Sak v. City of Aurelia
| Decision Date | 28 December 2011 |
| Docket Number | No. C 11–4111–MWB.,C 11–4111–MWB. |
| Citation | 44 NDLR P 125,832 F.Supp.2d 1026 |
| Parties | James SAK and Peggy Leifer, Plaintiffs, v. The CITY OF AURELIA, IOWA, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
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.
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 come 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 Missouri 1129.1
When a man's best friend is his dog, that dog has a problem.
—Edward Abbey (American environmentalist, 1927–1989)
Does the Americans with Disabilities Act entitle a seriously disabled plaintiff, James 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 preliminary injunction barring enforcement of the ordinance as to Snickers and reuniting Sak and his best friend? The 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, I issue this ruling on the plaintiffs' December 22, 2011, Motion For Preliminary Injunction (docket no. 2).
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. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); accord United States Sec. and Exchange Comm'n v. Zahareas, 272 F.3d 1102, 1105 (8th Cir.2001) () (quoting Patterson v. Masem, 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) ();Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (). 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.
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 hemorrhagic stroke, which has left him permanently disabled, with no control over the right side of his body, and confined to a wheelchair. Defendant City of Aurelia is, according to its website, www. aureliaia. com, a municipality with a population of “nearly 1,100 people” in Cherokee County in northwest Iowa.
Sak has had a dog, named Snickers, who is believed to be a pit bull mix, since the dog was ten weeks old. Complaint, ¶¶ 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 ¶ 15; Stipulated Facts at ¶ 9, from a “backyard breeder,” Plaintiffs' Brief In Support Of...
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