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HomeMy WebLinkAbout04/15/2014 11 Pit Bull Prohibition Exceptions; YMC Amending 6.18.020 (B) and Adding Section (C)BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: 4/15/2014 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 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: RECOMMENDATION: Approve the amendment. City Manager ATTACHMENTS: Description Upload Date Ordinance -Pit Bull Ord -Service Animal ❑ 4/7/2014 Amendment -FINAL -3-2014 Ordinance -Pit Bull Ord -Service Animal ❑ 47/2014 Ordinance Amendment -redline -3-2014 ❑ ADA & Pit Bulls -Backup Material -Part 1 4/10/2014 IBaclIcup IMateiriiall ❑ ADA & Pit Bulls -Backup Material -Part 2 4/7/2014 IBaclIcup IMlateiriiall ❑ ADA & Pit Bulls -Backup Material -Part 3 4/7/2014 IBaclIcup IMateiriiall Type Ordinance AN ORDINANCE follows: ORDINANCE NO. 2013 - 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 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 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. 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 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 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 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 15th day of April, 2014. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 6 AN ORDINANCE follows: ORDINANCE NO. 2013 - 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 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, and -(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. 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 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 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. (1) 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 15th day of April, 2014. ATTEST: Micah Cawley, Mayor City Clerk Publication Date: Effective Date: 6 CITY OF YAKEMA LEGAL DEPARTMENT n,Nalcirn3,w,1 1I0g055€163 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 IAADP International Association of Assistance Dog Partners ADA Training Requirements QUESTION: Why don't Companion Animals, Emotional Support Animals or TherapyAninnals 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 community, 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 RDA'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://www.iaadp.org/iaadp-ada-training-requirements.html 03/24/2014 ADA Training Requirements rage z 01z 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 ask 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. Ret'urnto AADP M mbership A ° tion I Return to JAADP Home Pag .iaadp.org/iaadp-ada-training-requirements.html 03/24/2014 DELTA SOCIETY@ The Human -Animal Health Connection Minimum for Servi ndards A Product of the Service Dog Education System Revision 2 November 2002 Minimum standards for Service Dogs Copyright© 2002 Delta Society® All rights reserved, including the right to reproduce this book in whole or in pari in any form. 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 Printed in the United States ofAmerica Final Rev 2 November 2002 it ©Delta Society 2002. All Rights Reserved. Minimum Standards for Service Dogs 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 Ri0hts Reserved. ill Final Rev 2 November 2002 Minimum Standards for Service bogs Acknowledgements continued 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 Bruer, DVM Canine Assistants Alpharetta, GA Shari Burke Discovery Dogs San Rafael, CA Major Perry Chumley, DVM AIM HI Service Dog Training Center Ft. Knox, KY Debi Davis Tucson, AZ Maik Engen; DVM American College of Veterinary Surgeons Kirkland, WA Nancy Fierer Susquehanna Service Dogs Hanisburg, PA Sue Ford, RN Euless, TX Jeanne Hampi, RN Gig Harbor, WA Suzanne Netts, Ph.D. Animal Behavior Associates, Inc. Littleton, CO Sunny Weber Manners for Mutts Greenwood Village, CO Carol King Oceanside, CA Jean King Independence Dogs, Inc. Chadds Ford, PA Glenn Marlyn San Francisco SPCA San Francisco, CA Brenda Mosley CHIP Canton, OH Lynn & Scott Quade Retrievers ASAP Janesville, WI Pamela J. Reid, Ph.D. ASPCA New York, NY Elizabeth Rudy, DVM Seattle, WA Helen Rudy Campbell, 011 George Salpietro Fidelco Guide Dog Foundation Bloomfield, CT Final Rev 2 November 2002 iv ODe1ta Society 2002. All Rights Reserved. Minimum Standards for Service Dogs Introduction The Minimum Standards far 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. 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 ombinations) 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 living2, are so numerous and individualized that it is impractical to list all of thein, 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 breaking 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 term "service animal," as defined in the Americans with Disabilities Act (ADA), is any animal individually trained to do work or perforin tasks for the benefit ofa person with a disability. This can include guiding a person with impaired vision, stetting apetson with impaired hearing to the presence ofpeopteorsounds, pulling awheelchair, retrieving dropped items, etc. Delta Society uses theterm"service dog" to be consistent with the ADA definition of"service animal". P Activities of daily living include batbing, dressing, eating, walking, and other personal ftrnctianing activities. Instrumental activities of daily living include preparing meals, shopping, using the phone, doing laundry, and other measures of living independently. 02002 Delta Society. All rights reserved. 1 Final Rev 2 November 2002 Minimum Standards for Service Dogs tlerall a:rag 'Or's Candidate dogs for service dog training must have passed entry screening 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. 1100101"ilAtitittitlemaiiitiPliyglari To perforin successfully as a service dog, a dog must meet minimum health, aptitude, and physical requirements. When screening dogs for these requirements, those performing the screenings must consider the tasks the dogs may be expected to perform for their prospective handlers and the environments in which the dogs 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 must 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 clog training: 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: 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 reseniedn 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 petform required tasks. * Skeletal/Muscles - The dog shall have the normal skeletal/muscle structure and function within normal 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 heartworms and for nonnal blood results. • All inununizations - 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. o Skin - The dog's skin shall be five of fleas, ticks, dennatitis/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. Abdominal organs - The dog shall have normal results from the palpation of abdominal organs • Teeth/Gums - 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. Owner identification - Ownership must have been properly transferred to the person/organization supplying the dog. This includes checking the dog for the presence of ail microchip systems and tattoos and other accepted methods of determining ownership Temperament - The dog should be screened for temperaments appropriate for the tasks it will be peiforining and under the conditions Final Rev 2 Novernber 2002 4 @Delta Society 2002. All Rights Reserved. Minimum Standards for Service Dogs it will pelform 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. Spay/neuter - All service dogs must be spayed or neutered prior to placement with the handler. o Physically suited to tasks required - The dog must possess the physical size, strength, conditioning, physical structure, etc. to be able to peiform the expected tasks. The dog shall not be overweight or underweight, as determined by the examining veterinarian. Able to handle the conditions of working/living in the area in which it will eventually be placed - For example, a dog placed in Montana would have to be able to perform its tasks in conditions such as temperature extremes, snow, ice, and ram. Age - The dog's age should be identified as best as possible. This may be difficult with dogs coming from shelters or rescue organizations, but a reasonable estimate should be possible. A thoughtful review of the dog's age in relation to expectations must be made. The dog 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 working life of at least 6 years. a Local animal control laws vaiy 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 U.S. Department of Justice Civil Rights Division Disability Rights Section Requirements Service Animals Page 1 of 3 The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title it (State and local government services) and title 111 (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 li and III of the ADA. ▪ 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 ill entities 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 pubtic 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 he inappropriate to exclude a service animal from areas such as http://www.ada.gov/service_animals_2010.htm 03/20/2014 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 those 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 • 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. • 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 anima[ 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. MA 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. • 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. ▪ 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. ■ 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 is under the owner's control; (3) whether the facility can accommodate 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://vvww,ada.gov/service_anirnals_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, thls publication is available in alternate formats. Duplication of this document is encouraged. July 2011 PDF Version of this Document July 12, 201 1 littp://www.ada,gov/serviee_animals_2010.htm 03/20/2014 We:stl:aw, 958 F,Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) United States District Court, D. Colorado. Allen GRIDER; Glenn Belcher; and Valerie Piltz, Plaintiffs, v. CITY AND COUNTY OF DENVER; and City of Aurora, Defendants. Civil Action No. 10—cv-00722—MSK— July 25, 2013. Background: Disabled individuals who used pit bull dogs as service animals brought failure to accommodate action under the Americans with Disabilities Act (ADA) against cities with ordinances prohibiting the breed. Cities moved to dismiss for lack of subject matter jurisdiction. Holdings: The District Court, Marcia S. Krieger, Chief Judge, held that: (1) owners lacked standing to seek prospective relief; (2) one owner lacked standing to seek retrospective relief; but (3) another owner possessed standing to sue for retrospective relief. Motion granted in part and denied in part. West Headnotes ] I] Federal Civil Procedure 170A €=.103.2 170A Federal Civil Procedure 170A11 Parties I 70AII(A) In General 170AkI03.1 Standing in General 170A1c103.2 k. In general; injury or interest. Most Cited Cases Article Ill standing is not merely a pleading requirement; each element of standing must be supported with the mauler and degree of evidence required at the pertinent, successive stages of the Page 2 of 10 Page 1 litigation. U.S.C.A. Const. Art. 3. 121 Federal Courts 170B tE)=`2105 170B Federal Courts 17013111 Case or Controversy Requirement 170B Ill(A) In General 170Bk2105 k. Injury, harm, causation, and redress. Most Cited Cases (Formerly 170Bk12.1) To establish a case or controversy required for Article 111 standing, a plaintiff bears the burden of demonstrating three elements: (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. U.S.C.A. Const. Art. 3. 1.31 Federal Civil Procedure 170A C=z)103.2 170A Federal Civil Procedure 170A11 Parties 170AII(A) In General 170Ak103,1 Standing in General 170Ak103.2 k. In general; injury or interest. Most Cited Cases Each plaintiff must have Article III standing to seek each form of relief in each claim. U.S.C.A. Const. Art. 3. [4] Federal Civil Procedure 170A €'103.2 170A Federal Civil Procedure 170A11 Parties 170A11(A) In General 170Ak103,1 Standing in General 170Ak103,2 k. In general; injury or interest. Most Cited Cases The injury in fact requirement for Article III 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.com/print/printstreantaspx?rs—WLW14.01&destination—atp&mt—W... 03/24/2014 958 F.Supp.2d 1262 (Cite as: 958 1?.Stipp.2d 1262) 15] Federal Civil Procedure 170A e=103.2 170A Federal Civil Procedure 170A11 Parties 170A11(A) In General 170A 1(103.1 Standing in General 170A k103,2 k. In general; injury or interest. Most Cited Cases To have Article III standing required to seek prospective relief, the plaintiff must suffer a continuing injury or be under a real and immediate threat of being injured in the future; the threatened injury must be certainly impending and not merely speculative. U.S.C.A. Const. Art. 3. 161 Federal Civil Procedure 170A €=.103.2 170A Federal Civil Procedure 170All Parties 170A11(A) In General 170Ak103.1 Standing in General 170Ak103.2 k. In general; injury or interest. Most Cited Cases For purposes of Article ID standing, a claimed injury that depends on speculation or conjecture is beyond the bounds of a federal court's jurisdiction, U.S.C.A. Const. Art. 3. 171 Federal Civil Procedure 170A €.--).103.2 1 70A Federal Civil Procedure 170A11 Parties 170A ill(A) In General 70Ak 03, t Standing in General 170A1(103.2 k. In general; injury or interest. Most Cited Cases A plaintiff seeking retrospective relief satisfies the injury in fact requirement for Article III standing if she suffered a past injury that is concrete and particularized. U.S.C.A. Const. Art. 3. (8] Civil Rights 78 €1333(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue Page 3 of 10 Page 2 78k1333 Injury and Causation 78k1333(6) k. Other particular cases and contexts. Most Cited Cases For purposes of Article HI standing in a denial of benefits claim under the ADA, to the extent the plaintiffs allege an injury in fact, that. injury must be fairly traceable to the defendants' challenged conduct of denying the benefits of or access to local government services; however, the threshold standing inquiry does not depend on the merits of the plaintiffs' contention that the challenged conduct is illegal. U.S.C.A. Const. Art, 3; Amnions with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 191 Civil Rights 78 €1331(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General 78k1331(6) k. Other particular cases and contexts. Most Cited Cases Disabled pit bull clog owners who used their dogs as service animals lacked Article III standing to seek prospective relief against city under the ADA for its alleged denial of service based on its ban of the pit hull dog breed, where city had made an exception for the breed when used for service. U.S.C.A. Coml. Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 1101 Civil Rights 78 €;=*1333(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1333 Injtny and Causation 78k1333(6) k. Other particular cases and contexts. Most Cited Cases Disabled pit bull dog owner who used his dog as a service animal, and who lived very close to the border of a city, lacked stauding to bring an action 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 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) for retrospective relief against the city based on denial of service in violation of the ADA, where he failed to allege that he suffered any past injury as a result of city's ban on pit bulls. U,S.C.A. Coust, Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132, l I I] Civil Rights 78 C7-1333(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 781c1333 Injury and Causation 78k1333(6) k. Other paiticular cases and contexts. Most Cited Cases Disabled pit bull dog owner, who was told by city to get rid of his clog or move, lacked Article III standing to sue city for retrospective relief based on denial of service in violation of the ADA, where allegations failed to demonstrate how dog owner was injured, since he continued to live in the city with his dog. U.S.C.A. Const, Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 11121 Civil Rights 78 C=1333(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1333 Injury and Causation 78k1333(6) k. Other particular eases and contexts. Most Cited Cases Disabled pit bull owner, who used pit bull as service dog and who occasionally visited city that banned pit bulls, lacked Article III standing to sue city for retrospective relief based on denial of service in violation of tho ADA, where owner was never injured since city never enforce ban against her. U.S.C.A. Const, Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A, § 12132. 11.3l Civil Rights 78 C=4331(6) Page 4 of 10 Page 3 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 781<1331 Persons Aggrieved, and Standing in General 78k1331(6) k. Other particular cases and contexts. Most Cited Cases Disabled pit bull dog owner, who used his dog as a service animal, lacked Article ET standing to seek prospective relief against city under the ADA for its alleged denial of service based on its ban of the pit hull breed, where city permitted restricted use of pit bulls as service animals. U.S,C.A. Const. Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U,S.C.A. § 12132. 114] Civil Rights 78 C=1333(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1333 Injury and Causation 78k1333(6) k. Other particular cases and contexts. Most Cited Cases Disabled pit bull dog owner, who used his dog as a service animal which was seized pursuant to city's ban on the breed, stated an injury in fact required for standing to bring action seeking retrospective relief against the city under the ADA for denial of service based on its seizure of the dog. U.S.C,A, Const. Att. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S,C.A. § 12132. [1.51 Civil Rights 78 C-4331(6) 78 Civil 'Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General 781c1331(6) k. Other particular cases and contexts. Most Cited Cases Disabled pit bull dog owner, who used his dog 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx7rs= LW1 4.01 destination—aip&mt— 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) as a service animal, lacked Article 111 standing to seek either prospective or retrospective relief against city for denial of service in violation of the ADA, where he allegedly only had to keep the dog hidden in a building while visiting the city, and could apply for a license for the dog as a service animal under an exception to the ban. U.S.C.A, Const. Art. 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 1161 Civil Rights 78 €;=)1331(6) 78 Civil Rights 78111 Federal Remedies in General 781(1328 Persons Protected and Entitled to Sue 78k1331 Persons Aggrieved, and Standing in General 78k1331(6) k. Other particular cases and contexts, Most Cited Cases Disabled pit bull dog owner, who used her dog as a service animal, lacked Article 111, standing to seek prospective or retrospective relief against city based on denial of service in violation of the ADA for city's ban on the breed, where owner was not a resident of the city, received an exception to travel there with her dog for a clog show, and did not indicate that she would return to city at any point in the near future. U.S.C.A. Const. Art, 3; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. *1264 jay Wayne Swearingen, Kimberly I. Danielson, Jennifer Reba Edwards, Wheat Ridge, CO, for Plaintiffs. ioiathan Marshall Abramson, Nancy Cornish Rodgers, Richard P. Kissinger, Kissinger & Fellman, P.C., Denver, CO, for Defendants, OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FOR LACI( OF SUBJECT MATTER JURISDICTION MARCIA S. KRIEGER, Chief Judge. Page 5 of 10 Page 4 THIS MATTER comes before the Court on two motions to dismiss: (1) Defendant City and County of Denver's Motion to Dismiss for Lack of Subject Matter Jurisdiction (i/ 137), and (2) Defendant City of Aurora's Motion to Dismiss Plaintiff Belcher's*1265 and Plaintiff Piltz's Claims for Lack of Subject Matter Jurisdiction (# 140). The Plaintiffs filed a combined Response (# 161), and the Defendants each filed a Reply ( 163, 164). L Background As alleged in the Atnended Complaint (# 85) and detailed in previous orders, both Denver and Aurora ban the possession of pit bull dogs."' The Plaintiffs, Allen Grider, Glenn Belcher, and Valerie Piltz, each claim to be a disabled individual protected by the Americans with Disabilities Act (A DA), 42 U.S.C. § 12101 el seq., and to use a pit bull as a service animal to assist with the tasks of daily living. 17111. Denver's pit bull ban is found in the Denver Municipal Code § 8-55. Auroras ban is found in the Aurora Code of Ordinances § 14-75. As a result of ruling on earlier motions, see Order at Dkt. # 100, this action has only one legal claim—for a failure to accommodate in violation of the ADA and 28 C.F.R. § 35.130(b)(7), in that the Defendants refused to modify their ordinances as necessary to accommodate the Plaintiffs' disabilities. In reality, however, there are six claims—each Plaintiff asserts a claim against each Defendant. The Plaintiffs seek both damages and injunctive relief in the form of modification of the Defendants' ordinances. The Defendants now challenge the Plaintiffs' standing to assert their claims. The City of Denver argues that none of the named Plaintiffs have standing to seek either retrospective or prospective relief against it. The City of Aurora makes the same argument with regard to Plaintiffs Belcher and Piltz.1N 'rlie Defendants contend that because the Plaintiffs have not sufficiently alleged their 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. web2 .westlaw corn/print/prhitstreain.aspx?rs=V W14.0184destination=atp&nit7W,.. 03/24/2014 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) standing, their claims must be dismissed under fed,Et.C'iv.P, 12(b)(1) for lack of subject matter jurisdiction. 'N12. Aurora does not challenge Plaintiff Grider's standing to assert his claim against it, The Court will address it in this opinion, however, because constitutional standing necessary to the Court's jurisdiction and roust be addressed before proceeding to the merits. See Jobep v. Shapiro, A4crri nws f Cejda, L.L.C„ 434 F.3d 1208, 1211 (10th Cir,2006). The Court is aware of Aurora's pending Motion for Summary Judgment (# 141) as to Plaintiff Grider's claim. II. Standard of Review [1] When evaluating a plaintiff's standing at the pleading stage of the litigation, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Ward/ v. Seldin, 422 U.S. 490, 501, 95 S.Ct, 2197, 45 L.Ed.2d 343 (1975). At the same time, the Court may allow the plaintiff to supply affidavits that further particularize allegations of fact deemed supportive of the plaintiffs standing. Id. The Court construes statements made in such affidavits in the light most favorable to the plaintiff. Southern (halo Wilderness Alliance v. Palma, 707 F.3d 1143, 1152 (10th Cir.2013), At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice," for on a motion to dismiss, the Court presumes that "general allegations embrace those specific facts that are necessary to support the claire." id (quoting 1,11j CM v, Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct, 2130, 119 L.Ed.2d 351 (1992)), If, however, the plaintiffs standing does not adequately appear from the materials of record, that being the complaint and. additional affidavits submitted by the plaintiff, the claim must be dismissed," Worth, 422 U.S. at 502, 95 S,Ct. 2197. l"1N13. However, standing is not merely a pleading requirement. See Defenders of Page 6 of 10 Page 5 WYilclli/', 504 U.S. at 561, '112 S.C't. 2130. Each element of standing must be supported with the "manner and degree of evidence required at the pertinent, successive stages of the litigation." id Thus, were this proceeding at the summary judgment stage, the Plaintiffs would be required to establish the elements of standing through specific facts, by affidavit or other evidence, id Where, as here, the original complaint has been superseded by an amended cornplainV1266 the court examines the amended complaint in assessing the allegations supporting standing. Mirth v. Slithers, 482 F,3d 1244, 1254 (10th Cir.2007). however, standing is determined at the time the action was brought, and courts generally look to when the complaint was fust filed, not to subsequent events, to determine if a plaintiff has standing. See Palma, 707 11,3d at 11.53. Ill. Analysis [2][3] The jurisdiction of federal courts is limited to actual cases or controversies. U.S. Const, art. III, § 2 cl.l. To establish a ease or controversy, a plaintiff bears the burden of demonstrating three elements: (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. firorrson v. Swensen, 500 F,3d 1099, 1106 ('10th Cir.2007) (citing Friends of the Earth, Inc, ir. Laidlaw .F,nvtl, Servs., Inc., 528 U.S. 167, 180.-81, 120 S,Ct. 693, 145 L.Ec1.2d 610 (2000)). Each plaintiff must have standing to seek each form of relief in each claim. Id. [4][5][6][7] The "injury in fact" requirement is satisfied differently depending on whether the plaintiff seeks prospective or retrospective relief. See Tandy v. Cii(' of Wichita, 380 F.3d 1277, 1283 (loth Cir.2004) (citing City of Los Angeles v. Iyouuss' 461 U.S. 95, 101 02,, 103 S,Ct, 1660, 75 2014 Thomson Reuters, No Clain It 11 veb2,westlaw.coin/print/prirxtstrearm.aspx?rs=W o Orig. US Gov. Works. 4.01 &destination, atp&mt=W... 03/24/2014 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) 11.,.Ed.2d 675 (1983)). To seek prospective relief, the plaintiff must suffer a continuing injury or be under a real and immediate threat of being injured in the future. The threatened injury must be "certainly impending" and not merely speculative. Laidlaw. 528 U.S. at 190, 120 S,Ct. 693. A claimed injury that depends on speculation or conjecture is beyond the bounds of a federal court's jurisdiction. A plaintiff seeking retrospective relief, on the other hand, satisfies the "injury in fact" requirement if she suffered a past injury that is concrete and particularized. Tandy, 380 F.3d at 1284. [8] Here, the Plaintiffs' failure to accommodate claims are brought under Title 11 of the ADA, which provides that no disabled person "shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity." 42 U.S.C. § 12132. Thus, to the extent the Plaintiffs allege an injury in fact, that injury must be fairly traceable to the Defendants' challenged conduct of denying the benefits of or access to local government services. However, the threshold standing inquiry does not depend on the merits of the Plaintiffs' contention that the challenged conduct is illegal. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 E.Ed.2d 135 (1990). Because each Plaintiff asserts a separate claim against each of the two Defendants, the Court separately examines the standing of each Plaintiff as to each Defendant. The facts as set forth below are taken from the Amended Complaint (# 85) and additional affidavits attached to the Plaintiffs' Response (# 161), and are viewed in the light most favorable to the Plaintiffs, A. Standing as to Claims against Denver [9] As an initial matter, the Court finds that no Plaintiff has standing to seek ''`1267 prospective relief against Denver. The Plaintiffs request prospective relief in the form of an order requiring Denver to modify its breed restriction ordinance to snake an exception for service dogs. However, the Court takes notice of the fact that since the filing of Page 7of10 Page 6 this action, Denver issued a written policy modifying its procedures for enforcing the ban. See Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir.2006) (court may take .judicial notice of facts that are a matter of public record without converting a motion to dismiss into a motion for summary judgment). The modification states that Denver will not impound pit bulls that are identified by thea' handler as a service dog. Thus, to whatever extent any of the Plaintiffs allege that. they cannot go to Denver out of fear that their clog will be impounded, those allegations do not permit an inference that they are under any real and. immediate threat of future injury„ Accordingly, none of the Plaintiffs have standing to seek prospective relief against Denver. The Court now turns to the Plainntiffs' allegations of past injuries caused by Denver. 1. Plaintiff Grider [ 10] Mr. Grider lives in Aurora, Colorado. In the complaint and affidavits, he makes numerous allegations of past injury against Aurora. His only references to Denver, however, are that (1) he is "afraid of the City of Denver- taking [his] service dog for an alleged violation of its pit bull ordinance or its 2011 Animal Care & Control Policy regarding pit bull service dogs," and (2) he lives "very close" to the border of Denver does not. know where the exact boundary line is. These allegations only imply the possibility of fi►ture injury, not past injury. Indeed, Mr. Grider makes no allegation that he suffered any past injury traceable to Denver, Accordingly, Mr. Grider lacks standing to seek retrospective relief against Denver, and his claim against Denver is dismissed. 2. PlainlfBelcher [11] Mr. Belcher moved to Denver in October 2009, but he does not live there anymore. After moving to Denver, he contacted the Director of Animal Control to seek approval to keep his dog in city limits. He was told by the Director that he would have to either get rid of his dog or move out of Denver. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http.// eblwestlaw,com/prii /prinistrea .aspx?rs= 4.01 &.destination=atp&mt=W... 03/24/2014 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) The Court funds that Mr. Belcher's allegations are insufficient to allege a past injury attributable to Denver. Mr. Belcher alleges that Denver denied him "approval" to keep his dog, but does not allege how the "denial" actually injured him. Instead, the allegations indicate that despite the ordinance, Mr. Belcher lived in Denver with his dog and without any interruption from Denver. Mr. Belcher hypothesizes that if he had needed to call the police or the fire department to his honkie, Denver would have found his dog and impounded it, while also giving hire a fine and/or jail time, But, importantly, he does not allege that any of these things ever happened, Accordingly, Mr. Belcher lacks standing to seek retrospective relief against Denver, and his claim against Denver is dismissed. 3, Plaintiff Piltz [12] Ms. Piltz does not reside in Colorado. In 2010, she visited Colorado to attend the United Kennel Club Dog Show held in Aurora. During her visit, she stayed with her sister who lives in Denver. Before Mi•. Piltz's arrived, her sister (on Ms, Piltz's behalf) contacted the Director of Denver Animal Control, seeking an accommodation for Ms. Piltz's service dogs while she was in town, Ms. Piltz's sister was told that unless Ms. Piltz is blind or deaf, she could not have her dogs in. Denver. Despite what her sister was told, Mr. '''1268 Piltz travelled to Denver with her dogs. During her stay, she was "extremely concerned" that her dogs would be taken from her. Like Mr. Belcher, the Court finds that Ms. Piltz has not sufficiently alleged a past injury attributable to Denver. She alleges that Denver did not accommodate her to allow her dogs to be in Denver, but she does not allege how the denial impacted her during her stay. She makes conclusory allegations that she was denied the "ability to possess, use and travel with her service dogs" and that she was denied "the legal right to freely to and stay [in] Denver," but she makes no allegation of any concrete and particularized injury. Like Mr. Belcher, Ms. Piltz merely hypothesizes about ways Page 8of10 Page 7 in which she could have been injured. Such allegations are insufficient to establish a concrete and particularized injury in fact. Accordingly, Ms. Piltz lacks standing to seek retrospective relief against Denver, and her claim against Denver is dismissed. B. Standing as to Claims against Aurora 1. Plaintiff Grider [13] Mr. Grider, a resident of Aurora, alleges that his pit bull service clog is trained to assist him with his disability, Post Traumatic Stress Disorder (PTSD). He alleges that in 2009, Aurora Animal Control seized his se►vice dog and kept her impounded for 10 days. The dog was then released to Mr. Grider's friend, who does not live in. Aurora. As a result, MT. Grider was without his service dog for over 5 months. He alleges that without his dog, he suffered severe anxiety, had difficulty sleeping, and was confined to his home. (His clog was allegedly returned to hire after the filing of this lawsuit.) In. March 2010, Aurora sent Mr. Grider a letter informing huhu that his pit bull service clog would be allowed in Aurora if he complied with a number of requirements. ©nc such requirement was that the dog must be confined in an enclosure in his yard. Mr. Grider asserts that this requirement restricts his use of one of his dog's services, which is that "she be free to walls into an area before [him], so that the dog can determine whether any people are outside his residence and alert lu m, if necessary, before [he] goes into the back yard." Mr. Grider also complains that requiring him to put a warning sign on his entry gates stigmatizes him and calls attention to his disability. He alleges that he has not complied with Aurora's requirements in order to get his clog licensed to be in the city. Although Mr. Grider lives in Aurora with his dog, he alleges that he is afraid to call the police or fibre department to lois home for fear that they would confiscate his dog. Mr. Grider generally alleges that he fears having his dog taken from him if he simply walks down a city street or goes to a park. 2014 Thomson Reuters. No Claim to http://web2.westlaw.corn/priit/pr intstrean. aspx?rs—WL rig. US Gov. Works. 14.01&destination=atp&lett-=W .. 03/24/2014 958 F.Supp.2d 1262 (Cite as: 958 F.Su pp.2cl 1262) The Court finds that Mr. Gilder lacks standing to seek prospective relief against Aurora. The Court takes notice of Aurora's breed restriction ordinance, § 14-75, which permits the owner/handler of a pit bull service animal to apply for and receive a license to keep their pit bull in the city. In order to receive such license, the owner must satisfy several requirements. One requirement is that when the pit bull is on the owner's outdoor property, it must be confined in an enclosure or with its owner, and the "rear yard enclosed by a six footfence maintained in accordance with chapter 146 of this Code." Aurora Code of Ordinances § 14-75(d)(7),. Mr, Glider does not allege any reason as to wiry he cannot comply with this requirement. Indeed, it is unclear from the allegations whether he does or does not have such fence already. Another licensing requirement is that a "warning sign shall be affixed to the gate of the structure notifying people a pit pull is contained within," id. *1269 Although Mr, Grider complains about this requirement, the ordinance states that the requirement "shall be waived for a pit bull that is a service animal." Id. As to the additional requirements, Mr. Grider makes no allegation that he cannot satisfy them, or that by doing so, the service provided by his dog is rendered useless. Thus, although Mr. Grider alleges that he currently does not have a license for his dog, the Court finds that such license is available to trim to avoid the threat of his dog being seized. For that reason, Mr. Grider has not alleged an injury that is "certainly impending." [14] As to retrospective relief, the Court finds that Mr. Grider has sufficiently alleged a past injuiy. He alleges that as a result of Aurora seizing his dog, he was confined to his home. The Court finds these allegations sufficient to confer stanching to seek retrospective relief against Aurora. 2. Plaintiff Belcher 15] As to Aurora, Mr. Belcher alleges that, at some unspecified time, he went to Aurora for an appointment about his government benefits. During the visit, he kept his dog hidden because he was 0 2014 Thomson Reuters. Page 9 of 10 Page 8 afraid that she would be taken and euthanized. He does not live in Aurora, but be states that he has friends in Aurora and that he needs to be in Aurora with his dog "as part of this case." The Court finds that Mr. Belcher does not have standing to seek any form of relief against Aurora. His allegation that he had to keep his dog hidden while in an Aurora building does not establish a concrete and particularized past injury, thus he does not have standing to seek retrospective relief, As to future injury, Mr. Belcher generally alleges that he will have to return to Aurora at some unknown point in time, either to visit friends or for a matter associated with this case. I -however, Aurora's ordinance allows a "non-resident owner/handler" to have a pit bull service dog in the city for up to two weeks. See Aurora Code of Ordinances § 14-75(c)(7). Mr. Belcher does not allege that he needs to he in Aurora for more than two weeks at any point in time, Thus, his allegations are insufficient to allege any immediate threat of future injury. Accordingly, Mr. Belcher has not alleged an injury in fact and he lacks standing to seek any form of relief against Aurora. His claim against Aurora must be dismissed. 3. Plaintiff Piltz l6] Ms. Piltz visited Aurora for a dog show in 2010. Aurora permitted Ms. Piltz to have her dogs in the city for a three -clay "approved" period, which was set forth in a letter issued to her. Ms. Piltz had to carry with her a copy of the letter so that she could present it if confronted by authorities. She was also informed that he dogs would have to be 'nuzzled at all times. Ms. Piltz hives out of state, but she states that she travels to Colorado several tunes per year and stays with her sister, who lives near Aurora, The Court finds that Ms. Piltz has not alleged. an injury in fact. As to past injuiy, she does not allege how Aurora actually injured her in the foram of denying her access to any goverment services or programs."1 She claims to have been required to carry a letter around with her and that her dogs o Claim to Orig. US Gov. Works. http:l/web2.wcst]aw.Cori/print/prultstreanr,aspx?fs=WLW14.01 destination=atp... 03/24/2014 Page 10 of 10 Page 9 958 F.Supp.2d 1262 (Cite as: 958 F.Supp.2d 1262) needed to be muzzled, but she does not allege how those requirements in any way impeded her ability to travel *1270 through Aurora and to attend the 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 alone 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 government services. IV. 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, Grider's claim against the City and County of Denver is dismissed. The only remaining claim going forward in this case is Mir. Grider's claim against the City of Aurora. However, Mr. Gilder 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.,20I3. Crider v. City and County of Denver 958 F.Supp.2d 1262 END OF DOCUMENT CO 2014 Thomson Reuters. No Claim to Orig. US Gov. Works, http://lAreb2.westlaw.com/print/printstreamaspx?rs= L 14.01&destination=atp&mt—W... 03/24/2014 4law. 832 F,Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) c United States District Court, N.D. Iowa, Western Division, James SAK and Peggy Leifer, Plaintiffs, v. The CITY OF AURELIA, IOWA, Defendant. No. C 11-4111—MWB. Dec. 28, 2011. Background: Permanently disabled retired police officer, who had part pit bull certified service dog, and his wife brought § 1983 action against city, alleging that city ordinance prohibiting pit bull dogs in city violated his rights under Americans with Disabilities Act (ADA), and seeking preliminary injunction barring enforcement of ordinance, Holdings: The District Court, Mark W. Bennett, J., held that: (1) wife did not have standing to pursue ADA claim; (2) officer was likely to succeed on merits of ADA claim; (3) officer would suffer irreparable harm absent injunction; (4) balance of equities was in favor of injunctive relief; (5) national public interest in enforcement of ADA "trumped" more local public interest in public health and safety reflected in ordinance; and (6) appropriate amount of bond was one dollar. Preliminary injunction granted. West Heaclnotes 111 Injunction 212 (E=D1598 212 Injunction 212V Actions and Proceedings 212V(G) Determination 212k1598 k. Operation and effect. Most Cited Cases Findings of fact and conclusions of law made by http://web2.westla Page 2 of 24 Page 1 district court granting preliminary injunction are not binding at trial on merits. Fed,Rules Civ.Proc.Rule 65, 28 U.S.C.A. 121 Injunction 212,1109 212 Injunction 21211 Preliminary, Temporaiy, and Interlocutory Injunctions in General 21211(B) Factors Considered in General 212k1101 Injury, Hardship, Haim, or Effect 212k 1109 k. Balancing or weighing hardship or injury. Most Cited Cases In each case in which preliminary injunction is sought, district courts must balance competing claims of injury and must consider effect on each party of granting or withholding of requested relief. Fed.Rules Civ,Proc,Rule 65, 28 U.S.C.A. 131 Injunction 212 C=.1039 212 Injunction 2121 Injunctions in General; Permanent Injunctions in General 212I(B) Factors Considered in General 212k1039 k. Public interest considerations. Most Cited Cases In exercising their sound discretion, courts of equity should pay particular regard for public consequences in employing extraordinary remedy of injunction. Fed,Rules Civ,Ploc.Rtile 65, 28 U,S.C.A, 141 Injunction 212 4C1092 212 Injunction 21211 Preliminary, Temporary, and Interlocutmy Injunctions in General 21211(13) Factors Considered in General 212k1092 k. Grounds in general; multiple factors. Most Citecl Cases When evaluating whether to issue preliminary injunction, district court should consider four factors: (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. .com/print/printstream.aspx?rs=WLW14.01&destination=atpkint=W... 03/24/2014 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 interest. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 151 Injunction 212 C=1075 212 Injunction 21211 Preliminary, Temporary, and Interlocutory Injunctions in General 21211(A) Nature, Form, and Scope of Remedy 212k1075 k. Extraordinary or unusual nature of remedy. Most Cited Cases Injunction 212 €u1563 212 Injunction 212V Actions and Proceedings 212V(E) Evidence 22k1563 k. Presumptions and burden of proof. Most Cited Cases Preliminary injunction is extraordinary remedy and burden of establishing propriety of injunction is on movant. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. [61 Federal Courts 170B €=,3616(2) 170 Federal Courts 170BXVII Courts of Appeals 170BXV11(K) Scope and Extent of Review 170 B X V11(K)2 Standard of Review 170Bk3612 Remedial Matters 170 Bk3616 Injunction 170Bk3616(2) k. Preliminary injunction; temporary restraining order. Most Cited Cases (Formerly 170Bk815) Appellate court reviews denial of preliminary injunction for abuse of discretion, which may occur when district court rests its decision on clearly erroneous factual findings or erroneous legal conclusions. Fed.Rules Civ.Proc,Rule 65, 28 U.S.C.A. 171 Civil Rights 78 itE1331(6) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k 1331 Persons Aggrieved, and Standing in Page 3 of 24 Page 2 General 78k1331(6) k. Other particular cases and contexts. Most Cited Cases Wife of disabled retired police officer who had certified service dog that was part pit bull did not have standing to pursue Americans with Disabilities Act (ADA) claim against city challenging ordinance prohibiting pit bulls in city, since she was not herself disabled. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 181 Civil Rights 78 e.1.044 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1043 Public Accommodations 78k1044 k. In general. Most Cited Cases Civil Rights 78 €1053 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1051 Public Services, Programs, and Benefits 78k1053 k. Discrimination by reason of handicap, disability, or illness. Most Cited Cases Main difference between Titles II and 111 of Americans with Disabilities Act (ADA) is that Title II applies to public entities, whereas Title III applies to private entities. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 191 Civil Rights 78 te=.1053 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1051 Public Services, Programs, and Benefits 78k1053 k. Discrimination by reason of handicap, disability, or illness. Most Cited Cases Pursuant to Americans with Disabilities Act (ADA) regulation requiring public entities to provide accommodations to persons with disability, failure to accoannodate is independent basis for liability under Title II of ADA. 28 C.F.R. § 35.130(b)(7); Americans 0 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspOrs—WLW14.01&destirtation—atp&mt=W,.. 03/24/2014 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. § 12131(2). 1101 Civil Rights 78 C=1053 78 Civil Rights 781 Rights Protected and Discrimination Prohibited. in General 78k1051 Public Services, Programs, and Benefits 78k1053 k. Discrimination by reason of handicap, disability, or illness. Most Cited Cases Americans with. Disabilities Act (ADA) regulation requiring public entities to provide accommodations to persons with disability makes clear that accommodation only is required when necessary to avoid discrimination on basis of disability, and that any accommodation must be reasonable one. 28 C.F.R. § 35.130(b)(7); Americans with Disabilities Act of 1990,. § 201(2), 42 U.S.C.A. § 12131(2). 1111 Civil Rights 78 X1457(7) 78 Civil Rights 78111 Federal Remedies in General 78k 1449 Injunction 78k1457 ]Preliminary Injunction 78k1457(7) k. Other particular cases and contexts. Most Cited Cases Disabled retired police officer, who had part pit bull certified service dog, was likely to succeed on merits of his claim that city's ordinance prohibiting pit bulls in city and refusal to grant exception for officer's dog violated "public entities" provisions of Americans with Disabilities Act (ADA), as supported issuance of prelirninaty injunction enjoining city from enforcing ordinance with respect to clog; ordinance and enforcement of ordinance likely fell within scope of conduct of public entity regulated by ADA, dog was likely " service animal " within meaning of ADA, and substitution of non -pit bull service animal was likely not reasonable accommodation, since dog had been individually trained for officer's individual needs over as much as two years. 28 C.F.R. §§ 35.130(b)(7), 35.136; Fcd.Rules Civ.Proc,Ruie 65, 28 U.S.C.A.; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. http://web2.westla Page 4 of 24 Page 3 112] Injunction 212 X1096 212 Injunction 212I1 Preliminary, Temporary, and Interlocutory Injunctions in General 21211(13) Factors Considered in General 212k1094 Entitlement to Relief 212k1096 k. Likelihood of success on merits. Most Cited. Cases Injunction 212€=,1109 212 Injunction 21211 Preliminary, Temporary, and Interlocutory Injunctions in General 21211(B) Factors Considered in General 212k1101 Injury, Hardship, Harm, or Effect 21.2k1.109 k. Balancing or weighing hardship or injury. Most Cited Cases Likelihood of success in context of preliminary injunction is meaningless in isolation and must be examined in context of relative injuries to parties and public. Fed,Rules Civ.Proc.Rule 65, 28 U.S.C.A. [131 Injunction 212 €1106 212 Injunction 21211 Preliminary, Temporary, and Interlocutory Injunctions in. General 2121I(B) Factors Considered in General 212k11.01 Injury, Hardship, Harm, or Effect 212k1106 k. Irreparable injury. Most Cited Cases Injunction 212>1.113 212 Injunction 21211 Preliminary, Temporary, and Interlocutory Injunctions in General 21211(3) Factors Considered in General 212k1110 Availability and Adequacy of Other Remedies 21.2k1113 k. Adequacy of remedy at law. Most Cited Cases "Irreparable harm," as prerequisite for issuance of preliminary injunction, occurs when party has no adequate remedy at Iaw, typically because its injuries C 2014 Thomson Reuters. No Claim to Orig. US Gov. Work tn/print/printstreatm aspx?rs—WLW 14.01 &destination=atp&mt— ... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F,Supp.2d 1026) cannot be fully compensated through award of damages. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 1141 Civil Rights 78 01457(7) 78 Civil Rights 78111 Federal Remedies in General 78k 1449 Injunction. 78k 1457 Preliminary Injunction 78k1457(7) k. Other particular cases and contexts. Most Cited Cases Disabled retired police officer, who had part pit bull certified service dog, would suffer irreparable harm absent preliminary injunction enjoining city from enforcing ordinance prohibiting pit bulls in city as to his dog, as supported issuance of injunction, in officer's Americans with Disabilities Act (ADA) action against city; officer suffered degradation of his quality of life as result of exclusion of dog from city, loss of dog had negative impact on his relationship with his wife, as he was more dependent on her, and wife was unable to leave him alone, and officer would experience difficulties in obtaining and training appropriate substitute animal. 28 C.F.R. §§ 35.130(b)(7), 35.136; Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 1151 Civil Rights 78 X1457(7) 78 Civil. Rights 78111 Federal Remedies in General 78k 1449 Injunction 78k1457 Preliminary Injunction. 78k1457(7) k. Other particular cases and contexts. Most Cited Cases Balance of weak or illusory injury to public health or safety if city's ordinance prohibiting bull clogs in city was suspended or modified as to disabled retired police officer's part pit bull certified service dog, against very real threat of irreparable injury to officer if dog continued to be excluded from city and, consequently, could not provide necessary services to officer, was unequivocally in favor of preliminary injunctive relief enjoining city from enforcing ordinance as to clog, in officer's Americans with Disabilities Act (ADA) action Page 5 of 24 Page 4 against city. 28 C.F.R, §§ 35.130(b)(7), 35.136; Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. ]16] Injunction 212 €1100 212 Injunction 21.21I Preliminary, Temporary, and Interlocutory Injunctions in General 21.211(B) Factors Considered in General 212k1100 k. Public interest considerations, Most Cited Cases In determining whether preliminary injunction is in public interest, district court must consider both what public interests might be injured and what public interests might be served by granting or denying injunction. Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A. 117] Civil Rights 78 X1457(7) 78 Civil Rights 78111 Federal Remedies in General 78k1449 Injunction 78k1457 Preliminary Injunction 78k1457(7) k. Other particular cases and contexts. Most Cited Cases National public interest in enforcement of Americans with Disabilities Act (ADA) "trumped" more local public interest in public health and safety reflected in city's ordinance prohibiting pit bulls within city, as supported issuance of preliminary injunction enjoining city from enforcing ordinance as to disabled retired police officer's part pit bull certified service dog. 28 C.F,R. §§ 35.130(b)(7), 35.136; Fed.Rules Civ.Proc.Rule 65, 28 U.S.C.A.; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132. 118] Injunction 212 X1816 212 Injunction 212V111 Wrongful Injunction 212VIII(A) Nature and Grounds of Liability 212k1816 k. Effect of bond or lack thereof; exclusivity of remedy. Most Cited Cases Bond posted under federal civil procedural rule OO 2014.Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2. westlaw. com/print/printstream. aspx'`?rs= LW 14.01 &destination=atp&mt=W ... 03124/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) governing injunctive relief is security device, not limit on the damages defendants may obtain against plaintiffs if facts warrant such award. Fed.Rules Civ.Proc.Rule 65(c), 28 U.S.C.A. 1191 Federal Courts 17013 C=3616(2) 170B Federal Courts 170BX VII Courts of Appeals 170 I' XVII(K) Scope and Extent of Review 170BXVII(K)2 Standard of Review 170Bk3612 Remedial Matters 170Bk3616 Injunction 170Bk3616(2) k. Preliminary injunction; temporary restraining order. Most Cited Cases (Formerly 170Bk815) Although Eighth Circuit Court of Appeals allows district court much discretion in setting bond in connection with issuance of preliminaiy injunction, it will reverse district court's order if it abuses that discretion due to some improper purpose, or otherwise 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. 1201 Civil Rights 78 €:=1457(7) 78 Civil Rights 78111 Federal Remedies in General 78k1449 Injunction 78k1457 Preliminary Injunction Page 6 of 24 Page 5 78k1457(7) k. Other particular cases and contexts. Most Cited Cases Appropriate amount of bond required before issuance off preliminary injunction enjoining city, under ADA, from enforcing ordinance prohibiting pit bulls in city as to disabled retired police officer's part pit bull certified service dog, was one dollar; amount of potential damages was extremely limited, as city would not likely incur any costs or damages if ordinance was preliminary enjoined only as to officer's dog, and officer's rights, improperly impinged by ordinance, were of such gravity that protection of those rights should not be contingent upon his ability to pay bond. Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A § 12132. *1029 Sharon K. Malheiro, Michael C. Richards, Michele L. Warnock, Davis, Brown, Koehn, Shors & Roberts, PC, Des Moines, IA, for Plaintiffs. George W. Wittgraf, Sayre—Wittgraf, Cherokee, IA, for Defendant. MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION MARK W. BENNE Ef, District Judge. TABLE OF CONTENTS 1. INTRODUCTION A. Factual Background I. The parties 2. The parties' dispute a. The plahrgffs' pit bull dog b. The City's "no pit bull dogs" ordinance c. Action by the City B. Procedural Background 1. The Complaint 2. The Motion For Preliminary Injunction 0 2014 Thornson Reuters. No Claim to Orig. US Gov. Works. 1031 1031 1031 1031 11031 1033 1034 1035 1035 1036 http://web2.westlaw.corniprint/printstream.aspx?rs—WLVV14.01&destination=atp&int=W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) 3. The hearing II. LEGAL ANALYSIS A. Standards For A Preliminary Injunction B. Likelihood Of Success On The Merits I. The scope of Title II of the ADA 2. "Service animal" regulations under Title II 3. Analysis C. Irreparable Harm To Sak D. Balance Of Equities E. The Public Interest • Sununary III. THE BOND REQUIREMENT IV. CONCLUSION *1030 The one absolutely unselfish friend that man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous, is his dog.... He will kiss the hand that has no food to offer; he will lick the wounds and sores that wine in encounter with the roughness of the world.... When all other friends desert, he remains. —George G. Vest, "Vest's Eulogy to the Dog" (from his closing argument to a jury in an 1872 case involving the illegal shooting of a hunting dog), 1943-44 Official Manual State of MISS01171 1129.1-N1 FN1. Quoted in Miller v. Clark County, 340 F.3d 959, 967 n. 13 (9th Cir.2003); Murray v. Leyshock, 915 F.2d 1196, 1202 n. 1 (8th Cir.1990) (Bright, Sr. C.J.,, dissenting); see also Bowfin v. Deschutes County, 712 F.Supp. 803, 809 (D.Or.1988) (attributing the quotation to a speech George Vest later made as a U.S. Senator in 1884). When a man's best friend is his dog, that dog has a problem —Edward Abbey (American environmentalist, Page 7 of 24 Page 6 1036 1037 1037 1038 1038 1040 1041 1045 1046 1046 1047 1047 1048 1927-1989) Does the Americans with Disabilities Act entitle a seriously disabled plaintiff, fames Sak, and his part pit bull certified service dog, Snickers, "2 banned from the City of Aurelia by a municipal ordinance prohibiting pit bull dogs in the city, to a prelhninary injunction barring enforcement of the ordinance as to Snickers and reuniting Sak and his best friend? The *1031 plaintiffs argue that the city's ordinance and refusal to grant an exception for Sak's registered service animal violate the "public entities" provisions of the Americans with, Disabilities Act (ADA), Title II, 42 U.S.C. § 12131 et seq„ and applicable regulations and rules. The city argues that the ordinance does not prevent the plaintiffs from having a service animal of a different breed, so that it does not discriminate against an individual with a disability, and that the plaintiffs have failed to show that the city discriminated on the basis of disability as to any program, service, or activity of the city. After expedited proceedings, 1 issue this ruling on the plaintiffs' December 22, 2011, Motion For Preliminary Injunction (docket no. 2). FN2. Snickers was presumably named after the famous candy bar, which was, in turn, named after a favorite race horse owned by candy 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.westlaw.conn/print/printstream.aspx?rs—WLW14.01&destination—atp&mt=W... 03/24/2014 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 of polio as a child, could not run around like most children, so he developed his interest in candy, instead. See http:// www. helium. corn/ items/ 1387617— snickers— candy— bar— frank— mars— mars— candy. I.. INTRODUCTION A. Factual Background LA I am mindful of the general rule that "the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits." University of Texas v. Catnenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Edad 175 (1981); accord United States Sec. and Exchange Comm'n v. Zahareas, 272 F.3d 1102, 1105 (8th Cir.2001) ("[W]e have long held that 'findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding.' ") (quoting Patterson v. Mason, 774 F.2d 251, 254 (8th Cir.1985)); National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1103 n. 5 (8th Cir.1998) (quoting this principle from Camenisch ); Henderson v. Bodine Alzunimun, Inc., 70 F.3d 958, 962 (8th Cir.1995) (citing this statement from Camenisch as the "general rule" for findings of fact and conclusions of law in preliminary injunction rulings). Thus, all findings of fact and conclusions of law in this ruling are provisional. For purposes of the preliminary injunction motion only, the parties have agreed upon certain facts. See Joint Hearing Exhibit K (Stipulated Facts). Furthermore, the City does not dispute the facts as averred by the plaintiffs in the "Facts" section of their brief. 1. Titepar//es Plaintiff James Sak is a retired police officer, who recently moved with his wife, plaintiff Peggy Leifer, to Aurelia, Iowa, from Chicago, Illinois. Sak and Leifer, who married in 2009, moved to Aurelia in November 2011 to care for Leifer's elderly mother, who is an Aurelia resident, In November 2008, prior to the couple's marriage and their move to Aurelia, Sak suffered a liemoiThagic stroke, which has left him permanently disabled, with no control over the right side of his body, and confined to a wheelchair. Page 8 of 24 Page 7 Defendant City of Aurelia is, according to its website, www. aureliaia, coni, a municipality with a population of "nearly 1,100 people" in Cherokee County in northwest Iowa. 2. The parties' dispute a. The plahitiffs' pit bull dog Sak has had a dog, named Snickers, who is believed to be a pit bull mix, since the dog was ten weeks old. Complaint, rij 16, 24; Stipulated Facts, ¶ 10. According to Sak, Snickers, who is now five -and -a -half years old, has absolutely no history of aggression. Complaint at ¶ 17-18. Sak adopted Snickers in a private, informal sale, see Complaint at lj 15; Stipulated Facts at ¶ 9, from a "backyard breeder," Plaintiffs' Brief In Support Of Plaintiffs' Motion For Preliminary Injunction (Plaintiffs' Brief) (docket no. 2-1), 2. Although Snickers was originally a family pet, see Plaintiffs' Brief at 2, after Sak's stroke, Snickers was trained and certified by Sak's physical therapist as a "service *1032 animal" to assist Sak with everyday tasks. Quite recently, on November 28, 2011, Snickers became a "Certified Service Animal" on the National Service Animal Registry (NSAR). See id, Exhibit A (NSAR Certificate); Hearing Exhibit A (same). More specifically, Snickers's NSAR certificate states, in pertinent part, the following: This document affirms that " SNICKERS " (NSAR database ID C12694, see adjacent photo) is certified as a qualified service dog and registered with National Service Animal Registry (NSAR) on the date listed below [November 28, 2011]. This service dog has been trained to assist P LEIFER [sic], the confirmed disabled handler. The handler and service dog are listed in the National Service Animal Registry (NSAR) database and may be found on the following website: www. nsarco. cora/ database. Min]. Service dogs are dogs that are specifically trained to perform important life tasks for people who have difficulty performing or are unable to perform the task themselves. These tasks are directly related to the handler's disability. Service dogs are working animals, not pets. 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlawcom/print/printstream.aspx?rs- 4.01&destination=atp&mt—W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) NSAR Certificate; Stipulated Facts at ¶ 13. Sak and Leifer testified that, although they did not believe that any such certificate was required, they obtained this NASR Certificate for Snickers after the City expressed concerns about him, hoping to make the City's decisionmakers more "comfortable" or "feel better" about Snickers's presence in the City. As explained in a letter from Salc's physical therapist, Aileen Eviota, at the University of Illinois Medical Center, dated December 2, 201I, to the Aurelia City Council, Sak requires Snickers's assistance with routine tasks made difficult by his limitations after his stroke: Due to his stroke, James Sak has certain limitations regarding his entire right side of his body. In order to help alleviate these difficulties, and to enhance his quality of life, well being, and ongoing recovery, he requires a service dog, Snickers. As mentioned before, I have been involved in his care for more than 2 years. Our therapy sessions have also included rehabilitation with James Sak and Snickers, in which I was personally involved in [sic]. James and Snickers have worked together under my supervision in which his ability to live independently has improved. Snickers has been individually trained to assist James with tasks which mitigate his disability, including walking, balance, and retrieving items around the house. Complaint (docket no. 1), Exhibit B (Physical Therapist's Letter); Hearing Exhibit B (same); Stipulated Facts at ¶¶ 14-15. I find that Snickers was individually trained by Sak's physical therapist to assist Sak with his specific needs and limitations. More specifically, Sak testified, without contradiction, that Snickers helps him when he walks short distances within his home; recognizes when he suffers tremors on the right side of his body and either lays on the affected part of the body to stop the tremor or gets Leifer to assist Sak; pushes Sak against the wall to prevent him from failing if he has tremors or balance problems while walking in the home; gets Leifer to assist Sak in other circumstances; helps Sak Page 9 of 24 Page 8 when he falls by letting Sak hold on to his collar to roll over or get back up or into his wheelchair; and accompanies Sak when he sits outside in his backyard. Sak testified that he is "lost" without Snickers, and Leifer testified that she does not feel able to leave Sak if Snickers is not with him. Leifer testified that the plaintiffs do not intend to use Snickers to assist Sak with trips away from the home. x1033 b. The City's "no pit ball clogs" ordinance The City of Aurelia, however, has an ordinance, Chapter 58, which provides, in pertinent part, as follows: 58.02 KEEPING OF NT BULL DOGS PROHIBITED. It is unlawful to keep, or harbor, own or in any way possess a Pit Bull Dog within the City of Aurelia. Complaint, Exhibit D (Ordinance). This portion of the Ordinance does not include any fines, penalties, or other remedies for a violation. "Pit Bul1 Dog" is defined in the ordinance as follows: 58.01 DEFINITIONS. For use in this chapter the following terms are defined as follows: 1. "Pit Bull Dog" shall mean any dog over the age of six (6) months known by the owner to be a Pit Bull Terrier. Pit Bull Terrier shall mean any Bull Terrier, American Pit Bull Terrier, Staffordshire Bull Terrier, or American Staffordshire Bull Terrier breed of dog or any mixed breed of dog which contains as an element of its breeding the breed of Bull Terrier, American Pit Bull Terrier[,] Staffordshire Bull Terrier, or American Staffordshire Bull Terrier so as to be identifiable as partially of the breed Bull Terrier, American Pit Bull Terrier, Staffordshire Bull Terrier, or American Staffordshire Bull Terrier. Ordinance § 58.01. Leifer testified that the plaintiffs believe that Snickers is a pit bull mix based on the opinion of the backyard breeder from whom they obtained Snickers and the opinion of a veterinarian at © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream. aspx?rs=WLW 14.01 &destination=atp&int=W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) the University of Illinois at Chicago Veterinary Medicine School. There does not appear to be any dispute that Snickers is a "Pit Bull Dog" within the meaning of this provision, because he is believed to be a pit bull mix. The Ordinance includes a "grandfather clause," making the Ordinance inapplicable to "owners, keepers, or harborers of Pit Bull Dogs licensed with the City of Aurelia before the effective date of this chapter," with other requirements for "[tjhe keeping of licensed dogs," Id. at § 58.03(1) (" KEEPING OF LICENSED PIT BULL DOGS " section, subsection pertaining to "licensed" pit bulls). Those other requirements include a prohibition on the sale or transfer of a pit bull dog; removal of offspring born to licensed pil: bull dogs from the City within six weeks of birth; reporting of the removal or death of a licensed pit bull dog, the birth of offspring of a licensed pit bull dog, or a change of address of the owner within the city limits; leashing and muzzling requirements; confinement requirements; and requirements for identification photographs and tattoos. Ordinance, § 58.03(1)(A) -(G). The Ordinance also provides as follows: 2. Failure To Comply. It shall be unlawful for the owner, keeper, or harborer of a Pit Bull Dog licensed with the City of Aurelia to fail to comply with the requirements and conditions set forth in this chapter. Each day of violation shall be a separate offense, Any Pit Bull Dog found to be the subject of a violation of this chapter shall be subject to immediate confiscation by the Animal Control Officer. Such animal shall be humanely destroyed within seven (7) days, unless a Judge of a Court of competent jurisdiction orders its release or the owner provides adequate proof to the Animal Control Officer that such licensed dog shall no longer reside in the City of Aurelia. Ordinance, § 58.03(2) (emphasis added). Although the italicized language appears to apply to "any Pit Bull Dog found to be the subject of a violation of this chapter," it is found in a section of the Ordinance *1034 otherwise devoted entirely to "licensed" Pit Bull Dogs. Page 10 of 24 Page 9 c. Action by the City Sak and Leifer were asked to attend an Aurelia City Council meeting on November 21, 2011, because of the City's Ordinance prohibiting the possession of a pit bull dog. According to the plaintiffs, they brought Snickers along to that meeting, and Snickers sat quietly at their feet throughout, only crying or whining quietly when his name was mentioned. Sak and Leifer contend that, in the course of the November 21, 2011, meeting, a petition was presented, signed by 36 residents, asking for enforcement of the Ordinance against Snickers. The petition in question does not refer specifically to Snickers, however. Instead, it states the following: We the undersigned citizens of the City of Aurelia do respectfully request/urge the Aurelia City Council retain as written an[d] without exception the existing City of Aurelia Ordinance, Chapter 58—"Pit Bull Dogs." It is our concern that a change or any exceptions to the Ordinance could cause an unwanted safety/hazard to the general public, specifically/ especially our Children. Complaint, Exhibit E (Petition); Hearing Exhibit E. The pertinent portion of the minutes of the November 21, 2011, meeting of the Aurelia City Council reflect that the Council did not take any action toward Sak, Leifer, or Snickers at that time. Instead, what the minutes do reflect is the following: James Sak and Peggy Leifer appeared before Council concerning registering their mix breed pitbull. The City of Aurelia Ordinance Chapter 58 "Pit Bull Dog" states it is unlawful to harbor a pit bull or any mixed breed of pit bull. Nelson [a council member] made motion to table until next month's meeting in order to receive more input from longer term council members, second [edl by Schulenberg [another council member]. All members present voting "aye", motion carried. Complaint, Exhibit C (November 21, 2011, Minutes), at 2-3. Leifer testified that it was her understanding that nothing would be done by the City until the next meeting. C 2014 Thomson Reuters, No Claim to Orig. US Gov, Works. http://web2.westiaw.eoin/print/printstrearn.aspx?is LW 14.01&destination—atp&mt=W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) Nevertheless, on November 28, 2011, the plaintiffs obtained the NASR Certificate for Snickers. Also, on December 2, 2011, Sak's physical therapist, Aileen Eviota, provided the letter to the Aurelia City Council, quoted in part above, explaining Sak's need for Snickers's assistance. See Physical Therapist's Letter. Also, on December 6, 2011, the plaintiffs and an attorney that they had hired met with representatives of the City to discuss rewriting the Ordinance to include an amendment to add a new section, proposed by the plaintiffs, to provide an exception for service dogs and disabled persons. On December 7, 2011, the plaintiffs' attorney provided the City with a copy of a proposed amendment. See Hearing Exhibit I. Sak and Leifer received a telephone call from the City CIerlc notifying them of a special meeting of the City Council on December 14, 2011, a little over 24 hours before that meeting. According to Leifer, the Clerk told her she was not at liberty to discuss the purpose of the meeting when Leifer asked. Nevertheless, Leifer admits that she understood that the meeting related to Snickers and the Ordinance. At that meeting, the plaintiffs were told that they had 24 hours to remove Snickers from the City. Complaint, ¶ 26; Stipulated Facts at ¶ 20. The minutes of the December 14, 2011, see Hearing Exhibit F, reflect that the City Council discussed the plaintiffs' proposed amendment to the Ordinance, entitled "Service Dog & Disabled Person Exception"; reviewed a letter from a law firm indicating concerns of Aurelia *1035 citizens who requested that Snickers be removed by enforcing the existing Ordinance; and reviewed the Petition. The minutes conclude as follows: After hearing from everyone in attendance, Mayor Keith respectfully requested the Council discuss and consider all input received. Following further discussion, Bowen made motion to uphold the current City of Aurelia Ordinance # 58 "Pit Bull Dog" as it stands, second by Nelson. Roll Call Vote "aye" Nelson, Schulenberg, Bowen "nay" Fredricksen, Lindgren. Motion carried 3-2. Mayor Keith respectfully informed James Sak and Peggy Leifer to have the dog kenneled out of the Page 11 of 24 Page 10 Aurelia City limits pending legal advice from. the City's Attorney. There being no further business to discuss, meeting adjourned. Hearing Exhibit F. It does not appear that there was any discussion of whether amendment of the Ordinance was required by Title II of the ADA or any other state or federal law. Sak and Leifer complied with the Council's directive, and, since the December 14, 2011, meeting, Snickers has been boarded at a veterinary's office outside the City of Aurelia, at their expense. Although Sak and Leifer asserted in briefing that, because of the Christmas holiday, the veterinarian kenneling Snickers informed them that he had no capacity for Snickers after December 23, 2011, no evidence was offered as to whether or not they were required to or did find other accommodations for Snickers after that date. Sak suffered a fall from his wheelchair on December 15, 2011, and was unable to pull himself back into his chair without the assistance of Snickers. Consequently, he called 911 for assistance, and a law enforcement officer arrived at his residence to assist him. Sak testified that he fell again about two days later, but that he was eventually able to get onto a couch without calling 911. Sak and Leifer also allege that Leifer's ability to care for her elderly mother has been compromised by her inability to leave Sak alone, for fear of another fall or injury, because Snickers is not available. Sak asserts that he has been deprived of both the medical and emotional benefit provided by Snickers since December 15, 2011. The plaintiffs offered and I received into evidence a letter dated December 23, 2011, from one signatory of the Petition to the plaintiffs' counsel retracting her signature to the Petition. See Hearing Exhibit L. The plaintiffs also testified that they received telephone calls from other signatories after the City Council's action on December 14, 2011, indicating that the callers no longer supported the Petition. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstreana.aspx?rs=WLW 14.01 &destination=atp&mt—W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.20 1026) B. Procedural Background 1. The Complaint On December 22, 2011, Sak and Leifer filed their Complaint (docket no. 1) initiating the present lawsuit, naming the City of Aurelia as the only defendant. They assert that the actions of the City, a "public entity," violate Title II of the Americans with Disabilities Act, even though the City knew that Sak required Snickers's assistance because of his disability, and that the City's discrimination against Sak on the basis of his disability has damaged Sak,rm They seek declaratory judgment that the City's policies, regulations, practices, and conduct of interfering with Sak's ability to '41036 utilize his service dog and its refusal to remove the breed restrictions for his service dog from its Ordinance are contrary to and in violation of the ADA. They also seek injunctive relief "restraining the City of Aurelia from enforcing the city ordinance prohibiting pit bulls, with respect to Mr. Sak's service dog and an immediate return of the service dog, Snickers [,] to Mr. Sak"; "order[ing] [the City" to permit service dog Snickers to be immediately returned to Plaintiffs"; and "order[ing] that [the City] is precluded from enforcing its city ordinance restrictions against Snickers that apply to pit bulls in Aurelia, Iowa[,] that are 'grandfathered in.' " Complaint, irt 50, 52-53. The plaintiffs also seek damages for Leifer's loss of spousal consortium, on the ground that Leifer has lost the value of services of Sak, and has been unable to attend to her mother or depend upon her husband as a result of the loss of Snickers, and Sak is now substantially more dependent, requiring increased care that affects Leifer's ability to tend to other matters. They also seek an award of emotional distress damages for the discrimination pursuant to the ADA, attorney's fees and costs, and such other relief as the court deems just and appropriate under the circumstances. They seek a jury trial on their claims. FN3. The Complaint alleges "violation of 42 U.S.C. § 12133," but that section of the statute simply provides the same remedies, procedures, and rights set forth in 29 U.S.C. § 794a to any person alleging discrimination by a public entity on the basis of disability in violation of 42 U.S.C. § 12132. See 42 U.S.C. Page 12 of 24 Page 11 § 12133. Thus, the substantive provision on which the plaintiffs' claim is based is 42 U.S.C. § 12132. 2. The Motion For Prelhninary Injunction Also on December 22, 2011, Sak and Leifer filed the Motion For Preliminary Injunction (docket no. 2), which is now before me. In that motion, they seek an order from the court to the following effect: (1) ordering an immediate return of Snickers to Sak; (2) enjoining the City from enforcing its Ordinance prohibiting pit bulls with respect to Snickers; (3) ordering that the City is precluded from enforcing its Ordinance restrictions against Snickers that apply to pit bulls in Aurelia, Iowa, that are "grandfathered in," because Snickers, as a service dog, cannot be held to the unreasonable restrictions that appear in the Ordinance if he is to do his job of protecting and assisting Sak; and (4) scheduling an evidentiary hearing on the motion within five days. The City filed a Brief In Resistance To Plaintiffs' Motion For Preliminary Injunctive Relief (docket no. 10) on December 27, 2011. In its Resistance, the City challenges Peggy Leifer's standing to assert an ADA claim, where she is not disabled; the viability of a cause of action for loss of spousal consortium under the ADA; and the viability of James Saks ADA claim, where he has not identified any particular public service, program, or activity of the City that he has been unable to use as a result of the City's Ordinance, and the Ordinance does not bar him from having a non -pit bull service animal, which would reasonably accommodate his disability, if he had been barred from any service, program, or activity. 3. The hearing Owing to the intervening Christmas holiday and the need for the City to obtain counsel to respond to the Motion For Preliminary Injunction, I set an evidentiary hearing on the Motion for the sixth day after it was filed, December 28, 2011. At that hearing, the plaintiffs were represented by Sharon Malhieiro and Michele Warnock of Davis, Brown, Koehn, Shors & Roberts, P.C., in Des Moines, Iowa. The City of Aurelia was represented by Douglas Phillips of the Klass Law Firm 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstr am.aspx?rs—WLW14.01&destination—atp&mt—W... 03/24/2014 832 F.Supp.2d 1026, 44 NDER P 125 (Cite as: 832 F.Supp.20 1026) in Sioux City, Iowa. At the hearing, Sak and Leifer both testified, and the City did not present any witnesses. The plaintiffs also offered, and I received, several exhibits, and the City did not offer any additional exhibits, At the conclusion of the hearing, 1 announced that a preliminary injunction would issue upon the payment of $1 in *1037 security, with an order explaining my rationale for such a preliminary injunction to follow. I filed the Preliminary Injunction (docket no. 11), the text of which also appears at the end of this decision, shortly after the hearing. This order explains my rationale for that preliminary injunction. IL LEGAL ANALYSIS A. Standards For A Prelitninag Injunction [2][3] The Supreme Court recently reiterated that "[a] preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S, 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S, 674, 689-690, 128 S.Ct. 2207, 171 LEd.2d I (2008)). As the Court explained, In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. [v. Gambell ], 480 U.S. [531,] 542, 107 S.Ct. 1396 [94 L.Ed.2d 542 (1987) ]. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." [Weinberger v.] Romero—Barcelo, 456 U.S. [305,] at 312, 102 SEt. 1798 [72 LEd.2d 91 (1982) ]; see also Railroad Comm 'n of Tex. v. Pullman Co., 312 U,S, 496, 500, 61 S.Ct, 643, 85 E.Ed. 971 (1941). Winter, 555 U.S. at 24, 129 S.Ct. 365. [4][5][6] As the Eighth Circuit Court of Appeals has since explained, When evaluating whether to issue a preliminary injunction, a district court should consider four Page 13 of 24 Page 12 factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc, v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en bane). A preliminary injunction is an extraordinary remedy and the burden of establishing the propriety of an injunction is on the movant. See Watkins, Inc. v. Lewis, 346 17.3d 841, 844 (8th Cir.2003). We review the denial of a preliminary injunction for abuse of discretion. Id. An abuse of discretion may occur when the district court rests its decision on clearly erroneous factual findings or erroneous legal conclusions. TCF Nat'l Bank v. Bernanke, 643 F.3d 1158, 1162-63 (8th Cir.2011). Roudachevski v. All—American Care Centers, Inc., 648 F.3d 701, 705-06 (8th Cir.20.11). The Dataphase factors," quoted just above and generally relied upon in the Eighth Circuit, are consistent with the factors relevant to success on a motion for preliminary injunction articulated by the Supreme Court in Winter. See Sierra Club v. United States Army Corps of Engineers, 645 F.3d 978, 989 (8th Cir.2011). More specifically, as the Supreme Court explained in Winter, "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter, 555 U.S. at 20, 129 S.Ct. 365. The relevant factors must be balanced: Specifically, the Court clarified in Winter that, where the defendant's interests and the public interest outweighed the movant's interests, as demonstrated by the movant's showing of .irreparable harm, it was unnecessaty to consider whether the plaintiff had established a sufficient likelihood of success on the merits. See id. at 23-24, 129 S.Ct. 365; Sierra Club, 645 F.3d at 992-93. *1038 The Eighth Circuit Court of Appeals has recognized that " The primary function of a preliminary injunction is to preserve the status quo C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw,eom/print/printstream.aspOrs=WL 14.01&destination—atp&mt=W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) until, upon final hearing, a court may grant full effective relief.' " Sanborn Mfg. Co. v. Campbell Hat*id/Scott Fetzer Co., 997 F.2d 484, 490 (8th Cir.1993) (quoting Rathmcni Group v, Tanenbaum, 889 F.2d 787, 789-90 (8th Cir.1989), in tum quoting Ferry—Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir.1984)). Thus, the court observed that "Hequiring [the defendant] to take affumative action ... before the issue has been decided on the merits goes beyond the purpose of a preliminmy injunction," Id. (emphasis in the original). The court explained that, where a movant seeks on its motion for preliminary, injunction substantially the same relief it would obtain after a trial on the merits, the movants burden is particularly "heavy." Id, (citing Dakota Indus., Inc. v. Ever Be,s1 Ltd., 944 F.2d 438, 440 (8th 01%1991)). I will consider each of the pertinent Dataphase/ Winter factors in turn, beginning with "likelihood of success on the merits." B. Likelihood Of Success On The Merits "Success on the merits has been referred to as the most important of the four factors." Roudachevski, 648 F.3d at 706. In Winter, the Court noted that, as to the "likelihood of success" factor, "the standard for preliminary injunctive relief requires a showing of a 'likelihood of success on the merits rather than actual successas necessary for permanent relief" Sierra Club, 645 F.3d at 993 (quoting Winter, 555 U.S. at 32, 129 S.Ct. 365, in turn quoting Amoco Prod, Co., 480 U.S. at 546 n. 12, 107 S.Ct. 1396). The Eighth Circuit Court of Appeals has noted that this "preferred wording" of the standard for success differs somewhat from the "once familiar" formulation in Dataphase requiring the plaintiff to show that, "at the very least," the plaintiff had "established a fair ground for litigation." Id. at 993. The question is not, however, whether the district court uses the preferred wording, but whether, in light of the evidence, the district court correctly concludes that the plaintiff is likely to succeed on at least some of its claims. Id at 993--94. [7] I think it likely, at least at this preliminary stage of the proceedings, that the City is correct that Peggy Leifer does not have standing to pursue an ADA claim, Page 14 of 24 Page 13 where she is not herself disabled. See 42 U.S.C. § 12132 (prohibiting discrimination by a public entity against a "qualified individual with a disability"). 1 also find that there is likely no claim for loss of spousal consortium under the ADA. See, e.g., Franz v. /Cerium, 951 F.Supp. 159, 162 (E.D.Mo.1996); Dunham v. City of °Talton, Mo., 945 F.Supp. 1256, 1263 (E.D.Mo.1996), affd, 124 F.3d 207 (8th Cir.1997) (table op.). Thus, 1 will focus on Sak's likelihood of success on the merits of his claim, Sak's likelihood of success on the merits, here, turns on the extent to which Title 11 of the ADA andJor applicable regulations and rules require a municipality to make exceptions for a particular "service animal" of a particular breed to a prohibition on the presence of, that particular breed of dog within the city litnits in a city ordinance. I find that Sak has sufficient likelihood of success to weigh in favor of the preliminary injunctive relief that he seeks. See id 1. The scope of Title II of the ADA [8] "Title 11 [of the ADA] provides that 'no qualified individual with a disability shall, by reason of such disability, be excluded from paiticipation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.' " *1039 Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir.2010) (quoting 42 U.S.C. § 12132).11'" A "public entity" means, inter alia, "any State or local government." 42 U.S.C. § 12131(1)(A). A "qualified individual with a disability" within the meaning of Title II of the ADA is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). There does not appear to be any dispute that the City of Aurelia is a "public entity" or that Sak is a "qualified individual with a disability" within the meaning of Title II of the ADA. FN4. The main difference between Titles 11 and 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 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 entities, whereas Title 11I applies to private entities. Gaona v. Town &. Country Credit, 324 F.3d 1050, 1056 (8th Cir.2003) ("Title Ill of the ADA prohibits discrimination on the basis of disability in public accommodations, while section 504 of the Rehabilitation Act (and Title II of the ADA) prohibit discrimination on the basis of disability by public entities. " (emphasis added)); see also Buchanan v. Maine, 469 F.3d 158, 170 (1st Cir.2006) (discussing titles of the ADA). Individual members of the Aurelia City Council, in their personal capacities, "are not subject to suit under Title II, which provides redress only from public entities," Baribeau, 596 F.3d at 484, and they have not been named as defendants here. The plaintiffs presumably could have brought suit against the individual City Council members, in their official capacities, and that suit would have been. treated as a suit against the City, See Baribeau, 596 F.3d at 484. Again, the plaintiffs did not sue the individual City Council members or any other City officials in their official capacities. Section 12134 of the ADA also authorizes the Attorney General to promulgate regulations to implement Title II. 42 U.S.C. § 12134(a). In an en banc decision, the Seventh. Circuit Court of Appeals explained, The Supreme Court never has decided whether these regulations are entitled to the degree of deference described in Chevron, U.S.A. Inc. v. National [Natural] Resource[s] Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) . Nevertheless, the Court has said that, "[b]ecause the Department of Justice is the agency directed by Congress to issue regulations implementing Title II ... its views warrant respect." Olmstead v. L.C'., 527 U.S. 581, 597-98, 119 S.Ct. 2176, 144 L.Ed2d 540 (1999). (internal citations omitted). Wisconsin C`raarnnrrnit Servs., Inc. v. City) Page 15 of 24 Page 14 Milwaukee, 465 F.3d 737, 751 n. 10 (7th Cir.2006) (en bane ). Other courts have also held that, because Congress directed the Attorney General (or Department. of Justice (DOJ)) to "elucidate Title II [of the ADA] with implementing regulations, DOJ's views at least would `warrant respect' and might be entitled to even more deference." Frame v. Ciry of ` Arlingt©n, 657 F.3d 215, 225 (5th Cir.2011); Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065 (9th Cir.2010) (" `Department of Justice regulations interpreting Title 11 should be given controlling weight unless they are "arbitrary, capricious, or manifestly contrary to the statute." ' " (quoting McGar j' v. City of Portland; 386 F.3d 1259, 1269 n. 6 (9th Cir.2004), in turn quoting Chevron U.S.A. Inc. v. Natural Res. Def Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). The Attorney General's authority to promulgate regulations to implement Title II of the ADA is important here, because, as the Seventh Circuit Court of Appeals has also explained, "Title II of the ADA does not contain a specific accommodation requirement. Instead,, the Attorney General,"1040 at the instruction of Congress, has issued an implementing regulation [28 C.F.R. § 35.1.30(b)(7) ] that outlines the duty of a public entity to accommodate reasonably the needs of the disabled." Wisconsin Community Servs., Inc., 465 F.3d at 750-51;, accord Frame v. City of Arlington 657 F.3d 215, 231 (5th Cir.2011) (noting that Title 11 does more than prohibit disability discrimination by a public entity, because it "imposes an `obligation to accommodate,' or a `reasonable modification requirement,' " but expressing no opinion "as to whether (or when) a failure to make reasonable accommodations should be considered a form of intentional discrirmination, a form of disparate impact discrimination, or something else entirely"); Pena v. Bexar County, Texas, 726 F.Supp.2d 675, 683 (W.D.Tex.2010) (Title II of the ADA "imposes upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals") (citing Bennett -Nelson v. La. Bti of Regents, 431 F.3d 448, 454 (5th Cir.2005)). [9][10] The regulation requiring public entities to 0 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs—WLW14.01&de tintation=atp 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) provide accommodations to persons with disability states the following: A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.I30(b)(7). Pursuant to this regulation, "failure to accommodate is an independent basis for liability under the ADA." Wisconsin Community Servs., Inc., 465 F.3c1 at 751 (emphasis in the original). This regulation "makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of disability," and "that any accommodation must be a reasonable one." Id. (emphasis in the original). 2. `Service animal" regulations wider Title 11 The Attorney General recently promulgated a regulation specifically requiring public entitles to accommodate disabled individuals' use of "service animals," 28 C.F.R. § 35.136. That regulation, in pertinent part, provides as follows: § 35.136 Service animals. (a) General, Generally, a public entity shall wod' its policies, practices, or procedures to permit the use of a service animal by an individual with a disability. (b) Exceptions. A public entity may ask an individual. with a disability to remove a service animal from the premises if— (1) The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken. (c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability Page 16 of 24 Page 15 the opportunity to participate in the service, program, or activity without having the service animal on the premises. (d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, 01' other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means) *1041 (e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal. (f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perforin. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair•, or providing assistance with stability or balance to an individual with an observable mobility disability). (g) Access to areas of a public entity. Individuals with disabilities shall be permitted to be accompanied by thein service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go. (h) Surcharges. A public entity shall not ask or 2014.Thomson Reuters. No Claim to Orig. US Gov. W http://web2.westlaw.com/pr nt/printstream. aspx?rs= ks. 14.01 &destination=atp&int= ... 03/24/2014 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 surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public entity normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal. 28 C.F.R. § 35.136 (published September 15, 2010, and effective March 15, 2011) (emphasis added); and compare Pena, 726 F.Supp.al at 685 (noting that, at the time of its decision, June 21, 2010, the Department of Justice had not issued any regulations regarding "service animals" pursuant to Title 11 of the ADA). In pertinent regulations, the Attorney General defined "service animal" for purposes of the ADA as follows: Service animal means any dog that is individually trained to do work or perforin tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Page 17 of 24 Page 16 28 C.F.R. § 35.104. 3. Analysis [11] The City's first challenge to Sak's contention that he is likely to succeed on *1042 the merits of his ADA claim is that he has not shown that the City discriminated on the basis of disability as to any program, service, or activity of the City. The City argues that the purpose of Title 11 of the ADA is to guarantee people with disabilities the same access to public services or employment as people without disabilities. The City argues that, in Heather K v. City of Mallard Ioiva, 946 F.Supp. 1373, 1389-90 (N.D.lowa 1996), I recognized that, to violate Title II of the ADA, a municipality's ordinance or regulation must have a discriminatory effect on a plaintiffs ability to take advantage of municipal services, programs, or facilities, but that the evidence shows that Sak does not and does not intend to use Snickers to access any public services, or even any public places. The City's reading of Heather K. is selective. In that decision, I held, first, that, as a matter of law, Title II of the ADA will reach a city ordinance " if the City's ordinance has a discriminatory effect on the ability of persons with disabilities to take advantage of City services, programs, or facilities," but 1 also held that the regulation of any activity by a city, by an ordinance, is, itself, a program, service, activity, or benefit of the City that Title II of the ADA will reach. Heather K., 946 F.Supp. at 1389-90. Other courts have also held that municipal zoning qualifies as a public "program" or "service," and that the enforcement of those rules is an "activity" of a local government, within the meaning of Title II of the ADA. Wisconsin Community Servs., inc., 465 F.3d at 750 (citing as examples Bay Area Addictii©n Research v. City of Antioch, 179 F.3d 725, 730-32 (9th Cir.1999) (applying Title 11 to a city's zoning requirements); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 48....49 (2d Cir.1997) (same)). If an ordinance regulating open burning, as was at issue in Heather K., or a zoning ordinance and zoning enforcement fall within the scope of the conduct of a public entity that can be regulated by Title II of the ADA, it follows that an ordinance that prohibits the 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2. estla .corn/print/printstream.aspx?rs= LW 14.01&destination—atp8ant=VV... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) presence of certain animals within city limits and enforcement of that ordinance, as are at issue here, would likewise fall within the scope of conduct of a public entity regulated by Title 11 of the ADA.'", FN5. I am not persuaded that Sak's stated intention not to use Snickers outside of his home or yard means that a prohibition on his pit bull service dog cannot violate Title 11 of the ADA. A zoning ordinance that barred handicapped access ramps into or within a residence or a zoning ordinance requiring doorways in a residence too narrow for wheelchairs or enforcement of such ordinances would undoubtedly violate Title II of the ADA, because such ordinances and their enforcement would effectively bar disabled individuals from living in a city or zone of a city, even though the ordinances and their enforcement would directly regulate only those individuals' activities in their homes, not their activities outside of their homes or their access to public areas. Furthermore, 42 U.S.C. § 12132 prohibits more than just discrimination on the basis of disability in the services, programs, or activities of a public entity. It also states that "no qualified individual with a disability shall, by reason of such disability ... be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Thus, this prohibition on discrimination by a public entity is not dependent upon conduct or regulations of a city that impinge upon a disabled individual's ability to enjoy the benefits of public services, programs, or activities. At the very least, the DOI's regulations for implementation of Title 11 of the ADA "warrant respect" as to their requirements that public entities must accommodate "service animals" necessaiy for disabled individuals. See Wisconsin COMM/lily Servs., Inc., 465 F.3d at 751 n. 10; '1/41043Frante, 657 F.3d at 225; Armstrong, 622 F.3d at 1065. Where the evidence presented in support of the plaintiffs' Motion For Preliminaiy Injunction demonstrates that Snickers has been individually trained to do work and to perform Page 18 of 24 Page 17 tasks for Sak that are directly related to his disability, including assisting him with walking, balancing, retrieving items around the house, and assisting him when he falls out of his wheelchair, Sak has demonstrated a likelihood of success on the issue of whether or not Snickers is a "service animal" within the meaning of Title II of the ADA and 28 C.F.R. §§ 35.104 and 35.136. See Sierra Club, 645 F.3d at 993 (requiring "likelihood of success" to obtain a preliminary injunction, quoting Winter, 555 U.S. at 32, 129 S.Ct. 365). Where Sak has presented evidence that, notwithstanding a specific request to do so, the City has refused to modify its policies, practices, or procedures, as embodied in the Ordinance concerning pit bull dogs, to permit the use of a pit bull dog mix as a service animal by an individual with a disability, as required by 28 C.F.R. § 35.136(a), and there is no evidence that either of the exceptions to the City's obligation to do so in 28 C.F.R. § 35.136(b) apply in this case, Sak has shown, at the very least, a likelihood of success on his claim that the City is violating Title II of the ADA. See Sierra Club, 645 F.3d at 993. Moreover, the restrictions in 28 C.F.R. § 35.136 on the extent to which a public entity can impose specific limitations on the way that service animals are handled or permitted access to areas of a public entity, see 28 C.F.R. § 35.136(c) and (g), demonstrate that the requirements even for "grandfathered," "licensed" pit bulls in the Ordinance would improperly impede effective use of Snickers as a service animal. See Ordinace, § 58.03(1)(D) (leashing and muzzling requirements), (E) (confinement requirements), (F) (confinement indoors requirements). Thus, Sak has sufficient likelihood of showing that these provisions of the Ordinance also violate Title II of the ADA to warrant preliminary injunctive relief. The full extent to which Sak's proposed modifications of the Ordinance's prohibition on pit bull dogs or the requirements for "grandfathered," "licensed" pit bull dogs are reasonable may ultimately be a fact question. See Crowder v. Kitagawa, 81 F.3d 1480, 1485-86 (9th Cir.1996); see also Heather K., 946 F.Supp. at 1387-89 (also relying on Crowder', 81 F.3d C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?rs=WLW14.01&destination—atp8r. nt—W... 03/24/2014 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 of modifications may be a fact question). Nevertheless, Sak has made sufficient showing that he is likely to succeed on a demand for some modifications to warrant preliminary injunctive relief. It is no impediment to preliminaiy injunctive relief to argue that the Ordinance does not bar service animals at all, just use of full or mixed breed pit bull dogs as service animals, as the City also argues. The DOJ has addressed such a contention in its Guidance To Revisions To ADA Regulation On Nondiscrimination On The Basis Of Disability In State And Local Government Services (Guidance To Revisions), which provides a section -by -section analysis and response to public continents concerning the revisions to its regulations that included 28 C.F.R. § 35.136. See 28 C.F.R. Pt. 35, App. A. Among other things, the Guidance To Revisions addresses the argument that it should be permissible for a municipality to exclude certain breeds of clogs, even when used as service animals: Breed limitations. A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed *1044 breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds. The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of clogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have Page 19 of 24 Page 18 no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades. without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e,g., German. Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual's home jurisdiction but is nonetheless banned by other jurisdictions. State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history—not based on fears or generalizations about hone an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is srcient to protect health and safety. Guidance To Revisions (emphasis added). While the Guidance To Revisions is not, itself, a "final rule," entitled to the field deference due a regulation itself, as Sak argued in his brief in support of his Motion For Preliminary Injunction, it is, nevertheless, an authoritative response to comments on the DOJ's proposed regulation requiring accommodation of service animals by public entities, Just as importantly, 1 find that the reasons offered by the DOJ in the Guidance To Revisions for rejection of breed - specific prohibitions on service animals under Title II of the ADA are persuasive. See e.g., Olmstead v., LC., 527 U.S. 581, 597-98, 119 S.CI. 2176, 144 L.Ed.2d 540 (1999) ("The well -reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance."); Auer v, Robbins, 519 U.S. 452, 461,, 117 S.Ct, 905, 137 L.Ed.2c1 79 (1997) (holding that an agency's interpretation of its Cc7 2014 Thomson Reuters. No Claim to Orig. US Gov, Works. http://web2.westlaw.eom/print/printstrear.aspx?rs—WLW 14.©1 &destination=atp&int—W... 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) regulations is "controlling unless plainly erroneous or inconsistent with the regulation"). The record also shows that Sak has sufficient likelihood of showing that substitution of a non -pit bull service animal is not a reasonable accommodation, because Snickers has beell individually trained for his individual needs over as much as two years, and there would, consequently, be significant loss of time and difficulties involved in obtaining and adequately training an appropriate substitute animal, with the loss of security to Sak and potential for injury in the meantime. Thus, Sak is sufficiently likely to prevail on a claim that a breed - specific ordinance that incidentally bars him from having a pit bull dog as a service animal violates Title II of the ADA ancl that substitution of a non -pit bull service animal is not a reasonable accommodation for this factor to weigh in favor of injunctive relief. I conclude that Sak has made sufficient showing of likelihood of success on an "accommodation" claim pursuant to 28 C.F.R. § 35.130(b)(7) for this factor to weigh heavily in support of preliminary injunctive relief, where he has marshaled evidence that his requested accommodations (i.e., exceptions to the Ordinance) are necessary to avoid discrimination on the basis of Sak's disability, and the requested restrictions are reasonable. Wisconsin Community Servs., Inc.„ 465 F.3d at 751. C. Irreparable Harm To Sak [12] "Likelihood of success" is " 'meaningless in isolation [and] must be examined in the context of the relative injuries to the parties and the public.' " Rouclachevski, 648 F.3d at 706 (quoting General Motors Corp. v. Harty Brown's L.L.C., 563 F.3d 312, 319 (8th Cir.2009)); accord Winter, 555 U.S. at 23-24, 129 S.Ct. 365 (there is no need to reach the "likelihood of success" factor, if the balance of interests weighs against the injunction). Thus, even though I have found that Sak has sufficient likelihood of success on the merits of his Title II claim to weigh in favor of preliminary injunctive relief, I must still consider and balance the other Dataphase/ Winter factors to decide whether or not to issue a preliminary injunction. Therefore, I begin that balancing process by examining Page 20 of 24 Page 19 Sak's allegations of "irreparable harrn." See Winter, 555 U.S. at 20, 129 S.Ct, 365; Roudachevski, 648 F.3d at 705 (citing Dataphase, 640 F.2c1 at 114). [13] The movant must show that "he is likely to suffer irreparable harm in the absence of preliminary relief." Winter, 555 U.S. at 20, 129 S.Ct. 365. In Winter; the Supreme Court clarified that, even where a plaintiff demonstrates a strong likelihood of prevailing on the merits, the plaintiff must. do more than show a "possibility" of irreparable harm; rather, the proper standard "requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction." Id. at 22, 129 S.Ct. 365 (emphasis in the original) (rejecting as "too lenient" the "possibility" of irreparable harrn standard used by the Ninth Circuit Court of Appeals and the district court in the case below). `'"JiTeparable harm occurs when a party has no adequate remedy at law, typically because its injuries cannot be fully compensated through an award of damages.' Rogers Group, Inc. v. City of Fayetteville, Ark, 629 F.3d 784, 789 (8th Cir.20.10) (quoting General Motors Corp. v. Harty Brown's, L.L.C., 563 F.3d 312, 319 (8th Cir.2009)). The Eighth Circuit Court of Appeals has stated that, "[t]o succeed in demonstrating a threat of irreparable harm, 'a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.' " Roudachevski, 648 F.3d at 706 (quoting Iowa UIlls. Bd v. Federal Conunc'ns Conun'n. 109 F.3d 418, 425 (8th Cir.1996)). [14] Sak identifies the irreparable harrn that he is suffering as a result of the exclusion of Snickers from the City of Aurelia, in the first instance, as degradation of his quality of life. Sak showed that he has already fallen from his wheelchair twice, without Snickers to aid his recovery, and that he was forced to call 911 for assistance on one of those occasions. He also showed that, without Snickers, he experiences greater fears, insecurity, and increased chances of injury from his disability, and is less able to operate in society, Sak argued that taking away his service dog inflicts injury on him comparable to taking away his wheelchair, which is also a necessity. He also demonstrated that the Ci 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs= L 14.01&destination=atp&mt—W... 03/24/2014 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 relationship with Leifer, as he is now more dependent upon Leifer and less able to assist her, and Leifer is unable to leave him alone, for fear of another fall or injury. 1 also note that simply replacing Snickers with another service animal is not only not a reasonable accommodation, but that the loss of Snickers is likely to cause irreparable harm, because Snickers has been individually trained for Sak's individual needs. The loss of time and the difficulties involved in obtaining and training an appropriate substitute animal, with the loss of security to Sak and potential for injury in the meantime, also demonstrate that Sak's loss is irreparable. Thus, I find that Sak has demonstrated harm that is "irreparable," and that it is not just "possible," but "likely" in the absence of injunctive relief. Winter, 555 U.S. at 22, 129 S.Ct, 365. It is doubtful that the injuries to Sak could possibly be fully compensated through an award of damages. Rogers Group, Inc., 629 F.3d at 789. Finally, such injuries are sufficiently imminent that there is a clear and present need for equitable relief Roudachevski, 648 F.3d at 706. This factor also weighs heavily in favor of preliminary injunctive relief. D. Balance OfEquities The next Dataphase/ Winter factor is whether the balance of equities tips in favor of preliminary injunctive relief. Winter, 555 U.S. at 20, 129 S.Ct. 365; Roudachevski, 648 F.3d at 705-06 (stating the Dataphase factor as "the state of the balance between [the movant's irreparable] hann and the injury that granting the injunction will inflict on other parties" (citing Dataphase, 640 F.2d at 114)), "In each case, courts 'must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.' Id at 24, 129 S,Ct. 365 (quoting Amoco Production Co., 480 U.S. at 542, 107 S.Ct. 1396). [1.5] The competing injury that the City asserts appears to be that the lack of enforcement of its Ordinance as to Snickers undermines the public safety concerns that prompted the ban on pit bull dogs in the first place. In the absence of any evidence that this Page 21 of 24 Page 20 trained and certified "service animal" has a history of aggression or causing injury to persons or property, however, that claim of injury rings hallow. Because even preliminary injunctive relief to the full extent requested by Sak would not void the Ordinance or make it unenforceable as to any other pit bull dog, and the City would retain the ability to determine, on a case- by-case basis, whether this particular service animal can be excluded based on his actual behavior or history, not based on fears or generalizations about how a pit bull mix might behave, any purported injury to public health and safety is illusory. See Guidance To Revisions. Moreover, the balance of the weak or illusory injury to public health and safety, if the Ordinance is suspended or modified as to Snickers, against the very real threat of irreparable injury to Sak, if Snickers continues to be excluded from the City and, consequently, cannot provide necessary services to Sak, is unequivocally in favor of preliminary injunctive relief. E. The Public Interest [16] The last Dataphase/ Winter factor requires me to consider whether an injunction is in the public interest. Winter, 555 U.S. at 20, 129 S.Ct. 365; Roudachevski, 648 F.3d at 705-06. 1 must consider both what public interests might be injured and what public interests might be served by granting or denying a preliminary injunction. See Sierra Club, 645 F.3ct at 997-98. The Eighth Circuit Court of Appeals has *1047 recognized that "the determination of where the public interest lies is also dependent on the determination of likelihood of success on the merits," because it is in the public interest to protect rights. Phelps—Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.2008) (First Amendment rights case). [17] There is some cogency to the argument that the Ordinance reflects a public interest in health and safety, but the regulations under Title II of the ADA reflect an apparently conflicting public interest in allowing disabled individuals access to and use of their service animals. The Ninth Circuit Court of Appeals addressed a similar apparent conflict between a local public health law and Title II of the ADA in Crowder v. Kitagawa, 81 2014 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.corn/print/printstream.aspx?rs=WLW14.01&destination—atp&mt—W.„ 03/24/2014 832 F.Supp.2d 1026, 44 NDLR P 125 (Cite as: 832 F.Supp.2d 1026) F.3c1 1480 (1996), a case involving a claim that Hawaii's 120—day quarantine on carnivorous animals entering that state, which was designed to prevent importation of rabies, violated Title II of the ADA when applied to service animals for the visually impaired. The court in Crowder found that " 'the general intent of Congress' was 'to ensure that individuals with disabilities are not separated from their service animals,' such as guide dogs." Crowder, 81 F.3d at 1485 (citing 28 C.F.R. Pt. 36, Appendix 13, at 616) (service animals in public accommodations); 135 Cong. Rec. D956 (Statement of Sen. Simon) ("As an auxiliary aid, the use of assistive animals is protected by the Americans With Disabilities Act, in public accommodations as well as public services (including schools)."). The court then observed, We are mindful of the general principle that courts will not second-guess the public health and safety decisions of state legislatures acting within their traditional police powers. See Queenside Hills Realty Co, v. Sax!, 328 U.S. 80, 82-83, 66 S.Ct. 850, 851-52, 90 L.Ed. 1096 (1946). However, when Congress has passed antidiscrimination laws such as the ADA which require reasonable modifications to public health and safety policies, it is incumbent upon the courts to insure that the mandate of federal law is achieved. Crowder, 81 F.3d at 1485. To put it another way, the national public interest in enforcement of the ADA "trumps" the more local public interest in public health and safety reflected in the Ordinance prohibiting pit bull dogs within the City of Aurelia. F. Stumm 1 conclude that all of the relevant Dataphase/ Winter factors weigh in favor of issuing a preliminary injunction against enforcement of the Ordinance against Snickers. See Winter„ 555 U.S. at 23-24, 129 S.Ct. 365; Sierra Club, 645 F.3d at 992-93. In these circumstances, it is appropriate to employ the extraordinary remedy of a preliminary injunction to bar enforcement of the Ordinance against Snickers. Winter, 555 U.S. at 24, 129 S.Ct. 365; Roudachevski, 648 F.3d at 705-06. Such a preliminary injunction, on Page 22 of 24 Page 21 appropriate terms, has issued. HI. THE BOND REQUIREMENT [18][19] Subsection (c) of Rule 65 of the Federal Rules of Civil Procedure requires the movant to give security for the issuance of a preliminary injunction. See FED.R.C1V.P. 65(c) ("The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained."). As I have explained, "The bond posted under Rule 65(c) 'is a security device, not a limit on the damages the [City] may obtain, against [the plaintiffs] if the facts warrant such an award.' *1048 Branstad v. Glickman, 118 F.Supp.2d 925, 944 (N.D.lowa 2000) (quoting Minnesota Mining & Mfg. Co. v. Rauh Rubber, Inc., 130 F.3d 1305, 1309 (8th Cir.1997)). Furthermore, l[a]lthough [the Eighth Circuit Court of Appeals] allow[s] the district court much discretion in setting bond, [it] will reverse [the district court's] order if it abuses that discretion due to some improper purpose, or otherwise fails to require an adequate bond or to make the necessary findings in support of its determinations." Hill v. Xyquad, Inc„ 939 F.2d 627, 632 (8th Cir. I 991) (citing Rathrnann Group v. Tanenbaum, 889 F.2c1 787, 789 (8th Cir.1989)); accord United Healthcare Ins. Co. v. AdvancePCS, 316 F.3d 737, 745 (8th Cir.2002) ("We review the amount of the bond for an abuse of discretion." (citing Rathmann Group, 889 F.2d at 789)). [20] In Interbake Foods, L.L.C. v. Totnasiello, 461 F.Supp.2d 943 (N.D,lowa 2006), 1 noted that courts. were inconsistent on whether or not some security is always required before issuance of a preliminary injunction, but I reiterated my prior conclusion that, in light of the mandatory language of Rule 65(c), " 'requiring a bond in some amount. before issuing a preliminary injunction is far the better course.' " Interbake Foods, 461 F.Supp,2d at 979 (quoting Curtis 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1279 (N.D.lowa 1995)). However, in this case, as in Interbake Foods, I find that the amount of potential damages is extremely limited, because the City will not 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs—WLVV14.01&destination—atp&mt=W... 03/24/2014 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 preliminarily enjoined only as to Snickers. Id. I also conclude that Sak's rights, improperly impinged by the Ordinance, are of such gravity that protection of those rights should not be contingent upon his ability to pay the bond. Cf. Doctor John's, inc. v. City of Sioux City, Iowa, 305 F.Supp.2d 1022, 1043-114 (N.D.l:owa 2004) (waiving the payment of any bond for this reason). Under the circumstances, 1 fmd that the appropriate amount of the bond required before issuance of the preliminary injunction is $1.00. See Interlake Foods, 461 F.Supp.2d at 979 (also imposing a bond of only $1.00). IV. CONCLUSION noted at the beginning of this decision that "[w]hen a man's best friend is his dog, that dog has a problem." When a service dog is excluded by a city's breed -specific pit bull ban, that dog might have a problem but for Congress's passage of the ADA and the Attorney General's regulations and guidance on service dogs and breed limitations. The ADA was enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Included within this mandate was Congress's intention to ensure that disabled individuals, like Sak, are not separated from their service animals. Thus, I find that, whatever the legal bark of the City's Ordinance prohibiting pit bull dogs as a general matter of public health and safety, it is sufficiently likely that enforcement of that Ordinance against Snickers would take such an impermissible bite out of Title II of the ADA and the regulations and guidance promulgated to implement it that a preliminary injunction is warranted. There is also sufficient showing that enforcement of the Ordinance against Snickers is causing and will cause irreparable harm to Sak. Granting the injunction is not counterbalanced by any harm to the City. Finally, in my view, the public interest in allowing Sak to keep and use his certified and registered service dog, Snickers, substantially outweighs the City's interest in banning Snickers. This is one small, but vital step for Sak, one giant leap for pit bull service dogs. Page 23 of 24 Page 22 TI' IS SO ORDERED. *1049 PRELIMINARY INJUNCTION WHEREAS, this platter came before me pursuant to the December 22, 2011, Motion For Preliminary Injunction by plaintiffs James Sak and Peggy Leifer, AND WHEREAS, I find that enforcement actions of the City of Aurelia, Iowa, or any of its subdivisions, administrative departments, agents, employees, or officials, pursuant to City of Aurelia Ordinance Chapter 58, Pit Bull Dog, against the service animal "SNICKERS," identified in the National Service Animal Registry database as ID C12694, and or plaintiff James Sak would impose irreparable harm or injury or the threat of such irreparable harm or injury upon. James Sak, arising from a potential violation of James Sak's rights under Title 11 of the Americans with Disabilities Act, 42 U.S.C. § 12131 es seq., and upon further consideration of all other relevant factors, THE CITY OF AURELIA, IOWA, and any of its subdivisions, administrative departments, agents, employees, or officials, are hereby preliminarily enjoined from pursuing, instituting, continuing, or completing any and all enforcement actions pursuant to City of Aurelia Ordinance Chapter 58, Pit Bull Dog, against the service animal "SNICKERS," identified in the National. Service Animal Registry database as ID C12694, and/or plaintiff Jaynes Sak until such time as this preliminary injunction is dissolved or vacated, by this court or a reviewing court. The preliminary injunction against enforcement of City of Aurelia Ordinance Chapter 58, Pit Bull Dog, against the service animal "SNICKERS," identified in the National Service Animal Registry database as ID C12694, and/or plaintiff James Sak, includes, but is not limited to, the following: 1. Enforcement as to "SNICKIRS" and/or plaintiff James Sak of the prohibition on keeping, harboring, owning, or in any way possessing a Pit Bull Dog within the City of Aurelia, pursuant to Ordinance § 58.02; 2. Enforcement as to "SNICKERS" and/or plaintiff 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. littp:// eb2.westlaw.com/printlprintstream.aspx?rs= 14.01 &destination=atp&nit=W... 03/24/2014 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. Sales use of "SNICKERS" as a service dog, either h 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.lowa,2011. Sak v. City of Aurelia, Iowa 832 F.Supp.2d 1026, 44 NDLR P 125 END OF DOCUMENT 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. Page 24 of 24 Page 23 http://wcb2.westlaw.com/print/printstream.aspx?rs=WL 4.018cdestination=atp&mt=W... 03/24/2014 Mist iw, Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Was (Cite as: 2007 WL 858627 (E.D.Wash.)) Only the Westlaw citation is currently available. United States District Court, E.D. Washington. Pamela A. BAUGHER, Plaintiff, v. CITY OF ELLENSBURG, WA, The Broadway Group, Defendants. No. CV-06-3026-RHW. March 19, 2007. Pamela A. Baugher, Seattle, WA, pro se. Charles Dana Zimmerman, Ogden Murphy Wallace PLLC, Wenatchee, WA, Edward. George Johnson, Law Offices Raymond W. Schutts, Spokane, WA„ Raymond W. Schutts, Raymond Schutts Law Offices, Liberty Lake, WA, for Defendants. ORDER GRANTING THE BROADWAY GROUP'S MOTION FOR SUMMARY JUDGMENT; GRANTING THE CITY OF ELLENSBURG'S MOTION FOR SUMMARY JUDGMENT ROBERT H. WI-IALEY, Chief United States District Judge. 1 Before the Court is Defendants' Motions for Sumrnary Judgment (Ct.Recs.25, 30). A hearing was held on the motions on February 20, 2007, in Yakima, Washington, Plaintiff participated pro se telephonically; Defendant City of Ellensburg was represented by Charles Zimmerman; Defendant The Broadway Group was represented by Raymond Schutts. ACKGROUND The following facts are viewed in the light most favorable to Plaintiff, the non-moving party. Plaintiff routinely travels with her dog "Bun." Bun accompanies Plaintiff to assist her with alertness to the need for medication and alertness to Page 2 of 7 Page 1 surroundings. Plaintiff suffers from autism, panic attacks, a head injury, asthma and has hearing problems. On June 17, 2005, Plaintiff was traveling with Bun from Seattle, Washington to Sunnyside, Washington on 1-90, when she decided to stop at the Flying J convenience store in Ellensburg, Washington. She entered the store with Bun in tow. As she neared the open deli case, a store clerk approached her, expressed concern that Bun was near the food, and asked if she could help Plaintiff retrieve any food items. She also asked Plaintiff to keep Bun away from the food. Plaintiff told the store clerk that Bun was a service animal, and therefore, could remain in the store. Plaintiff informed the store personnel that the Americans with Disabilities Act (ADA) and the Washington Law Against Discrimination required access for medical service dogs. The store clerk and the store manager denied this right, asserting that company policy and health regulations prevented Bun from being near the deli case. Plaintiff asked that the police be called to enforce the Washington criminal statutes that make it a crime to deny access because of the use of a service dog and to separate a service dog from a user. Plaintiff was asked to leave the store by the store manager. She refused. Eventually, the police were called. When they arrived, Plaintiff, the manager, and the police stepped outside the store. The police asked Plaintiff for her name and identification, which she refused to give. The police notified her that they were investigating her for criminal trespass. Plaintiff became angry and started to walk away. The police asked her to stay and she refused. Ultimately, two police officers grabbed Plaintiff and handcuffed her. One of the police officers removed Bun from Plaintiffs grasp. Once she was handcuffed, Plaintiff fell to the ground and started crying for help. She complained. of chest pains, and she expressed concern that Bun. 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Work http://web2.westlaw.com/print/printstream. aspx?utid=2&prft=HTMLE&vr=2.0&destinati... 03/24/2014 Not Reported in F.Supp2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) was going to die, due to the heat. An ambulance was called to the scene, and Plaintiff was transported to the emergency room, One of the officers retrieved Plaintiffs medication from her purse, which was in the front seat of the car. While in the ambulance, Plaintiff refused all medical assistance, but continued to complain of chest pains. At the emergency room, she continued to refuse all medical assistance. Eventually, she was released from the ER, and was brought by the police to the Animal Shelter to retrieve Bun rNI, and then was returned to the car. FN1. After being taken from Plaintiff, Bun as placed in a patrol car. The officer who placed Bun in the car testified that he made sure that Bun was in the shade, the windows were rolled down and the air conditioning was running. Bun was then transported to the nearest animal shelter. *2 As a result of this incident, Plaintiff is seeking two million dollars in damages. DISCUSSION Plaintiff is proceeding pro se; thus, the Court will liberally construe her pleadings. Ortez v, Washington County, 88 F.3d 804, 807 (9th Cir,1996). It appears that Plaintiff is making the following claims: (1) violation of the Americans with Disabilities Act ODA); (2) violation of the Washington Law Against Discrimination, Wash, Rev.Code § 49.60; (3) violation of Wash. Rev.Code §§ 9.91.170 and 70.84.070; (4) violation of 28 C.F.R. § 35.134; and (5) section 1983 claim based on unreasonable search and seizure. Plaintiffs complaint does not differentiate between the claims asserted against the two Defendants. The Court construes Plaintiffs complaint as asserting the five claims against both Defendants. L Standard of Review Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any Page 3 of 7 Page 2 material fact and that the moving party is entitled to judgment as a matter of law." Fecl.R.Civ.P. 56(c). There is no genuine issue for trial unless there is sufficient evidence favoring the non-moving party for a juiy to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party had the initial burden of showing the absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets it initial burden, the non-moving party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial, Id. at 325; Anderson, 477 U.S. at 248. In addition to showing that there are no questions of material fact, the moving party must also show that it is entitled to judgment as a matter of law. Smith v. Univ. of Washington Law School, 233 F.3d 1188, 1193 (9th Cir.2000). The moving party is entitled to judgment as a matter of law when the non-moving party fails to make a sufficient showing on an essential element of a claim on which the non-moving party has the burden of proof. Celotex, 477 U.S. at 323. When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, "the evidence of the non -movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. 11. The Broadway Group's Motion for Summary Judgment Defendant The Broadway Group argues that summary judgment is appropriate for all of Plaintiffs claims asserted against it. (1) Americans with Disabilities (ADA) Claim Plaintiff is relying, in part, on the Americans with Disabilities Act in support of her claim for damages. Pursuant to Title III of the ADA, private entities, such as gas stations and establishments that sell food, cannot discriminate against individuals based on their disability. 42 U.S.C. § 12182(a). 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. littp://web2.westlaw.corn/print/prin r am.aspx?Laid=2&prft--HTMLE&vr=2.0&destinati... 03/24/2014 Not Repoited in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) Monetary damages, however, are not recoverable under Title III of the ADA -only injunctive relief. Wander v. Kam, 304 F.3d 856, 858 (9th Cir.2002). Here, Plaintiffs complaint is clear. She is seeking only monetary damages. Thus, summary judgment in favor of Defendant The Broadway Group with regard to Plaintiffs ADA claim is appropriate. (2) 28 C.F.R. § 35.134 *3 Plaintiff cites to 28 C.F.R. § 35.134 in support of her claim against Defendants. 28 C.F.R. § 35.134 prohibits retaliation or coercion on the part of state and local government services, which is part of Title II of the ADA. Specifically, it provides: (a) No private or public entity shall discrirninate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part. (b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part. 28 C.F.R. § 35.134. To the extent that the ADA applies to private entities, it is through Title III of the ADA. Thus, this C.F.R. section does not apply to Defendant The Broadway Group in this context. Part 36 of Title 28 of the CFR, however, covers Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. Part 36 contains a similar provision that prohibits retaliation and coercion in public accommodations and in commercial facilities. Page 4 of 7 Page 3 28 C.F.R. § 36.206 provides (a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part. (b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part. 0) Illustrations of conduct prohibited by this section include, but are not limited to: (1) Coercing an individual to deny or limit the benefits, services, or advantages to which he or she is entitled under the Act or this part; (2) Threatening, intimidating, or interfering with an individual with a disability who is seeking to obtain or use the goods, services, facil ities, privileges, advantages, or accommodations of a public accommodation, (3) Intimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by the Act or this part to exercise those rights; or (4) Retaliating against any person because that person has participated in any investigation or action to enforce the Act or this part. 28 C.F.R. § 36.206. *4 This regulation is based on 42 U.S.C. § 12203(b), which provides: 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westla .corn/print/printstream.aspx?utid=2&prft—HTMLE&vr=2.0&destinati... 03/24/2014 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, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of any right granted or protected by this chapter. 42 U.S.C. § 12203(b). Even if the Court were to liberally construe Plaintiffs complaint to allow her to state a claim under 42 U.S.C. § 12203(b) and 28 C.F.R, § 36206 , Plaintiff's retaliation claim does not survive because compensatory and punitive damages are not available for retaliation claims under the ADA. See Kramer v, Banc of America Securities, LL.C., 355 F.3d 961, 965 (7th Cir.2004). (3) Section 1983 Claim Based on the Fourth Amendment Section 1983 creates a cause of action against any person who, acting under color of state law, violates the constitutional rights of another person. 42 U. S.C. § 1983; Mabe v. San Bernardino County, Dep'! of Public Soc. Serv., 237 F.3d 1101, 1106 (9th Cir.2001). To succeed on a section 1983 claim, Plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived her of a constitutional right. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006). Here, there is nothing in the record that would support a finding that the employees of The Broadway Group were acting under color of state law. Thus, to the extent Plaintiff is asserting a section 1983 claim against Defendant The Broadway Group, summary judgment is appropriate. (4) Remaining State Law Claims Plaintiff alleges a number of state claims. Because the Court has granted summary judgment with respect to all federal claims, the Court declines Page 5 of 7 Page 4 to extend supplemental jurisdiction to the remaining state claims. See 28 U.S.C. § 1367 0); see also Carnegie-Mellon UniV. v. Cohill, 484 U.S, 343, 350 n. 7 (1988) (Tin the usual case in which all federal -law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine -judicial economy, convenience, fairness, and comity -will point toward declining to exercise jurisdiction over the remaining state -law claims."); United Mine Workers o AM. v. Gibbs, 383 U.S. 715, 726 (1966). III. Defendant City of Ellensburg (1) Americans with Disabilities Claim (ADA) Title 11 of the ADA applies to any state or local government. 42 U.S.C. § 12131. Title 11 authorizes suits by private citizens for money damages against public entities that violate § 12132. See 42 U.S,C. § 12133 (incorporating by reference 29 U.S.C. § 794a ); see United States v. Georgia, 126 S.Ct. 877, 879 (2006). Plaintiff cannot bring an ADA claim against the police officers in their individual capacity under Title II. Alsbrook v. City of Matunelle, 184 F.3d 999, 1005 n, 8 (8th Cir.1999). *5 In order to state a claim of disability discrimination under Title II, Plaintiff must allege four elements: (1) she is an individual with a disability; (2) she was otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) she was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of her disability. McGaiy v. city of Portland, 386 F.3d 1259, 1265 (9th Cir,2004). The Court liberally construes Plaintiffs complaint as bringing two claims under Title II:(1) the City of Ellensburg violated the ADA when it 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= E vr=2.0&destinati... 03/24/2014 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 officers arrested her on account of her disability. Defendant City of Ellensburg does not dispute that Plaintiff may have a qualifying disability; rather, it argues that Plaintiff cannot establish a violation of the ADA because Bun does not qualify as a service animal, and because she was not discriminated against because she was disabled. Pursuant to the ADA, a service animal is defined as: Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including 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. 28 C.F.R § 36.104. In support of their argument, Defendants rely on Washington case law, and a federal district court case, Prindable v. Ass'n of Apartment Owners of 2987 Kalakarta, 304 F.Supp.2d 1245 (D.Haw,2003) In that case, the district court held that there must be some evidence of individual training to set the service animal apart from the ordinary pet. Id at 1256. Although the Ninth Circuit affirmed the granting of summary judgment in that case, it specifically declined to rule on whether the plaintiffs must prove that the dog is an individually trained service animal, See DuBois v. Ass'n of Apartment 011,11CIS of 2987 Kalakaiw, 453 F.3d 1175, 1179 n. 2 (9th Cir.2006) ( [W]e need not and do not reach other issues addressed by the district court, including whether the plaintiffs must prove that [the dog] "is an individually trained service animal."). Moreover, in Lentini v. California Center for the Arts, Escondido, the Circuit concluded, without comment, that a small, black Shih Tzu/Poodle mix named Jazz, was a service Page 6 of 7 Page 5 animal that provided minimal protection and retrieved small dropped items for a quadriplegic, who used a wheelchair for mobility. 370 F.3d 837, 839 (9th Cir.2004). Defendants argue that personal training coupled with evidence of outside obedience training and actual observation of the animal exhibiting the learned behavior is required in order to qualify the animal as a service animal. The Court agrees that there must be some evidence to set a service animal apart from an ordinary pet, but disagrees that there must be documented evidence of individual training. hi this case, the issue with regard to whether Bun is considered a "service animal" does not necessarily tum on documented evidence, but whether Bun was trained to do work or perform tasks for the benefit of an individual with a disability. Plaintiff asserts that the presence of Bun assisted her in her daily life. However, the record is devoid of any specific work or tasks that Bun was trained to perform for the benefit of Plaintiff, other than to be a presence that would remind Plaintiff to take her medication, or to stay focused.rN2 Plaintiff asserts that Bun cued her to take her medicine. Plaintiff does not explain the specific cue that Bun was trained to provide when the need to take her medicine arose, nor is there anything in the record that explains the cues that Bun was trained to provide to Plaintiff to keep her focused. Nor does Plaintiff explain how Bun was trained to provide these cues. The Court does not doubt that Bun provided Plaintiff with a sense of security and comfort and helped her cope with her disability, but this does not meet the statutory definition of a service animal, as defined by the ADA. The Court reads the regulation as requiring something more than merely being a presence that provides comfort, companionship, or interaction with an individual. The regulation is clear. The service dog must be trained to perform specific tasks or work and there is nothing in the record to suggest that Bun was trained to perform specific tasks or work for the benefit of Plaintiff. Plaintiff has not presented any admissible evidence that sets 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://weblwestlaw.com/print/printstream.aspx?utid=2&prft=HTMLE&vr=2.0&destinati... 03/24/2014 Not Reported in F.Supp.2d, 2007 WL 858627 (E ash.) (Cite as: 2007 WL 858627 (E.D.Wash.)) Bun apart from the ordinary pet. FN2. In opposition to Defendants' motions, Plaintiff submitted a letter from Dr. Janet Arnold, dated March 30, 2004. In the letter, Dr. Arnold states that Plaintiff is her patient, and Plaintiff uses a medical service dog "Bun." Dr. Arnold wrote that she has witnessed that Bun "cues" Plaintiff to take her prescribed medications for her asthma, emphysema and panic attack disorders. Pursuant to Fed.R.Civ.P, 56(e), supporting affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence, Dr. Arnold's letter is not admissible because it is hearsay. Moreover, Dr. Arnold's letter does not address how Bun was trained to provide these cues. '6 Accordingly, Plaintiff has failed to show that Bun is a service dog as defined by the ADA. As such, the City of Ellensburg did not violate the ADA by failing to enforce her right to bring a service dog into a public entity because Bun was not a service animal as defined by the ADA. Additionally, the City of Ellensburg did not violate the ADA because its police officers did not arrested her on account of her disability, because she was not entitled to have Bun in the Flying J. (2) 28 C.F.R. § 35.134 To the extent Plaintiff is asserting a retaliation claim against Defendant City of Ellensburg, her claim does not survive because compensatory and punitive damages are not available for retaliation 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 government policy or custom. Alone11 v. Dep'! qf Page 7 of 7 Page 6 Sac, Services, 436 U.S. 658, 691 (1978), Plaintiff has not presented any evidence of' any official government policy or custom that authorizes unlawful searches and arrests. See Hari v. Parks, 450 F.3d 1059, 1071 (9th Cir.2006) (holding that dismissal of Mandl claims were proper where police had probable cause to arrest and where plaintiff failed to provide any evidence showing that the police department had a policy or custom allowing unconstitutional arrests), Thus, summary judgment with respect to her section 1983 claim against the City of Ellensburg is appropriate, (4) Remaining State Claims For the reasons stated above, the Court declines to exercise supplemental jurisdiction over the remaining state claims. Accordingly, IT IS HEREBY ORDERED: 1. Defendant The Broadway Group's Motion for Summary Judgment (Ct .Rec.25) is GRANTED. 2. Defendant City of Ellensburg's Motion for Summary Judgment (Ct .Rec.30) is GRANTED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to Plaintiff and counsel, and close the file, E.D.Wash.,2007. Baugher v. City of Ellensburg, WA Not Reported in F.Supp.2d, 2007 WL 858627 (E.D.Wash.) END OF DOCUMENT CD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/printiprintstrearmaspx?utid=2&prft-1-ITMLE&Nr-2.08alestinati... 03/24/2014 WWttaw, 515 F.Supp.2d 1187 (Cite as: 515F.Supp.2d 1187) United States District Court, W.D. Washington. Rebecca DILORENZO, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant. No. C06 -0727 -JCC. Oct. 2, 2007. Background: Store patron who suffered from a variety of ailments arising after her service in the armed forces sued the store owner, claiming violations of the Americans with Disabilities Act (ADA), the Washington Law Against Discrimination (WLAD) and the Washington Consumer Protection Act (CPA), as well as claims of negligent infliction of emotional distress and outrage, all in connection with her interactions with store employees on two separate shopping trips on which she was accompanied by her dog. Owner moved for summary judgment. Holdings:. The District Court, John C. Coughenour, J., held that: (1) employees did not exceed the boundaries of a permissible inquiry in an effort to determine whether a store patron's dog was a bona fide service animal; (2) store employees' conduct did not constitute negligent infliction of emotional distress; (3) store employees' conduct did not rise to the tort of outrage; and (4) the damage to business or property element of a claim under the WCPA was not satisfied. Motion granted. West. Headnotes 011 Civil Rights 78 01049 78 Civil Rights 2014 Thomson Reu Fage 2 0! 14 Page 1 781 Rights Protected and Discrimination Prohibited in General 78k 1043 Public Accommodations 78k1049 k. Place of Business or Public Resort. Most Cited Cases Store employees did not exceed the boundaries of a permissible inquiry in an effort to determine whether a store patron's dog was a bona fide service animal entitled to accompany the patron into the store pursuant to the Americans with Disabilities Act (ADA) requirements governing public accommodations; one employee made a standard "task or function" inquiry by asking whose dog it was and what task it performed, and a subsequent letter sent by the store's attorney also posed standard "task or function" questions by asking who the dog was trained to assist, and what training it had received. Americans with Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § 12182(a); 28 C.F,R. § 36,302(a), (c)(1). 121 Civil Rights 7801049 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1043 Public Accommodations 78k1049 k. Place of Business or Public Resort. Most Cited Cases Fact that a store made a second "task or function" inquiry by letter in an effort to determine whether a disabled store patron's dog was a bona fide service anima entitled to accompany the patron into the store pursuant to the Americans with. Disabilities Act (ADA), and that the patron's future admittance into the store was apparently conditioned upon her answers, did not harass or discourage the patron from availing herself of the public accommodation, so as to violate the ADA; a number of factors raised legitimate suspicions about whether the dog was indeed a service animal , and it was not unreasonable to send the follow-up letter seeking further clarification. Americans with Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § s. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW14.0 &destination=atp&rnt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) 12182(a); 28 C.F.R. § 36.302(a), (c)(1). 1131 Civil Rights 78 re1049 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1043 Public Accommodations 78k1049 k. Place of Business or Public Resort. Most Cited Cases Analysis governing a store patron's Americans with Disabilities Act (ADA) claim also applied to her claim under the Washington Law Against Discrimination (WLAD) in an action arising from inquiries made by store employees in an effort to determine whether the patron's dog, who accompanied her into the store, was a bona fide service animal. Americans with Disabilities Act of 1990, § 302(a), 42 U.S.C.A. § 12182(a); West's RCWA 49.60.030(1)(b). HI Damages 115 C=57.14 115 Damages 115111 Grounds and Subjects of Compensatory Damages 115111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 11511I(A)2 Mental Suffering and Emotional Distress 115k57.13 Negligent Infliction of Emotional DistTess 115k57.14 k. In General. Most Cited Cases Under Washington law, the tort of negligent infliction of emotional distress requires a showing that: (1) the defendant owed a duty of care to plaintiff; (2) defendant breached that duty; (3) there was proximate cause between breach and damages; and (4) damages did indeed inhere. 15] Damages 115 ci>=.57.14 115 Damages 115111 Grounds and Subjects of Compensatory Damages rage 3 01 1'1 Page 2 115111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 115I1I(A)2 Mental Suffering and Emotional Distress 115k 57 .13 Negligent Infliction of Emotional Distress 115k57.14 k. In General, Most Cited Cases Under Washington law, for purposes of a claim for negligent infliction of emotional distress, a defendant's obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. 16] Negligence 272 €—,210 272 Negligence 27211 Necessity and Existence of Duty 272k210 k. In General. Most Cited Cases Negligence 272 e=1692 272 Negligence 272XV111 Actions 272X V111(D ) Questions for Jury and Directed Verdicts 272k1692 k. Duty as Question of Fact or Law Generally. Most Cited Cases Under traditional negligence principles of Washington law, whether a particular class of defendants owes a duty to a particular class of plaintiffs is a question of law and depends on mixed considerations of logic, common sense, justice, policy, and precedent. [7] Negligence 272 €=210 272 Negligence 27211 Necessity and Existence of Duty 27210.10 k. In General. Most Cited Cases Negligence 272 C=215 272 Negligence 27211 Necessity and Existence of Duty 0 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. littp://web2.westlaw.com/print/printstream.aspx?rs=WLW14.01&destination—atp&mt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as 515 F.Supp.2d 1187) 272k215 k, Balancing and Weighing of Factors. Most Cited. Cases Under Washington law, the primary consideration in deciding whether a duty is owed is whether the conduct in question is unreasonably dangerous; conduct is "unreasonably dangerous" when the risks of harm outweigh the utility of the activity. 18], Damages 115 €57.18 115 Damages 1.15111 Grounds and Subjects of Compensatory Damages 115111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 1.15111(A)2 Mental Suffering and Emotional Distress 115k57.13 Negligent Infliction of Emotional Distress 115k57.18 lc. Particular Cases. Most Cited. Cases Letter from a store patron's psychologist did not to indicate a high likelihood of risk attached to future questioning of the patron in an effort to determine whether her dog was a bona fide service animal, so as to make such conduct "unreasonably dangerous" for purposes of a claim for negligent infliction of emotional distress; the letter did not say anything about a "panic disorder," and its general description of the patron's ailments could not reasonably instruct a lay person that an ordinarily unobjectionable course of conduct, an inquiry made in public space, would be unreasonably dangerous. 191 Damages 115 057.21 115 Damages 1151I1 Grounds and Subjects of Compensatory Damages 115111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 115111(A)2 Mental Suffering and Emotional Distress 115k57.19 Intentional or Reckless rageui 1-r Page 3 Infliction of Emotional. Distress; Outrage 115k57.21 k. Elements in General. Most. Cited Cases Under Washington law, to establish a claim for the tort of outrage, a plaintiff must show (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff. 1101 Damages 115 €208(6) 115 Damages 1.15X Proceedings for Assessment 1.1.5k2208 Questions for Jury 115k208(6) k. Mental Suffering and Emotional Distress. Most Cited Cases Under Washington law, for purposes of a claim of outrage, while the question of outrageousness is normally one for the jury to decide, it is for the court to make the initial determination of whether reasonable minds could differ on whether conduct was sufficiently extreme to result in liability. 111.1 Damages 115 €57.23(1) 115 Damages 115111 Grounds and Subjects of Compensatory Damages 11.5111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 115111(A)2 Mental Suffering and Emotional Distress 115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage 115k57.23 Nature of Injury or Threat 115k57.23(1) k. In General. Most Cited Cases Damages 115 €57.24 115 Damages 1.15111 Grounds and Subjects of Compensatory Damages 11511I(A) Direct or Remote, Contingent, or O 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs= I 14.01&destination=atp&fiat=Vii... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) Prospective Consequences or Losses 115I11(A)2 Mental Suffering and Emotional Distress 115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage 115k57.24 k. Humiliation, Insults, and Indignities. Most Citecl Cases Under Washington law, for purposes of a claim of outrage, conduct which is merely insulting or annoying, or even threatening will not trigger 1121 Damages 115 €=57.25(1) 115 Damages 115111 Grounds and Subjects of Compensatory Damages 115111(A) Direct or Remote, Contingent, or Prospective Consequences or Losses 1151I1(A)2 Mental Suffering and Emotional Distress 115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage 115k57.25 Particular Cases 115k57.25(1) k. in General. Most Cited Cases Store employees' efforts to determine whether a store patron's clog was a bona fide service animal entitled to accompany the patron into the store did not constitute the tort of outrage under Washington law; even if the employees were impolite and confrontational, they never called the patron a "liar," and even if the encounter created a false impression that the patron was suspected of shoplifting, the employees never called her a "thief," 1131 Antitrust and Trade Regulation 29T e= 138 29T Antitrust and Trade Regulation 29T111 Statutory Unfair Trade Practices and Consumer Protection 29T111(A) In General 29Ik133 Nature and Elements 29Tk 138 k. Reliance; Causation; ruge.) Page 4 Injury, Loss, or Damage. Most Citecl Cases Washington Consumer Protection Act (WCPA) requires, among other things, that a plaintiff show injwy to her business or property. West's RCWA 19.86.020. 1141 Antitrust and Trade Regulation 29T Ei›. 239 29T Antitrust and Trade Regulation 29T111 Statutory Unfair Trade Practices and Consumer Protection 29T111(C) Particular Subjects and Regulations 29Tk239 k. Other Particular Subjects and Regulations. Most Cited Cases Damage to business or property element of a claim under the Washington Consumer Protection Act (WCPA) was not satisfied by alleged injury to the "daily shopping trade" of a store patron who was questioned by store employees seeking to determine whether the patron's dog was a bona fide service animal entitled to accompany the patron into the store. West's RC WA 19.86.020. *1189 David Carl Cottingham, Bellingham, WA, for Plaintiff. Adam G. Cuff, Steven H. Winterbauer, Winterbauer & Diamond, P.L.L.C., Seattle, WA, Charles A. Valente, Margaret Lavanish, Krasnow Saunders Cornblath, Chicago, IL, for Defendant. ORDER JOHN C. COUGHENOUR, District Judge. This matter comes before the Court on Defendant's Motion for Summary Judgment (Dkt. No. 41-1), Plaintiffs Response (Dkt. No. 46-1), and Defendant's Reply (Dkt. No. 50-1). Having considered the papers submitted by the parties and determined that oral argument is unnecessary, the Court hereby finds and rules as follows. L H ACKGROUND 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. littp://web2.westlaw.com/print/printstream.aspx?rs—WLW14.01&destination—atp&mt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) arising after her service in the armed forces. With the support of her treating psychologist, Plaintiff began to employ the assistance of a dog, who Plaintiff asserts is "a service animal trained to assist her in resisting and responding to the difficulties raised by her conditions." (Am. Compl. ¶¶ 2.1-2.2 (Dkt. No. 23).) Plaintiff acquired the dog, a pug named Dilo, in approximately March 2004, when it was an untrained eight month-old puppy. (Pl.'s Dep. 65:13-24 (Dkt. No. 41-2).) Plaintiffs claims arise from interactions with Costco store employees on two separate shopping trips with Dilo in her company. First, on or around April 30, 2004, Plaintiff entered Defendant's Bellingham warehouse and informed an employee at the entrance that Plaintiff was accompanied by an animal that was in the process of being trained as a " service animal." (Am. Compl. ¶ 2.16 (Dkt. No. 23).) At that *1190 time Dilo was about twelve weeks old and was not wearing any accessory indicating he was a service animal. (Pl.'s Dep. 92:13 (Dkt. No. 41-2).) Plaintiff was asked to proceed to a podium where she was given copies of Costco's Service Animal Policy and a Department of Justice Business Brief on service animals. (Def.'s Mot. 2 (Dkt. No. 41-1).) Plaintiff showed an employee at the podium a copy of a letter from her psychologist, which briefly described her disabilities and attested to Plaintiff's suitability for owning a service animal. (Perini Letter (Dkt. No. 41-3).) Plaintiff did not leave a copy of the letter or any other information about herself for future reference, nor did the employee ask her to do so. (Def.'s Mot. 2-3 (Dkt. No. 41-1).) On a second visit to the Bellingham warehouse on July 3, 2004, Dilo was wearing a vest that read "service dog in training." (Am. Compl. 2.18 (Dkt. No. 23).) Defendant's employee described the vest as being, at least in part, "homemade." (Adele Wolcott Dep. 3:7-15 (Dkt. No. 46-2).) Plaintiff, her husband and Dilo entered the warehouse unmolested and while shopping in the meat section, Plaintiff began to carry Dilo in her arms to avoid injury to the dog from the crowd of shopping carts. rugs U1 a"r Page 5 (Pl.'s Dep. 111:4-14 (Dkt. No. 41-2).) Prior to reaching the cash registers, Plaintiff was approached by store manager Adele Wolcott, who asked Plaintiff on whose behalf the dog acted as a service animal, as well as what task it performed. Plaintiff responded that Dilo was hers and that he "alert[ed] [her] to -for spells." Id. at 112:1-5. Ms. Wolcott then walked away and Plaintiff proceeded through the check-out line. While approaching the warehouse exit, Plaintiff and her party were confronted by Ms. Wolcott and Ken Burnham, another manager, who asked to speak with her. Id. at 114:19-22. According to Plaintiff, Ms. Wolcott said she believed the dog belonged to Plaintiff's husband, apparently because he had brought Dilo into the warehouse on a previous occasion. Ms. Wolcott also asserted that the dogs vest was not "regulation." Id. at 116:12-13; 117:16-19. Finally, Ms. Wolcott objected to the fact that Plaintiff had carried the dog around the warehouse. The tone of this interaction, according to Plaintiff, was not "nice," but rather "inappropriate ... loud ... embarrassing ... humiliating ... degrading." Id. at 118:2-5. At that point, Burnham informed Plaintiff that companion animals were not allowed in the warehouse and that in the future Plaintiff could "sit in [her] car with [her] dog." Id at 118:18-20. Plaintiff asserts that Defendant's employees' actions constituted harassment, as they were, in her words, accusing her of being a "liar." Id. at 213:9-11. Plaintiff also claims that the encounter may have created the false impression for passers-by, some of whom may have been acquaintances, that she was suspected of shoplifting. Id. 218:1-7. Feeling uncomfortable, Plaintiff took note of Ms. Wolcott and Mr. Burnham's contact information and left the warehouse. According to the parties, each made subsequent attempts to contact the other to follow up on the July 3, 2004 incident. Plaintiff claims she left several messages with Costco employees which were never returned. Id. at 125:12-13. Defendant's lawyer sent, and Plaintiff did receive, a letter 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—WLW 14.01 &destination=atp&mt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) dog's training and the tasks it performs (Kaplan Letter (Dkt. No. 41-3).) The purpose of the letter was to "determine whether the dog was a bona fide service animal." (Def.'s Mot. 4 (Dkt. No. 41-1).) Plaintiff never responded to this letter and claims that it constituted further harassment. (Pl.'s Dep. 140:23 (Dkt. No. 41-2).) *1191 Finally, from the available record, it appears that Costco may have deviated from its policies regarding service animals at the time. Plaintiff asserts, and Defendant does not clearly refute, that the relevant policy stated that service animals visually identifiable as such would not be subject to further scrutiny. Furthermore, no distinction was drawn between service animals and service animals in -training. (Pl.'s Resp. 4 (Dkt. No. 46-1).) The foregoing set of events is the basis upon which Plaintiff brings her claims under state and federal law, each of which the Court addresses below in turn. II. DISCUSSION A. Standard of Review Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2.47, 106 S.Ct. 2.505, 91 L,Ed.2d 202 (1986). There is no genuine issue for trial unless there is sufficient evidence to support a jury verdict in favor of the nonmoving party. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The moving party has the burden of demonstrating the absence of a genuine issue of material fact. Id at 257, 106 S.Ct. 2505. Furthermore, the Court must draw all reasonable inferences in favor of the nonmoving party. See FDIC. v. O'Melveny & Myers, 969 F.2d 744, 747 (9th Cir.1992), rev'd on other grounds, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2cl 67 (1994). JB. 1"1" Page 6 In addition to demonstrating that there are no questions of material fact, the moving party must also show that it is entitled to judgment as a matter of law. Smith v. Univ. of Washington Law School, 233 F.3d 1188, 1193 (9th Cir.2000). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim for which the nonmoving party has the burden of proof. Celoiex Corp. v. Catrett, 477 U.S.. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Americans with Disabilities Act ("ADA") Claim [1] Plaintiffs second cause of action alleges that Defendant failed to comply with its obligations as a public accommodation under the ADA. Title III of the ADA states that "[n]o individual shall be discriminated against onthe basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,advantages, or accommodations of any place of public accommodation ..." 42 U.S.C. § 12182(a). The statute further instructs the Attorney General to issue regulations implementing the non - transportation provisions of the ADA. 42 U.S.C. § 12186(b). Accordingly, the Department of Justice ("DOJ") regulations state that: A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges,. advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 28 C.F.R. § 36.302(a). With regard to service animals in particular, the regulations state: "Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability." *1192fd, at § 36.302(c)(l). ® 2014 Thornson. Reuters. No Claim to Orig. US Gov. http://web2.westlaw.co pdprint/printstream.aspx?rs' L arks. 14.01 &destination=atp&mt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) Furthermore, a "service animal" is defined as: rainy guide dog, signal dog, or other animal. individually trained to do work or perform tasks for the benefit of an individual with a disability, including, 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. Id, at § 36.104. Furthermore, as the "agency directed by Congress to issue implementing regulations, to render technical assistance, and to enforce Title III in court, the Department's views are entitled to deference." 13ragdon v, Abbott, 524 U.S. 624, 646, 118 S.Ct. 2196, 141 E.Ed.2d 540 (1998) (internal citations omitted). In her second cause of action, Plaintiff asserts that Defendant discriminated against her in violation of the ADA by failing or refusing "to modify its policies, practices and procedures when. such modifications were necessary" to allow her access to its goods, services, facilities, privileges, advantages, and accommodations. Such modification she asserts, should have included. making allowance for her service animal, which helped her cope with the consequences of her disability. (Am. Compl. ¶¶ 2.37-2.39 (Dkt. No. 23).) Defendant responds by asserting that Plaintiffs dog was not a service animal under the governing regulations at the time in question, and that in any case, Plaintiff refused to respond to a reasonable inquiry which would have allowed Costco to determine the dog's qualifications. (Def. Mot. 6-10 (Dkt. No. 41-1).) It is not entirely clear what specific acts or omissions by Defendant form the basis of Plaintiffs ADA claim. The Amended Complaint cites the statutory language regarding the obligation of a public accommodation to make "reasonable modifications" to its polices, but does not describe 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 1 C4 V U 4JI iT Page 7 entry into the warehouse with her dog, because she was admitted on every occasion in question. In her deposition testimony, Plaintiff states that the conduct she deemed illegal was the "harassment" of being questioned about her dog on July 3, 2004. (Pl.'s Dep. 123:1-18 (Dkt. No. 41-2).) While this may not serve as the operative legal statement of her claim, her response brief does little to clarify the matter, as it simply quotes provisions of the ADA without any discussion of how they apply to the facts of this case. Under these circumstances, the Court interprets Plaintiff's ADA claim as challenging the legitimacy of the inquiry about her dog's qualifications, in so far as it may have impeded her "full and equal enjoyment" of Defendant's facilities. 42 U.S.C. § 12182(a). Since Defendant indicated in its letter that Plaintiff would need to respond to further questioning before being admitted with her dog in the future, the analysis necessarily includes the legitimacy of this further inquiry subsequent to the July 3, 2004 encounter. FNI f N l . In its Reply brief, Defendant points to the ambiguity of Plaintiffs position and asserts that the focus upon unreasonable questioning in her response constitutes a "subtl[e] shift." Based upon the brief recitation of ADA statutory provisions in the Amended Complaint, it is unclear from what starting point Plaintiff could have shifted. For the reasons stated above, the Court believes Plaintiffs claim is best understood as challenging the inquiry rather than an exclusion that never occurred. Once Plaintiffs claim is understood in this way, there are two issues raised by the parties that confuse the question before the Court. First, Plaintiffs emphasis *1193 on Costco's service animal policy is misplaced for the purposes of the ADA analysis. That is, the question of Costco's compliance with its own policy does not obviate the fundamental inquiry into whether its actions © 2014.Thomson Reuters. No Claire to Orig. US Gov. Works. http: //web2. westlaw.conn/prittt/printstream.. aspx?rs= WL 4.01 &destination=atp&mt= ... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) violated the statute. Whether a given policy sets forth standards of conduct within statutory bounds is a question of facial validity, which in the case of Costco's service dog policy, was upheld in Grill v. Costco Wholesale Corp., 31.2 F.Supp.2d 1349 (W.D.Wash,2004). The existence of a legal policy notwithstanding, a public accommodation can still act in a manner that violates the ADA, which is precisely the question raised in this case. Either way, Costco does not violate the ADA simply by violating its own policy. Second, Defendant's emphasis on Dilo's lack of qualifications as a service dog at the time in question does not address the entire issue. That is because a violation of the statute can occur by virtue of the manner by which an inquiry is conducted. As discussed in Grill, cited by Defendant, the DOJ has issued guidance as to what constitutes a legitimate inquiry as to a particular animal's qualifications. See Grill, 312 F.Supp.2d at 1352. It appears that Costco employees were aware of such limitations based on Ms. Wolcott's deposition testimony, in which she stated that "[w]e cannot ask their disability, but Costco does have the right to ask them what function the animal does perform." (Adele Wolcott Dep. 42:20-22 (Dkt. No. 46-2).) Thus, Defendant does not defeat Plaintiffs ADA claim by simply showing that Dilo was not a bona fide service animal at the time of the inquiry, FN2 since the manner in which it went about verifying such a fact could have violated the law. FN2. It appears highly questionable whether Dilo was a "service animal" as of the July shopping trip. Plaintiff states that she got Dilo in March 2004 and the task he performs is he "alerts [her] for panic attacks and anxiety attacks." (Pl.'s Dep. 74:17-18 (Dkt. No. 41-2).) Elsewhere in her deposition however, Plaintiff acknowledges that it took six to seven months before the dog was able to recognize and alert her for a panic attack on its own. (id at 70:23-25; 71:1-2). Cc .' s wax a -r Page 8 Therefore, as of July 3, 2004, the dog arguably was not "individually trained to do work or perform tasks for the benefit of an individual with a disability." 28 C.F.R. 36.104. Plaintiffs ADA claim ultimately depends on whether Defendant exceeded the parameters of a legitimate inquiry in confronting Plaintiff about her dog. That Costco had a right to make an inquiry in the first place cannot seriously be questioned. This follows from DOJ interpretations regarding "legitimate inquiry, the Grill case, as well as. common sense. In operating its business, Costco has the authority to exclude ordinary pets from its facilities, and yet must also comply with federal anti -discrimination law, which under most circumstances includes permitting service animals into its warehouses. Given these two co -existing conditions, an occasion for some kind of inquiry is bound to arise. In. Grill, the court examined the limitations on inquiry about service animal's qualifications, citing a DOJ business brief providing that a "[b]usiness may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person's disability." Grill, 312 F.Supp.2d at 1352. This is referred to as a "task or function" inquiry and is the key method for distinguishing a service dog from a pet. Based upon this standard, Defendant's employees did not exceed the boundaries of a permissible inquiry by their conduct on July 3, 2004. They never asked Plaintiff to state her disability, nor did they demand proof of special training. In the encounter prior to Plaintiff entering the checkout line, Ms. Wolcott made a standard. *1194 "task or function" inquiry by asking whose dog it was and what task it performed. (Pl.'s Dep. 112:1-5 (Dkt. No. 41-2).) As for the content of the subsequent letter sent by Costco's attorney, it too posed standard "task or function" questions by asking who the dog was trained to assist, and what rJ 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http ://web2.westlaw. corn/print/printstreart. aspx?rs ]LW 14.01 &destination=atp&rnt—W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) training it had received. (Kaplan Letter (Dkt. No. 41-3).) The letter also asked whether the dog was a "seizure alert dog" or a "comfort dog." Id. While it is not clear why these were the only available options, presumably Plaintiff could have responded that her dog was neither and it would not have disqualified Dilo as a service animal. [2] The fact, in and of itself, that Defendant made a second "task or function" inquiry by letter, and that Plaintiffs future admittance was apparently conditioned upon her answers is a separate question. Clearly an inquiry would cease to be legititnate if it was used to harass or discourage people with disabilities from availing themselves of public accommodation. in this way, unduly repetitive questioning, after an adequate answer has been given, could suggest a pretext for. discrimination, constituting an illegitimate inquity. However, a similar course of action to what Defendant took here has been recognized as legitimate in the housing context. In Prindable v. Ass'n of Apeirtment Owners, the court concluded that: In any event, there is no evidence that Defendants ever denied Plaintiffs' request for a service animal. Beginning with their response to Dr. Kalauawa's May 17, 2000 letter, the AOAO merely requested additional, appropriate information from Prindable and his treating physicians. 304 F.Supp.2d 1245, 1260 (D.Haw.2003). The Court finds this reasoning analogous to the present case. Furthermore, in evaluating Defendant's conduct here, other facts surrounding the encounter cannot be ignored. The following factors, which Plaintiff has either explicitly acknowledged or not disputed, clearly raised legitimate suspicions about whether Dilo was indeed a service animal: (1) The first time Plaintiff brought her dog into the warehouse as a "service dog in training," it was an untrained twelve week-old puppy (PL's Dep. 92:11-13 (Dkt. 1 C16%, 1-T Page 9 No. 41-2)); (2) Plaintiff's husband appears to have brought Dilo into the warehouse on at least one occasion prior to July 3, 2004, claiming that it served as a "comfort animal" to him (Kaplan Letter (Dkt. No. 41-3)); (3) Plaintiff carried Dilo in her arms for an extended period of time while shopping on July 3, 2004 (Pl.'s Dep. 111:4-14 (Dkt. No. 41-2)); and (4) As of the date in question, Dilo was unable to independently perform his task (as a service animal) of alerting for panic attacks without proinpting from Plaintiffs husband, (Pl.'s Dep. 69:21-23 (Dkt. No. 41-2).) While Defendant's employees did not know this latter fact at the time, it is safe to say they could not witness the dog performing any task to assist Plaintiff with her disability. Under these circumstances, it was not unreasonable or illegitimate for Defendant to have expressed doubts about Dilo's status, or to have sent a follow-up letter seeking further clarification. Had Plaintiff responded by affirming that the dog was her service animal and that it was individually trained to alert her for panic and anxiety attacks, it is not clear on what basis Defendant could object in the future. As this did not occur, however, the Court concludes that Costco's actions did not exceed the boundaries of a legitimate inquiry under the ADA, and thus Defendant is entitled to judgment as a matter of law on this claim. C. Washington Law Against Discrimination ("WLAD") claim 131 Similar to the anti -discrimination scheme of the ADA, Washington law protects*1195 "[t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." WASH. REV.CODE. § 49.60.030(I)(b). Denial of "full enjoyinent" under the statute includes causing someone to be "treated as not welcome, accepted, desired, or solicited". Id. at § 49,60.040(9), Furthermore, the law prohibits acts which "directly or indirectly result in ... the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW14.01&destination=atp&mt=W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F,Snpp.2d 1187) in any place of public resort, accommodation, assemblage, or amusement." id at § 49.60.215. These protections explicitly extend to "the use of a trained dog guide or service animal by a person with a disability," Id, A service animal is defined as "an animal trained for the purpose of assisting or accommodating a person's sensory, mental, or physical disability." WASH. ADMIN. CODE § 162.26.040(2). Washington state courts have recognized that disability discrimination under state law "substantially parallels federal law" on the subject, and therefore have indicated that "courts should look to interpretations of federal anti- discrimination laws, including the ADA, when applying the WLAD." Grill v. Costco Wholesale Corp., 312 F.Supp.2d 1349, 1354 (VV .D. Wash 2004) (citing Matthews v. NCAA, 179 F.Supp.2d 1209, 1229 (E.D.Wash,2001).) The circumstances under which the Court finds that Plaintiffs ADA claim fails, are equally applicable to her WLAD claim. Plaintiff presents no authority for the proposition that a different analysis governs her state law discrimination claim, such that Defendant would be subject to a different legal standard than that which obtains under the ADA for inquiring about a service animal. Having determined that Defendant did not exclude Plaintiff and her dog from their warehouse, and that it conducted a legitimate inquiry under the ADA as to whether the dog functioned as a service animal in light of circumstances that suggested otherwise, Plaintiffs WLAD claim presents no genuine issue of material fact and fails as a matter of law. D. Negligent Infliction of Emotional Distress ("NIED") claim [41[5] Plaintiff brings a tort clairn of NIED as a result of her interactions with Costco employees on her shopping trips to Defendant's Bellingham warehouse. In Washington, the tort of NIED requires a showing that (1) The defendant owed a duty of care to plaintiff, (2) Defendant breached that duty, (3) There was proximate cause between breach and damages, and (4) Damages did indeed I. C46 1 1 V 1 1'"T Page 10 inhere, Ilrnsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096, 1102 (1976). In Hunsley, the state supreme court made clear that in applying this test, "[n]ot every act which causes harm results in legal liability," since "[o]ur experience tells us that mental distress is a fact of life." Id. at 1102-03. Accordingly, a defendant's "obligation to refrain. from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous." Id. at 1103. [6][7] "Under traditional negligence principles, whether a particular class of defendants owes a duty to a particular class of plaintiffs is a question of law and depends on mixed considerations of `logic, common sense, justice, policy, and precedent.' " Keates v. Vancouver, 73 Wash.App. 257, 869 P.2d 88, 92 (1994) (quoting Hartley v. State, 103 Wash.2d 768, 698 'P,2d 77, 83 (1985)). "In deciding whether a duty is owed the primary consideration is *1196 whether the conduct in question is unreasonably dangerous." Id. at 93 (citing Corrigal v. Ball & Dodd Funeral Hoare, Inc., 89 Wash.2d 959, 577 P.2d 580 (1978)). "Unless the defendant's conduct is unreasonably dangerous, the defendant owes no duty." Id. (citing Hanley, 553 P.2d at 11.03), "Conduct is unreasonably dangerous when the risks of harm outweigh the utility of the activity," Wells v. Vancouver, 77 Wash.2d 800, 467 P.2d 292, 298 (1970) (quoting Raymond v. Paradise Un(fuecl School Dist., 218 Cal.App.2d 1, 31 Cal.Rptr. 847 (1963)). [8] Plaintiffs claim for HIED requires consideration of her two shopping trips in tandem. In amending the Complaint to comply with this Court's. August 9, 2006 Order (Dkt. No. 14),F53 Plaintiff clarified her theory that the April trip to Defendant's Bellingham warehouse, in which she furnished the letter from her psychologist, effectively put Defendant on notice that a "high likelihood [of] risk of injury would accompany any 0 2014 Thomson Reuters, No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs= LW 14.01 &destination=atp&mt— 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) unnecessary attention to plaintiff and plaintiff s animal, and that additional public attention which might result from Defendant's public questioning would be unreasonably dangerous and would subject her to injury and damage." (Am. Compl. 2.32 (Dkt. No. 23).) Essentially, Plaintiff claims that this letter made Defendant's subsequent conduct on her July visit to the warehouse "unreasonably dangerous," and therefore constituted a breach of duty. Defendant takes issue with Plaintiffs failure to leave a copy of her psychologist's letter, and furthermore asserts that "the text of the letter docs not suggest anything about a heightened risk of injury to Plaintiff if Costco takes (or fails to take) any action with respect to Plaintiff." (Def.'s Mot. 10-11 (Dkt. No. 41-1).) FN3, The Court previously dismissed Plaintiffs NIED claim without prejudice for failure to state a claim. In so doing, the Court also instructed that Plaintiff could cure the failure to plead a duty owed by asserting that "Plaintiff had indeed warned Defendant of her particular frailties and [that] these frailties were of a nature that would render Defendant's questioning of her 'unreasonably dangerous ...' The Court need not address whose obligation it was to give or retain a copy of the letter in April 2004, since even if Defendant was chargeable with its contents, the letter failed to indicate a "high likelihood of risk" attached to future questioning making such conduct "unreasonably dangerous." The letter from Plaintiffs psychologist is not nearly as enlightening as her amended complaint and response brief suggest. The letter explains that Plaintiff has been diagnosed with " Posttraurnatic Stress Disorder and Major Depression," and states that she "would be a good candidate and responsible recipient for service dog ownership." (John Perini Letter (Dkt. No, 41-3).) Furthermore, it implies that she needs to feel "enhanced personal safety" and "unconditional love and devotion." Id. agrk,1Z. U.L Page 11 Contrary to Plaintiffs assertion in the Amended Complaint, the letter does not say anything about panic disorder." More importantly, the general description of Plaintiff's ailments could not reasonably instruct a lay person that an ordinarily unobjectionable course of conduct, an inquiry made in public space, would be "unreasonably dangerous" with regard to Plaintiff ''N4 The Court need not doubt the veracity of Plaintiffs suffering to find that it would have taken more to put Defendant's employees on notice that ordinary *1197 conduct would cause extraordinary emotional harm to Plaintiff. Accordingly, this falls into the category of an act which caused hann without resulting in liability, and therefore Plaintiff's NIED claim fails as a matter of law. F1\14. Nor does the fact that Costco may have deviated from its service animal policy render its questioning an "unreasonably dangerous" act. Requiring Plaintiff to enter an unexpected conversation hardly bespeaks the kind of peril that would invoke a duty here. E. Intentional Infliction of Emotional Distress/ Outrage claim [9]['01[11] Plaintiff also brings a claim of outrage as a consequence of her treatment by Defendant. To establish a claim for the tort of outrage, a plaintiff must show "(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff." Reid v. Pierce County, 136 Wash.2d 195, 961 P.2d 333, 337 (1998). Regarding the standard for "extreme and outrageous conduct," the Washington Supreme Court has held that "the conduct in question must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' Dicomes v, Washington, 113 Wash,2d 612, 782 P,2d 1002, 1012 (1989) (citing Grimsby v. Samson, 85 Wash,2d 52, 530 P.2d 291, 295 (1975) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. hitp://web2.westlaw.com/print/printstream.aspx?rs=WLW14.01&destination—atp&mt—W... 03/20/2014 515 F.Supp.2d 1187 (Cite as: 515 F.Supp.2d 1187) (emphasis omitted)). "While the question of outrageousness is normally one for the jury to decide, it is for the court to make the initial determination of whether `reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.' " Bryant v. Country Life Ins. Co., 414 F.Supp.2d 981, 1004 (W.D.Wash.2006) (quoting Grimsby, 530 P.2d at 295).. "Conduct which is merely insulting or annoying, or even threatening will not trigger liability." Bi'}'ant, 414 F.Supp.2d at 1004. [12] Similar to her claim of NIED, Plaintiff bases her outrage claim upon the entire course of Defendant's conduct, in light of having presented her letter to Defendant's employees on her April visit. Not only does she claim that she should not have been questioned in the first place, she asserts that the interactions were excessively unpleasant, describing the tone struck by Defendant's employees as "inappropriate" and "loud." (Pl.'s Dep. 118:2-5 (Dkt. No. 41-2).) Furthermore, she describes Ms. Wolcott and Mr. Burnham as essentially accusing her of being a liar, and the entire transaction as creating the false impression that she was suspected of shoplifting. Id. at 213:9-11; 218:1-7. Finally, Plaintiff insinuates that the encounter was something tantamount to being detained. Defendant responds that its conduct was not sufficiently egregious to trigger liability under the tort of outrage. The Court finds that there is no genuine issue of material fact as to whether Defendant's conduct met the requisite level of impropriety, even taking Plaintiffs account as true and drawing all inferences in her favor. No reasonable jury could find Defendant's conduct "so outrageous in character, and so extreme h degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Dicomes, 113 Wash,2d 612, 782 P.2d 1002, 1012 (1989). As an initial matter, making the inquiry, in. itself, cannot constitute an intentional infliction of 1 Cl',V 1T Page 12 emotional distress in light of the Court's finding that Defendant was not even negligent in this regard. As for how they carried out the inquiry, it is clear that Defendant's employees did not believe Dilo functioned as a service animal. Taking Plaintiff's account as true, Ms. Wolcott and Mr. Burnham were impolite and confrontational. While this indicates that they believed Plaintiff was lying, Plaintiff acknowledges that they never called her a "liar." (Pl.'s Dep. 211:13-15 (Dkt, No. 41-x1198 2).) Similarly, Plaintiff asserts that the encounter created the false impression that she was suspected of shoplifting. Even if this is true, she also explicitly acknowledges that they never called her a "thief." Id, at 220:10-12. Finally, Plaintiff suggests in her briefing that Defendant's employees "detain[ed]" her for questioning. (See, e.g., Pl.'s Resp. 17 (Dkt. No. 46).) However, Plaintiff concedes in her deposition that Ms. Wolcott and. Mr. Burnham never said anything to indicate that she was not free to leave. (Pl.'s Dep. 212:11-14 (Dkt. No. 41-2).) While they were standing between her and the exit, she gives no indication that she could not walk out at any time, as she ultimately did. Id. at 212: 21-25. Clearly this was not an amicable encounter, and the Court takes Plaintiff at her word that it was severely distressing to her. However Washington law requires a plaintiff to meet a high threshold to succeed on a claim of outrage, and makes clear that "[c]onduct which is merely insulting or annoying, or even threatening will not trigger liability," Bryant, 414 F.Supp.2d at 1004. This is just such a case, and therefore Plaintiffs outrage claim fails. F. Washington Consumer Protection Act ("CPA") claim [13j [14] Plaintiffs fifth cause of action alleges violation of the Washington CPA. WASH. REV.CODE § 19.86.020 et. seq. The parties agree that the elements of a claim under the Washington Consumer Protection Act were correctly set forth by the Washington Supreme Court in Hangman Ridge Training Stables, Inc. v. Safeco 7itle .Iris. Co., © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http: //web2. westllaw, corm/print/printstt•eam. aspx?rs= W L 4.01 &destination=atp&tint=W... 03/20/2014 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. III. CONCLUSION For the foregoing reasons, Defendant's motion for summary judgment (Dkt. No. 41-1) is hereby GRANTED. Accordingly, Defendant's motions in limine (Dkt. No. 42), Plaintiff's 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 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. -r JL T -T Page 13 hap ://web2.westlaw.com/print/printstream. aspx?rs=WL W14 .01&destinati on—atp m = 03/20/2014 VVtLaw, 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) United States District Court, W.D. Washington, At Seattle. Susan GRILL and Micaela Grill, Plaintiffs, v. COSTCO WHOLESALE CORPORATION, a domestic corporation, and Does 1-100, Defendants. No. CO3-2450Z. Jan. 22, 2004. Background: Disabled individual who used service animal to assist her brought action against private membership club, alleging that club's written policy for admitting service animals into its warehouse stores violated Americans with Disabilities Act (ADA) and the Washington Law Against Discrimination (WLAD). Club counterclaimed for declaration that its policy was permissible and moved for summary judgment. Holdings: The District Court, Zilly, J., held that: (1) policy did not violate ADA, and (2) policy did not violate WLAD. Motion granted, West Headnotes 111 Civil Rights 78 €=.1021 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1016 Handicap, Disability, or Illness 78k1021 k. Physical Access and Mobility; Carriers. Most Cited Cases Civil Rights 78 (:€1050 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General rage z, 01 Page 1 78k1043 Public Accommodations 78k1050 k. Private Clubs or Associations. Most Cited Cases Private membership club's written policy regarding admittance of service animals into its warehouse stores did not violate ADA; the policy, which required store employees to first look for visual identification that an animal was a service animal, and in absence of visual evidence, permitted employees to inquire into what "task or function" the animal performed, complied with Department of Justice's interpretation of the ADA, which permitted business owners to ask about the "task or function" of an animal without asking for specifics of an individual's disability. Americans with Disabilities Act of 1990, § 306(a), 42 U,S.C.A. § 12186(u); 28 C.F.R. § 36.302(a)(2003). [2] Civil Rights 78 €=)1302 78 Civil Rights 78111 Federal Remedies in General 78k1302 k. Administrative Agencies and Proceedings. Most Cited Cases Because the Department of Justice is the agency directed by Congress to issue implementing regulations, to render technical assistance, and to enforce Title III of the ADA in court, the Department's views are entitled to deference. Americans with Disabilities Act of 1990, §§ 306(b), 308(b), 506(c), 42 U.S C.A. §§ 12186(b), 12188(b), 12206(c). 131 Civil Rights 78 0E311021 78 Civil Rights 781 Rights Protected and Discrimination Prohibited in General 78k1016 Handicap, Disability, or Illness 78k1021 k. Physical Access and Mobility; Carriers. Most Cited Cases Civil Rights 78 €=1050 78 Civil Rights 0 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 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) 781 Rights Protected and Discrimination Prohibited in. General 78k 1043 Public Acconunodations 7'8k1050 k. Private Clubs or Associations. Most Cited Cases Private membership club's written policy regarding admittance of service animals into its warehouse stores did not violate Washington Law Against Discrimination (WLAD); the policy, which required store employees to first look for visual identification that an animal was a service animal, and in absence of visual evidence, permitted employees to inquire into what "task or function" the animal performed, was consistent with Washington. State Human Rights Commission (WSHRC) guide which permitted businesses to ask if an animal is a service animal required because of a disability. West's RCWA 49.60,030(1). *1349 Katrina. Eve Glogowski, Seattle, WA, Lead Attorney, Attorney to be Noticed, representing Micaela Grill, (Plaintiff), Adam Karp, Bellingham, WA, Lead Attorney, Attorney to be Noticed, representing Micaela Grill, (Plaintiff). Charles A Valente, Eli M. Rollman, Krasnow Saunders Cornblath, LLP, Chicago, 1L, Lead Attorney, Attorney to be Noticed, representing Costco Wholesale Corporation, (Defendant),. *1350 Steven H. Winterbauer,Winterbauer & Diamond P.L.L.C., Seattle, WA, Lead Attorney, Attorney to be Noticed, representing Costco Wholesale Corporation, (Defendant). ORDER ZILLY, District Judge. BACKGROUND The defendant, Costco Wholesale Corporation ("Costco"), has brought this motion for partial. summary judgment with respect to its counterclaim and count VI of the plaintiffs' complaint. Defs Mot. for Summ. J., docket no. 22. Costco's counterclahn rage i or a Page 2 seeks a declaratory judgment that its written policy concerning the admittance of service animals into its warehouse stores does not violate either Title III of the Americans with Disabilities Act ("ADA") or the Washington Law Against Discrimination ("WLAD"). Defs Counterclaim., docket no. 10. Count VI of the plaintiffs' complaint contends that the written policy violates these laws and seeks a declaratory judgment to that effect. Pl's Compl., docket no. 1. Thus, the sole issue for the purpose of this motion for partial summary judgment is whether the written policy of the defendant, Costco, concerning the admittance of service animals into its warehouse stores violates Title 111 of the ADA or the WLAD.F'"I FN 1. This motion does not deal with the issue of whether Costco employees applied the policy as written when the plaintiffs entered Costco's warehouses. The only question is whether the policy as written complies with the ADA and WLAD. Plaintiff Susan Grill alleges that she is a disabled individual who uses a service animal to assist her. Pi's Compl., docket no. 1, I1 3.1. Costco is a private membership club which sells goods through its warehouse stores located throughout the United States. Raines Decl., docket no. 24, 11 4. Susan Grill has been a Costco member since December 2000. Pl's Compl., docket no. 1, ¶ 3.2. For several reasons, Costco does not generally permit its members to bring animals into its warehouses. Raines Decl., docket no. 24, ¶ 6. However, in an effort to comply with the requirements of the ADA and the WLAD, Costco has created a written policy to allow service animals in its warehouse stores. Id. at 114. The written policy adopted by Costco provides that an animal will be admitted into its store if it determines that the particular animal is a service animal. 1N2 Raines Decl., docket no. 24, Ex. A. Under the policy, the animal will be admitted if one of two separate criterion are met. Id. First, an animal will be admitted if it is visually identifiable CD 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/pfint/printstr maspx?rs= 14,01 &destination=atp&mt=W... 03/20/2014 312 F.Supp.2d 1349 (Cite as: 312 E.Supp.2d 1349) as a service aninial by the presence of an apparel item, apparatus or other visual evidence that the animal is a service animal. Id. Second, if the animal is without visual evidence that it is a service animal, the "member or guest must be prepared to reasonably establish that the animal does, in fact, perform a function or task that the member or guest cannot otherwise perform." Id. in such a situation, the Costco personnel arc to "inquire of the animal's owner what tasks or functions the animal perfoims that its owner cannot otherwise perform." Id. If the *1351 owner is unwilling to provide this information the animal will not be allowed to enter the Costco warehouse. Id. FN2. A service animal is defined under the federal regulations as: [Airty guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, 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. 28 C.F.R. § 36.104. Washington defines a service animal as "an animal that is trained for the purpose of assisting or accommodating a person's sensory, mental, or physical disability." WAC [62-26-040. DISCUSSION 1. Standard of Review Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a rn&e 1 0 Page 3 genuine issue of material fact. Celotey Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2c1 265 (1986). Once the moving party has met this burden, the opposing party must show that. there is a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v, Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party must present significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co,, 952 F.2d 1551, 1558 (9th Cir.1991). For purposes of the motion, reasonable doubts as the existence of material facts are resolved against the moving party and inferences are drawn in the light most favorable to the opposing party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). II. Americans With Disabilities Act Claim [1j The ADA was enacted by Congress in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)( I). Congress found that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, [and] failure to make modifications to existing facilities and practices...." 42 U.S.C. § 12101(a)(5). Under the ADA, "kilo individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 121 86(a). The statute defines discrimination as: (ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, C) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream,aspx?rs=WLW14.01&destination—atp&mt—W... 03/20/2014 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) advantages, or accommodations. Id at § 121.82(2)(A)(emphasis added). Additionally, pursuant to the authority delegated to it by Congress, the Department of Justice has issued regulations which require "[a] public accommodation shall make reasonable modifications in policies ... when the modifications are necessary to afford goods, services, facilities„ privileges, advantages, or accommodations to individuals with disabilities,..." 28 C.F.R.§ 36.302(a)(2003). With respect to service animals, the Department of Justice has determined that "a public accommodation shall modify policies, practices or procedures to pernlit the use of a service animal by an individual with a disability." Id at § 36.302(c)(1). In this case, the parties do not dispute whether the "visual evidence" inquiry in the Costco policy complies with the ADA, However, the center of the dispute is whether the "task or function" inquiry is prohibited by the Act. Costco argues that their policy of asking the "task or function" question prior to admittance does not violate the ADA because it complies with a *1352 Department of Justice interpretation of the ADA and, second, the policy complies with a Department of Transportation interpretation of the Air Carrier Access Act, which is arguably analogous to the ADA. A, Department of Justice Interpretations [2] Costco argues that their "task or funetion" inquiry complies with the ADA, as a matter of law, because the Department of Justice has already determined that this is a legitimate inquiry by a business owner. The Department of Justice issued an interpretation directed at businesses regarding service animals which provides that: Business may ask if an animal is a service animal or ask what tasks the animal has been trained to perforin, but cannot require special ID cards for the animal or ask about the person's ragc .) u1 0 Page 4 disability. Valente Decl, docket no. 23, Ex. A ("Business Brief")(emphasis added). Because the Department of Justice is the "agency directed by Congress to issue implementing regulations, see 42 U.S.C. § 12186(h), to render technical assistance, § 12206(c) , and to enforce Title 111 in court, § 12188(b), the Department's views are entitled to deference." 13raagclon v. Abbott, 524 U.S. 624, 646, 118 S.Ct. 2196, 141 1—Ed.2d 540 (1998). Plaintiffs respond by arguing that the ADA Business Brief is contradicted by a 1996. Department of Justice document entitled "Commonly Asked Questions About Service Animals in Places of Business." Glogowski Decl., Ex. A. The document explains to businesses that "[i]f you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability." Id. at 4. However, the document does not mention that the business may also ask what tasks the animal has been trained to perform, unlike the ADA Business Brief from April 2002. Id. Plaintiffs argue that by implication the Business Brief is in "irreconcilable conflict" with the "Commonly Asked Questions" document, and thus must be disregarded. Costco correctly argues that the plaintiffs' argument is misguided. Both documents are plainly permissive. The Business Brief provides that. Costco "may ask if an animal is a service animal or what tasks the animal has been trained to perform...." Valente Decl., Ex, A. Additionally, the "Commonly Asked Questions" document provides that Costco "inay ask the person who has the animal if it is a service animal required because of a disability." Glogowski Decl., Ex. A, at 4. The latter does not foreclose the possibility that Costco may still ask the "task or function" inquiry as provided in the Business Brief issued in April 2002. Finally, the plaintiffs argue that the Business Brief should be disregarded because it is internally 0 2014 Thomson Reuters, No Claim to Orig. US Gov. Works, http:J/web2,west1aw. corn/print/printstream.aspx?rs=WL 4.01 &destination=atp&mt=W... 03/20/2014 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) inconsistent. They argue that the Brief is inconsistent because in the same sentence that the document provides that a business may "ask what tasks the animal has been trained to perform," the business may not "require special ID cards for the animal or ask about the person's disability." Valente Decl., Ex. A. The plaintiffs assert that "the task based inquiry indirectly requires disclosure of a person's disability, particularly `invisible' ones." Pi's Resp., at 9, The Plaintiffs' argument is unpersuasive. First, the Department of Justice has determined that a business owner can ask the "task or function" question without asking for the specific medical label or disability, as demonstrated by the specific language of the Business Brief. Valente Decl., Ex A. Second, as argued by Costco, the "task or function" question can be '°1353 answered without divulging the specifics of the individuals disability, i.e. (1) "the animal is trained to alert nie when a medical condition is about to occur" or (2) "the animal is trained to pick items up off the floor for me." See Defs Reply, at 3 n. 3. Finally, it cannot be said that Costco's failure to change their "task or function" question is a "failure to make a reasonable modification" in policies that are necessary to provide access for a disabled individual. See 28 C.F.R. § 302(a)(2003). Without any authority to the contrary, the Court gives deference to the Justice Department's interpretation of its own regulations and finds that the Costco policy does not violate the ADA. B. Department of Transportation Interpretations Finally, Costco argues that the Court should look to other agency interpretations of analogous nondiscrimination regulations for additional guidance. Defs Mot. for Summ. J., at 6. In support of their argument Costco points to the Department of Transportation's recent guidance concerning service animals in air transportation. See 68 Fed.Reg. 2874 (2003). The DOT guidance provides that airline personnel may obtain "credible verbal http://web2.westla VA n Page 5 assurances" from the passenger to determine whether an animal is a service animal. Id at 2875. The personnel may ask specifically, "[w]hat tasks or functions does the animal perform for you." Id. However, as the plaintiffs argue, the DOT guidance is not an interpretation of the ADA but is an interpretation of the Air Carrier Access Act. Id. at 2874. Costco asserts that the nondiscrimination provision of the ACAA and the ADA are analogous and the DOT guidance should"inform" the Court's analysis. The Court need not address this issue as the provisions of the ADA and the Department of Justice interpretations are sufficient to find that the Costco policy is not discriminatory as a matter of law. Costco has made a "reasonable modification" of their no animals policy to allow admittance of service animals. The policy requires Costco employees tofirst look for visual identification that an animal is a service animal. Raines Decl., docket no. 24, Ex. A. If the animal is "without visual evidence" that it is a service animal, the employee should inquire into what task or fiunetion the animal performs. Id. This "task or inaction" inquiry follows nearly word for word the Department of Justice's guidance directed at businesses. Valente Decl., docket no. 23, Ex. A. The Department's interpretation of its own regulation is entitled to deference absent a contrary reading of the regulation. In this case, it cannot be said that the task inquiry allowed in the DOJ Business Brief is contrary to the reasonable modification requirement. For these reasons the Court grants the defendant's motion for summary judgment with respect to the ADA claim. III. Washington. Law Against Discrimination [3] In addition to moving for summary judgment on the ADA claim of discrimination, Costco also moves for summary judgment on the claim of a violation of the WLAD. The statute provides that "[t]he right to be free from discrimination because of ... physical handicap is recognized as and declared to be a civil right." 0 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. corm/print/printstream. aspx?rs=W]L W 14.01 &destination=atp&mt=W.... 03/20/2014 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) RCW 49.60.030(1). Additionally, that right shall include "[t]he right to full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation...." Id. at 49.60.030(1)(b). Finally, WLAD provides that "[i]t shall be an unfair practice for any person or his agent or employee to commit an act which directly or indirectly results hi any distinction, restriction, or discrimination...." Id. at 49,.60.215. The plaintiffs '1354 in this case argue that the "task or function" inquiry "directly or indirectly" resulted in discrimination. Pl.'s Comp., docket no, 1, p. 20. Washington state courts have noted that state law relating to disability discrimination substantially parallels federal law, and courts should look to interpretations of federal anti- discrimination laws, including the ADA, when applying the WLAD. See Alaifhews v. NCAA, 179 F.Supp.2d 1209, 1229 (E.D.Wash.2001); see MacSuga v. County of Spokane, 97 Wash.App. 435, 442, 983 i.2d 1167 (1999) (commenting in dicta that the WLAD and. ADA "have the same purpose" and state courts therefore may look to federal cases for guidance); see also Kees v. Wallenslein, 161 F.3d 1196, 1199 (9th Cir.1998) (holding that courts should ernploy the same analysis to evaluate claims under the ADA and the WLAD). The plaintiffs did not address the issue of the interpretation of WLAD in their response brief. Pl's Resp., docket no. 27, p. 6-7. Instead, they argue that Costco's policy violates WLAD because it is allegedly contradicted by a Washington State Human Rights. Commission ("WSHRC") document entitled "Service Animal. Questions." Id at p. 6. The plaintiffs also argue that the Court should defer to a WSHRC reasonable cause finding that held that there was sufficient evidence to show that Costco's policy violated WLAD. Id at p. 7. A. WSIIRC's "Service Animal Questions" The plaintiffs first argue that the WSHIRC's " Service Animal Questions," which does not provide for a "task or function" question precludes rur'gu/F.910 Page 6 a business from asking such a question. The WSHRC guide provides: 5. How can 1 tell if an animal is really a service animal and not just a pet? There are no legal requirements for service animals to be specially identified. Some, but not all, service animals, wear special collars and harnesses. Some, but not all, are licensed or "certified" and or have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability. A public entity cannot require any proof of a person's disability, or identification or certification of the service animal's status. Glogowski Decl., docket no. 28, Ex. D. Plaintiffs argue that this guide restricts a business's questioning to "whether the animal is a service animal." PI's Resp., docket no. 27, p. 6. However, as Costco correctly argues, the guide simply states that Costco "may ask the person who has the animal if it is a service animal required because of a disability." Glogowski Decl., docket no. 28, Ex. D (emphasis added). The guide does not state that a business may not ask the "task or function" question. By contrast, the guide specifically provides that "[a] public entity cannot require any proof of a person's disability, or identification or certification of the service animal's status." Id Costco's policy does not require any such proof. Raines Decl., docket no. 24, Ex. A. B. WSHRC's Reasonable Cause Finding The final issue for the Court is the reasonable cause finding of the WSHRC that found that there was sufficient evidence to show that the Costco "task or function" inquiry violated. WLAD. Glogowski Decl., docket no. 28, Ex, C. WSURC held: *1355 WAC 162-26-070(6) requires that [Costco] reasonably accommodate a customer's Ce 2014 Thomson. Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.efltn/print/printstreatn.aspx?r s=WLW 14.01 &.destination=atp&int=W... 03/20/2014 1 0 UL 0 Page 7 312 F.Supp.2d 1349 (Cite as: 312 F.Supp.2d 1349) disability, which includes providing admittance into the store without inquiries necessitating disclosure of the nature or scope of a customer's disability,. [Costco's] Service Animal policy violates RCW 49.60.215 by resulting in a direct restriction on the access of customers with disabilities accornpanied by service animals, as compared to non -disabled customers. Id. As a preliminary matter, Washington state courts review an agency's application of the law to facts de novo. Mader v. Health Care Alah„ 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 performs 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. IT IS SO ORDERED. W.D.Wash.,,2004. Grill v. Costco Wholesale Corp. 312 F.Supp.2d 1349 END OF DOCUMENT 0 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 Memorandum I Distributed at the 41 Meeting) -(51% To: Yakima City Council From: Charles Cooper Date: 4/15/2014 Re: Code Revision Service Dog — Please include attached letter into the record Who will fight for responsible citizens and rights of the disabled? Before the City Council is an American Disabilities issue not a pit bull issue. It is incumbent on the Council to insure the antidiscrimination laws and the mandate of federal law is achieved. Will you fight for responsible citizens and the rights of the disabled? This affects real people like me and like Chuck who has documented protection under ADA Title II. I cannot understand why the city would recommend to council an ordinance revision that clearly discriminates and clearly opens the city up to litigation; especially when there is a mechanism already in place that can make a reasonable case- by-case accommodation. Laws do not keep a dog under control—people do. Vote NO, at the very hst table the issue to allow further discussion. Respectfully, Chuck Cooper & Nela Sheppard The Oily /hind J1ecessag f0r the /iii/mph of eml Z.P. f0r,good men to CIO not/Ji//&. 1 Dear Councilmember, Who will fight for responsible citizens and the rights of the disabled? The use of service dogs has improved the quality of life for people with disabilities, while still confronting barriers erected by ignorance and misinformation Federal law works to defeat discrimination by guaranteeing access and accommodation to people with disabilities using service dogs. Title II of the ADA imposes upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals. In your packet for Tuesday's city council meeting is a memorandum from Jeff Cutter, City Attorney that according to his words provides "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." He also suggests that "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." Unfortunately, the information provided is an incomplete picture of the responsibility of a city under the ADA to protect the disabled against discrimination and how the proposed revisions are discriminatory under both the ADA and Washington State law. While it is Mr. Cutters position that "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" the Department of Justice (the agency direct by Congress to issue regulations implementing ADATitle II) is not "unsettled" with regards to this matter. That information is buried on page 18 of the Sak v. Aurelia attachment "The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breed of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks....and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history -not based on fears or generalizations about ha an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety." The current recommended revisions make the city unnecessarily vulnerable to litigation based on discrimination. The ADA provides that the aids, benefits, and services provided to persons with disabilities must be equal to those provided to others. Washington state law states "it is an unfair practice to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons...except for limitations established by law and applicable to all persons." I cannot understand why the city would recommend to council an ordinance revision that clearly discriminates and clearly opens the city up to litigation; especially when there is a mechanism already in place that can make a reasonable case-by-case accommodation. Mr. Cutter seems reticent to highlight the DOJ's position and yet—at the same time—he is willing to suggest that the Delta Society is an authority in the field of service dogs and the minimum skills for ADA compliant service animals. This is the Delta Society's recommended characteristics and NOT a standard recognized by any governing body with regards to ADA. The only minimum standard for a service dog under the ADA is that it must be trained to perform tasks or work for the benefit of disabled individual and that it must be trained to behave properly in places of public accommodation. I have a service dog that is a pit bull licensed in the City of Yakima. It has been licensed in the City of Yakima for nearly two years, has no history of aggression, is always under control and is never unattended or running loose. Based on the animal's actual history, it clearly poses no direct threat to the health or safety of others. I have been open and honest with the city and have provided their office with more information than was required of me under the ADA. I wish I could say the same for the city of Yakima. At the same time I was being complimented by the city as a model citizen for pit bull service dog owners, they were preparing to make a recommendation to the council (which they failed to mention). Had it not been for a late night post on Facebook by KNDO, I may have never become aware of the additional restrictions that would impose specific limitations on the way specific service animals are handled and directly result in a distinction, restriction and discrimination. It seems that city staff would like to keep some information a little Tess accessible to me and the council. Before the City Council is an American Disabilities issue not a pit bull issue. It is incumbent on the Council to insure the antidiscrimination laws and the mandate of federal law is achieved. Will you fight for responsible citizens and the rights of the disabled? Respectfully, Chuck Cooper & Nela Sheppard