RMJfA- Denver Daily News article on pit bulls/ADA policy

http://www.thedenverdailynews.com/article.php?aID=12573

 

Is the city twisting the truth? Pit bull advocates say city is only protecting itself with new policy for disabled people Peter Marcus, DDN Staff Writer Monday, May 2, 2011

City officials have adopted a written policy permitting pit bulls as service dogs, though no notice was given to the public, and advocates believe the city is twisting the truth to protect itself legally.

Pit bull advocates say the city quietly adopted the written policy because it did not want to raise flags to its noncompliance with federal disabilities law.

The Animal Law Center is already suing the city over its ban on pit bulls, arguing that not providing an exemption for service dogs violates the Americans with Disabilities Act. 

City officials confirmed on Friday that there is now a written policy. Animal Control adopted the policy on April 5th, according to a court document filed on April 15th in U.S. District Court. 

Animal Control Director Doug Kelley says the city has always allowed disabled people to possess pit bulls as service dogs. He said there simply wasn't a written policy established.

"We have always allowed pit bulls as service dogs," he said. "I think what they're talking about is it was memorialized in writing."

But pit bull advocates believe the city is attempting to talk itself out of being in violation of federal law. They point out that the question was originally sent to the City Council to take action, but that the City Council rejected the exemption in December by a vote of 9-4.

City attorneys immediately made it clear that because of the lack of an exemption the city was in violation of federal law and at the mercy of any lawsuit filed.

The Animal Law Center filed its lawsuit on behalf of disabled Denver residents and commuters who had been rejected by the city for having a pit bull as a service dog. The law firm had to go as far as to obtain a signed joint stipulation stating that the city wouldn't go after any pit bulls that are considered service dogs.

Jennifer Edwards, an attorney with the Animal Law Center, says Kelley is lying to the public when he says the city has always allowed pit bulls as service dogs.

"I suppose this is their newest tactic to say, 'This is how it has always been,'" said Edwards. "If that were the case, we would have never had people be denied by Doug Kelley himself to have pit bull service dogs, we would have never had to get a signed stipulation between our office and the City of Denver protecting our clients in March last year, and we would have never had to file a federal lawsuit."

City Attorney David Broadwell agrees with Animal Control officials that through actions taken by the department, the city has always been in compliance with ADA regulations.

"Both before and after the Council discussion in December 2010, our animal control officers have acted in accordance with the new ADA regulations in the actual day-to-day enforcement of the pit bull ordinance even though the ordinance does not expressly recognize this exception," Broadwell writes to the Denver Daily News. "If our animal control officers observe a pit bull, and the owner claims that the dog is a service animal that assists the owner with a disability, then in practice the city has not been automatically seizing those dogs or prosecuting the owners. Instead, we do a case-by-case assessment of the situation." 

City policy states that "unless that animal's particular behavior É necessitates immediate impoundment," the city shall not "immediately" impound a pit bull that is identified as a service animal.

Procedure states that animal control officers and other city officials should only inquire as to what work or task the dog is trained to perform if it is not apparent what the dog is trained to do.

Animal Control reserves the right to conduct further investigation, according to procedure. But city officials are not allowed to inquire as to what the person's disability is, nor are they allowed to certify the dog as a service dog, according to federal disabilities law.

Still, city procedure calls for animal control officials to observe the dog upon further investigation, looking at the dog's behavior toward people, if it is tolerant of strange sights and sounds, and whether the dog ignores food dropped on the ground when working outside, to name a few. Those are considered qualifications of a trained service dog.

Edwards, however, doesn't buy the city's argument. She says the city is only trying to wiggle its way out of potential trouble with the feds.

"Without any announcement, any public knowledge, and without the City Council voting on it, Animal Control has adopted a written policy and procedure allowing restricted breed service dogs," states Edwards. "Why on Earth would the City Council have been meeting to change the law if that is the way it has always been?"