ED requires [4][5] Plaintiff brings a tort claim of NIED as a consideration of her two shopping trips in tandem. result of her interactions with Costco employees on In amending the Complaint to comply with this her shopping trips to Defendant's Bellingham Court's August 9, 2006 Order (Dkt. No. 14),FN warehouse. In Washington, the tort of NIED Plaintiff clarified her theory that the April trip to . requires a showing that (l) The defendant owed a Defendant's Bellingham warehouse, in which she duty of care to plaintiff, (2) Defendant breached furnished the letter from her psychologist, that duty, (3) There was proximate cause between effectively put Defendant on notice that a "high breach and damages, and (4) Damages did indeed likelihood [of] risk of injury would accompany any • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com /print/printstream.aspx ?rs =WLW 14.01 &destination=atp &mt =W... 03/20/2014 • 1 aE't% 14. LPL 1 Page 11 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) unnecessary attention to plaintiff and plaintiffs Contrary to Plaintiffs assertion in the Amended animal, and that additional public attention which Complaint, the letter does not say anything about " might result from Defendant's public questioning panic disorder." More importantly, the general would be unreasonably dangerous and would description of Plaintiffs ailments could not subject her to injury and damage." (Am. Compl. 7 reasonably instruct a lay person that an ordinarily 2.32 (Dkt. No. 23).) Essentially, Plaintiff claims unobjectionable course of conduct, an inquiry made that this letter made Defendant's subsequent in public space, would be "unreasonably conduct on her July visit to the warehouse dangerous" with regard to Plaintiff. n'''' The Court "unreasonably dangerous," and therefore need not doubt the veracity of Plaintiffs suffering constituted a breach of duty. Defendant takes issue to find that it would have taken more to put with Plaintiff's failure to leave a copy of her Defendant's employees on notice that ordinary psychologist's letter, and furthermore asserts that *1197 conduct would cause extraordinary "the text of the letter does not suggest anything emotional harm to Plaintiff. Accordingly, this falls about a heightened risk of injury to Plaintiff if into the category of an act which caused harm Costco takes (or fails to take) any action with without resulting in liability, and therefore Plaintiff." ( Mo a i n 11 (Dkt. No. Plantiff's N1ED claim fails as a ma tter of law respect to P1 211111 11 1. ILGl. J Mot. 10-11 ` lln �. 1vv. i 41 -1).) • FN4. Nor does the fact that Costco may FN3. The Court previously dismissed have deviated fi•om its service animal Plaintiffs NIED claiin without prejudice policy render its questioning an for failure to state a claim. In so doing, the "unreasonably dangerous" act. Requiring Court also instructed that Plaintiff could Plaintiff to enter an unexpected cure the failure to plead a duty owed by conversation hardly bespeaks the kind of asserting that "Plaintiff had indeed warned peril that would invoke a duty here. Defendant of her particular' frailties and [that] these frailties were of a nature that E. Intentional Infliction of Emotional Distress/ would render Defendant's questioning of Outrage claim her `unreasonably dangerous ...' " [9] [10][11] Plaintiff also brings a claim of outrage as a consequence of her treatment by The Court need not address whose obligation it Defendant. To establish a claim for the tort of was to give or retain a copy of the letter in April outrage, a plaintiff must show "(1) extreme and 2004, since even if Defendant was chargeable with outrageous conduct, (2) intentional or reckless its contents, the letter failed to indicate a "high infliction of emotional distress, and (3) severe likelihood of risk" attached to future questioning emotional distress on the part of the plaintiff." Reid making such conduct "unreasonably dangerous." v. Pierce County, 136 Wash.2d 195, 961 P.2d 333, The letter from Plaintiffs psychologist is not nearly 337 (1998). Regarding the standard for "extreme as enlightening as her amended complaint and and outrageous conduct," the Washington . Supreme response brief suggest. The letter explains that Court has held that "the conduct in question must Plaintiff has been diagnosed with " Posttraumatic be `so outrageous in character, and so extreme in Stress Disorder and Major Depression," and states degree, as to go beyond all possible bounds of that she "would be a good candidate and decency, and to be regarded as atrocious, and responsible recipient for service dog ownership." utterly intolerable in a civilized community.' " (John Perini Letter (Did. No. 41-3).) Furthermore, Dicomes v. Washington, 113 Wash.2d 612, 782 it implies that she needs to feel "enhanced personal P.2d 1002, 1012 (1989) (citing Grimsby v. Swnson, safety" and "unconditional love and devotion." Id. 85 Wash.2d 52, 530 P.2d 291, 295 (1975) • © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2.westiaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 I a6%., 1J Vl 1T Page 12 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) (emphasis omitted)). "While the question of emotional distress in light of the Court's finding outrageousness is normally one for the jury to that Defendant was not even negligent in this decide, it is for the court to make the initial regard. As for how they carried out the inquiry, it is determination of whether `reasonable minds could clear that Defendant's employees did not believe differ on whether the conduct was sufficiently Dilo functioned as a service animal. Taking extreme to result in liability.' " B,yant v. Country Plaintiffs account as true, Ms. Wolcott and Mr. Life Ins. Co., 414 F.Supp.2d 981, 1004 Burnham were impolite and confrontational. While (W.D.Wash.2006) (quoting Grimsby, 530 P.2d at this indicates that they believed Plaintiff was lying, 295). "Conduct which is merely insulting or Plaintiff aclrnowledges that they never called her a annoying, or even threatening will not trigger "liar." (Pl.'s Dep. 211:13 -15 (Dkt. No. 41"1198 Iability." Btymnt, 414 F.Supp.2d at 1004. 2).) Similarly, Plaintiff asserts that the encounter created the false impression that she was suspected [12] Similar to her claim of NIED, Plaintiff of shoplifting. Even if this is true, she also . bases her outrage claim upon the entire course of explicitly acknowledges that they never called her a Defendant's conduct, in light of having presented "thief." Id. at 220:10 -12. Finally, Plaintiff suggests her letter to Defendant's employees on her April in her briefing that Defendant's employees visit. Not only does she claim that she should not "detain[edj" her for questioning. (See, e.g., Pl.'s have been questioned in the first place, she asserts Resp. 17 (Dkt. No. 46).) However, Plaintiff that the interactions were excessively unpleasant, concedes in her deposition that Ms. Wolcott and describing the tone shuck by Defendant's Mr. Burnham never said anything to indicate that employees as "inappropriate" and "loud." (Pl.'s she was not free to leave. (Pl.'s Dep. 212:11 -14 Dep. 118:2 -5 (Dkt. No. 41 -2).) Furthermore, she (Dkt. No. 41 -2).) While they were standing between describes Ms. Wolcott and Mr. Burnham as her and the exit, she gives no indication that she essentially accusing her of being a liar, and the could not walk out at any tune, as she ultimately entire transaction as creating the false impression did. ld. at 212: 21 -25. that she was suspected of shoplifting. Id. at 213:9 -11; 218:1 -7. Finally, Plaintiff insinuates that Clearly this was not an amicable encounter, the encounter was something tantamount to being and the Court takes Plaintiff at her word that it was detained. Defendant responds that its conduct was severely distressing to her. However Washington not sufficiently egregious to trigger liability under law requires a plaintiff to meet a high threshold to the tort of outrage. succeed on a claim of outrage, and makes clear that "[c]onduct which is merely insulting or annoying, The Court finds that there is no genuine issue or even threatening will not trigger liability." of material fact as to whether Defendant's conduct Bryant, 414 F.Supp.2d at 1004. This is just such a met the requisite level of impropriety, even taking case, and therefore Plaintiffs outrage claim fails. Plaintiffs account as true and drawing all inferences in her favor. No reasonable jury could F. Washington Consumer Protection Act find Defendant's conduct "so outrageous in ( "CPA ") claim character, and so extreme in degree, as to go [13][14] Plaintiffs fifth cause of action alleges beyond all possible bounds of decency, and to be violation of the Washington CPA. WASH. regarded as atrocious, and utterly intolerable in a REV.CODE § 19.86.020 et. seq. The parties agree civilized corrununity." Dicomes, 113 Wash.2d 612, that the elements of a claim under the Washington 782 P.2d 1002, 1012 (1989). Consumer Protection Act were correctly set forth by the Washington Supreme Court in Hangman As an initial matter, making the inquiry, in Ridge Training Stables, Inc. v. Safeco Title Ins. Co., itself, cannot constitute an intentional infliction of • CD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http:// web2 .westlaw.com/print/printstream. aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 1 U61+1 - r vtir Page 13 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) 105 Wash.2d 778, 719 P.2d 531 (1986). This test requires, among other things, that Plaintiff show injury to her "business or property." Id. at 535. In her deposition testimony, Plaintiff unequivocally states that she is not claiming any harm to her business or property. (See Def.'s Mot. 16 (Dkt. No. 41 -1)) In her response brief, Plaintiff confirms that damage to business or property is an essential element of a CPA claim, however she asserts that it was satisfied in this case by injury to her "daily shopping trade." (Pl.'s Resp. 24 (Dkt. No. 46 -1).) In the absence of any authority that would support this apparently novel theory of harm, Plaintiffs CPA claim fails as a matter of law. 111. CONCLUSION For the foregoing reasons, Defendant's motion for summary judgment (Dkt. No. 41 -1) is hereby GRANTED. Accordingly, Defendant's motions in lupine (Dkt. No. 42), Plaintiffs response (Dkt. No. 45), and Defendant's reply (Dkt. No. 49) are moot and hereby STRICKEN. SO ORDERED. W.D. Wash.,2007. Dilorenzo v. Costco Wholesale Corp. 515 F.Supp.2d 1187 END OF DOCUMENT © 2014 Thomson Reuters. No Clain to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspX ?rs — WLW 14.01 &destination= atp &mt =W... 03/20/2014 rage z of a Westlawr Page 1 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) • 78k1043 Public Accommodations United States District Court, 78k1050 k. Private Clubs or Associations. W.D. Washington, Most Cited Cases At Seattle. Private membership club's written policy Susan GRILL and Micaela Grill, Plaintiffs, regarding admittance of service animals into its v. warehouse stores did not violate ADA; the policy, COSTCO WHOLESALE CORPORATION, a which required store employees to first look for domestic corporation, and Does 1 -100, Defendants. visual identification that an animal was a service animal, and in absence of visual evidence, No. CO3- 2450Z. permitted employees to inquire into what "task or Jan. 22, 2004. function" the animal performed, complied with Department of Justice's interpretation of the ADA, Background: Disabled individual who used service which permitted business owners to ask about the animal to assist her brought action against private "task or function" of an animal without asking for membership club, alleging that club's written policy specifics of an individual's disability. Americans for admitting service animals into its warehouse with Disabilities Act of 1990, § 306(a), 42 stores violated Americans with Disabilities Act U.S.C.A. § 12186(a); 28 C.F.R. § 36.302(a)(2003). (ADA) and the Washington Law Against Discrimination (WLAD). Club counterclaimed for [2] Civil Rights 78 X1302 declaration that its policy was permissible and moved for summary judgment. 78 Civil Rights 78I1I Federal Remedies in General Holdings: The District Court, Zilly, J., held that: 78k1302 k. Administrative Agencies and (1) policy did not violate ADA, and Proceedings. Most Cited Cases (2) policy did not violate WLAD. Because the Department of Justice • is the agency directed by Congress to issue implementing Motion granted. regulations, to render technical assistance, and to enforce Title III of the ADA in court, the West Headnotes Department's views are entitled to deference. Americans with Disabilities Act of 1990, §§ 306(b), [1] Civil Rights 78 X1021 308(b), 506(c), 42 U.S.C.A. §§ 12186(b), 12188(b), 12206(c). 78 Civil Rights 781 Rights Protected and Discrhmination [3] Civil Rights 78 C=z>1021 Prohibited in General 78k1 016 Handicap, Disability, or Illness 78 Civil Rights 78k1021 k. Physical Access and Mobility; 781 Rights Protected and Discrimination Carriers. Most Cited Cases Prohibited in General 78k1016 Handicap, Disability, or Illness Civil Rights 78 01050 78k1021 k. Physical Access and Mobility; Carriers. Most Cited Cases 78 Civil Rights 78I Rights Protected and Discrimination Civil Rights 78 €1050 Prohibited in General 78 Civil Rights © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream. aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 rage: i or Page 2 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) 78I Rights Protected and Discrimination seeks a declaratory judgment that its written policy Prohibited in General concerning the admittance of service animals into 78k1043 Public Accommodations its warehouse stores does not violate either Title III 78k1050 k. Private Clubs or Associations. of the Americans with Disabilities Act ( "ADA ") or Most Cited Cases the Washington Law Against Discrimination Private membership club's written policy ( "WLAD "). Defs Counterclaim, docket no. 10. rega admittanne of service animals into its Cunt VT of the plaintiffs' complaint contends that warehouse stores did not violate Washington Law the written policy violates these laws and seeks a Against Discrimination (WLAD); the policy, which declaratory judgment to that effect. Pl's Compl., required store employees to first look for visual docket no. 1. Thus, the sole issue for the puipose of identification that an animal was a service animal, this notion for partial sununary judgment is and in absence of visual evidence, pennitted whether the written policy of the defendant, Costco, employees to inquire into what "task or function" concerning the admittance of service animals into the animal performed, was consistent with its warehouse stores violates Title III of the ADA Washington State Human Rights Commission or the WLAD.F "r (WSHRC) guide which pennitted businesses to ask if an animal is a service animal required because of FN 1. This motion does not deal with the a disability. West's RCWA 49.60.030(1). issue of whether Costco employees applied the policy as written when the piairitiffs *1349 Katrina Eve Glogowski, Seattle, WA, Lead entered Costco's warehouses. The only Attorney, Attorney to be Noticed, representing question is whether the policy as written Micaela Grill, (Plaintiff). complies with the ADA and WLAD. Adam Karp, Bellingham, WA, Lead Attorney, Plaintiff Susan Grill alleges that she is a Attorney to be Noticed, representing Micaela Grill, disabled individual who uses a service animal to (Plaintiff). assist her. Pl's Compl., docket no. 1, ¶ 3.1. Costco is a private membership club which sells goods Charles A Valente, Eli M. Rollman, Kr•asnow through its warehouse stores located throughout the Saunders Cornblath, LLP, Chicago, IL, Lead United States. Raines Decl., docket no. 24, 11 4. Attorney, Attorney to be Noticed, representing Susan Grill has been a Costco member since Costco Wholesale Corporation, (Defendant). December 2000. Pl's Compl., docket no. 1, ¶ 3.2. For several reasons, Costco does not generally *1350 Steven H. Winterbau e r, Winterb au er & permit its members to bring animals into its Diamond P.L.L.C., Seattle, WA, Lead Attorney, warehouses. Raines Decl., docket no. 24, ¶ 6. Attorney to be Noticed, representing Costco However, in an effort to comply with the Wholesale Corporation, (Defendant). requirements of the ADA and the WLAD, Costco has created a written policy to allow service animals in its warehouse stores. Id. at 114. • ORDER ZILLY, District Judge. The written policy adopted by Costco provides BACKGROUA'D that an animal will be admitted into its store if it The defendant, Costco Wholesale Corporation determines that the particular animal is a service ( "Costco "), has brought this motion for partial animal. FN2 Raines Decl., docket no. 24, Ex. A. summary judgment with respect to its counterclaim Under the policy, the animal will be admitted if and count VI of the plaintiffs' complaint. Defs Mot. one of two separate criterion are met. Id. First, an for Summ. J., docket no. 22. Costco's counterclaim animal will be admitted if it is visually identifiable © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.corn! print /printstream.aspx ?rs= WLW14.01 &destination= atp &mt =W... 03/20/2014 rage 't 0.1. o Page 3 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) as a service animal by the presence of an apparel genuine issue of material fact. Celotex Corp. v. item, apparatus or other visual evidence that the Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 animal is a service animal. Id. Second, if the L.Ed.2d 265 (1986). Once the moving party has animal is without visual evidence that it is a met this burden, the opposing party must show that service animal, the "member or guest must be there is a genuine issue of fact for trial. Matsushita prepared to reasonably establish that the animal Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. does, in fact, perform a function or task that the 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). member or guest cannot otherwise perform." Id. In The opposing party must present significant and such a situation, the Costco personnel are to probative evidence to support its claim or defense. "inquire of the animal's owner what tasks or Intel Corp. v. Hartford Accident & Indent. Co., 952 functions the animal performs that its owner cannot F.2d 1551, 1558 (9th Cir.1991). For purposes of the otherwise perform." Id. If the *1351 owner is motion, reasonable doubts as the existence of unwilling to provide this information the animal material facts are resolved against the moving party will not be allowed to enter the Costco warehouse. Id. and inferences are drawn in the light most favorable to the opposing party. Addis?' v. Fred Meyer, Inc., FN2. A service animal is defined under 198 F.3d 1130, 1134 (9th Cir.2000). the federal regulations as: 1I. Americans With Disabilities Act Claim [A]ny guide dog, signal dog, or other [1] The ADA was enacted by Congress in 1990 animal individually trained to do work "to provide a clear and comprehensive national or perform tasks for the benefit of an mandate for the elimination of discrimination individual with a disability, uichiding, against individuals with disabilities." 42 U.S.C. § but not limited to, guiding individuals 12101(b)(1). Congress found that "individuals with with impaired vision, alerting disabilities continually encounter various forms of individuals with impaired hearing to discrimination, including outright intentional intruders or sounds, providing minimal exclusion, the discriminatory effects of protection or rescue work, pulling a architectural, transportation, and communication wheelchair, or fetching dropped items. barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities 28 C.F.R. § 36.104. Washington defines and practices...." 42 U.S.C. § 12101(a)(5). Under a service animal as "an animal that is the ADA, "[n]o individual shall be discriminated trained for the purpose of assisting or against on the basis of disability in the full and accommodating a person's sensory, equal enjoyment of the goods, services facilities, mental, or physical disability." WAC privileges, advantages, or accommodations of any 162 -26 -040. place of public accommodation." 42 U.S.C. § 12186(a). The statute defines discrimination as: DISCUSSION (ii) a failure to make reasonable modifications 1. Standard of Review in policies, practices, or procedures, when such modifications are necessary to afford such goods, Summary judgment is appropriate where there services, facilities, privileges, advantages, or is no genuine issue of material fact and the moving accommodations to individuals with disabilities, party is entitled to judgment as a matter of law. unless the entity can demonstrate that making such FED. R. CI V. P. 56(c). The moving party bears the modifications would fundamentally alter the nature initial burden of demonstrating the absence of a of such goods, services, facilities, privileges, © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.corn /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &rnt =W... 03/20/2014 r :Age � i n j i n Page 4 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) advantages, or accommodations. disability. Id. at § 12182(2)(A)(emphasis added). Valente Decl, docket no. 23, Ex. A ( "Business Brief')(emphasis added). Because the Depat Intent Additionally, pursuant to the authority of Justice is the "agency directed by Congress to delegated to it by Congress, the Department of issue implementing regulations, see 42 U.S.C. § J has issued regulations which require "[a] 121 86(h), to render technical assistance, § 12206(c) public accommodation shall make reasonable , and to enforce Title III in court, § 12188(b), the modifications in policies ... when the modifications Department's views are entitled to deference." are necessary to afford goods, services, facilities, Bragdon v. Abbott, 524 U.S. 624, 646, 118 S.Ct. privileges, advantages, or accommodations to 2196, 141 L.Ed.2d 540 (1998). individuals with disabilities...." 28 C.F.R. § 36.302(a)(2003). With respect to service animals, Plaintiffs respond by arguing that the ADA the Department of Justice has determined that "a Business Brief is contradicted by a 1996 public accommodation shall modify policies, Department of Justice document entitled practices or procedures to permit the use of a `Commonly Asked Questions About Service service animal by an individual with a disability." Animals in Places of Business." Glogowski Decl., Id. at § 36.302(c)(1). Ex. A. The document explains to businesses that "[i]f you are not certain that an animal is a service In this case, the parties do not dispute whether animal, you may ask the person who has the the "visual evidence" inquiry in the Costco policy animal if it is a service animal required because of complies with the ADA. However, the center of the a disability." Id. at 4. However, the document does dispute is whether the "task or function" inquiry is not mention that the business may also ask what prohibited by the Act. Costco argues that their tasks the animal has been trained to perform, policy of asking the "task or function" question unlike the ADA Business Brief from April 2002. Id. prior to admittance does not violate the ADA Plaintiffs argue that by implication the Business because it complies with a *1352 Department of Brief is in "irreconcilable conflict" with the Justice interpretation of the ADA and, second, the "Commonly Asked Questions" document, and thus policy complies with a Department of must be disregarded. Transportation interpretation of the Air Carrier Access Act, which is arguably analogous to the Costco correctly argues that the plaintiffs' ADA. argument is misguided. Both documents are plainly permissive. The Business Brief provides that A. Department of Justice Interpretations Costco "may ask if an animal is a service animal or [2] Costco argues that their "task or function" what tasks the animal has been trained to inquiry complies with the ADA, as a matter of law, perform...." Valente Decl., Ex. A. Additionally, the because the Department of Justice has already "Conunonly Asked Questions" document provides determined that this is a legitimate inquiry by a that Costco "may ask the person who has the business owner. The Department of Justice issued animal if it is a service animal required because of a an interpretation directed at businesses regarding disability." Glogowski Decl., Ex. A, at 4. The latter service animals which provides that: does not foreclose the possibility that Costco may still ask the "task or function" inquiry as provided Business may ask if an animal is a service in the Business Brief issued in April 2002. animal or ask - what tasks the animal has been trained to perform, but cannot require special ID Finally, the plaintiffs argue that the Business cards for the animal or ask about the person's Brief should be disregarded because it is internally 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 r0.gG to ul o • ' Page 5 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) inconsistent. They argue that the Brief is assurances" from the passenger to determine inconsistent because in the same sentence that the whether an animal is a service animal. Id. at 2875. document provides that a business may "ask what The personnel may ask specifically, "[w]hat tasks tasks the animal has been trained to perform," the or functions does the animal perform for you." Id business may not "require special ID cards for the However, as the plaintiffs argue, the DOT guidance animal or ask about the person's disability." Valente is not an interpretation of the ADA but is an Decl., Ex. A. The plaintiffs assert that "the task interpretation of the Air Carrier Access Act. Id. at based inquiry indirectly requires disclosure of a 2874. Costco asserts that the nondiscrimination person's disability, particularly 'invisible' ones." provision of the ACAA and the ADA are analogous Pl's Resp., at 9. and the DOT guidance should "inform" the Court's analysis. The Plaintiffs' argument is unpersuasive. First, the Department of Justice has determined that a The Court need not address this issue as the business owner can ask the "task or function" provisions of the ADA and the Department of question without asking for the specific medical Justice interpretations are sufficient to find that the label or disability, as demonstrated by the specific Costco policy is not discriminatory as a matter of language of the Business Brief. Valente Decl., Ex law. Costco has made a "reasonable modification" A. Second, as argued by Costco, the "task or of their no animals policy to allow admittance of function" question can be *1353 answered without service animals. The policy requires Costco divulging the specifics of the individuals disability, employees to first look for visual identification that i.e. (1) "the animal is trained to alert me when a an animal is a service animal. Raines Decl., medical condition is about to occur" or (2) "the docket no. 24, Ex. A. If the animal is "without animal is trained to pick items up off the floor for visual evidence" that it is a service animal, the me." See Defs Reply, at 3 n. 3. Finally, it cannot be employee should inquire into what task or function said that Costco's failure to change their "task or the animal performs. Id. This "task or function" function" question is a "failure to make a inquiry follows nearly word for word the reasonable modification" in policies that are Department of Justice's guidance directed at necessary to provide access for a disabled businesses. Valente Decl., docket no. 23, Ex. A. individual. See 28 C.F.R. § 302(a)(2003). Without The Department's interpretation of its own any authority to the contrary, the Court gives regulation is entitled to deference absent a contrary deference to the Justice Department's interpretation reading of the regulation. In this case, it cannot be . of its own regulations and finds that the Costco said that the task inquiry allowed in the DOJ policy does not violate the ADA. Business Brief is contrary to the reasonable modification requirement. For these reasons the B. Department of Transportation Interpretations Court grants the defendant's motion for summary Finally, Costco argues that the Court should judgment with respect to the ADA claim. look to other agency interpretations of analogous • nondiscrimination regulations for additional III. Washington Law Against Discrimination guidance. Defs Mot. for Summ. J., at 6. In support [3] In addition to moving for summary of their argument Costco points to the Department judgment on the ADA claim of discrimination, of Transportation's recent guidance concerning Costco also moves for summary judgment on the service animals in air transportation. See 68 claim of a violation of the WLAD. The statute Fed.Reg. 2874 (2003). The DOT guidance provides provides that "[t]he right to be free from that airline personnel may obtain "credible verbal discrimination because of ... physical handicap is recognized as and declared to be a civil right." © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 1 1 http: / /web2.westlaw. corn /pruit /pru1tstreanl.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 • Page 6 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) RCW 49.60.030(1). Additionally, that right shall a business from asking such a question. The include "[t]he right to full enjoyment of any of the WSHRC guide provides: accommodations, advantages, facilities, or privileges of any place of public resort, 5. How can T tell if an animal is really a accommodation...." Id. at 49.60.030(1)(b). Finally, service animal and not just a pet? WLAD provides that "[i]t shall be an unfair ce for a person or hi anent or employee to There are nn legal requirements for service practice f �.v any pv `+b" " � 1____ commit an act which directly or indirectly results in animals to be specially identified. Some, but not any distinction, restriction, or discrimination...," Id. all, service animals, wear special collars and at 49.60.215. The plaintiffs *1354 in this case argue harnesses. Soine, but not all, are licensed or that the "task or function" inquiry "directly or "certified" and or have identification papers. If you indirectly" resulted in discrimination. Pl's Comp., are not certain that an animal is a service animal, docket no. 1, p. 20. you may ask the person who has the animal if it is a service animal required because of a disability. A Washington state courts have noted that state public entity cannot require any proof of a person's law relating to disability discrimination disability, or identification or certification of the substantially parallels federal law, and courts service animal's status. should look to interpretations of federal anti- discrimination laws, including the ADA, when Glogowski Decl., docket no. 28, Ex. D. applying the WLAD. See Matthews v. NCAA, 179 F.Supp.2d 1209, 1229 (E.D.Wash.2001); see Plaintiffs argue that this guide restricts a MacSuga v. County of Spokane, 97 Wash.App. 435, business's questioning to "whether the animal is a 442, 983 P,2d 1167 (1999) (commenting in dicta service animal," Pl's Resp., docket no. 27, p. 6. that the WLAD and ADA "have the same purpose" However, as Costco correctly argues, the guide and state courts therefore may look to federal cases simply states that Costco "may ask the person who for guidance); see also Kees v. Wallenstein, 161 has the animal if it is a service animal required F.3d 1196, 1199 (9th Cir.1998) (holding that courts because of a disability." Glogowski Decl., docket should employ the same analysis to evaluate claims no. 28, Ex. D (emphasis added). The guide does not under the ADA and the WLAD). state that a business may not ask the "task or function" question. By contrast, the guide The plaintiffs did not address the issue of the specifically provides that "[a] public entity cannot interpretation of WLAD in their response brief. Pl's require any proof of a person's disability, or Resp., docket no. 27, p. 6 -7. Instead, they argue that identification or certification of the service animal's Costco's policy violates WLAD because it is status." Id Costco's policy does not require any allegedly contradicted by a Washington State such proof. Raines Deel., docket no. 24, Ex. A. Human Rights Commission ( "WSHRC ") document entitled "Service Animal Questions." Id at p. 6. B. WSHRC's Reasonable Cause Finding The plaintiffs also argue that the Court should defer The final issue for the Court is the reasonable to a WSHRC reasonable cause finding that held that cause finding of the WSHRC that found that there there was sufficient evidence to show that Costco's was sufficient evidence to show that the Costco policy violated WLAD. Id at p. 7. "task or function" inquiry violated WLAD. Glogowski Decl., docket no. 28, Ex. C. WSHRC A. WSHRC's "Service Animal Questions" held: The plaintiffs first argue that the WSHRC's " Service Animal Questions," which does not *1355 WAC 162 -26- 070(6) requires that provide for a "task or function" question precludes [Costco] reasonably accommodate a customer's © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. • http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014 i ct c O Vl 0 Page 7 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) disability, which includes providing admittance into IT IS SO ORDERED. • the store without inquiries necessitating disclosure of the nature or scope of a customer's disability. [ Costco's] Service Animal policy violates RCW W.D.Wash.,2004. 49.60.215 by resulting in a direct restriction on the Grill v. Costco Wholesale Corp. access of customers with disabilities accompanied 312 F.Supp.2d 1349 by service animals, as compared to non- disabled customers. END OF DOCUMENT Id. As a preliminary matter, Washington state courts review an agency's application of the law to facts de novo. Mader v. Health Care Auth., 149 Wash.2d 458, 470, 70 P.3d 931 (2003). In this case the Court disagrees with the Commission's finding that there is sufficient evidence to show that Costco's "task or function" inquiry violates WLAD. Costco's policy does not operate as a "direct restriction" on the access of customers with disabilities accompanied by service animals. By contrast the policy first allows a service animal admittance into its stores if the animal is identified as a service animal. If there is no identification, the customer must only provide what task or function the animal perfonns to gain admittance into the warehouse. Costco should be allowed some way of determining which animal is in fact a service animal, and the plaintiffs cannot demonstrate that the policy as written results in discrimination. CONCLUSION In conclusion, the Court grants Costco's motion • with respect their counterclaim and count IV of the plaintiffs' complaint. The ADA provides that discrimination is a failure to make a reasonable modification in policies when such a modification is necessary to afford the facilities to an individual with a disability. As the Department of Justice interpretations indicate, it is not necessary for Costco to modify their written policy to remove their "task or function" question. Finally, the Court decides the plaintiffs' state anti - discrimination claims using the same analysis it uses to interpret the federal anti - discrimination claims. 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?rs =WLW 14.01 &destination= atp &mt =W... 03/20/2014