This is my 100th blog entry! Wow!! Many thanks to all of you!!!

Previously, I have had several entries dealing with service dogs. In the first, we talked about what was a service dog and what was not. In the second, we talked about the regulations of the Department of Justice on service dogs and the likelihood they would withstand legal scrutiny. Finally, in the third entry, we talked about the Texas approach to service dogs. Here, the issue is whether the breed restrictions that some towns have on the type of dogs that can reside in their town will withstand scrutiny if the dog is a service dog. It isn’t unheard of for some towns to restrict the breeds that will be allowed in their town. Oftentimes, the breed restricted is a pit bull. The purpose here is not to discuss the merits of such restrictions, but to discuss whether such a restriction would withstand a challenge if that breed was a service dog.

Nothing in the federal regulations of the Department of Justice talking about service dogs restricts the type of dog that may be a service dog. Rather, the question is whether the dog is engaged in work. That is, is the dog engaged in recognition and response. Further, there isn’t any certification requirement associated with being a service dog since it is entirely possible (I do know of individuals who have done this), that a person could train a dog to work (engage in recognition and response) without a formal training program.

Thus, if the town does have a breed restriction and that individual owns such a breed that would be deemed a service dog as defined by the regulations, the town may want to think twice about taking adverse action against an individual unless it wants to run afoul of the ADA and possibly state laws as well. While a town is free to make laws in the interest of their citizens to protect their welfare, that town still has to comply with state laws (which may track or go further than the ADA), as well as with the ADA. If adverse action is taken, it would be a good idea for the town to have a system in place where the individual could show that the dog performs work for that individual in order to assist an individual with his or her disabilities before the town removed the dog.

This is not an academic discussion. In Grider v. City of Aurora, 2013 WL 6633404 (D.Colo. December 16, 2013), the plaintiff brought suit against the city alleging that the ordinances restricting certain dog breeds violated title II of the ADA. This resulted in two years of litigation whereupon the defendant moved to dismiss and also moved for summary judgment. Due to the way the case was pleaded and the nature of the facts, the court granted both motions. The city then brought suit seeking reimbursement for their attorneys fees of $132,447.33 (gives you an idea of how expensive defending this kind of litigation could be).

In order for a defendant to recover attorneys fees the court must find that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith or where the plaintiff continued to litigate after it clearly became so. As the court says, it is a very difficult standard to meet since the court must find that the action was meritless in the sense that it was either groundless or without foundation. The court found that an award of attorneys fees was not warranted because the claims and theories as presented were not flawed from the inception of the case and the record was not completely devoid of evidence so as to find that the plaintiff’s action was frivolous, unreasonable, or without foundation. The court also said that their conclusion did not change even though plaintiff’s counsel struggled to adequately plead their claims and their counsel probably should’ve put forth a better effort in analyzing the jurisdictional requirements, the elements of the claims, and the facts necessary to support the claims (Iqbal type concerns).

In short, if you represent a town with breed restrictions unless you have developed a system so as to ensure that the individual has a way to show that their dog meet the definition of a service dog as defined in the Department of Justice regulations prior to removing the dog, you are asking for a very expensive litigation fight involving the ADA and/or possibly state laws as well.