Anderson ex rel. C.A. v. City of Blue Ash

• Decision Date: 14 August 2015
• Docket Number: No. 14–3754.,14–3754.
• Citation: 798 F.3d 338
• Parties: Ingrid ANDERSON, individually and parent on behalf of C.A.; Housing Opportunities Made Equal, Inc., Plaintiffs–Appellants, v. CITY OF BLUE ASH, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

798 F.3d 338

Ingrid ANDERSON, individually and parent on behalf of C.A.; Housing Opportunities Made Equal, Inc., Plaintiffs–Appellants

v.CITY OF BLUE ASH, Defendant–Appellee.

No. 14–3754.

United States Court of Appeals, Sixth Circuit.

Argued: March 5, 2015.

Decided and Filed: Aug. 14, 2015.

Rehearing En Banc Denied Sept. 21, 2015.

ARGUED:Kathleen A. Farro, Manley Burke, LPA, Cincinnati, Ohio, for Appellants. Mark A. Vander Laan, Dinsmore & Shohl, LLP, Cincinnati, Ohio, for Appellee. ON BRIEF:Kathleen A. Farro, Timothy M. Burke, Manley Burke, LPA, Cincinnati, Ohio, for Appellants. Mark A. Vander Laan, Bryan E. Pacheco, Dinsmore & Shohl, LLP, Cincinnati, Ohio, for Appellee. Kevin J. Truitt, Ohio Disability Rights Law and Policy Center, Inc., Columbus, Ohio, for Amicus Curiae.

Before: COLE, Chief Judge; MOORE and CLAY, Circuit Judges.

OPINION

COLE, Chief Judge.

This appeal is the latest chapter in an ongoing dispute between Ingrid Anderson and the City of Blue Ash, Ohio, over whether Anderson can keep a miniature horse at her house as a service animal for her disabled minor daughter, C.A. C.A. suffers from a number of disabilities that affect her ability to walk and balance independently, and the horse enables her to play and get exercise in her backyard without assistance from an adult. Since Anderson first acquired a horse in 2010, she has struggled with the City for permission to keep it at her house. In 2013, the City passed a municipal ordinance banning horses from residential property and then criminally prosecuted Anderson for violating it. Anderson's defense was that the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101, et seq., and the Fair Housing Amendments Act (“FHAA”), 42 U.S.C. § 3601, et seq., both entitle her to keep the horse at her house as a service animal for C.A. Rejecting those arguments, the Hamilton County Municipal Court found Anderson guilty.

Anderson brought this action against the City in federal district court, again arguing that the ADA and FHAA entitle her to keep her horse as a service animal for C.A. She also claims that the City intentionally discriminated against her because of C.A.'s disabilities, in violation of both the ADA and the FHAA, and that the City's ordinance has had a disparate impact on C.A. and other disabled individuals, in violation of the FHAA. The district court granted summary judgment to the City, finding that Anderson's claims were barred by claim and issue preclusion stemming from her Municipal Court conviction.

Because the fact-finding procedures available in a criminal proceeding in municipal court differ substantially from those available in a civil proceeding, Anderson's conviction has no preclusive effect on this lawsuit. Furthermore, while there is no evidence that the City's actions were motivated by discriminatory intent against C.A. or had a disparate impact on disabled individuals, there are significant factual disputes regarding whether the ADA or FHAA require the City to permit Anderson to keep her miniature horse at her house. We therefore reverse the district court's grant of summary judgment to the City on those claims.

I. BACKGROUND

A. Factual Background

Ingrid Anderson lives in the City of Blue Ash, Ohio, with her disabled minor daughter, C.A. C.A. has a variety of disabilities, including autism, seizures, chronic lung disease, gastroesophageal reflux, feeding and vision problems, severe allergies, attention deficit hyperactivity disorder, developmental delay, autonomic dysfunction, and tachycardia, among others. Her disabilities make it difficult for C.A. to maintain her balance independently, particularly when she must change directions or navigate uneven surfaces. Consequently, C.A. cannot effectively use her backyard for recreation and exercise without assistance.

While the traditional service animal is a dog, miniature horses are often used to provide assistance to individuals with disabilities.See generally 28 C.F.R. § 35 app. A (2011) (specifically discussing miniature horses as service animals). Miniature horses can be trained to provide many of the services commonly associated with service dogs, such as guiding individuals with impaired vision. Like dogs, miniature horses can also be housebroken, and individuals with disabilities have taken them on trains and commercial flights. Miniature horses may be preferable to service dogs for “large stature individuals” and “individuals with allergies, or for those whose religious beliefs preclude the use of dogs.” Id. Additionally, because they are stronger than most dogs, miniature horses may be preferable for “providing stability and balance for individuals with disabilities that impair the ability to walk, and supplying leverage that enables a person with a mobility disability to get up after a fall.” Id. Miniature horses also have significantly longer lifespans than dogs, and are able to provide service for more than twenty-five years while dogs can only provide service for approximately seven. This allows a disabled minor to have a single miniature horse throughout his or her childhood, without having to periodically replace aging service dogs. Therapy with miniature horses is sometimes referred to as “equine” or “hippotherapy.”

In 2010, C.A. began working with miniature horses as a form of therapy at the Hamilton County Parks facility and in the backyard of her house. By gripping the mane of her horse, C.A. is able to move about outside for recreation and exercise. Dr. Ronald Levin—the physician who recommended that C.A. work with miniature horses as a form of therapy—described some of the benefits C.A. receives from working with a miniature horse in her backyard:

Hippotherapy is beneficial for [C.A.] as it incorporates several avenues of traditional therapy including physical, occupational, speech and language. Specifically, this may address [C.A.'s] physical development through learning more about balance and control. Hippotherapy addresses many aspects of gross and fine motor skills that can be applied in everyday life. Cognitively [C.A.] may benefit from learning and practicing communication skills, as well as increase her social skills, self-esteem and independence.

(Levin Letter, November 3, 2010, R. 10–5, PageID 717.) C.A. fatigues easily: Dr. Levin stated that “just a drive across town to receive therapy can wipe her out leaving no energy to enjoy this therapeutic and recreational activity.” (Id. ) As a result, Anderson began keeping a miniature horse at her Prospect Avenue residence in the City so that C.A. could benefit from this therapy at home.

In August 2010, Daniel Johnson, the City's Community Development Director and Zoning Administrator, began receiving complaints from Anderson's neighbors about the miniature horse at her house. Anderson's neighbors complained about excessive waste from the horse and other animals kept on the property. At least one complaint questioned whether C.A. was actually using the horse for therapeutic purposes, and noted that the condition of Anderson's property was devaluing the neighborhood because of “health issues” and an “extremely offensive ... smell of horse manure that emanates from the piles in [her] backyard” so severe that the complaining neighbor's children could not play outside. (Email Complaint, August 12, 2010, R. 8–1, PageID 123–24.)

Johnson ordered Anderson to remove the horse from her property. Anderson appealed that order, first to the Blue Ash Board of Zoning Appeals (“BZA”), which affirmed, and then to the Blue Ash City Council. The Council ultimately decided not to enforce Johnson's order, citing a letter it received from Dr. Levin in which he supported “the housing of a miniature horse for in-home therapy support for [C.A.]” (Levin Letter, November 3, 2010, R. 10–5, PageID 717.) By “in-home therapy” Dr. Levin was not suggesting that the therapy take place indoors, but outdoors “at the home” so that the therapy “can be utilized in a schedule that is more conducive to [C.A.]” (Id. )

Anderson began keeping a second miniature horse at her house in 2011. Johnson ordered Anderson to remove the second horse, but Anderson refused. Instead, she submitted a letter from Dr. Derek Fletcher—another physician recommending that C.A. work with miniature horses as a form of therapy—supporting “the housing of two miniature horses” for C.A.'s therapy. (Fletcher Letter, August 16, 2011, R. 8–1, PageID 138.) Unpersuaded by Dr. Fletcher's letter, Johnson again ordered Anderson to remove the second horse in February 2012.

In early 2012, the Hamilton County Public Health Department received a complaint concerning five dogs, “horses, goats, chickens and pigs living within [Anderson's] home and causing unsanitary conditions within.” (Stone Report, March 5, 2012, R. 8–1, PageID 139.) Johnson ordered Anderson to remove the other farm animals from her property in February 2012. A subsequent investigation by a health inspector revealed excessive animal waste on Anderson's property, though it was cleaned up by the time she removed the pig from her house in mid-March 2012.

Anderson appealed the removal order to the BZA, arguing that the ADA entitled her to keep both miniature horses at her house. In April 2012, the BZA held an evidentiary hearing before issuing a written opinion affirming the order that Anderson remove one of her two horses.

Anderson appealed the BZA decision to the Blue Ash City Council, again arguing that the ADA entitled her to keep both miniature horses at her house. After analyzing the ADA's requirements and C.A.'s circumstances, the Council issued a written decision finding that the horses “are clearly not service animals, either under the applicable federal statutory guidelines or the case law analyzing the issue.” (Council Decision, September 13, 2012, R. 8–1, PageID 136.) The Council affirmed the BZA's decision that one of Anderson's horses must be removed. Anderson did not appeal the Council's decision. Around this time, the City...