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Girl's wish comes true, but pet conflicts with ordinance

 

By Jan Galletta

Staff Writer - Times Free Press

JASPER, Tenn. -- For months, Tiffany Masterson, 7, prayed to own a pony before her lifelong struggle with deteriorating health would make it impossible for her to take care of a pet.

Now, the first-grader is in a court battle to keep Keepsake, the miniature horse she got in November, at her Jasper, Tenn., home.

"Keepsake means a lot to Tiffany," said Pam Kitchens, the child's mother. "She works with her every day. The horse is a gift from God."

Ms. Kitchens said a Chattanooga benefactor gave the 10-year-old, 130-pound horse to her daughter, who was born with spina bifida and a rare degenerative brain defect, called Arnold Chiari Syndrome.

But two days after the horse's arrival in Marion County, Ms. Kitchens was charged with violating a Jasper ban on exotic animals in the city. At a December court hearing, she was ordered to get rid of the tiny horse.

"We have an ordinance that prohibits an animal other than a dog or cat from being within 1,000 feet of a residence or business within corporate limits," said Zach Kelly, Jasper city attorney.

"The family had applied for a permit and it was denied. Then, the horse shows up anyway, so Ms. Kitchens was cited."

Mr. Kelly said that Ms. Kitchens appealed last month's decision by the municipal judge and that the Marion County circuit court would next hear the matter, probably in February.

But by then, Ms. Kitchens said she plans to reapply for a permit, this time claiming that Keepsake is a "service animal," as defined by the Americans with Disabilities Act of 1990.

"A service animal attends a person with a disability in order for the disabled person to have access to places," said Chattanoogan Daniel Deane, an advocate with Access Now, who is championing Tiffany's cause.

"It must be trained for its job. It can't have a negative impact on any facility that it enters," he said, "and while it's rare for a horse to be a service animal, this isn't the first time that it has happened.

"A horse would be an appropriate service animal to move a wheel chair and to help pick up things for a disabled person. And in my mind, Tiffany's horse is a service animal," he said.

When he learned of the youngster's situation, Mr. Deane said he contacted Dr. Fred Shotz, president of the Miami-based Association of Disability Advocates in Florida.

After visiting the Kitchens' home to assess Keepsake's role as a service animal, Dr. Shotz faxed a letter to Mr. Kelly, stating that, according to the ADA, forcing the horse's removal would violate the child's civil rights.

"They are taking the position that the horse, like a seeing-eye dog, should be permitted under ADA guidelines," Mr. Kelly said, "but the matter is still in court.

"We're certainly sympathetic to Tiffany's situation, but we are trying to enforce the ordinance. There are several neighbors who are adamantly opposed. They think the horse will become a nuisance."

Keepsake, fully grown at 30.5 inches high, lives in a large storage shed that the Kitchenses built on their quarter-acre lot.

The yard is fenced, but it adjoins the quarter-acre property belonging to Ms. Kitchens' parents, allowing the animal a range of "about a half-acre of ground," according to Mr. Kitchens, who also built a ramp so the horse could be led into the family home.

"The horse comes inside every day and has never used the bathroom indoors," Ms. Kitchens said.

"She paws on the ground when she needs to go outside, but she doesn't use the bathroom in the yard either. She uses a corner of her shed."

Mr. Deane said that the new permit application the Kitchenses are filing "includes stipulations that, for now, the horse will be used on their property only, that the area will be kept in a healthful condition and that there will be further training for the horse so it can be used in public."

For further training, Keepsake and Tiffany will be going to The Guide Horse Foundation in Kittrell, N.C., as soon as arrangements can be made, according to Ms. Kitchens.

"People don't realize how useful these little horses can be, and there is a special bond between these two," she said of the girl and the horse. "Tiffany doesn't walk well, but Keepsake helps her keep her balance. Tiffany gets tired easily and when she does, she can pull herself up using the handles on Keepsake's harness. She's a service animal in every way."

As Tiffany's condition worsens, she will become even more dependent on the horse, according to her mother.

She said that in recent months, the child has lost bowel control and bladder sensation and her seizures are becoming too frequent for her to regularly attend her special education classes.

"In the future, Tiffany will be in a wheelchair. When she is, the horse can help pull the chair," Ms. Kitchens said.

Mr. Kelly said the city "is not the bad actor here. It's not like the city wants to deprive a little girl of an animal.

"There are several locations near her house where the horse could be kept without charge," he said.

Ms. Kitchens said she would "fight, tooth and nail" any effort to relocate the horse. "That service animal needs to be right here with Tiffany or what's the use of having it?" she said.

"It's kind of weird that, even before Tiffany was born, somebody named that horse Keepsake. She was destined to have that horse," she said.

"They aren't taking her Keepsake away."


Judge Will Decide If Girl Can Keep Horse

 
Story by John Pless on Tue, Jun 17th 2003 (6:45 PM)
 

Three years ago Tiffany Masterson was given a miniature horse to help her rehabilitate. But the Town of Jasper Tennessee argues the animal must go, because it violates a city ordinance.

City leaders in Jasper Tennessee have been trying to force the parents of an eight year old girl to get rid of her miniature horse, and in three years have spent tens of thousands of dollars in legal fees acccording to Nathan Rowell, who is representing Jasper in U.S. District Court in Chattanooga. 

Tiffany Masterson's family claims "Keepsake" has helped her walk, play and just be a normal kid. They are suing Jasper to issue a waiver to a city ordinance that forbids miniature horses from being kept with town limits.

U.S. District Court Judge R. Allan Edgar has to decide whether Tiffany is really disabled, and therefore entitled to a service animal according to the Americans with Disabilities Act.

"Using animals is one of the best kinds of therapy we have for kids," according to Frederick Shotz, Ph.D., of ADA Consulting Associates. He testified as an expert witness on Tiffany's behalf Tuesday.

The eight year old girl was born with spina bifida, epilepsy, water on the brain and a host of other disorders. Three years ago someone gave her Keepsake, a miniature horse that was trained to rehabilitate children with physical disabilities.

But here's the problem: Tiffany lives in Jasper, and a city ordinance won't allow animals other than cats and dogs, unless a waiver is granted. Tiffany's parents have twice filed for a waiver, but have been unsuccessful.

Their attorney, Gene Zweben, who's based in Florida and specializes in disability cases, said "The Town of Jasper refuses to make a reasonable accomodation for Tiffany to allow her to keep her service animal Keepsake, who happens to be a miniature horse."

Dr. Shotz added "federal law says that people with disabilities have a right to a service animal, and Jasper said no."

There was plenty of testimony in federal court saying Keepsake helped Tiffany build strength, balance and confidence. Her mother, Pam Kitchens, said three years ago Tiffany could not get herself up, much less walk, run or play.

"It's just incredible how much she's [Keepsake] done for her. She's become not ony her service animal, but her best friend," Ms. Kitchens said.

During those three years Jasper's city leaders have refused to grant a waiver.
They say neighbors complain about the horse, and argue Tiffany is not disabled as defined by law.

They presented secret videotape showing Tiffany walking in front of her house. While she was walking, her movements were much slower and less coordinated than those of her friends also seen on that tape.

"But she is 120 times better at this point because of Keepsake. It has allowed her to strengthen up, she wants to play with Keepsake, she walks around with her and leans on her. It builds up her muscles and that's what she needs. It's enabled her to be in the position she's in today."

Judge Edgar will review the testimony and evidence and issue an opinion within the next few weeks. If he decides Tiffany is disabled, he will order Jasper to issue the waiver allowing her to keep the miniature horse. If he rules in the Town of Jasper's favor, Keepsake will have to be moved outside city limits. 
 


Story last updated at 12:00 p.m. on Thursday, June 19, 2003

Family goes to federal court to keep girl's horse
 


The Associated Press

CHATTANOOGA ‹ The law is the law, Jasper city officials contend as they attempt to get a federal judge to remove a family's miniature horse from their home.

The officials contend the animal's presence breaks an ordinance forbidding horses within the city limits without a special permit.

But the 150-pound horse, Keepsake, was an anonymous gift two years ago to 9-year-old Tiffany Masterson, who suffers from medical problems that include spina bifida.

U.S. District Court Judge R. Allan Edgar heard testimony Tuesday in the lengthy dispute between city officials and Tiffany's family.

Pam Kitchens, the girl's mother, said Tiffany uses the horse as a "service animal" to help her with basic tasks, uses that are protected under the Americans with Disabilities Act.

"She helps her walk and keep her balance," Kitchens said. "She's not a normal child, but I'm trying to let her be one as much as possible."

The city says Tiffany does not need Keepsake to walk or do other tasks.

"Somehow she only needs a service animal in the backyard," said Nathan Rowell, a Knoxville attorney hired to defend the city in the lawsuit. "Unfortunately, that is not the definition of a service animal. That is the definition of a pet."

Previous rulings in Jasper City Court and state Circuit Court have found in favor of the city.

Rowell showed Edgar two videotapes showing Tiffany walking without assistance and playing with friends. According to testimony, the tapes were made secretly by a private investigator and a city alderman.

Frederick Shotz, an ADA expert, testified that Tiffany has a legal right to keep the horse. Shotz uses a wheelchair and a Doberman service dog to help pull it, but he said he has seen cats, horses and birds used as service animals to help disabled people perform routine tasks.

Tiffany's attorney, Gene Zweben, said her case is supported by Access Now Inc. and ADAPT of Tennessee, both disabled rights organizations. Edgar did not say when he would rule on the case.


Little Girl Loses Horse Dispute

 

A Jasper family can't keep a miniature horse on their property.

 

Federal judge R. Allan Edgar made the decision yesterday.

Lawyers for the Masterson family said the horse was a service animal, and should be allowed because it helps their daughter under the Americans with Disabilities Act.

Nine-year-old Tiffany Masterson has the degenerative brain defect spina bifida.  But Edgar said Tiffany isn't disabled enough to need the horse named Keepsake to assist her in walking.  The city of Jasper doesn't allow horses in the city limits.  The ruling is another setback for the Mastersons in the three-year-old case.  The family also lost on the local and state levels.  Their lawyer says they'll review the ruling to see if there are grounds to appeal.

ENTIRE RULING

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

ACCESS NOW, INC.; and PAMELA )KITCHENS as parent and legal guardian of )TIFFANY MASTERSON, ))Plaintiffs, )v. ) No. 1:02-cv-059) Edgar TOWN OF JASPER, TENNESSEE, ))Defendant. )

MEMORANDUM OPINION

Plaintiffs Access Now, Inc. (“Access Now”) and Pamela Kitchens (“Kitchens”), acting as parent and legal guardian on behalf of her minor daughter, Tiffany Masterson (“Tiffany”), bring this action for declaratory judgment and injunctive relief against defendant Town of Jasper, Tennessee (“Town”) pursuant to Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12150 (“ADA”). Title II of the ADA prohibit’s a public entity from discriminating against a qualified individual with a disability. This case arises out of a dispute about whether Kitchens and Tiffany can keep a miniature horse at their residence in the Town. The Town denied Kitchens’ application for a permit to keep the horse. Plaintiffs contend Tiffany is a qualified individual with a disability under the ADA, and that she needs the horse to assist her as a service animal.

Plaintiffs complain that the Town has violated Title II of the ADA by refusing to provide a1 The term “service animal” is defined in 28 C.F.R. § 36.104. That definition appears later in this opinion.-2-reasonable modification to its municipal ordinance to allow Tiffany to keep and utilize the horse as a service animal at her residence on property owned by her mother, Kitchens. A trial was held on June 17, 2003, without a jury.

After considering the evidence and reviewing the entire record, the Court concludes that the Town is entitled to have judgment entered in its favor. Plaintiffs have not met their burden of proving essential elements of their ADA claim by a preponderance of the evidence.

The Court FINDS:

(1) Tiffany is not disabled within the meaning of the ADA;

(2) the horse is not a service animal;

(3) Tiffany does not need to use the horse as a serviceanimal;1 and

(4) the Town has not discriminated against Tiffany by reason of disability.

In sum, the Town has not discriminated against Tiffany in violation of Title II of the ADA.

I. Facts

The Court makes the following findings of fact. Kitchens and her daughter, Tiffany, reside at 1021 Dennis Avenue, Jasper, Tennessee. Their house is located in a subdivision and residential neighborhood. There are-3-other persons who live in very close proximity to Kitchens’ residence. There are neighbors across the street and on lots immediately adjoining Kitchens’ property.

Tiffany was born on January 2, 1994, and is currently nine years old. Tiffany suffers from the congenital birth defect, spina bifida. She has a form of spina bifida known as cervical myelomeningocele which is an open spine in the area of her neck. Tiffany alsohas hydrocephalus, commonly known as water on the brain. Her physicians have surgically implanted a shunt or tube to drain excess amounts of fluid surrounding her brain. Tiffany has a history of occasional grand mal seizures, but the seizures are being managed and controlled with medication. According to Kitchens, Tiffany suffered her last seizure in 1999.

Tiffany is also bowel and bladder incontinent. In about August 2000, Kitchens contacted the Make-a-Wish Foundation in an effort to grant Tiffany a special wish. Tiffany wished for a miniature horse. The Make-AWishFoundation began efforts to obtain a horse for Tiffany. In early October 2000,Kitchens applied to the Town for a permit to keep a miniature horse. The application was denied by the Town on October 17, 2000. The application was reviewed and investigated by Tim Graham (“Graham”) who is the Town’s chief of police and public health officer. During his review, Graham consulted with the Town’s attorney, visited the neighborhood and talked with the other residents there (Kitchens’ neighbors), and inspected the area where Kitchens proposed to keep the horse.-4-On October 17, 2000, Graham wrote a letter to Kitchens stating he had decided to deny the application due to Kitchens’ close proximity to other Town residents, and the neighbors’ health and safety concerns regarding the cleanliness and maintenance of the horse.

At no time prior to October 17, 2000, did Kitchens inform Graham or the Town that she intended to utilize the horse as a service animal for Tiffany under the ADA. Graham’s decision was not in any way based on Tiffany’s physical condition. The Town’s decision on October 17, 2000, to deny the permit was not made by reason of Tiffany’s alleged disability. Consequently, the Make-A-Wish Foundation decided not to follow through with its plan to provide the horse. A person in Chattanooga, Tennessee, heard the Make-A-Wish Foundation had changed its mind and he decided to provide a miniature horse to Tiffany as a surprise gift. This person acquired the horse from Dora McKay (“McBay”) who, along with her husband, raises and trains small horses in a rural part of Marion County, Tennessee. On November 28,2000, he went to Kitchens’ residence without prior notice and delivered the horse to Tiffany. The horse weighs approximately 140 pounds. Tiffany is slightly taller than the horse and she can place her hands or arms on the horse’s back. Kitchens testified in her deposition that on a typical day the horse spends at least three hours inside her house with Tiffany. Prior to the delivery of the horse on November 28, 2000, none of Tiffany’s treating physicians had ever prescribed or recommended that Tiffany utilize a miniature horse-5-as a service animal.

When Tiffany received the horse on November 28, 2000, it was nothing more than a pet and companion for Tiffany. The horse was merely a domesticated animal for pleasure rather than a trained service animal for Tiffany under the ADA. There is no proof the horse had received prior training as a service animal for purposes of the ADA. Despite the Town’s previous denial of her application for the animal control permit, Kitchens kept the horse at her residence. The Town issued a citation to Kitchens for violating Jasper Municipal Code § 10-102. This municipal ordinance provides: Keeping near a residence or business restricted. No person shall keep any animal or fowl enumerated in the preceding section within one thousand (1,000) feet of any residence, place of business, or public street without permit from the health officer. The health officer shall issue a permit only when in his sound judgment the keeping of such an animal in a yard or building under the circumstances as set forth in the application for the permit will not injuriously affect the public health. A person keeping not more than two dogs and/or two cats shall not be required to obtain prior approval from the health officer; however, the keeping of such animals shall remain subject to all other terms and conditions of this chapter. Kitchens violates the ordinance by keeping the horse at her residence.

The horse stays in a small barn or shed behind the Kitchens’ house, and Kitchens allows the horse to roam around her backyard which is enclosed by a chain-link fence. The barn and the horse are readily visible to Kitchens’ neighbors and other persons passing by on the public street that runs in front of her home. The horse is being kept by Kitchens within one thousand feet-6-of other residences and a public street which is prohibited by Jasper Municipal Code§ 10-102.The Jasper Municipal Court held a hearing and determined that Kitchens was in violation of Jasper Municipal Code § 10-102. The Municipal Court ordered Kitchens to remove the horse from her property. At no time during the judicial proceedings did Kitchens or any other person acting on Tiffany’s behalf contend that the horse was being utilized as a service animal for Tiffany under the ADA. Kitchens took an appeal to the Circuit Court of Marion County, Tennessee, where for the first time she alleged the horse is a service animal for Tiffany under the ADA. The case is styled Town of Jasper, Tennessee vs. Pam Kitchens, Circuit Court of Marion County, Case No. 14178.

In the meantime, on January 22, 2001, Kitchens filed another application with the Town’s health officer requesting a permit to keep the horse at her residence indefinitely under Title 10 of the Jasper Municipal Code. In the application, Kitchens describes the animal in question as a “miniature horse assistance horse - service animal (qualified).” The application further states the horse was to be maintained in a barn and kept inside 23 hours per day, then kept outside one hour per day on one-half acre fenced in by a chain link fence. Plaintiffs contend they provided the Town with documents showing that Tiffany is disabled, and the horse is being utilized by Tiffany as a service animal under the ADA. Despite this new information, the Town did not issue a permit. The Town took no-7-official action on the January 22, 2001 application.

The Town neither granted nor denied this second application because it was embroiled in pending civil litigation with Kitchens in the Marion Circuit Court. Edwin Z. Kelly, Jr. (“Kelly”) is the Town’s attorney. In mid-January 2001,Kelly went to Kitchens’ residence where he observed Tiffany playing and walking without assistance from the horse or any other source. Kelly asked for medical documentation that the horse was a service animal. Plaintiffs have never provided this documentation. Kelly further observed that Kitchens seems more interested in the horse than was Tiffany. On February 5, 2002, the Circuit Court of Marion County entered an order granting summary judgment in favor of the Town. The Circuit Court determined that the ADA was not an appropriate defense. Kitchens was declared guilty of violating Jasper Municipal Code § 10-102 and she was ordered to remove the horse from her property. Kitchens then brought this ADA suit in federal district court on March 1, 2002.Plaintiffs contend Tiffany is substantially limited in three major life activities: walking, standing, and caring for herself.

It is alleged that prior to Tiffany obtaining the horse on November 28, 2000:

(1) she was weak and barely able to stand and walk;

(2) she had poor balance and would sometimes fall down; and

(3) she had such little physical endurance and stamina that Tiffany would quickly grow tired after walking only about ten steps and would require some assistance.-8-Kitchens has provided some training to the horse with help from McBay.

Kitchens and McBay had no prior experience in training miniature horses to be service animals under the ADA. McBay is in the business of raising and training miniature horses to participate in horse shows and perform such activities as pulling carts. McBay raised and sold the horse now owned by Tiffany. Generally, McBay trains all of her horses to be comfortable and at ease around people. Kitchens has done most of the training with a little supervision from McBay. The horse was fitted with a harness and halter with a lead rope. Kitchens taught the horse to understand the voice commands of “whoa” and “walk,” and to follow directions on moving left or right. If Tiffany was sitting down, she could grasp the horse’s harness with her hands and use it to pull herself up into a standing position. Kitchens testified the horse does not need the harness anymore. Tiffany can hold onto the horse’s mane or back to guide it. Plaintiffs contend that Kitchens trained the horse to assist Tiffany in standing, walking, maintaining her balance, and picking up unspecified objects off the floor or ground for Tiffany.

If Tiffany is walking and becomes tired, say the plaintiffs, Tiffany places her arm on the horse or leans some of her body weight onto the horse so it can assist her in standing and walking. However, the plaintiffs say Tiffany only uses the horse in this manner inside Kitchens’ house and in the backyard. Plaintiffs contend that Tiffany’s use of the horse has enabled her to become stronger and improve her ability to stand and walk.-9-The Court finds the preponderance of the evidence does not support the plaintiffs’ ADA claim.

The Court concludes that Tiffany does not have a disability as defined by the ADA and she does not have a genuine need to use the horse as a service animal. Tiffany is not substantially limited in the major life activities of standing, walking, and caring for herself. The horse does not perform tasks that are necessary to assist Tiffany in overcoming, managing, or dealing with a disability. The testimony by Kitchens and Freshets to the contrary is not credible in the face of the other overwhelming evidence. Plaintiffs greatly exaggerate the purported need of Tiffany to use the horse as a service animal under the ADA.

The Court has reviewed Tiffany’s medical records. There is no medical evidence showing that Tiffany is substantially limited in her major life activities of standing and walking. All of the medical proof establishes that Tiffany is capable of standing and walking without assistance. Tiffany ambulates or walks within a reasonably normal range of activity. The deposition testimony of Tiffany’s own treating physician, Dr. Timothy Strait, does not support the plaintiffs’ ADA claim. Dr. Strait has never recommended, and would not recommend at this time, that Tiffany use the horse as a service animal. Dr. Strait flatly states that Tiffany does not need a service animal.

The expert medical opinion of Dr. Strait is accorded great weight by this Court. The preponderance of the credible, non-medical evidence also shows that Tiffany has no significant difficulty in standing or walking by herself. Tiffany does not use-10-crutches, a wheelchair, or any other handicap aid or mechanical device to assist her in walking and standing when she is away from the Kitchens’ residence. Tiffany attends special education classes at Jasper elementary school where she walks between classes and plays on the school playground without assistance from a service animal.

At her home, Tiffany regularly walks, runs, swims, jumps, bounces a ball while standing, and plays with other children in her neighborhood without assistance from the horse. Tiffany often plays in front of the Kitchens’ house while the horse remains in the barn or backyard. The Town has introduced videotapes of Tiffany at her residence showing that she has the physical ability and stamina to engage in these activities without assistance. In reviewing the videotapes, the Court observes that Tiffany has no difficulty standing or walking normally by herself, and she does not actually need to use the horse as a service animal.

The videotapes are highly probative evidence that Tiffany is not substantially limited in her standing and walking. Gerald White (“White”), an elected member of the Town’s Board of Aldermen, lives in a house across the street from the Kitchens’ residence. White has lived there since1990. The horse and barn located in Kitchens’ backyard are visible to White from his front porch. White has observed Tiffany both before and after she obtained the horse. White testifies that the horse has not helped Tiffany to gain strength. White has not seen Tiffany using or playing with the horse. It is White’s testimony that Tiffany can stand, walk, run, jump, ride a bicycle and swim by herself without assistance. Tiffany has engaged in these activities and played around the neighborhood both before and after she obtained the horse.-11-The Court finds White’s testimony to be credible and entirely consistent with Tiffany’s medical records.

II. Analysis

A. Title II of ADA

 42 U.S.C. § 12132 defines what constitutes prohibited discrimination by a public entity under Title II of the ADA. Section 12132 provides that “no qualified individual with a disability 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, or be subjected to discrimination by any such entity.” The Town is a public entity. The term “public entity” means any local government. 42 U.S.C. § 12131(1).Under Title II of the ADA, the term “qualified individual with a disability” is defined in relevant part as meaning an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, 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).The term “disability” under the ADA is defined in pertinent part as meaning a physical or mental impairment that substantially limits one or more of an individual’s major life activities. 42 U.S.C. § 12102(2)(A); 29 C.F.R. § 1630.2(g)(1).-12-29 C.F.R. § 1630.2(h)(1) provides:(h) Physical or mental impairment means:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory(including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The phrase “major life activities” means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning. 29C.F.R. § 1630.2(i); Penny v. United Parcel Service, 128 F.3d 408, 414 (6th Cir. 1997).

The term “substantially limits” means either:

(1) an individual is unable to perform a major life activity that the average person in the general population can perform; or

(2) an individual is significantly restricted as to the condition, manner or duration under which the individual can perform a major life activity as compared to the condition, manner or duration under which the average person in the population can perform that same major life activity.

In deciding whether an individual is substantially limited in a major life activity, courts consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or expected permanent or long-term impact of the impairment. 29 C.F.R. § 1630.2(j); Penny, 128 F.3d at 414.-13

B. Count I of the Complaint: Denial of Permit and Reasonable Modification Claim

In Count I of their complaint, the plaintiffs claim the Town failed to provide a reasonable modification to Tiffany in violation of Title II of the ADA. Plaintiffs contend Tiffany is a qualified individual with a disability who needs and utilizes the horse as a service animal. It is alleged that the horse qualifies as a service animal under the ADA, 28 C.F.R.§ 36.104.Plaintiffs cite 28 C.F.R. § 35.130(b)(7) which provides: “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.”

Plaintiffs contend that issuing a permit for Kitchens and Tiffany to keep the horse at their residence is a reasonable modification to the municipal ordinance and the Town’s policy of regulating animals. Plaintiffs assert that issuing the permit will not cost the Town any money, will not alter the regulation of animals within the Town’s limits, and will not place any person’s health or safety at risk.

Plaintiffs demand the following relief:

(1) a declaratory judgment that the policy, program, or service administered by the Town (municipal ordinance governing animal control) violates Title II of the ADA;

(2) an injunction ordering the Town to issue a permit to Kitchens allowing her to keep the horse as a service animal for Tiffany on Kitchens’-14-property;

(3) an injunction requiring the Town to evaluate and neutralize its policies and procedures towards persons with disabilities; and

(4) an award of attorney’s fees, costs, and other expenses to the plaintiffs.

To prevail on their ADA claim, the plaintiffs must prove all of the following essential elements by a preponderance of the evidence:

(1) Tiffany is a qualified individual with a disability within the meaning of 42 U.S.C. § 12131(2) and the accompanying federal administrative regulations cited supra;

(2) the horse is a service animal;

(3) Tiffany needs to use the horse as a service animal under the ADA; and

(4) the Town discriminated against Tiffany in violation of 42 U.S.C. § 12132 by reason of her disability. McPherson v.Michigan High School Athletic Ass’n, 119 F.3d 453, 459-60 (6th Cir. 1997); Sandison v.Mich. High School Athletic Ass’n, 64 F.3d 1026, 1036 (6th Cir. 1995).

C. Disability Plaintiffs

have not proved that Tiffany has a disability under the ADA. Tiffany has significant health problems but this does not necessarily mean she is disabled for purposes of invoking the ADA. Although the Court is sympathetic to Tiffany’s health problems, the Court is required to follow and correctly apply the ADA. The Court cannot base its decision on feelings of sympathy and concern for Tiffany that are contrary to a proper application of the ADA.-15

To establish that Tiffany has a disability under the ADA, the plaintiffs must prove she has a physical or mental impairment that substantially limits one or more of Tiffany’s major life activities. 42 U.S.C. § 12102(2)(A). This the plaintiffs have failed to do. Plaintiffs contend Tiffany is substantially limited in the major life activities of walking, standing, and caring for herself. However, the evidence clearly shows that Tiffany is not substantially limited in any of these major life activities. Therefore, she is not disabled under the terms of the ADA

D. Service Animal Plaintiffs

have not proved the horse is a service animal under the ADA. 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 (Emphasis supplied). To be classified as a service animal under 28 C.F.R. § 36.104, the horse must be trained to work for the benefit of a disabled individual. The federal regulations set minimum requirements for service animals.

There is no requirement as to the specific amount or type of training that a service animal must undergo. There is no requirement as to the amount or type of work or assistance that a service animal must provide for the benefit-16-of a disabled person. Green v. Housing Authority of Clackamas County, 994 F. Supp. 1253,1256 (D. Or. 1998).The Court concludes that the horse is not a service animal because Tiffany is not disabled within the meaning of the ADA. The horse does not perform any tasks for the benefit of an individual with a disability.

Plaintiffs seek to demonstrate the horse is a service animal by presenting evidence that it has had some training to be well behaved around Tiffany and follow basic commands. However, the issue of whether the horse is a service animal does not turn on the type and amount of training. The bottom line is that the horse is not a service animal under the ADA because it does not assist and perform tasks for the benefit of Tiffany to help her overcome or deal with an ADA disability.

The horse is a pet and companion for Tiffany, but it is not a service animal under the ADA. Tiffany does not need to utilize the horse as a service animal. Tiffany can adequately stand, balance herself, walk, and care for herself entirely without any assistance from the horse. One fact which clearly demonstrates Tiffany does not need the horse as a service animal is that Tiffany does not utilize the horse when she is traveling, walking and moving around outside the confines of Kitchens’ house and back yard. Plaintiffs make no contention that Tiffany needs the horse as a service animal when she goes to school or otherwise moves and travels beyond Kitchens’ residence. Plaintiffs only argue that Tiffany uses the horse at her residence. If the horse was truly a necessary service animal, Tiffany would need to use it on a regular basis in many other places away from Kitchens’ residence.-17-

E. Discrimination by Reason of Disability

The final element the plaintiffs must prove is that the Town discriminated against Tiffany in violation of 42 U.S.C. § 12132 by reason of her disability. McPherson,119 F.3d at 459-60; Sandison, 64 F.3d at 1036; see also Smith v. Moorman, 2002 WL31182451 (6th Cir. Sept. 30, 2002); Brown v. Osweia, 181 F.3d 99 (Table, text as 1999 WL283876 (6th Cir. April 27, 1999); Weinreich v. Los Angeles County, 114 F.3d 976, 978-79(9th Cir. 1997). There are two methods that allow the plaintiffs to prove the Town’s actions have been taken because of Tiffany’s alleged disability. Plaintiffs can either

(1) offer evidence that Tiffany’s disability was actually considered by the Town in making its decision to deny Kitchens’ application for a permit to keep the horse at her residence, or

(2) show that the Town could have reasonably modified its animal control policy to accommodate Tiffany’s disability, but the Town refused to do so. McPherson, 119 F.3d at 460.The Court finds the plaintiffs have not proved that the Town discriminated against Tiffany by reason of a disability.

Tiffany does not have a disability under the ADA. Plaintiffs do not offer any direct evidence of discrimination under the first method. Instead, the plaintiffs have selected the second method, and they seek to show that the Town could have reasonably modified its animal control policy in the municipal ordinance to accommodate Tiffany’s alleged disability. It is not necessary to reach and decide the issue of whether the Town could have made a reasonable modification or what would have constituted a reasonable modification. The Court concludes the ADA does not require the-18-Town to modify its policy and ordinance to accommodate Tiffany because the plaintiffs have not met their burden of proving that Tiffany has a disability under the ADA.

Accordingly, judgment will be entered in favor of defendant Town of Jasper and the plaintiffs’ complaint will be dismissed with prejudice./ signed and entered / June 26, 2003_________________________________________

R. ALLAN EDGAR
CHIEF UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

ACCESS NOW, INC.; and PAMELA )KITCHENS as parent and legal guardian of )TIFFANY MASTERSON, ))
Plaintiffs, )v. ) No. 1:02-cv-059) Edgar TOWN OF JASPER, TENNESSEE, ))Defendant. )

J U D G M E N T

In accordance with the memorandum opinion filed herewith, the Court GRANTS judgment in favor of defendant Town of Jasper, Tennessee, against the plaintiffs.

The plaintiffs’ complaint is DISMISSED WITH PREJUDICE.

Defendant Town of Jasper shall recover its costs of this action pursuant to 42 U.S.C. § 12205, FED. R. CIV. P. 54(d)(1), and E.D.TN. LR 54.1.If the prevailing party, defendant Town of Jasper, intends to seek an award of reasonable attorney’s fees and other litigation expenses pursuant to 42 U.S.C. § 12205 and FED.R. CIV. P. 54(d)(2), the defendant shall file its motion within twenty (20) days from the date of entry of this judgment. Any motion for attorney’s fees and litigation expenses shall be supported by a sworn affidavit itemizing the specific legal services and expenses, the amount of time expended by defense counsel, and counsel’s hourly rate of compensation.

SO ORDERED.ENTER:

/signed and entered /

June 26, 2003_________________________________________

R. ALLAN EDGAR
CHIEF UNITED STATES DISTRICT JUDGE

 

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