Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part II – FHAA claims)

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is Part II of a lengthy case.  Yesterday’s post gives the facts of the case and reviews the decision on the Americans with Disabilities Act claims.  Today’s post is on the Fair Housing Act Amendments claims.]

The FHAA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of a handicap,” which includes “refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”  The courts have interpreted this to allow three different types of claims: (1) reasonable accommodation, (2) disparate treatment, and (3) disparate impact.  The Anderson made arguments on all three.

Reasonable accommodation. Unlike the ADA, the FHAA does not have minimum regulatory requirements for animals to qualify as a reasonable accommodation.  Under this FHAA claim, a municipality has an affirmative duty…”to afford its disabled citizens reasonable accommodations in its municipal zoning practices if necessary to afford such persons equal opportunity in the use and enjoyment of property.” The city argued that C.A. did not need therapy with a horse at her house but rather could travel to a local farm or stable.  It also argued that accommodation at the house was unnecessary because C.A. can ambulated and otherwise function without the horse.  The Andersons contended that the accommodation was necessary for C.A. to play independently in her backyard as a non-disabled child could, and that therapy at a farm or stable is no substitute for therapy at home.

The 6th Circuit found that summary judgment for the city (as was granted by the district court) was inappropriate because there were sufficient facts to indicate that the Andersons might win at trial.  In so ruling, the 6th Circuit observed that the FHAA requires accommodations “that are necessary to achieve housing equality, not just those accommodations that are absolutely necessary for the disabled individual’s treatment or basic ability to function.”

As to the “reasonableness” of the accommodation, the 6th Circuit found that factual issues “pervade the question of the accommodation’s reasonableness.”  The record needs more development on whether C.A.’s therapy would be diminished by traveling to receive therapy at another location, and whether the city’s zoning scheme would be “fundamentally altered” by allowing the horse.  “Requiring public entities to make exceptions to their rules and zoning policies is exactly what the FHAA does…[it doesn’t mean that] any modification permitting a horse necessarily amounts to a fundamental alteration.”

Disparate treatment.  This claim failed for the same reason that the Anderson’s claim for intentional discrimination under the ADA failed: there was no evidence that the city harbored discriminatory animus against the disabled.

Disparate impact.  This claim also failed.  The Andersons failed to recognize that the ordinance in question specifically exempts any animals protected by federal law, including the FHAA; thus it has less of an impact on disabled individuals than on the general public.

The 6th Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

Fed 6th Circuit reviews use of miniature horse as service animal under ADA and FHAA (Part I – ADA claims)

by Gary Taylor

Anderson v. City of Blue Ash
Federal 6th Circuit Court of Appeals, August 14 2015

[Note: This is a lengthy case, but it is a good review of issues with “unusual” service animals that occasionally arise.  Today’s post is on ADA.  Next post will be on FHAA]

Ingrid Anderson’s minor daughter (initials C.A.) suffers from a number of disabilities that affect her ability to walk and balance independently.  She keeps a miniature horse at her house as a service animal.  The horse enables C.A. to play and get exercise in her backyard without assistance from an adult.

Since acquiring the horse in 2010 the Andersons and the city of Blue Ash, Ohio have had continual disagreements about allowing the horse on the property.  In 2013 the city passed an ordinance banning horses from residential property, then criminally prosecuted Anderson for violating it.  Anderson’s defense was that the Americans with Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA) both entitle her to keep the horse at her house as a service animal.  The Hamilton County Municipal Court found Anderson guilty of the criminal complaint.  Andersons brought their own action federal district court on ADA and FHAA claims, but the district court granted summary judgment for the city finding that the claims were barred by the determination of the issues (res judicata) in Anderson’s criminal conviction in municipal court.  Andersons appealed.  After reversing the district court’s conclusion on the res judicata claim (for various reasons beyond the interest of most readers of this blog) the 6th Circuit went on to consider the specifics of the Andersons’ ADA and FHAA claims.

ADA – Miniature horses as service animals. The ADA prohibits entities from discriminating against individuals with disabilities by, including other actions, “failing 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….” The regulations governing miniature horses allow them for use as service animals if the horse “has been individually trained to do work or perform tasks for the benefit of the individual with a disability,” provided that the horse and the requested modification also satisfy certain “assessment factors.”  The assessment factors to be considered are:

  1. the type, size, weight of the horse, and whether the facility can accommodate these features;
  2. whether the handler has sufficient control of the horse;
  3. whether the horse is housebroken; and
  4. whether the horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

The ADA thus requires a highly fact-specific inquiry, and decisions must be made on a case-by-case basis.  After lengthy discussion of each of these factors, the 6th Circuit concluded that the district court had not sufficiently developed the factual record concerning the Anderson’s situation, and thus summary judgment for the city was inappropriate.

ADA – Intentional discrimination. The Andersons also raised an intentional discrimination claim under the ADA.  For such a claim to succeed the Andersons need to have proven that:

  1. C.A. has a disability;
  2. she is otherwise qualified; and
  3. she was being … subjected to discrimination because of her disability.

Courts have interpreted this to mean that “animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.”  Further, it must be shown that the discrimination was “intentionally directed toward him or her in particular.”

After examining the evidence the 6th Circuit concluded that the intentional discrimination claim failed because the Andersons could not prove factor #3.  The city’s actions were brought about by citizen’s complaints of the unsanitary conditions caused by animal waste in the Andersons’ backyard.  The city council decided not to take action on these complaints until the Andersons acquired a second horse and neighbors made additional health complaints. The sequence of events was consistent with the city responding to legitimate concerns of its citizens, and provided no basis for an inference that the city’s actions were “because of C.A.’s disability.”

 

 

Requiring conditional use permit for residential substance abuse service facilities does not violate ADA

by Gary Taylor

Get Back Up, Inc. v. City of Detroit
Federal 6th Circuit Court of Appeals, March 13, 2015

Get Back Up operates a 160-bed all male residential facility in downtown Detroit, providing substance abuse treatment and counseling, education, and job training opportunities.  In August 2007 it purchases an unused school building from Detroit Public Schools for approximately $500,000.  The building is located in B4-H, General Business/Residential Historic zoning district.  The B4-H District allows boarding schools, child care institutions, nursing homes, religious residential facilities, adult day care centers, hospitals, libraries and religious institutions (among other uses) by right.  It lists “residential substance abuse service facilities” as one of several conditional uses requiring the satisfaction of 15 stated criteria before being allowed.  Get Back Up originally received approval of its conditional use application for the building in the B4-H District from the Building Safety and Engineering Department, but the Russell Woods-Sullivan Area Homeowners Association appealed the approval to the Board of Zoning Appeals (BZA).  The BZA voted to reverse the decision.  Get Back Up appealed the BZA decision to Wayne County Circuit Court, and after bouncing around between circuit court and the BZA several times the circuit court affirmed the BZA’s denial.  Appeals to the Michigan Court of Appeals and Supreme Court were unsuccessful.  After this, Get Back Up filed a complaint in federal court, claiming that the denial violated the American’s with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act.  The federal district court also ruled in favor of the city, and Get Back Up appealed.

Get Back Up argued that requiring residential substance abuse service facilities to obtain a conditional use permit when other similar uses are allowed by right is discriminatory.  The 6th Circuit disagreed, finding that the ordinance does not allow any materially similar use to operate by right in any B4 zoning district.  Residential substance abuse service facilities are treated the same as many other residential uses such as multi-family dwellings, emergency shelters, rooming houses, and fraternities and sororities.  Furthermore, the court found that the other uses cited by Get Back Up in support of their case (nursing homes and hospitals) are not materially similar to residential substance abuse service facilities.  Hospitals are not residential uses, and they tend to have substantial impact on their immediate surroundings and are particularly well suited for busy commercial districts like B4 districts.  While nursing homes are residential uses, their residents are “often physically disabled and they rarely leave the premises….[They are a] uniquely sedate and unburdensome use, having relatively little impact on traditional zoning concerns like noise and traffic.”

The court also found no merit in Get Back Up’s argument that the 15 criteria for approving a conditional use permit are unconstitutionally vague.  The phrases “detrimental to or endanger the social, physical, environmental or economic well being of surrounding neighborhoods,” “use and enjoyment of other property in the immediate vicinity,” and “compatible with adjacent land uses” are terms with “common-sense meanings” and are not so vague as to fail to provide fair notice to applicants of what is prohibited.”

The 6th Circuit Court of Appeals affirmed the ruling in favor of the City of Detroit.

City violates ADA when sidewalks are inaccessible to individuals with disabilities

by Gary Taylor

Frame, et al., v. City of Arlington
(Federal Fifth Circuit Court of Appeals, September 15, 2011)

The plaintiffs, who depend on motorized wheelchairs for mobility, sued the City of Arlington, Texas, alleging that it violated the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act by failing to make certain public sidewalks accessible to them. They alleged that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks were built or altered by the City after the effective date of the ADA in1992.  The lawsuit was initially brought on July 22, 2005, and amended on August 9, 2007.

The ADA provides that no disabled individual “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.” For nearly two decades, the ADA’s implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities.  The United States District Court for the Northern District of Texas originally dismissed the plaintiffs’ complaint, holding that their cause of action accrued from the date the city built or altered the sidewalks in question, and therefore the suit fell outside of the statute of limitations period.

The Fifth Circuit Court of Appeals reheard the case three times.   The entire panel of the Fifth Circuit heard this the latest case. The majority began by acknowledging that both the ADA and the Rehabilitation Act allow for a private right of action for individuals to bring suit.  The court saw two possible ways to frame the issue: (1) whether building and altering sidewalks are services, programs, or activities of a public entity, and thus whether the resulting sidewalks are “benefits” of those services, programs, or activities; or (2) whether a city sidewalk itself is a service, program, or activity of a public entity. The court then concluded that either way, when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city unnecessarily denies disabled individuals the benefits of its services in violation of Title II. To reach this conclusion the court looked to the ADA’s implementing regulations and Congress’s intent in passing the ADA.

Further, the court found that a private cause of action accrues from the moment the plaintiffs knew, or should have known, of their injury, not the moment the non-compliant sidewalk was built or altered.

Seven judges joined an opinion concurring in part and dissenting in part, challenging only the majority’s conclusion that a sidewalk is a service under the ADA. In order to confine private causes of action to the proper subject matter of the ADA, the dissent asserted that “inanimate and static” sidewalks must be considered public facilities rather than public services. Thus the dissent would read the ADA as granting disabled individuals a private cause of action only if the inaccessible sidewalks denied the individuals access to a public service.

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