Anderson Ex Rel. C.A. v. City of Blue Ash

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
INGRID ANDERSON, individually and parent on ┐
behalf of C.A.; HOUSING OPPORTUNITIES MADE │
EQUAL, INC., │
│ No. 14-3754
Plaintiffs-Appellants,
│
>
│
v.
│
│
CITY OF BLUE ASH, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:14-cv-00151—Timothy S. Black, District Judge.
Argued: March 5, 2015
Decided and Filed: August 14, 2015
Before:COLE, Chief Judge; MOORE and CLAY, Circuit Judges.
_________________
COUNSEL
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.
1
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 2
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OPINION
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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.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 3
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
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 4
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.)
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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 received at least two
complaints from individuals living in Anderson’s neighborhood, each describing unsanitary
conditions at her house and questioning whether the horses were actually being used for C.A.’s
therapy.
In August 2012, after the Council’s decision, Anderson and C.A. replaced their two
miniature horses with Ellie, the miniature horse at issue in this appeal, and moved to their current
residence on Myrtle Avenue. After completing several classes on how to train miniature horses
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 6
for therapy, Anderson trained Ellie to assist C.A. in navigating her backyard, including by
steadying C.A. while she is walking and helping her to stand after a fall.
On January 10, 2013, the Council passed Ordinance No. 2013-1, amending the City’s
municipal code “to prohibit keeping of farm animals at residences within the city.” (Ordinance
No. 2013-1, R. 2, PageID 49.) The ordinance specifically applied to horses, excepting those
“[a]nimals which are otherwise specifically permitted elsewhere in the Municipal Code or
permitted by Hamilton County, Ohio State, or Federal law.” (Id.) On January 31, 2013, Johnson
sent a letter to Anderson informing her that the new ordinance would come into effect on
February 20, 2013, and that she would be cited for violating it if the miniature horse was still
present on her property on or after that date.
In responding to an anonymous complaint on February 21, 2013, a police officer
observed a miniature horse in Anderson’s backyard. The officer asked Anderson to remove the
horse from her property, and, initially, she complied. But while investigating a later complaint,
an officer observed the horse at Anderson’s residence on July 8 and again on July 16. On each
occasion he cited Anderson for violating Ordinance 2013-1. Each citation was punishable by a
$150 fine.
In the summer of 2013, Housing Opportunities Made Equal, Inc. (“HOME”), a non-
profit, fair-housing-assistance organization in the Cincinnati area began providing services to
Anderson. HOME advises clients of their rights to fair housing and helps them file fair housing
claims. HOME advised Anderson of her rights under the FHAA and the ADA and “assist[ed]
her with filing a Fair Housing Act violation” against the City. (Municipal Transcript, R. 8-4,
PageID 273.) One of HOME’s compliance managers, Brandon Craig, contacted several City
officials, including Johnson and the prosecutor handling Anderson’s citations, informing them of
Anderson’s rights related to service animals and, specifically, miniature horses under the FHAA
and the ADA.
Anderson responded to the two citations by email on July 24, 2013. She specifically
asserted that both the FHAA and the United States Department of Housing and Urban
Development (“HUD”) guidelines on assistance animals (interpreting the FHAA and the ADA)
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 7
entitled her to a “reasonable accommodation to keep the miniature horse for [C.A.].” (Anderson
Email, July 24, 2013, R. 10-5, PageID 711.)
Anderson was tried on both citations in the Hamilton County Municipal Court on
October 22, 2013. She did not deny that she kept the miniature horse, Ellie, at her house, but
based her defense entirely on her position that the ADA and FHAA entitled her to keep the horse
for C.A.’s therapy. Anderson was represented by counsel and presented several exhibits that
purportedly described her rights under the ADA and the FHAA, including applicable HUD
guidelines and ADA regulations on service animals. Anderson moved to dismiss the citations at
the close of the prosecution’s case, arguing that because the miniature horse is a service animal
under the ADA, Ordinance 2013-1 could not apply to her. The motion was denied. During
closing arguments, the prosecutor argued that the horse was not a service animal under the ADA.
Anderson’s counsel responded by arguing that the miniature horse was a service animal under
federal law, and urged the Municipal Court to review the exhibits describing the relevant ADA
and FHAA regulations.
On November 13, 2013, the Municipal Court found Anderson guilty on both citations.
The court did not issue a written opinion, noting simply that it had reviewed all of the exhibits
and conducted additional research. The court did not impose a fine for either conviction, and
Anderson did not appeal.
In March 2014, after the onset of this litigation, Anderson asked her neighbors to sign
letters supporting her efforts to keep Ellie at her house. In these letters, Anderson stated that she
had secured a service to remove animal waste from her yard. Most of her neighbors, together
with a few others from the community, signed letters in support.
B. Procedural Background
On February 18, 2014, Anderson, individually and on behalf of C.A., and HOME filed
this suit against the City. They alleged that the City’s refusal to permit Anderson to keep the
horse at her residence violated her rights under the ADA and the FHAA. Anderson, C.A., and
HOME also alleged that the City enacted and enforced Ordinance 2013-1 because of
discriminatory animus against C.A., in violation of both the ADA and the FHAA, and that the
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 8
ordinance has had a disparate impact on C.A. and other disabled individuals in violation of the
FHAA. They sought declaratory and injunctive relief, along with compensatory damages,
attorney’s fees, and costs.
The City moved for summary judgment, arguing that claim and issue preclusion bar this
lawsuit because of Anderson’s criminal convictions for violating Ordinance 2013-1 and her
administrative proceedings before the Blue Ash City Council in 2012. The City also disputed the
merits of the ADA and FHAA claims, contending that neither statute entitles Anderson to keep
Ellie at Anderson’s house. The district court granted summary judgment to the City, finding that
Anderson’s convictions on the two citations barred this lawsuit based on claim and issue
preclusion. The district court also found for the City on the merits of the ADA and FHAA
claims. The plaintiffs appealed.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de novo. Guyan Int’l, Inc. v.
Prof’l Benefits Adm’rs, Inc., 689 F.3d 793, 797 (6th Cir. 2012). “We also review de novo a
district court’s application of res judicata.” Ohio ex rel. Boggs v. City of Cleveland, 655 F.3d
516, 519 (6th Cir. 2011) (citation and internal quotation marks omitted). Summary judgment is
proper if there are no genuine disputes of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In determining whether the City met its
burden on summary judgment, we view the evidence in the light most favorable to the plaintiffs
and draw all reasonable inferences in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
B. Claim and Issue Preclusion
Claim and issue preclusion generally prevent parties from raising an argument that they
already fully litigated in an earlier legal proceeding. “State-court judgments are given the same
preclusive effect under the doctrines of res judicata and collateral estoppel as they would receive
in courts of the rendering state.” Boggs, 655 F.3d at 519 (citation and internal quotation marks
omitted). “In other words, ‘[i]f an individual is precluded from litigating a suit in state court by
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 9
the traditional principles of res judicata, he is similarly precluded from litigating the suit in
federal court.’” Id. (alteration original). “We look to the state’s law to assess the preclusive
effect it would attach to that judgment.” Id. (citation and internal quotation marks omitted).
Under Ohio law, “[t]he doctrine of res judicata encompasses the two related concepts of
claim preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also
known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio
2007). “Claim preclusion prevents subsequent actions, by the same parties or their privies, based
upon any claim arising out of a transaction that was the subject matter of a previous action.” Id.
The doctrine also bars any subsequent action whose claims “could have been litigated in the
previous suit.” Id. “Issue preclusion, on the other hand, serves to prevent relitigation of any fact
or point that was determined by a court of competent jurisdiction in a previous action between
the same parties or their privies,” and “applies even if the causes of action differ.” Id.
The City contends that both claim preclusion and issue preclusion bar the plaintiffs’
lawsuit because of (1) Anderson’s administrative appeal to the Blue Ash City Council in 2012,
and (2) her convictions for violating Ordinance 2013-1. First, we address the administrative
appeal. It is true that “[r]es judicata, whether claim preclusion or issue preclusion, applies to
quasi-judicial administrative proceedings” as long as “the parties have had an ample opportunity
to litigate the issues involved in the proceeding.” State ex rel. Schachter v. Ohio Pub. Emps. Ret.
Bd., 905 N.E.2d 1210, 1216 (Ohio 2009) (citation and internal quotation marks omitted). But a
prior proceeding triggers res judicata only for claims that could have been decided in that
proceeding and issues that were actually determined, see O’Nesti, 862 N.E.2d at 806, and the
claims and issues in this case are not the same as those that were or could have been presented to
the Blue Ash City Council in 2012.
The issue before us is whether federal law entitles Anderson to keep Ellie at her house on
Myrtle Avenue. Anderson’s appeal to the Council dealt with two different miniature horses at a
different location, a residence on Prospect Avenue in Blue Ash. These distinctions are
significant because the ADA regulations governing miniature horses call for a fact-specific
inquiry into the characteristics of the particular animals in question, including their type, size,
weight, and training, as well as the adequacy of the facilities where the horses are kept. See
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 10
28 C.F.R. § 35.136(i)(2). The FHAA also calls for a “highly fact-specific inquiry.” Hollis v.
Chestnut Bend Homeowners Ass’n, 760 F.3d 531, 542 (6th Cir. 2014) (citation and internal
quotation marks omitted). Thus the question in this case—whether the ADA or FHAA entitle
Anderson to keep Ellie at her current residence—was not and could not have been answered in
Anderson’s appeal to the Blue Ash City Council, and therefore that proceeding has no preclusive
effect on this lawsuit.
Anderson’s convictions for violating Ordinance 2013-1, on the other hand, concerned the
same horse and the same residence now at issue. While Anderson concedes that she raised both
the ADA and FHAA as defenses during that proceeding, Anderson contends that res judicata
does not bar her claims because she could not fully litigate them during her criminal trial.
Specifically, she argues that she could not raise her ADA or FHAA claims nor seek declaratory,
injunctive, or monetary relief as a defendant in a municipal court of limited jurisdiction.
We have recognized that “Ohio state courts generally frown upon the use of criminal
proceedings to estop parties in subsequent civil proceedings.” Boone v. Spurgess, 385 F.3d 923,
927 n.4 (6th Cir. 2004). The Supreme Court of Ohio has explained that this is because “[t]he
qualitative differences between civil and criminal proceedings including the differing standards
of proof, rules of discovery, and rules of evidence militate against giving criminal judgments
preclusive effect in civil or quasi-civil litigation.” State ex rel. Ferguson v. Ct. of Claims of
Ohio, Victims of Crime Div., 786 N.E.2d 43, 48 (Ohio 2003) (per curiam) (internal quotation
marks and brackets omitted). This disfavor is not absolute, however, and the court has
recognized that criminal proceedings can sometimes trigger res judicata in a subsequent civil
suit:
The Ohio Supreme Court has explicitly held that a convicted defendant is
precluded under the doctrine of res judicata from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack
of due process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on appeal from that
judgment.
5455 Clarkins Drive, Inc. v. Poole, 384 F. App’x 458, 463 (6th Cir. 2010) (per curiam) (internal
quotation marks omitted).
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 11
Whether Ohio courts will give preclusive effect to a criminal proceeding in a subsequent
civil suit turns on “whether the burdens of proof, discovery rules, evidentiary rules, procedure, or
constitutional safeguards effective at the criminal stage could have affected that party’s
willingness or ability to pursue the argument at issue in a way that no longer obtained at the civil
stage.” Id. Thus, the Supreme Court of Ohio has held that an acquittal at a criminal trial did not
bar relitigation of the defendant’s innocence in a subsequent wrongful imprisonment action
brought by that defendant because of “qualitative differences between civil and criminal
proceedings.” Walden v. Ohio, 547 N.E.2d 962, 966 (Ohio 1989). “In a civil proceeding, not
only is the burden of proof usually different, it being placed upon plaintiff . . . but also the rules
concerning trial procedure, discovery, evidence and constitutional safeguards differ in important
aspects.” Id. (internal quotation marks omitted). By contrast, that court held that a criminal
conviction did preclude a subsequent civil action for post-conviction relief where the defendant
sought to relitigate the validity of the criminal statute under which he had been convicted, and
that legal challenge had been “fully litigated” during his prior criminal proceedings. Ohio v.
Szefcyk, 671 N.E.2d 233, 235 (Ohio 1996).
Other Ohio courts have also recognized that the preclusive effect of a criminal judgment
depends on whether qualitative differences between the criminal and civil proceedings affected
the criminal defendant’s willingness and ability to litigate fully the case or issues. In
Independence Excavating, Inc. v. City of Twinsburg, No. 20942, 2002 WL 2009464, at *8 (Ohio
Ct. App. Sept. 4, 2002), an intermediate appeals court held that a municipal conviction for
violating a zoning ordinance precluded a company from later seeking a declaratory judgment that
the zoning ordinance conflicted with state law because that issue could have been raised as a
defense in the prior criminal proceeding. Acknowledging that “qualitative differences [between
criminal and civil proceedings] are often relevant to determining the applicability of res
judicata,” the court held that “demonstrating a conflict between the city’s ordinance and similar
state legislation would not be affected by differences in discovery methods, privilege, or self-
incrimination safeguards that normally differ between criminal and civil proceedings.” Id.
Similarly in Poole, we distinguished between the preclusive effects Ohio gives to
“factual determinations made in an earlier criminal proceeding” and “a defense that could have
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 12
been made” in that proceeding. 384 F. App’x at 462–63. In holding that an adult cabaret’s
conviction for violating a zoning ordinance precluded it from raising a First Amendment
challenge to that ordinance in a subsequent civil suit, we held that:
During their criminal proceedings, [the adult cabaret owners] indisputably could
have raised their First Amendment claims, and appear to have had precisely the
same opportunity and motivation to pursue them; their willingness and ability to
do so were unaffected by the fact that the earlier proceeding happened to be a
criminal trial. Moreover, they have made no argument that, as a practical matter,
the differences between criminal and civil procedural or evidentiary rules denied
them that opportunity to pursue their claims of facial invalidity.
Id. at 465 (footnote omitted). Thus both Independence Excavating and Poole determined the
preclusive effects of a criminal proceeding on a subsequent civil action by asking whether the
“qualitative differences” between those proceedings affected the litigant’s willingness or ability
to pursue the claim.
Taking into account these considerations, we conclude that Anderson’s convictions for
violating Ordinance 2013-1 have no preclusive effect on her ADA and FHAA claims here
because the qualitative differences between the instant civil proceedings and her criminal trial in
Municipal Court had different effects on her willingness and ability to litigate fully those issues
in the prior proceeding. Unlike the plaintiffs in Independence Excavating and Poole, whose
purely legal defenses could have been fully litigated during their criminal proceedings,
Anderson’s ADA and FHAA claims require fact-intensive inquiries that are greatly affected by
the differences in the municipal criminal court’s fact-finding procedures, particularly the lack of
civil discovery. Thus Anderson’s ability to pursue her claims was “qualitatively different” than
it is here. Additionally, Anderson had less motivation to litigate fully her ADA and FHAA
claims in the municipal court, where she was a defendant drawn involuntarily into those
proceedings by the City’s citations, faced only a small fine, and where the court had no authority
to order the City to let her keep her horse at home. Accordingly, Anderson’s claims are not
precluded by res judicata, and we proceed to address the merits of the ADA and FHAA claims.
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C. ADA Claims
1. Reasonable Modification
Anderson contends that the ADA and its implementing regulations require the City to
make a reasonable modification to its “policies, practices, and procedures” to permit her to keep
Ellie at her residence. The ADA prohibits public entities from discriminating against individuals
with disabilities, including by:
fail[ing] 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, unless
the entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). Regulations implementing the ADA require a public entity to
make “reasonable modifications in policies, practices, or procedures to permit the use of a
miniature horse by an individual with a disability if the miniature 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 “[a]ssessment factors.”
28 C.F.R. § 35.136(i)(1)–(2).
It is undisputed that C.A. is “an individual with a disability,” but the district court granted
summary judgment to the City on Anderson’s ADA claim for a reasonable modification because
it found that Ellie did not meet the ADA regulations’ requirements and because it found that the
regulations’ “assessment factors” were not satisfied. On appeal, Anderson contends that there
are disputed issues of fact material to both the ADA regulatory requirements for miniature horses
and the related assessment factors that preclude summary judgment in favor of the City.
a. ADA Regulatory Requirements for Miniature Horses
The ADA regulations do not specify the amount or type of training that a miniature horse
must undergo to qualify as a reasonable modification for a disabled individual, nor the amount or
type of work or assistance that the horse must provide for his or her benefit. Courts have
typically found that to qualify for a reasonable modification, an animal must be specially trained
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 14
to perform tasks directly related to a disability, contrasted with animals that have received only
general training, provide only emotional support, or otherwise perform tasks not directly related
to a disability. See, e.g., Lerma v. Cal. Exposition and State Fair Police, No. 2:12-CV-1363,
2014 WL 28810, at *5 (E.D. Cal. Jan. 2, 2014) (finding that a puppy was not a service animal
because it only received obedience training and was used only to help the plaintiff “get through
the day and feel better, a type of emotional support and comfort, which is exactly the type of aid
specifically excluded as work or tasks under” ADA regulations); Rose v. Springfield-Greene
Cnty. Health Dep’t, 668 F. Supp. 2d 1206, 1215 (W.D. Mo. 2009) (finding that a monkey was
not a service animal because the tasks it performed did not “relate to [plaintiff’s] disability” and
merely provided comfort to the plaintiff, whose disabilities did not require a monkey to perform
day-to-day activities).
On appeal, Anderson contends that her horse meets these requirements because she has
individually trained Ellie to assist C.A. by steadying her as she walks so that she can enjoy
independent recreation and exercise in her backyard. The City first contends that the horse does
not qualify for a reasonable modification under the ADA and its implementing regulations
because it does not help C.A. with her daily life activities (such as going to school), C.A. can
walk without the horse, and the horse does not help C.A. inside the house. We are not persuaded
by, nor do we find any authority to support, the proposition that an animal must be needed in all
aspects of daily life or outside the house to qualify for a reasonable modification under the ADA.
Many service animals are trained to provide specialized assistance that may be necessary only at
certain times or places. See 28 C.F.R. § 35 app. A (discussing tasks commonly performed by
service animals). For example, C.A. has a seizure-response dog that is specifically trained to
assist her if she has a seizure while sleeping. This dog indisputably qualifies as a service animal
despite the fact that it does not provide assistance to C.A. with any of her daily activities while
she is awake or outside the house. Anderson has produced evidence that Ellie is trained to assist
C.A. with beneficial exercise in her backyard, and she is no less qualified for a reasonable
modification under the ADA simply because C.A. does not need her horse’s assistance for all of
her daily activities or when traveling.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 15
The City also contends that Ellie has not been “individually trained to do work or
perform tasks for the benefit of” C.A. because Anderson, the horse’s primary instructor, holds no
certification in service-animal training. But the ADA regulations have no certification
requirement. Rather, the ADA asks whether the horse has been instructed on how to perform a
task that assists an individual with his or her disability, so the instructor’s lack of certification at
best creates a factual dispute as to whether a horse’s training was adequate. Here, Anderson
testified that Ellie is trained to assist C.A. to overcome her mobility limitations by steadying her
as she walks and helping her stand after she falls, tasks specifically listed by the ADA
regulations as examples of ways that miniature horses can assist the disabled. See 28 C.F.R. § 35
app. A. Construed in Anderson’s favor, this evidence satisfies the ADA regulations’ requirement
that the miniature horse be “individually trained to do work or perform tasks for the benefit of
the individual with a disability.” 28 C.F.R. § 35.136(i)(1).
b. Assessment Factors
In addition to the requirement that miniature horses be trained to assist an individual with
his or her disability, the ADA regulations also provide four “assessment factors” that “shall [be]
consider[ed]” when determining “whether reasonable modifications in policies, practices, or
procedures can be made to allow a miniature horse into a specific facility”:
(i) The type, size, and weight of the miniature horse and whether the facility can
accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse’s presence in a specific facility compromises
legitimate safety requirements that are necessary for safe operation.
28 C.F.R. § 35.136(i)(2). The district court found that these factors weigh against Anderson,
noting that her house is on a lot that is smaller than miniature horses typically require, that Ellie
is not housebroken, and finding that health complaints lodged against Anderson over the past
several years suggest that the horse’s presence would compromise the City’s “legitimate health
and public safety concerns.” On appeal, Anderson contends that she has produced evidence that
at least creates disputed issues of fact as to each of these factors.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 16
With regard to the first factor, the City contends that Anderson’s residence is too small to
accommodate her horse, pointing out that Anderson has admitted that her yard is significantly
smaller than would be ideal for an average miniature horse. However, this factor calls for
consideration of the “type, size, and weight” of the particular miniature horse at issue, not an
average member of her species. See 28 C.F.R. § 35.136(i)(2)(i). Anderson has provided
evidence that Ellie is uniquely suited for a smaller yard because her rear legs are deformed, thus
reducing her need and ability to run. Furthermore, Anderson testified that her backyard includes
a shed “of a size and dimension to accommodate three miniature horses comfortably, and thus
houses Ellie very comfortably and keeps her safe from the elements.” (Anderson Aff., R. 10-2,
PageID 692.) This evidence is sufficient to show a factual dispute regarding the first assessment
factor.
The City contends that the second and third factors weigh against Anderson and C.A.
because they did not have sufficient control over Ellie, and that she was not housebroken.
Anderson testified that she has sufficient control over her horse because she has trained Ellie to
perform specific tasks for C.A. In response, the City offered a sworn account of an incident in
which C.A. attempted to demonstrate how she works with Ellie but was not able to do so, fell,
and was stepped over by the horse. Given the conflicting affidavits concerning the extent of
Anderson and C.A.’s control over their horse, there is a genuine factual dispute over the second
assessment factor that cannot be resolved on summary judgment. Regarding the third factor,
Anderson concedes that Ellie is not housebroken. However, this does not automatically relieve
the City from its obligation to make a reasonable modification because the assessment factors are
not prerequisites for a reasonable modification, but are independent factors that shall be
considered when evaluating whether a particular modification is reasonable for a particular
animal. The City provides no reason why Ellie’s lack of control over producing waste indoors is
relevant here, where the horse is never indoors and the requested accommodation is for the horse
to assist C.A. and live outdoors in Anderson’s backyard.
Finally, the City contends that the fourth factor weighs against Anderson. It points to
multiple citizen complaints concerning unsanitary conditions related to a number of animals on
Anderson’s property. The City concludes from those complaints that the “miniature horse’s
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 17
presence” at her house “compromises legitimate safety requirements” of the City’s health code.
See 28 C.F.R. § 35.136(i)(2)(iv). Anderson responds that these complaints do not accurately
reflect the condition of her residence and that she has now secured a service to regularly remove
animal waste from her yard. Additionally, Anderson emphasizes that there are no complaints
from her current neighbors, most whom have signed letters in support of her efforts to keep Ellie
at her house. Anderson points out that those conditions complained of arose from the concurrent
presence of multiple farm animals at her house, combined with her previous failure to clean up
effectively after them. Indeed, she notes that some of the complaints the City cites concerned
only dog waste and were made at times when no horses were present at Anderson’s house.
Taken together, this evidence shows that there is a factual dispute over whether a single
miniature horse at Anderson’s residence would threaten the City’s “legitimate safety
requirements.”
Anderson has produced evidence that it would be reasonable for her to keep Ellie at her
residence and that all the requirements and assessment factors of the ADA regulations have been
satisfied. The City has produced conflicting evidence, such as health complaints, and draws a
different conclusion from the record, but weighing the City’s evidence against the plaintiffs’ is
inappropriate on summary judgment. The Ninth Circuit has observed that the “determination of
what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry.”
Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 844 (9th Cir. 2004) (internal quotation
marks omitted). Viewing all facts and drawing all reasonable inferences in Anderson’s favor,
and given the “highly fact-specific” nature of the reasonableness inquiry, we conclude that there
are disputed issues of material fact as to the reasonableness of Anderson’s requested
modification.
Because we find that disputed issues of fact preclude summary judgment in favor of the
City on Anderson’s ADA claim for a reasonable modification to keep Ellie at her house, we
reverse the district court’s judgment on that claim.
2. Intentional Discrimination
The plaintiffs contend that the City intentionally discriminated against Anderson and her
daughter when it passed Ordinance 2013-1 in violation of Title II of the ADA. Title II provides
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 18
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.” 42 U.S.C. § 12132. “[T]he phrase
‘services, programs, or activities’ encompasses virtually everything a public entity does.”
Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008). “We analyze claims of intentional
discrimination brought pursuant to the ADA . . . under the familiar burden-shifting analysis
established by [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Turner v. City of
Englewood, 195 F. App’x 346, 353 (6th Cir. 2006). “Under McDonnell Douglas, [a] [p]laintiff
must first establish a prima facie case of discrimination.” Id.
To establish a prima facie case of intentional discrimination under Title II of the ADA, a
plaintiff must show that: (1) she has a disability; (2) she is otherwise qualified; and (3) she was
being excluded from participation in, denied the benefits of, or subjected to discrimination under
the program because1 of her disability. Tucker, 539 F.3d at 532. In other words, the plaintiff
must show that the defendant took action because of the plaintiff’s disability, i.e., the “[p]laintiff
must present evidence 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.” Turner, 195 F. App’x at 353; see also Tucker, 539 F.3d at
533 (holding that to make out a prima facie case of intentional discrimination under Title II of
the ADA, a plaintiff must “establish[] that he or she was intentionally . . . subjected to
discrimination . . . because of his or her disability”) (emphasis original, internal quotation marks
and brackets omitted); Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir. 2005) (rejecting a
plaintiff’s ADA claim for intentional discrimination because the plaintiff could not show that the
defendants’ actions were “because of her disability”). “Further, the plaintiff must show that the
discrimination was intentionally directed toward him or her in particular.” Tucker, 539 F.3d at
532 (emphasis original).
1
Our test for intentional discrimination under Title II of the ADA previously required that the
discrimination be “solely” because of the plaintiff’s disability, Tucker, 539 F.3d at 535 (emphasis original); see also
Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005), Jones v. City of Monroe, Mich., 341 F.3d 474, 477
(6th Cir. 2003), but our decision in Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir. 2012) (en
banc), rejected this sole-causation requirement. While Lewis dealt with intentional discrimination claims under Title
I of the ADA, we specifically discussed the causation language in Title II, noting that it too “fails to use ‘solely.’”
Id. at 315. Therefore our holding in Lewis that “[t]he sole-cause standard . . . does not apply to claims under the
ADA,” id. at 317, applies with equal force where, as here, the intentional discrimination claim is brought under Title
II.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 19
Once a plaintiff establishes a prima facie case of discrimination, the defendant “must then
offer a legitimate, nondiscriminatory reason for its” challenged action. Sjostrand v. Ohio State
Univ., 750 F.3d 596, 599 (6th Cir. 2014). “If [the defendant] does so—and its burden is merely
one of production, not persuasion—[the plaintiff] must then present evidence allowing a jury to
find that the [defendant’s] explanation is a pretext for unlawful discrimination.” Id.
Here, it is undisputed that C.A. is a qualified individual with a disability, but the parties
dispute whether the plaintiffs can make out the third element of their prima facie case by
showing that the City took action because of C.A.’s disability. The City maintains that its
actions were motivated by the multiple citizen complaints against Anderson concerning
unsanitary conditions at her house related to the presence of farm animals, and not by any
discriminatory intent or animus against the disabled, while Anderson contends that the City was
motivated to pass Ordinance 2013-1 because of C.A.’s disability. Therefore the issue here is
whether the plaintiffs can make out a prima facie case of discrimination by showing that the City
“intentionally” passed Ordinance 2013-1 “because of [C.A.’s] disability.” See Tucker, 539 F.3d
at 533 (internal quotation marks omitted).
Our decisions in Dillery v. City of Sandusky, 398 F.3d 562 (6th Cir. 2005) and Hamm v.
City of Gahanna, Ohio, 109 F. App’x 744 (6th Cir. 2004), are instructive. In Dillery, a disabled
plaintiff brought an intentional-discrimination claim under the ADA against police officers who
allegedly stopped her because of her disability when she was using her wheelchair on the road.
398 F.3d at 568. We rejected that claim because we found that “the police did not stop [the
plaintiff] because of her disability, but rather stopped her in response to citizen complaints about
her being in the roadway.” Id. In Hamm, the plaintiffs brought a claim under the ADA and the
FHAA alleging that the city intentionally discriminated against them by refusing to re-zone the
plaintiffs’ property to allow the construction of group housing for the disabled. 109 F. App’x at
747. We rejected that claim because we found that the city denied the plaintiffs’ re-zoning
application due to opposition from the plaintiffs’ neighbors, who were concerned with the
proposed group-housing project’s impact on the neighborhood and its property values. See id. at
747–49. In both Dillery and Hamm, we found that legitimate citizen complaints motivated the
defendant city’s actions. That the complaints were lodged against individuals with disabilities
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 20
did not transform the cities’ responses to those complaints into intentional discrimination,
because it was the complaints that motivated the cities’ actions, not the fact that the plaintiffs had
disabilities. So too here.
We find that the evidence, even when viewed in the light most favorable to Anderson,
shows that it was citizens’ complaints that motivated the City’s actions, and that there is no
evidence to support an inference of discriminatory intent. The City first ordered Anderson to
remove another miniature horse from her property after receiving a complaint detailing
unsanitary conditions caused by the animals there. After Anderson submitted a physician’s letter
explaining that C.A. was using the horse for therapy, the Blue Ash City Council decided not to
enforce that order. It was only after Anderson acquired a second horse and the City received
additional health complaints referring to the presence of “horses, goats, chickens and pigs living
within [Anderson’s] home and causing unsanitary conditions within” that the City ordered her to
remove these farm animals, including the second horse. Throughout that administrative process,
the City continued to permit Anderson to keep one miniature horse on her property for C.A.
despite several of the complaints expressing doubts as to whether either horse was actually being
used for therapeutic purposes. It was only after still more health complaints in the fall of 2012
that the City passed Ordinance 2013-1. Even then, the City included a provision that explicitly
made an exception for animals protected by federal law. When Ordinance 2013-1 went into
effect, the City did not cite Anderson for violating it, only issuing citations months later after
Anderson brought the horse back to her house. This sequence of events is entirely consistent
with the City responding to the legitimate concerns of its citizens about the sanitation problems
posed by the presence of farm animals on residential property, and provides no basis for the
inference that the City took action “because of [C.A.’s] disability.” See Tucker, 539 F.3d at 533
(emphasis omitted); Dillery, 398 F.3d at 568.
On appeal, Anderson points to a number of events prior to the passage of Ordinance
2013-1 that she contends demonstrate the City’s discriminatory intent, but none of these facts
could support the inference that the City’s actions were because C.A. is an individual with a
disability. First, Anderson points to evidence that the City passed Ordinance 2013-1 because of
her. It is true that the ordinance’s preamble states that it was enacted in response to “many
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 21
complaints” and “inquiries from residents regarding the keeping of horses, pigs, goats, sheep,
and alpacas” on residential property, and that Johnson conceded that Anderson’s miniature horse
was one motivation for Ordinance 2013-1. (Ordinance 2013-1, R. 2, PageID 49.) While this
evidence is sufficient to show that the City may have passed the ordinance because of the
plaintiffs, the issue here is whether the City passed the ordinance because C.A. is disabled. In
Dillery, the city’s police officers were clearly taking action because of the plaintiff when they
arrested her for being in the roadway, but we rejected that claim because there was no evidence
that their actions were “because of her disability.” 398 F.3d at 568. Similarly, that the City
responded to complaints about the condition of Anderson’s residence does not mean that its
response was affected by the fact that C.A. is an individual with a disability, so the fact that
Ordinance 2013-1 may have been passed because of the plaintiffs is inapposite.
Anderson next contends that the Blue Ash City Council’s actions during her
administrative proceedings show the City’s discriminatory intent. She points to the Council’s
decision in April 2012 ordering the removal of her second miniature horse, in which the Council
examined whether either of Anderson’s horses were service animals. Anderson suggests that,
because only the second horse’s removal was at issue, the fact that the Council discussed both
horses is evidence of the City’s discriminatory intent. But it was Anderson who raised the issue
that both horses were service animals during that proceeding, so we can draw no inference about
the City’s motivations from the fact that the Council addressed Anderson’s argument. She also
points to the Council’s decision in 2010 not to enforce the order for her to remove her first
miniature horse as evidence that the City knew it would violate federal regulations to do so.
Even if this was an acknowledgement by the City of its obligation to make reasonable
accommodations under federal regulations, there is no suggestion that it impermissibly
discriminated against the plaintiffs because of C.A.’s disability when additional health
complaints spurred the City to question the continued reasonableness and necessity of her
requested accommodation. Questioning the necessity and reasonability of a requested disability
accommodation does not, by itself, create the inference of intentional discrimination. To hold
otherwise would be to require public entities to grant any requested accommodation and never
revisit an accommodation once granted lest they subject themselves to liability for intentional
discrimination simply by questioning the reasonableness or necessity of the request.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 22
Finally, Anderson contends that the City’s procedures for assuring compliance with ADA
regulations were inadequate, and that this was an indicator of the City’s animus towards the
disabled. This argument does not help Anderson make her prima facie case, which requires a
plaintiff to show that the “discrimination was intentionally directed toward him or her in
particular.” Tucker, 539 F.3d at 532 (emphasis original). Even if the City’s procedures for
compliance with federal regulations had a negative impact on its disabled citizens generally, this
does not support the inference that the City’s actions were motivated by C.A.’s disability because
“[a]cts and omissions which have a disparate impact on disabled persons in general are not
specific acts of intentional discrimination against the plaintiff in particular.” Dillery, 398 F.3d at
568 (internal quotation marks and brackets omitted).
Because the evidence viewed in the light most favorable to the plaintiffs does not support
the inference that the City took action to compel Anderson to remove her miniature horse from
her house because of C.A.’s disability, the plaintiffs have not established their prima facie case
of intentional discrimination under Title II of the ADA. Therefore, we affirm the district court’s
grant of summary judgment to the City on the plaintiffs’ ADA claim of intentional
discrimination.
D. FHAA 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 dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2). Such
discrimination includes a “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[.]” Id. at § 3604(f)(3)(B). “Plaintiffs who allege a
violation of 42 U.S.C. § 3604(f) may proceed under any or all of three theories: disparate
treatment, disparate impact, and failure to make reasonable accommodations.” Smith & Lee
Assocs. v. City of Taylor, Mich., 102 F.3d 781, 790 (6th Cir. 1996).
Anderson invokes all three theories. First, she contends that by refusing to permit her to
keep Ellie at her dwelling the City failed to make a reasonable accommodation for C.A.’s
disability as required by the FHAA. Second, as to her disparate treatment claim under the
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 23
FHAA, Anderson repeats the assertion that she made under the ADA that the City intentionally
discriminated against her because of C.A.’s disability. Third, Anderson alleges that, even if the
City had no discriminatory animus, its actions have had a disparate impact on “C.A., and any
disabled person within the City who may require the assistance of a miniature horse.” (Appellant
Br. 53.)
1. Reasonable Accommodation
The plaintiffs contend that the FHAA, like the ADA, requires the City to make a
reasonable accommodation to allow Anderson to keep her miniature horse at her residence. The
FHAA “creates an affirmative duty on [a] municipalit[y] . . . 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 their property.” Howard v. City of Beavercreek,
276 F.3d 802, 806 (6th Cir. 2002); see 42 U.S.C. § 3604(f). Unlike the ADA, the FHAA does
not have minimum regulatory requirements for animals to qualify as a reasonable
accommodation. See 28 C.F.R. § 35 app. A (discussing how the current ADA regulations define
“service animal” to include a narrower class of animals than those protected under the FHAA).
The “three operative elements” of the FHAA’s reasonable accommodation requirement are
“equal opportunity,” “necessary,” and “reasonable.” Smith & Lee Assocs., 102 F.3d at 794. On
appeal, Anderson contends that there are disputed issues of fact as to each of these elements that
preclude summary judgment for the City.
a. Equal Opportunity and Necessity
The first two elements are closely related. The first asks “whether the requested
accommodation would afford the disabled resident an equal opportunity to enjoy the property.”
Hollis, 760 F.3d at 541. The FHAA “links the term ‘necessary’ to the goal of equal opportunity.
Plaintiffs must show that, but for the accommodation, they likely will be denied an equal
opportunity to enjoy the housing of their choice.” Smith & Lee Assocs., 102 F.3d at 795
(citations omitted). “The necessity element is, in other words, a causation inquiry that examines
whether the requested accommodation or modification would redress injuries that otherwise
would prevent a disabled resident from receiving the same enjoyment from the property as a
non-disabled person would receive.” Hollis, 760 F.3d at 541.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 24
Equal use and enjoyment of a dwelling are achieved when an accommodation ameliorates
the effects of the disability such that the disabled individual can use and enjoy his or her
residence as a non-disabled person could. See id.; see also Bhogaita v. Altamonte Heights
Condo. Ass’n, 765 F.3d 1277, 1288–89 (11th Cir. 2014) (finding that an emotional support dog
was necessary for a plaintiff’s equal use and enjoyment of his dwelling where it “alleviate[d] the
effects of a disability” so that he could work from his house as a non-disabled person could, and
that “without the dog, [the plaintiff’s] social interactions would be so overwhelming that he
would be unable to perform work of any kind” (internal quotation marks omitted)). Here the
plaintiffs contend that C.A.’s horse allows her to play independently in her backyard as a non-
disabled child can, and so having the horse at her house is necessary for her equal use and
enjoyment of her dwelling.
The district court found that permitting Anderson to keep a horse at her house was
unnecessary because C.A. could obtain therapy with a horse by traveling to a local farm or
stable. On appeal, the City similarly argues that C.A. did not need therapy with a horse at her
house, and that the accommodation was also unnecessary because “C.A. can ambulate and
otherwise function without the horse,” and continue to live in her house without it. (Appellee Br.
47–48.) Anderson contends that the accommodation was necessary for C.A. to play
independently in her backyard as a non-disabled child could, and that therapy with a horse at a
farm is no substitute for therapy at her house, citing to Dr. Levin’s letter in which he stated that
“[C.A.] fatigues easily, and just a drive across town to receive therapy can wipe her out leaving
no energy to enjoy this therapeutic and recreational activity.” (Levin Letter, November 3, 2010,
R. 10-5, PageID 717.)
Regarding the assertion that C.A. can obtain therapy with a horse at a local farm or
stable, Dr. Levin’s letter is evidence from which a reasonable factfinder could find that C.A.
cannot obtain the benefit of therapy after traveling from her house, so the district court’s
conclusion to the contrary on summary judgment, where it was required to draw all reasonable
inferences in Anderson’s favor, was in error. More to the point, the availability of an alternative
treatment away from the plaintiff’s dwelling is irrelevant to the FHAA, which requires
reasonable accommodations necessary for a disabled individual to receive the “same enjoyment
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 25
from the property as a non-disabled person would receive,” Hollis, 760 F.3d at 541 (emphasis
added), not merely those accommodations that the disabled individual cannot function without or
for which no alternative is available away from the dwelling. For the same reason, the City’s
argument that “C.A. can ambulate and otherwise function without the horse” is likewise
irrelevant because 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.
The City’s argument that the accommodation was not necessary because C.A. can
continue to live in her house without it is also inapposite. The City relies on our decision in
Howard, in which we rejected a plaintiff’s claim that a privacy fence was a necessary
accommodation for him to continue to live in his dwelling in part because the plaintiff had lived
there without the fence for years. See 276 F.3d at 806. The City points out that, like the plaintiff
in Howard, C.A. can continue to live in her house without the presence of a horse. But, unlike
the plaintiff in Howard, the plaintiffs here do not contend that the accommodation is necessary
for C.A. to continue to reside in her dwelling, but rather that the accommodation is necessary for
her to have an equal opportunity to enjoy a particular use of her house—independent recreation
and exercise in her backyard. Because the FHAA requires accommodations that are necessary
for the same enjoyment of a dwelling that a non-disabled person would receive, not just those
that are necessary to remain in the dwelling at all, the City’s reliance on Howard is misplaced.
See Bhogaita, 765 F.3d at 1289 (finding that the FHAA required an accommodation for a puppy
that was necessary for the plaintiff to work from his house, even though the plaintiff could
continue to live in the house without it).
Anderson testified that Ellie allows C.A. to play independently and exercise in her
backyard and that, without the horse, C.A. cannot do so for any significant length of time, and
would effectively be denied the equal opportunity to play in her own backyard as non-disabled
children can. This evidence, viewed in a light most favorable to the plaintiffs, is sufficient for a
reasonable jury to find that the requested accommodation of keeping the miniature horse at her
house is necessary for C.A.’s equal use and enjoyment of her dwelling.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 26
b. Reasonability
The “crux of a reasonable-accommodation . . . claim typically will be [the third
‘operative element,’] the question of reasonableness.” Hollis, 760 F.3d at 541.
To determine the reasonableness of the requested modification, the burden that
the requested modification would impose on the defendant (and perhaps on
persons or interests whom the defendant represents) must be weighed against the
benefits that would accrue to the plaintiff. This is a highly fact-specific inquiry.
A modification should be deemed reasonable if it imposes no fundamental
alteration in the nature of a program or undue financial and administrative
burdens.
Id. at 541–42 (internal quotation marks and citations omitted).
The district court held that the accommodation was unreasonable, reiterating its finding
that C.A. did not need therapy at her house because she could obtain it elsewhere, and also
finding that permitting a horse in a residential neighborhood would “fundamentally alter the
nature of the [City’s] zoning scheme.” On appeal, the plaintiffs contend that there were disputed
issues of fact as to the reasonability of their requested accommodation that precluded summary
judgment to the City based on their evidence that C.A. would benefit from therapy with a horse
at her house and that permitting the horse to live at Anderson’s residence would not threaten
public health or otherwise fundamentally alter the zoning scheme. The City responds that
Anderson’s requested accommodation is unreasonable and would fundamentally alter its zoning
scheme because the City’s legitimate interests in the health, aesthetics, and property values of its
residential neighborhoods are effectuated through enforcement of its zoning codes. The City
further contends that these interests may be threatened by the presence of a horse on Anderson’s
property, pointing to the health complaints concerning Ellie, and that the City’s interests must be
balanced against the benefit that the accommodation would afford to C.A.
Factual disputes pervade the question of the accommodation’s reasonableness and the
“highly fact-specific” balancing of the City’s interests against the plaintiffs’ that it requires,
precluding summary judgment for the City. First, the City questions the extent to which C.A.’s
benefit from therapy with a horse would be diminished if she obtains this therapy at a local farm
or stable, but the letter from Dr. Levin creates a factual dispute over whether C.A. could benefit
from such therapy after traveling from her house, and this dispute cannot be resolved on
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 27
summary judgment. While the City’s interests in public health, sanitation, and residential
property values are clear, Anderson disputes the extent to which her requested accommodation
would interfere with those interests, pointing to letters of support from her neighbors and the fact
that she has secured a cleaning service to prevent the presence of a horse from creating
unsanitary conditions at her house. Similarly, while C.A. has a clear interest in having the
assistance of a miniature horse at her house, the City disputes the extent of the inconvenience
imposed on her by not having the horse in her backyard, pointing to the fact that C.A. can walk
without the horse.
Likewise disputed is the City’s contention that permitting the horse to remain at
Anderson’s house would fundamentally alter the nature of its zoning scheme. While protecting
public health and property values are central to the City’s interests, Anderson has produced
evidence that the presence of one miniature horse at her house will not create unsanitary
conditions or devalue her neighbors’ property, supported not only by her own testimony but by
signed letters of support from her current neighbors. She also testified that she has retained a
service to clean up animal waste, and ensure that unsanitary conditions will not reappear. As for
the district court’s assertion that, because Anderson lives in a residential area, “[a]llowing farm
animals, such as miniature horses . . . in these areas fundamentally alters the zoning scheme,” we
have long since rejected the notion that making an exception to a zoning scheme to permit
something that would normally be forbidden automatically amounts to a fundamental alteration.
See Smith & Lee Assocs., 102 F.3d at 796 (“We are not convinced that an additional three
residents will fundamentally alter the nature of single-family neighborhoods.”). Requiring
public entities to make exceptions to their rules and zoning policies is exactly what the FHAA
does. The fact that the City banned horses from residential property does not mean that any
modification permitting a horse necessarily amounts to a fundamental alteration.
We conclude that there are genuine disputes of material fact as to whether Anderson’s
requested accommodation is reasonable and necessary to afford her and C.A. an equal
opportunity to use and enjoy their dwelling, and so we reverse the district court’s grant of
summary judgment to the City on the plaintiffs’ FHAA reasonable-accommodation claim.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 28
2. Disparate Treatment
“To prevail on a disparate treatment claim [brought under the FHAA], a plaintiff must
show proof of intentional discrimination.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 612
(6th Cir. 2012). “Because a disparate-treatment claim requires the plaintiff to establish
discriminatory animus, analysis of such a claim focuses on the defendant’s intent.” Hollis, 760
F.3d at 539. As with intentional-discrimination claims under the ADA, “[t]his court therefore
applies the three-step McDonnell Douglas test, which shifts the burden of production from the
plaintiff to the defendant and then back to the plaintiff in an effort to zero in on the specific
intent underlying the defendant’s conduct.” Id. While the burden of production shifts, “[a]t all
times the burden of persuasion rests with the plaintiff.” Id. at 538.
As their FHAA disparate-treatment claim, the plaintiffs “incorporate [their] arguments
made as to intentional discrimination” under the ADA. (Appellant Br. 53.) Likewise, for the
same reasons we stated in our discussion of intentional discrimination under the ADA, we find
no evidence that the City acted because C.A. is an individual with a disability, nor that the City
otherwise harbored discriminatory animus against the disabled. We therefore affirm the district
court’s grant of summary judgment to the City on the plaintiffs’ FHAA disparate-treatment
claim.
3. Disparate Impact
Finally, the plaintiffs contend that the City violated the FHAA because its actions have
had a disparate impact on C.A. and other disabled individuals who would benefit from the use of
miniature horses at their houses. “To show disparate impact [in violation of the FHAA], a
plaintiff must demonstrate that a facially neutral policy or practice has the effect of
discriminating against a protected class of which the plaintiff is a member.” HDC, 675 F.3d at
613 (internal quotation marks and brackets omitted). A “disparate-impact claim . . . turns not on
the defendant’s intent but instead on the broader effects of the disputed housing practice.”
Hollis, 760 F.3d at 539. Plaintiffs alleging disparate-impact claims under the FHAA must first
show that defendant’s actions “caused handicapped individuals to suffer disproportionately more
than other individuals.” HDC, 675 F.3d at 613.
No. 14-3754 Anderson, et al. v. City of Blue Ash Page 29
Anderson and the other plaintiffs contend that Ordinance 2013-1 had a disparate impact
on C.A. and other disabled individuals who are unable to benefit from the use of miniature
horses at their houses. But Anderson fails to recognize that this ordinance specifically exempts
any animals protected by federal law, including the FHAA. Thus, by its own terms, Ordinance
2013-1 has less of an impact on disabled individuals who rely on the assistance of miniature
horses or other animals than it does on the general population. We therefore affirm the district
court’s grant of summary judgment to the City on the plaintiffs’ FHAA disparate-impact claim.
III. CONCLUSION
Because the qualitative differences between the fact-finding procedures available to
Anderson during her criminal trial in the Hamilton County Municipal Court and those available
to her as a civil plaintiff militate against giving that criminal judgment preclusive effect here, we
conclude that the district court erred in determining that res judicata bars this lawsuit. We affirm
the district court’s grant of summary judgment to the City on the plaintiffs’ intentional-
discrimination ADA claim and disparate-treatment and disparate-impact FHAA claims. We
reverse the district court’s grant of summary judgment to the City in all other respects, and
remand for further proceedings consistent with this opinion.