Full Title Name:  Monkeys and Horses and Ferrets...Oh My! Non-Traditional Service Animals Under the ADA

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Robert L. Adair Place of Publication:  Northern Kentucky University Publish Year:  2010 Primary Citation:  37 N. Ky. L. Rev. 415 (2010)

This article analyzes the major cases involving non-traditional service animals. Part II looks at those species that have been viewed as potentially presenting a danger to their owners or the public, examining the use of non-human primates and snakes. Part III examines cases where people seek to pass their pets off as service animals, discussing miniature horses, ferrets, and the difference between therapy animals versus service animals. Part IV is a discussion of potential conflicts between the federal ADA and state or local laws regarding non-traditional service animals. Finally, Part V concludes that the present regulatory system is adequate and should remain in place.

Northern Kentucky Law Review

ADA Amendments Issue


Robert L. Adair [FNa1]

Copyright (c) 2010 Northern Kentucky University; Robert L. Adair (reprinted with permission)


I. Introduction


An important aspect of the Americans with Disabilities Act (ADA) [FN1] involves the use of service animals by people with disabilities, but the ADA never mentions service animals. [FN2] The Department of Justice (DOJ) is responsible for implementing the regulations that carry out the ADA. [FN3] These regulations determine how the use of service animals is affected by the ADA.
In 1991, the DOJ issued a regulation requiring that “[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” [FN4] Also in 1991, the DOJ defined “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability. . . .” [FN5]
Since this vague regulation was first issued in 1991, the DOJ has faced a trend towards the use of “wild, exotic, or unusual species, many of which are untrained, as service animals.” [FN6] In response to this trend, the DOJ proposed a new definition in June 2008 that would have limited the definition of “service animal” to “dog or other common domestic animal.” [FN7] The regulation also would have specifically excluded “wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents” from being considered service animals under the ADA. [FN8]
*416 After conducting public hearings on the issue, the DOJ proposed an even more restrictive definition in December 2008. [FN9] This final proposed version sought to eliminate “other commonly domesticated animals” from the definition, allowing only service dogs to be recognized as service animals. [FN10] This version did require places of public accommodation to make reasonable modifications for people with disabilities utilizing miniature horses, but expressly stated that only dogs could be defined as service animals. [FN11] This would have allowed miniature horse users to go out in public with their service animals, but potentially find themselves barred from keeping the animals at home by state and local regulations. [FN12] This regulation narrowly defining service animals was not adopted, as the Obama administration withdrew all pending ADA regulations until they could be evaluated by President Obama's appointees. [FN13]
Although currently on hold, this regulation and its narrow definition of a service animal may be resurrected, or a similarly restricting one may be proposed by the DOJ at any time. [FN14] In proposing the species restrictions, the DOJ stated that “[t]he Department continues to receive a large number of complaints from individuals with service animals. [M]any covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals.” [FN15] The DOJ admitted that non-traditional service animals represent only a small percentage of animals used by those who rely on service animals overall, but cited “erosion of the public's trust” and safety concerns as reasons to establish a “practical and reasonable species parameter.” [FN16]
While these concerns are understandable, the reality is that such parameters are not necessary. The open-ended regulation currently in place allows individuals to use any service animal that can assist them in coping with a disability. [FN17] The type of animal best suited to assist each person will vary based *417 upon individual circumstances, and may even differ between individuals who suffer from the same disability. [FN18] Although public safety and reasonableness must be considered, the courts have handled those concerns ably under the current open-ended regulation. [FN19] An examination of the exotic or unusual service animals involved in litigation shows that the courts have been able to balance safety concerns against the rights of people with disabilities under the ADA and weed out unreasonable service animals, as well as those individuals who have sought to manipulate the ADA into allowing them to keep a forbidden pet. [FN20] Furthermore, in cases where unreasonable service animals were tolerated due to fear of violating the ADA, [FN21] the principles used in the aforementioned cases could have remedied the situation if the assistance of the courts had been sought.
This article analyzes the major cases involving non-traditional service animals. Part II looks at those species that have been viewed as potentially presenting a danger to their owners or the public, examining the use of non-human primates and snakes. Part III examines cases where people seek to pass their pets off as service animals, discussing miniature horses, ferrets, and the difference between therapy animals versus service animals. Part IV is a discussion of potential conflicts between the federal ADA and state or local laws regarding non-traditional service animals. Finally, Part V concludes that the present regulatory system is adequate and should remain in place.


II. Potentially Dangerous Animals


Perhaps the greatest concern about people with disabilities using non-traditional service animals arises from the specter of dangerous animals. Almost everyone can agree that lions, tigers, and bears are not appropriate animals to be kept in the average home or to traipse around our towns and cities with their owners. The open-ended language in the current regulation defining a service animal as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability” does leave the door open to this possibility. [FN22] However, an examination of the use of non-human primates as service animals shows that the courts can easily strike down any attempt to use a dangerous creature as a service animal. [FN23]

*418 A. Non-Human Primates

Among people with disabilities who use non-traditional service animals, individuals who utilize non-human primates are conspicuous. An interesting example of a partnership of this type comes from 1800's South Africa, when a baboon helped a paraplegic to keep his job. [FN24] Jack “Jumper” Wide, a railway guard who lost his balance and fell under a train, lost both of his legs at the knees and struggled to continue doing his work. [FN25] Wide spotted a trained baboon driving an oxwagon and became convinced that the animal could assist him. [FN26] Wide persuaded the owner of the baboon to turn over the animal. [FN27] The baboon's owner warned that Wide must provide “a tot [FN28] of good Cape Brandy” to the baboon each evening or the animal would pout and refuse to work the next day. [FN29] Wide trained the baboon to push him to work in a trolley, change signals in the railyard, and fetch keys to the coalshed when trains gave the appropriate whistle signal. [FN30] After a traveler complained that the signals in the rail yard were being changed by a baboon, the railroad dispatched investigators to the scene. [FN31] Wide insisted that he and the baboon were quite capable, and the inspectors proceeded to give the animal a test, which he easily passed. [FN32] For his valuable service to the railroad guard, the baboon received an employment number and was issued government rations until his death. [FN33]
A more recent case involving the use of primates as service animals provides us perhaps the best example of how the courts can weed out service animals that pose a possible risk to public safety. [FN34] In Pruett v. Arizona, a diabetic Arizona woman sought to override state law forbidding her to keep a chimpanzee in her home, by claiming it was her service animal. [FN35] Pruett had experience in keeping unusual animals, owning a pet tree sloth and having previously used a macaque to assist with her diabetes. [FN36] The macaque was able to detect changes in Pruett's scent when her sugar levels dropped, and would bring her something sugary to *419 eat or drink. [FN37] After the death of her macaque in 2006, Pruett informed the Arizona Game and Fish Department (Department) that she wanted to obtain a chimpanzee to replace the macaque as her service animal. [FN38] In June 2007, Pruett purchased a two-year old chimpanzee in Texas and drove with it back to Arizona. [FN39] Pruett admitted knowing at the time she purchased the chimpanzee that possession of a chimpanzee was restricted in Arizona. [FN40]
Arizona law considers “[a]ll species of the family Pongidae of the order Primates [-][c]ommon names include: orangutans, chimpanzees, gorillas” - to be restricted wildlife. [FN41] The law states that “‘restricted live wildlife’ means wildlife that cannot be imported, exported, or possessed without a special license or lawful exemption.” [FN42] Pruett sought to obtain an exemption from the Department, as well as an exhibitor license for one nonhuman primate from the United States Department of Agriculture (USDA). [FN43] The USDA engaged in pre-licensing inspections, but ultimately declined to issue the requested license, citing a need for more information. [FN44] The Department also denied Pruett's request to keep the chimpanzee in her home as a service animal to assist with her diabetes in July 2007, giving her thirty days to remove the animal from the state and prove that she was no longer harboring it. [FN45]
Pruett did not accept this directive and filed suit under the ADA in federal court, seeking a waiver of Arizona law allowing her to keep the chimpanzee. [FN46] While both sides agreed that Pruett was a “qualified individual with a disability,” [FN47] the United States District Court for the District of Arizona denied her request to keep the chimpanzee and granted summary judgment to the state. [FN48] The court stated that the Department had properly followed Arizona law in refusing to grant Pruett an exception to keep her chimpanzee. [FN49] This alone did not spell defeat, however, as the federal ADA statute can preempt a conflicting state law. [FN50]
*420 The court first examined the claim that the chimpanzee was a service animal. [FN51] Examining the regulatory definition, the court determined that the chimpanzee did not qualify, because it did not meet the standard of being individually trained for the benefit of a person with a disability. [FN52] While acknowledging that the chimpanzee was able to fetch beverages and candy on command, the court was unimpressed. [FN53] Considering the seriousness of Pruett's condition, and the ability of the chimpanzee to assist her with it, the court found that keeping the chimpanzee as a service animal was “not only unnecessary, it likely is inadequate.” [FN54] Suggesting that Pruett would have been wiser to replace her deceased service macaque with a similar animal, the court noted that the macaque was able to detect a dangerous drop in blood glucose level, summon emergency assistance if Pruett was unable to do so herself, and was permitted under Arizona law. [FN55] In contrast, the chimpanzee was trained to bring Pruett sugar only when verbally told to do so and was unable to summon emergency services. [FN56] The chimpanzee also was illegal to keep in Arizona without a license. [FN57]
Had the court stopped here, a properly trained chimpanzee might someday qualify as a service animal for an individual with a qualified disability. However, the court went further and considered the effect of Pruett's claims on the laws of Arizona. [FN58] The ADA requires reasonable modifications on the part of a public entity, such as the Department, “unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” [FN59] The court found that the waiver of Arizona law Pruett was seeking would constitute a fundamental alteration of Arizona's statutes and regulations protecting its citizenry. [FN60] Looking ahead, the court stated that “[a] bond between a human and a chimpanzee does not guarantee there will not be future aggression by the chimpanzee.” [FN61] The court emphasized Pruett's own acknowledgement of potential future problems, noting that:
Pruett concedes, however, that the Chimpanzee will grow to be large and strong, its behavior could be unpredictable, and chimpanzees are likely to become aggressive beginning at adolescence. Pruett acknowledges that even if she takes measures, such as castration, to *421 reduce the likelihood that the Chimpanzee will become aggressive, she may not be able to control the Chimpanzee and would need to keep it in an enclosure. She also acknowledges that at some point the Chimpanzee will be too large to live in her home and be used as a service animal. [FN62]
Focusing on safety, the court held that the Department could not legitimately determine that the chimpanzee did not pose a threat to Pruett and others. [FN63] Even though Pruett sought to keep the chimpanzee only at home and did not seek access to a place of public accommodation, [FN64] the court sided with the Department's contention that the chimpanzee posed a potential threat to Arizonans. [FN65]

Finally, the court determined that the waiver sought by Pruett was not reasonable, and thus not required under the ADA. [FN66] The court stated that “[c]ourts generally will not second-guess the public health and safety decisions of state legislatures acting within their traditional police powers, but the ADA and accompanying regulations require courts to ensure that the decision reached by the state authority is appropriate under the law and in light of proposed alternatives.” [FN67] The court granted summary judgment for the Department. [FN68] Perhaps more importantly, the court articulated a test that could be used in similar situations: (1) whether the modifications are necessary to prevent discrimination against a disability; (2) whether the modifications would fundamentally alter the nature of existing statutes and regulations; and (3) whether the modifications are reasonable. [FN69]
While the Pruett case speculated about the potential danger in keeping a chimpanzee, this danger was illustrated by a February 2009 attack. [FN70] This incident, in which a pet chimpanzee in Connecticut severely mauled a visitor to the owner's home, received extensive media coverage. [FN71] Following this attack, the Connecticut legislature introduced a bill to ban the possession of chimpanzees, as well as other animals considered to be “dangerous.” [FN72] Action also followed on the federal level, with both the House and Senate considering versions of the Captive Primate Safety Act to make the interstate transport of pet *422 primates illegal. [FN73] However, it is likely that the vast majority of those who utilize primates as service animals are not keeping chimpanzees or baboons. [FN74]
Since 1979, the one-of-a-kind organization, Helping Hands Monkey Helpers for the Disabled (Helping Hands), has trained capuchin monkeys to assist people with spinal cord injuries or mobility impairments. [FN75] Spurred by an interest in ways to assist veterans who had suffered spinal injuries, Helping Hands received early support from the National Science Foundation, the Veterans Administration, and the Paralyzed Veterans of America. [FN76] Extensive research and planning went into determining what type of monkey would be best for the program, and a training program was developed. [FN77] Capuchin monkeys were selected due to their “size, intelligence, dexterity, curiosity and affectionate nature.” [FN78] Today, Helping Hands operates a breeding program in partnership with a zoo, a “Monkey College,” and an educational program to educate children on avoiding spinal cord injuries. [FN79]
In spite of the $38,000 cost of raising and training each monkey, Helping Hands has been able to place over one hundred capuchins with individuals suffering from spinal cord injuries, as well as cerebral palsy, stroke, polio, and Lou Gehrig's Disease. [FN80] Service monkeys offer several advantages over traditional service dogs. [FN81] Due to their greater manual dexterity, the monkeys can be trained to perform tasks such as feeding people, using a microwave oven, *423 and putting disks into a DVD player. [FN82] These tasks would be impossible for a dog, no matter how well-trained. [FN83] Another advantage over dogs is the longevity of the monkeys, who can serve for twenty to thirty years [FN84] compared to the average service dog working life of eight to ten years. [FN85]
Despite this success story, both versions of the revised regulation proposed in 2008 would have stripped these monkeys of their legal status as service animals. [FN86] In proposing the regulation, the DOJ cited the American Veterinary Medical Association's (AVMA) position statement against the use of monkeys as service animals, which states: “The AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury and zoonotic (animal to human disease transmission) risks.” [FN87] However, as of 2008, these monkeys could be kept as pets in many states without even obtaining a permit, and with a permit in several others. [FN88] It is illogical to refuse to acknowledge the Helping Hands' monkeys as service animals for people with disabilities, when their neighbors are free to keep the same monkeys as pets.
The legislative branch has demonstrated more support for the concept of monkeys as service animals than the DOJ. [FN89] When the House passed the Captive Primate Safety Act in 2008, exceptions to the ban of interstate transport of primates were crafted for veterinary purposes or for transfer to a new caregiver for the animal if its previous owner died. [FN90] Subsequently, Representative Don Young of Alaska introduced an amended version containing another exception for the transport of capuchin service monkeys to people with disabilities in order to assist them with independent living. [FN91] This bill was intended solely for the benefit of Helping Hands to ensure that it “will be able to continue to transport *424 its service monkeys to worthy recipients in all 50 States and U.S. territories in the future.” [FN92] In his remarks, Representative Young particularly praised the value of Helping Hands' programs for disabled veterans and noted that his bill had been endorsed by the Army Veterinary Corps. [FN93] The amended bill did not make it out of committee, and the original version of the bill also stalled in the Senate. [FN94]
When the Captive Primate Safety Act was reintroduced in 2009, both the House and Senate versions contained the language from Representative Young's 2008 bill, which would allow Helping Hands to continue transporting capuchin service monkeys to people with disabilities. [FN95] This bill passed the House in February 2009, but has not been voted on by the Senate. [FN96] Given these developments, it appears that there is significant support in Congress for the recognition of Helping Hands monkeys as service animals. It would seem counter to legislative intent for the DOJ to disallow the monkeys' status as service animals, while Congress considers legislation specifically permitting their interstate transport to assist people with disabilities.
These bills also require compliance with state and local regulations regarding both the transport and possession of the monkeys. [FN97] As Pruett demonstrates, state wildlife control laws need not be thrown out automatically whenever the ADA is invoked. [FN98] The courts and legislatures remain better forums to determine the status of service animals and prevent abuses, rather than a one-size-fits-all regulation imposed by Washington.

B. Snakes

A snake is another potentially dangerous animal, and at least one individual has tried to defend using a snake as a service animal. [FN99] In Assenberg v. Anacortes Housing Authority, Michael Assenberg sued the Anacortes Housing Authority (AHA) for not allowing him to keep snakes in his apartment. [FN100] Assenberg moved in with a resident of the complex in July 2005 and joined her on the lease. [FN101] Soon after, another resident complained that Assenberg was keeping snakes in his apartment. [FN102] AHA sent Assenberg a “Notice to Comply *425 or Vacate and Notice of Intent to Evict based on plaintiffs' violation of the pet policy, which prohibits snakes.” [FN103]

Assenberg responded, claiming “that the snakes were his service animals.” [FN104] He provided a letter from his physician that he was depressed and the pet snakes were part of his therapy. [FN105] According to the doctor, Assenberg “derive[d] much comfort and mental benefit from his snakes.” [FN106] This letter did not satisfy the AHA. [FN107] AHA reconsidered following a second letter where the physician clarified that the snakes were indeed service animals and offered further assurance of their assistance in treating Assenberg's depression. [FN108]
After the second letter, AHA relented and allowed Assenberg to keep the snakes as long as they did not endanger other residents or apartment staff. [FN109] More specifically, he was required to declare the types of snakes he kept and obtain a professional opinion that they were not venomous or otherwise dangerous; keep the snakes caged when any staff members were in his apartment, or when he was transporting the snakes; and agree that AHA was not responsible for any injuries caused by the snakes. [FN110] In his response, Assenberg stated that he owned both a gopher snake and a red tail boa, but otherwise refused to comply. [FN111] He was insistent upon his right to have the snakes with him at all times, even when walking to the management office to pay his rent. [FN112]
Already at an impasse over the snakes, a dispute then developed between Assenberg and the AHA over his right to cultivate and use marijuana under Washington's state medical marijuana law. [FN113] AHA cited both of these violations and began the process of evicting Assenberg in September. [FN114] Assenberg contested his eviction by filing suit in state court, which AHA removed to federal court. [FN115]
The United States District Court for the Western District of Washington granted AHA's request for summary judgment. [FN116] The court ruled that Assenberg had not demonstrated the snakes were necessary for his treatment [FN117] despite additional information from his physician that the snakes served as *426 “magnets for heat” that benefited Assenberg. [FN118] The court also found that the snakes failed to meet the requirements of service animals, stating that Assenberg “never informed AHA that he trained the snakes or that they had any unique characteristics or abilities.” [FN119] The court suggested that AHA had already gone further than necessary in accommodating Assenberg by allowing him to keep the snakes with conditions. [FN120] The court rejected Assenberg's insistence on the right to carry the snakes with him at all times, again stating he had failed to prove that it would constitute a necessary accommodation. [FN121]
The danger of snakes is illustrated by the tragic death of a Florida child at the hands of a pet Burmese python in July 2009. [FN122] While uncommon, there have been a dozen documented snake attacks in the United States since 1980. [FN123] In addition to possible attacks on humans, snakes pose a danger as an invasive species. [FN124] Escaped and released pythons are a major problem in Florida's Everglades, where they breed and prey upon native wildlife. [FN125] Experts estimate that 150,000 non-native pythons have colonized the Everglades, [FN126] and U.S. Geological Survey information indicates that climatic conditions would allow their spread across the southern third of the country. [FN127] Spurred to action by the toddler's death, Florida has begun licensing hunters to cull the animals from the Everglades. [FN128] The federal government may also get involved, as Senator Bill Nelson had already introduced a bill in Congress to ban the importation of Burmese pythons. [FN129]
Assenberg provides another fine example of the court's ability to restrict the unfettered use of service animals. Even if the snakes involved in this case had met the training standard, the court could still have evaluated the potential dangers involved, and possibly reached the same result. In any event, it seems unlikely that AHA would have been forced into offering any accommodations beyond what it had already offered to Assenberg.


*427 III. Pets Masquerading as Service Animals


Another problem arises when people claim that their pets are service animals in order to keep an otherwise forbidden animal at their home or to gain access to places of public accommodation with the animal. [FN130] As we have seen in Pruett, this issue may overlap with a situation where the animal is potentially dangerous as well. [FN131] Unsurprisingly, the courts have also been called upon to settle disputes of this nature, where the danger posed by the animal is not a paramount concern. [FN132] These animals have typically been ruled out due to lack of training or their owners' lack of disability. [FN133]

A. Miniature Horses

In Access Now, Inc. v. Town of Jasper, a mother (Kitchens) sought to keep a miniature horse at her home in violation of a local ordinance, claiming it was a service animal for her daughter (Tiffany). [FN134] Nine-year-old Tiffany suffered from numerous health problems, including spina bifida, hydrocephalus, seizures, and incontinence. [FN135]
Approximately three years before the case was decided, Kitchens contacted the Make-A-Wish Foundation to try to obtain a miniature horse for Tiffany. [FN136] Kitchens also applied for a permit from the town to keep a miniature horse on her property in Jasper, Tennessee. [FN137] The town's police chief and public health officer (Graham) visited the property and consulted with neighbors before denying Kitchens' request. [FN138]

In denying her request, Graham cited the nearness of Kitchens' neighbors, as well as their concerns over health and cleanliness in the neighborhood. [FN139] As a result of this denial, the Make-A-Wish foundation did not provide a miniature horse for Tiffany. [FN140] However, someone in nearby Chattanooga heard about the *428 story and obtained a miniature horse from a breeder, which he then delivered to her. [FN141] When the horse was kept at the residence, despite lacking the required permit, the town cited Kitchens for violation of the municipal ordinance, and she was ordered by the Jasper Municipal Court to remove the animal from her property. [FN142]
Kitchens then appealed her case to the Circuit Court of Marion County. [FN143] Her credibility was called into question by the fact that for the first time in this appeal, she alleged that the horse was a service animal for Tiffany. [FN144] On a visit to Kitchens' home, the town's attorney saw Tiffany walking and playing without the help of the horse, and noted that “Kitchens seems more interested in the horse than was Tiffany.” [FN145] Kitchens filed a federal suit under the ADA after the Circuit Court ruled in favor of the town. [FN146]
To prove a qualified disability under the ADA, an individual must demonstrate “a physical or mental impairment that substantially limits one or more major life activities of such individual.” [FN147] Plaintiffs here alleged that Tiffany's impairments impacted the major life activities of walking, standing, and caring for herself. [FN148] To show the necessity of keeping the horse as a service animal, Kitchens explained that the horse had been trained to:
assist Tiffany in standing, walking, maintaining her balance, and picking up unspecified objects off the floor or ground for Tiffany. If Tiffany is walking and becomes tired, say the plaintiffs, Tiffany places her arm on the horse or leans some of her body weight onto the horse so it can assist her in standing and walking. However, the plaintiffs say Tiffany only uses the horse in this manner inside Kitchens' house and in the backyard. Plaintiffs contend that Tiffany's use of the horse has enabled her to become stronger and improve her ability to stand and walk. [FN149]
*429 Despite these claims, the court ruled in favor of the town and dismissed Ms. Kitchens' suit. [FN150] While expressing sympathy and noting that Tiffany had “significant health problems,” the court stated that she was not disabled under the ADA. [FN151] In reaching this decision, the court cited the deposition testimony of Tiffany's physician, who “has never recommended, and would not recommend at this time, that Tiffany use the horse as a service animal. Dr. Strait flatly states that Tiffany does not need a service animal.” [FN152] A neighbor also testified to the court that Tiffany was able to “stand, walk, run, jump, ride a bicycle and swim by herself without assistance. Tiffany has engaged in these activities and played around the neighborhood both before and after she obtained the horse.” [FN153] The town introduced videotapes of Tiffany playing outside her home, without the assistance of the horse, which further supported the conclusion that Tiffany was not disabled. [FN154]

Because the court's analysis focused on Tiffany's disability status, the question of whether or not keeping the horse would be a reasonable accommodation under the ADA was never reached. [FN155] Tiffany's use of the horse was not the most typical use of a miniature horse as a service animal. [FN156] Miniature horses are trained by The Guide Horse Foundation primarily for use as guide animals, rather than to physically aid movement. [FN157] While guide dogs have been used in the United States for over eighty years, [FN158] the Guide Horse Foundation only began its work in 1999. [FN159] Horses make excellent guide animals, being known to guide their riders to safety. [FN160] Sighted horses also serve as guides to keep blind horses with the herd. [FN161] While a full-size horse certainly can serve as a guide animal, [FN162] it would not be a practical service animal for many people with disabilities who live in urban or suburban settings. However, *430 miniature horses are only about two feet tall at the shoulder, and thus are much easier to keep outside of a farm environment. [FN163]
While guide dogs are certainly the most common type of service animal, [FN164] miniature horses offer several advantages over their canine counterparts. [FN165] Perhaps the greatest of these is the longevity of a miniature horse, which can live for thirty-five years or more compared to the average service dog lifespan of eight to ten years. [FN166] This reduces the frequency of needing to obtain a trained replacement animal and spares the individual the grief of losing a companion to which they have grown very attached. [FN167] Miniature horses also provide an alternative for those who are allergic to dogs, [FN168] which may be as much as 30% of the U.S. population. [FN169] Preference for horses over dogs also plays a role for some individuals, including some Muslims, who consider dogs to be unclean. [FN170] A twenty-eight-year-old Michigan woman who lost her sight shortly after birth is now able to be more independent with a guide horse, after going her entire life without a service animal due to the belief that “dogs can violate ritual purity.” [FN171] Mona Ramouni described her life before receiving her guide horse, Cali:
I had basically given up. I mean, I had been to the point where I thought, “I'm going to get nothing out of my life,” . . . [a]nd having Cali . . . showed me that I had forgotten about all the optimism I had as a kid. When I was a kid, I thought I could do anything. I thought everything was possible. [FN172]
On the other hand, there is a downside to using miniature horses as guide animals. Even their partisans admit that relying on a guide horse can effectively *431 limit the owner to living in rural or suburban areas, that horses must process waste more often than dogs, and that access to vehicles may be limited as even small horses are physically unable to curl up like a dog. [FN173] One organization feels that guide horses represent a danger to their users, citing particularly the fact that while horses “can be ‘trained’ to handle certain situations, . . . when encountering something new or strange they often panic or spook very easily.” [FN174] Its website points out that police and military horses are used by trained and sighted riders, who can take corrective measures if the horse spooks or bolts. [FN175] Obviously, a blind individual who relied solely on the horse for assistance in navigating would be at a major disadvantage in this situation.

Considering these limitations and disadvantages, it is likely that many potential users of miniature horses as guide animals would decide on their own to utilize the more traditional guide dog. [FN176] However, under the regulation proposed in 2008, guide horse users like Ms. Ramouni might find themselves forced to give up their service animals. [FN177] While the regulation contained an exception requiring places of public accommodation to continue to make reasonable accommodations for people with disabilities using miniature horses trained to assist with their disability, it also specifically stated that “[t]he miniature horse is not included in the definition of service animal, which is limited to dogs.” [FN178] Should the regulation return in this format, it could create an unusual problem for people in Ramouni's situation: being permitted to take their guide horse to a theater, school, etc., but unable to keep the horse at their home if state or local regulations did not permit miniature horses to be kept in that area. [FN179]
In Access Now, the court did not have to consider the issue of reasonable accommodation as Tiffany was not found to have a qualified disability. [FN180] Once again, this shows that the courts are quite capable of distinguishing a legitimate service animal from a cherished pet. As Pruett demonstrates, state and local regulations are certainly part of the equation the court must consider when determining whether allowing a particular service animal constitutes a reasonable accommodation. [FN181] This balanced analysis of the benefit to the *432 individual with a disability against the burden to the community remains a better solution than across-the-board banning of the use of particular species as service animals.

B. Other Animals

The species discussed here are by no means the only ones that people have sought to use as service animals, and the list will no doubt expand in the future. While the major court cases involving non-traditional service animals have already been discussed, a brief look at some of these other species reinforces that a one-size-fits-all regulation is unwise.

1. Ferrets

As the popularity of pet ferrets has grown, it was likely inevitable that we would see more cases concerning their use as alleged service animals. [FN182] This question found its way into the courts when Lucy Gwin of Pennsylvania fought the eviction of her ferrets from the no-pets-allowed apartment where she resided. [FN183] Gwin has suffered from seizures since being hit by a drunk driver in 1989. [FN184] She prefers to avoid taking regular seizure medication, claiming it makes her “stupid and unable to think.” [FN185]
Instead, Gwin has relied upon her ferrets: Idi, Odo, Rooty and Tooty. [FN186] She has said that the ferrets alert her to an impending seizure in time to medicate and lie down, preventing the seizure from occurring. [FN187] Although she has not trained the ferrets to do this, she has owned ferrets for eighteen years and all of them have exhibited this ability. [FN188] Nevertheless, a Washington county court ruled that the ferrets were not service animals. [FN189] Gwin was forced to remove them *433 from her apartment while she continued to contest her eviction on other grounds. [FN190]

2. Therapy Animals

An alternative service animal, which has not yet been contested in court, is Sadie the parrot of St. Louis. [FN191] Sadie's owner, Jim Eggers, suffers from psychotic tendencies, which have landed him in court several times. [FN192] Sadie ameliorates these episodes by sensing the shift in Eggers moods and calming him with soothing phrases. [FN193] Sadie also helps Eggers to cope with the side effects of his anti-psychotic medications by making sounds to alert him to telephone calls, knocks at the door, running faucets, and fire alarms. [FN194] Eggers purchased a special backpack to hold Sadie's cage and now takes her with him virtually everywhere. [FN195]
Trouble developed in 2007 when Eggers and Sadie went to have his teeth cleaned at the dental hygiene school of St. Louis Community College. [FN196] Sadie was denied access to the school, which questioned her status as a service animal and considered her a possible threat to public health. [FN197] Eggers filed a complaint with the United States Department of Education's Office of Civil Rights (OCR) but achieved mixed results. [FN198] While the OCR found that the school had violated the ADA by questioning Eggers about his disability, it also found that Sadie was a “therapy animal” rather than a service animal and thus not covered under the ADA. [FN199]
*434 Drawing the line between service animals and therapy animals is not always easy, and in at least one case, the authorities found it easier to give in than continue the fight. [FN200] An Ohio couple claimed that two goats, D.J. and Blessing, helped their thirteen-year-old son, David, to cope with his attention deficit hyperactivity disorder. [FN201] The town filed suit in state court, objecting to the goats as a violation of local zoning regulations. [FN202] The family and a disabled advocacy group attempted to shift the case to federal court, but the judge ruled that the zoning issue must first be decided in state court. [FN203]
Town officials ultimately opted to settle the lawsuit. [FN204] David was allowed to keep D.J. and Blessing, “until he turns 18, graduates from high school, or no longer needs the goats for his medical therapy. . . . [The] family must maintain a six-foot-high privacy fence . . . and provide documentation each year from David's doctor indicating that tending the goats is still therapeutic for him.” [FN205] It is understandable that cities prefer not to spend time and resources in litigation against their residents, but the town would likely have prevailed if it had pursued the case.
Although the DOJ's 2008 proposed regulation contained language clarifying the government's view of “therapy animals,” none of the information represented a change in policy from what currently exists. [FN206] While nothing prevents a person with a mental disability from utilizing a service animal, the DOJ stated its position that “[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.” [FN207] While such a clarification would not be harmful, this information is not new because these animals can already be ruled out by the current requirement that service animals be “individually trained to do work or perform tasks for the benefit of an individual with a disability.” [FN208]
Accession to requests to accommodate non-traditional service animals typically results from decisions of local government, as in the case of D.J. and *435 Blessing, or from a businesses' fears that it will violate the ADA should it prohibit the animal's entry. [FN209] For example, this happened to US Airways when a passenger alerted the airline that she would be accompanied on the flight by her service animal, which happened to be a 300-pound pot-bellied pig. [FN210] Charlotte the pig boarded the flight from Philadelphia to Seattle. [FN211] Other passengers later complained that “Charlotte became distressed upon the aircraft's descent to land, ran around the cabin squealing and attempted to enter the galley and the cockpit.” [FN212]
Charlotte's owner had a doctor's note stating that due to a serious heart condition, she required the company of the pig to ameliorate stress. [FN213] In When Pigs Fly, They Go First Class: Service Animals in the Twenty-First Century, Susan D. Semmel speculates that “airline ticket agents, who are probably not attorneys, were perhaps fearful of taking an action possibly interpreted as discrimination.” [FN214] While understandable, this situation did not have to occur. It is unlikely that any court would have considered Charlotte a service animal, let alone required the airline to transport such a beast in the passenger cabin as a reasonable accommodation. [FN215]
Numerous concerns render particular animals or species unsuitable for selection as a service animal. For instance, use of endangered species in this fashion likely would not be coincident with conservation goals. [FN216] As the forgoing cases show however, the courts are well positioned to consider individual circumstances, in light of applicable laws and the interests of the state *436 and public. [FN217] The proposed regulation, which would trade this individual examination for an across-the-board ban, does not comport with the ADA, which requires that “[a]n individual analysis must be made with every request for accommodations and the determination of reasonableness must be made on a case by case basis.” [FN218] Our current regulatory system provides opportunity for people with disabilities to choose the service animal that best suits their situation, while also providing a framework to disallow abuses and ridiculous situations, such as Charlotte's accumulation of frequent flier miles.


IV. Conflict with State & Local Laws


Another issue that may arise with a more stringent federal definition of what constitutes a service animal is a potential conflict with more generous definitions under state and local law. [FN219]
Federal supremacy requires that the ADA triumph over any state or local law that grants fewer rights or less protection than the ADA. [FN220] However, states and cities are free to provide additional rights and protections within their jurisdictions beyond those mandated by the ADA. [FN221]
For example, Georgia specifically recognizes capuchin monkeys, such as those trained by Helping Hands, within the state's definition of a service animal. [FN222] Ohio recognizes “service monkeys” within its definition without specifying a species. [FN223] Should a regulation like that proposed in 2008 be enacted, service monkeys would lose their service animal status under federal law, but state law would be unaffected. Imagine a resident of Georgia or Ohio who relied upon a service monkey to assist with her disability, finding herself suddenly unable to cross state lines without being stripped of that assistance. Her life could continue as normal in Atlanta or Cincinnati, but she would be functionally prohibited from free movement across state lines.
The Supreme Court has found that a “right to travel” exists, protecting both “the right of a citizen of one State to enter and to leave another State, [and] the right to be treated as a welcome visitor rather than an unfriendly alien when *437 temporarily present in the second State.” [FN224] While these unfortunate residents of the Peach and Buckeye states would not be actually prohibited from crossing a state border, depriving them of their normal assistance to perform major life activities during these travels might be viewed as treating them like “unfriendly aliens.” In any event, penning up people with disabilities in their home state does not meet the goals of the ADA as stated by President Bush when he signed the act: “independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.” [FN225]
The existing federal standard also protects against excesses in the other direction. Consider San Francisco, a city renowned for its tolerance, where landlords have acquiesced to service animal demands like the woman with a doctor's note “stating her inability to conceive and express her maternal instinct necessitated her to breed hamsters,” and the stroke victim who says that caring for service tortoises helps with focus. [FN226] San Francisco Animal Care and Control issues service dog tags to anyone displaying a doctor's note, provided she will sign an affidavit that she is not engaged in fraud. [FN227] While such tags are not required by the ADA, [FN228] they can lend an aura of official approval to those who seek to abuse the ADA's service animal provisions.
The current system (perhaps with the exception of San Francisco) provides safeguards against such abuses. Recall the tests articulated in the Pruett case - (1) whether the modifications are necessary to prevent discrimination against a disability; (2) whether the modifications would fundamentally alter the nature of existing statutes and regulations; and (3) whether the modifications are reasonable. [FN229] This standard provides a benchmark for evaluating legitimate service animal usage across the entire country, protecting the rights of people with disabilities while enabling challenges to absurd or potentially dangerous situations. A tightening of the federal standard may lead to a proliferation of more generous rules in states and cities across the country, creating islands of San Francisco-style tolerance and other areas where federal law accords the status of service animals only to traditional guide dogs.


*438 V. Conclusion


As these situations show, significant hurdles already exist to the use of non-traditional service animals. In addition to the ADA, individuals may have to deal with other legislation depending on what type of animals they are seeking to keep. While the ADA covers public housing, individuals seeking to keep their service animals in private housing must contend with the Fair Housing Amendments Act of 1988. [FN230] Those who attempt to fly with their service animals must deal with provisions of the Air Carrier Access Act of 1986. [FN231] The paucity of cases shows that the courts are hardly clogged with attempts to legitimize non-traditional service animals, whether legitimate or frivolous. The failure in virtually every case [FN232] of the individual seeking accommodation for their service animal also shows that the current open-ended standard is not easily met when analyzed by a court of law.
While this lack of success in the courts may lead some to believe that the proposed regulation would not cause any harm, this is illusory. The cases of the Helping Hands' monkeys and the Guide Horse Foundation's horses show that there is a small but legitimate place for non-traditional service animals. Rather than indicating that a regulation should be promulgated with exceptions for guide horses and service monkeys, these examples show that our current, open-ended system allows for varied individual challenges to be met and allows for change over time. While Helping Hands predates the ADA itself and has been training capuchin monkeys since 1979, [FN233] the Guide Horse Foundation only arrived on the scene in 1999. [FN234]
It is likely that future innovations will lead to additional species being identified and trained as viable service animals. The number of individuals potentially seeking accommodations also is likely to grow, given the ADA Amendments Act of 2008, which requires that the ADA be “construed in favor of broad coverage of individuals under [the] Act, to the maximum extent permitted by [its] terms.” [FN235] Any regulation allowing only certain prescribed species would almost certainly stymie this innovation and harm the people with disabilities who would otherwise benefit.
There are also the situations that have not been litigated to consider, such as Mr. Eggers and his parrot Sadie. Does a caged parrot really represent a greater burden than a guide dog in an apartment, on a bus, or in a restaurant? The bar is *439 set appropriately high by the current regulation, and this should remain in place to provide people with disabilities with maximum opportunity to integrate into society as contemplated within the ADA. The current system works. The abuses of a few should not deny other individuals the chance to utilize a service animal that provides them with the greatest access to the mainstream of American life.


[FNa1] . Robert L. Adair is a J.D. candidate for 2011 at Salmon P. Chase College of Law, Northern Kentucky University. He earned his M.S. in International Affairs from Florida State University in 1997, and his B.A. in International Studies from the University of South Carolina in 1995.

[FN1] . Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2006).

[FN2] . Id.

[FN3] . 42 U.S.C. § 12186(b) (2006); Bragdon v. Abbott, 524 U.S. 624, 646 (1998).

[FN4] . 28 C.F.R. § 36.302(c)(1) (1991).

[FN5] . 28 C.F.R. § 36.104 (1991).

[FN6] . Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34,508, 34,516 (June 17, 2008).

[FN7] . Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34,508, 34,553 (proposed June 17, 2008) (to be codified at 28 C.F.R. § 36.104).

[FN8] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,521.

[FN9] . Rebecca Skloot, Newsflash! DOJ ADA Changes Leaked - All Animals Set to Be Banned Except Dogs, Jan. 6, 2009, http:// scienceblogs.com/culturedish/2009/01/newsflash_doj_ada_changes_leak.php; see Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,516.

[FN10] . Skloot, supra note 9; see Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,516.

[FN11] . Skloot, supra note 9; see Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,516.

[FN12] . Skloot, supra note 9.

[FN13] . Department of Justice, Proposed ADA Regulations Withdrawn from OMB Review (Jan. 26, 2009), http://www.ada.gov/ADAregswithdraw09.htm.

[FN14] . See Ben Leubsdorf, Tiny Horse Trains as Guide for Blind Muslim, Deseret Morning News, Apr. 12, 2009, at A08 (stating that “[t]he new ADA regulations are under review and final language will be issued later this year, according to Justice Department spokesman Alejandro Miyar”).

[FN15] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,515.

[FN16] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,521-22.

[FN17] . See Rebecca Skloot, Creature Comforts, N.Y. Times, Jan. 4, 2009, § MM (Magazine), at 34.

[FN18] . See id.

[FN19] . See id.

[FN20] . See Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009); Gwin v. Pyros, No. 09-527, 2009 WL 1269075 (W.D. Pa. May 6, 2009); Assenberg v. Anacortes Hous. Auth., No. C05-1836RSL, 2006 WL 1515603 (W.D. Wash. May 25, 2006).

[FN21] . See infra Part III.B.2 (discussing a situation in which a local government settled a lawsuit that allowed a family to keep two goats in violation of local zoning regulations and a situation in which U.S. Airways allowed a 300-pound pot-bellied pig to ride in the cabin of a flight).

[FN22] . 28 C.F.R. § 36.104 (2009) (emphasis added).

[FN23] . See Pruett v. Arizona, 606 F. Supp. 2d 1065, 1079 (D. Ariz. 2009).

[FN24] . See Pieter du Plessis, Jack the Signalman, http:// www.earthfoot.org/lit_zone/signalmn.htm (last visited Jan. 13, 2010).

[FN25] . Id.

[FN26] . Dorothy L. Cheney & Robert M. Seyfarth, Baboon Metaphysics: The Evolution of a Social Mind 30 (The University of Chicago Press 2007).

[FN27] . Id.

[FN28] . A “tot” is defined as “a small amount, as of liquor.” The Free Dictionary by Farlex, http://www.thefreedictionary.com/tot (last visited Jan. 13, 2010).

[FN29] . Cheney & Seyfarth, supra note 26, at 30.

[FN30] . Cheney & Seyfarth, supra note 26, at 30.

[FN31] . Cheney & Seyfarth, supra note 26, at 31.

[FN32] . Cheney & Seyfarth, supra note 26, at 31.

[FN33] . du Plessis, supra note 24. Presumably, these rations included brandy each evening.

[FN34] . See Pruett v. Arizona, 606 F. Supp. 2d 1065, 1079 (D. Ariz. 2009).

[FN35] . Id. at 1068.

[FN36] . Paul Rubin, A Severely Diabetic Valley Woman Faces Criminal Charges Over Her “Service Animal”: A Chimpanzee Named Joey, Phoenix New Times, Aug. 21, 2008, available at 2008 WLNR 15878693.

[FN37] . Id.

[FN38] . Pruett, 606 F. Supp. 2d at 1069.

[FN39] . Id. at 1070.

[FN40] . Id.

[FN41] . Ariz. Admin. Code § R12-4-406(G)(4) (2009).

[FN42] . Ariz. Admin. Code § R12-4-401(24) (2009).

[FN43] . Pruett, 606 F. Supp. 2d at 1069.

[FN44] . Id. at 1070.

[FN45] . Id.

[FN46] . Id. at 1071.

[FN47] . Id. at 1076.

[FN48] . Id. at 1079.

[FN49] . Pruett, 606 F. Supp. 2d at 1076 (The Department may only grant an exception if public health and safety are not threatened, and the purpose must be “for the advancement of science, wildlife management, or promotion of public health or welfare; education; commercial photography under specific conditions; or for humane treatment of live wildlife.” (quoting Ariz. Admin. Code § R12-4-417 (2009))).

[FN50] . Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F. Supp. 2d 941, 952 (E.D. Wis. 1998).

[FN51] . Pruett, 606 F. Supp. 2d at 1077.

[FN52] . Id.

[FN53] . See id.

[FN54] . Id.

[FN55] . See id. at 1078.

[FN56] . Id. at 1071.

[FN57] . See Ariz. Admin. Code §§ R12-4-401, -406 (2009).

[FN58] . Pruett, 606 F. Supp. 2d at 1078-79.

[FN59] . 28 C.F.R. § 35.130(b)(7) (2009).

[FN60] . Pruett, 606 F. Supp. 2d at 1078-79.

[FN61] . Id. at 1071.

[FN62] . Id. at 1078.

[FN63] . Id.

[FN64] . Id. at 1077.

[FN65] . See id. at 1078-79.

[FN66] . Pruett, 606 F. Supp. 2d at 1079.

[FN67] . Id. (citing Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996)).

[FN68] . See id.

[FN69] . Id. at 1076-77.

[FN70] . See Charles Siebert, Something Wild, N. Y. Times, Mar. 6, 2009, at A27.

[FN71] . See id.

[FN72] . Hilda Munoz, Measure Would Ban More Species From Connecticut Homes: Chimp Attack, Hartford Courant, Mar. 7, 2009, available at 2009 WLNR 4414705.

[FN73] . See Captive Primate Safety Act, H.R. 80, 111th Cong. (as passed by House of Representatives, Feb. 24, 2009); Captive Primate Safety Act, S. 462, 111th Cong. (2009) (referred to the Committee on Environment and Public Works). Both versions contain an exception for the transport of a single primate of the genus Cebus (the commonly used Capuchin monkeys) “for the purpose of assisting an individual who is permanently disabled with a severe mobility impairment.”

[FN74] . See Primatestore.com, Choosing a Primate, http:// www.primatestore.com/primatechoose.asp (last visited March 6, 2010) (listing primate species that are often kept in captivity).

[FN75] . Disabled World, Helping Hands Monkey Helpers for Quadriplegics (Jan. 8, 2009), http://www.disabled-world.com/disability/serviceanimals/monkey-helpers.php. Capuchin monkeys may be more familiar to many readers as “organ grinder” monkeys. Helping Hands: Monkey Helpers for the Disabled, Our History, Frequently Asked Questions, http://www.monkeyhelpers.org/ourhistory/FAQs/ (last visited Jan. 14, 2010).

[FN76] . Helping Hands: Monkey Helpers For the Disabled, Our History, http:// www.monkeyhelpers.org/ourhistory/ (last visited Jan. 14, 2010).

[FN77] . Id.

[FN78] . Disabled World, supra note 75.

[FN79] . Helping Hands: Monkey Helpers For the Disabled, Our Programs, Monkey College/Training, http://www.monkeyhelpers.org/ourprograms/monkeycollege/ (last visited Jan. 17, 2010) (At the “Monkey College” in Boston, Helping Hands monkeys are trained to assist people with disabilities to perform tasks in daily life “such as opening and setting up a drink of water, providing food, picking up a dropped or out-of-reach object, or turning the pages of a book.”).

[FN80] . Disabled World, supra note 75.

[FN81] . Kathy Wechsler, What Would Rover Say? Dogs Aren't the Only Option for Service Animals, Quest Extra, July/Aug. 2006, available at http:// www.mda.org/Publications/Quest/extra/qe13-4_service_animals.html.

[FN82] . Id.; John Hilliard, Monkeys as Service Animals?, MetroWest Daily News, Apr. 11, 2004, available at http://www.accessible-devices.com/monkeys.html.

[FN83] . Wechsler, supra note 81.

[FN84] . Helping Hands, supra note 76. Hellion, the first service monkey placed by Helping Hands, assisted his partner for twenty-four years.

[FN85] . Richard Abshire, Service Dogs Helping Patriots and Prisoners: Female Felons Train Nonprofit's Canines for Use by Wounded Vets, Dallas Morning News, June 1, 2009, at 1B.

[FN86] . See Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,521; Skloot, supra note 9.

[FN87] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,521 (alteration in original) (quoting AVMA Position Statement, Nonhuman Primates as Assistance Animals (2005), http:// www.avma.org/issues/policy/nonhuman_primates.asp).

[FN88] . Pet Monkey Info, Laws and Regulations Regarding Primates Kept as Pets, http://petmonkeyinfo.com/laws.html (last visited Jan. 14, 2010).

[FN89] . See, e.g., Captive Primate Safety Act, H.R. 2964, 110th Cong. § 3(a)(2)(B) (as passed by House of Representatives, June 17, 2008); accord Captive Primate Safety Act, S. 1498, 110th Cong. (as introduced in Senate, May 24, 2007).

[FN90] . Captive Primate Safety Act, H.R. 2964, 110th Cong. § 3(a)(2)(B) (as passed by House of Representatives, June 17, 2008); accord Captive Primate Safety Act, S. 1498, 110th Cong. (as introduced in Senate, May 24, 2007). This was a similar bill which failed to pass in the Senate.

[FN91] . Captive Primate Safety and Disabled Human Assistance Act, H.R. 6505, 110th Cong. § 3(a)(2)(B) (2008).

[FN92] . 154 Cong. Rec. E1466-01 (daily ed. July 15, 2008) (statement of Representative Young).

[FN93] . Id.

[FN94] . See H.R. 6505, supra note 91; S. 1498, supra note 90.

[FN95] . Captive Primate Safety Act, H.R. 80, 111th Cong. § 3(a)(2)(B) (as passed by House of Representatives, Feb. 24, 2009); Captive Primate Safety Act, S. 462, 111th Cong. § 3(a)(2) (2009).

[FN96] . See H.R. 80, supra note 95; S. 462, supra note 95.

[FN97] . H.R. 80, supra note 95, § 3(a)(2)(B); S. 462, supra note 95, § 3(a)(2).

[FN98] . Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009).

[FN99] . See Assenberg v. Anacortes Hous. Auth., No. C05-1836RSL, 2006 WL 1515603 (W.D. Wash. May 25, 2006).

[FN100] . Id. at *2.

[FN101] . Id. at *1.

[FN102] . Id.

[FN103] . Id.

[FN104] . Id.

[FN105] . Assenberg, 2006 WL 1515603, at *1. This same doctor also provided “Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington State” paperwork to Assenberg. Id. at *2.

[FN106] . Id. at *1.

[FN107] . Id.

[FN108] . Id.

[FN109] . Id.

[FN110] . Id.

[FN111] . Assenberg, 2006 WL 1515603, at *1.

[FN112] . Id.

[FN113] . Id. at *2.

[FN114] . Id.

[FN115] . Id.

[FN116] . Id. at *5.

[FN117] . Assenberg, 2006 WL 1515603, at *3.

[FN118] . Id. at *1 n.2.

[FN119] . Id. at *3.

[FN120] . Id. at *4.

[FN121] . Id.

[FN122] . See Keith Morelli & Sarah Hoye, Pet Python Smothers Girl, 2, Tampa Trib., July 2, 2009, at 1.

[FN123] . Gary Pinnell, Yes, Exotic Snakes Attacks Can Happen Here, Highlands Today (Sebring, Fla.), July 11, 2009, available at 2009 WLNR 13227898. Not all of these attacks were fatal. See id.

[FN124] . Id.

[FN125] . Id.; see Paul Quinlan, Not So Much as a Near Hiss, Palm Beach Post, July 22, 2009, at 1B.

[FN126] . Stopping Pythons, St. Petersburg Times, July 20, 2009, at 10A.

[FN127] . News Release, United States Geological Survey, USGS Maps Show Potential Non-Native Python Habitat Along Three U.S. Coasts (Feb. 20, 2008), http://www.usgs.gov/newsroom/article.asp?ID=1875.

[FN128] . See Diana Moskovitz, The Everglades: Burmese Python Hunting Opens, Miami Herald, July 18, 2009, at B1.

[FN129] . S. 373, 111th Cong. (2009).

[FN130] . See Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,515-16 (“[S]ome individuals with impairments-who would not be covered as individuals with disabilities-are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation.”); Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals, 11 Animal L. 69, 75 (2005) (“Another issue . . . is determining when an animal should be considered a service animal, as opposed to a companion animal whose owner may be prohibited from keeping the animal on the property.”).

[FN131] . Pruett v. Arizona, 606 F. Supp. 2d 1065, 1077 (D. Ariz. 2009) (“The Chimpanzee does not currently meet the definition of ‘service animal’. . . .”).

[FN132] . See Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973, 980 (E.D. Tenn. 2003); Gwin v. Pyros, No. 09-527, 2009 WL 1269075, at *3 (W.D. Pa. May 6, 2009).

[FN133] . See Access Now, 268 F. Supp. 2d at 979-80; Gwin, 2009 WL 1269075, at *3.

[FN134] . Access Now, 268 F. Supp. 2d at 973-74.

[FN135] . Id.

[FN136] . Id.

[FN137] . Id.

[FN138] . Id. at 974-75.

[FN139] . Id. at 975.

[FN140] . Access Now, 268 F. Supp. 2d at 975.

[FN141] . Id.

[FN142] . Id. at 975-76 (Jasper Municipal Code § 10-102 states that “[n]o person shall keep any animal . . . within one thousand (1,000) feet of any residence, place of business, or public street without a permit from the health officer. The health officer shall issue a permit only when in his sound judgment the keeping of such an animal in a yard or building under the circumstances as set forth in the application for the permit will not injuriously affect the public health.”).

[FN143] . Id. at 976.

[FN144] . See id.

[FN145] . Id.

[FN146] . Access Now, 268 F. Supp. 2d at 976.

[FN147] . Americans with Disabilities Act, 42 U.S.C.A. § 12102(1)(A) (West 2008 & Supp. 2009).

[FN148] . Access Now, 268 F. Supp. 2d at 979; 29 C.F.R. § 1630.2(j)(1) (2009) (“The term substantially limits means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.”).

[FN149] . Access Now, 268 F. Supp. 2d at 977.

[FN150] . Id. at 981.

[FN151] . Id. at 979.

[FN152] . Id. at 977.

[FN153] . Id. at 978.

[FN154] . See id. at 977.

[FN155] . Access Now, 268 F. Supp. 2d at 981.

[FN156] . See The Guide Horse Foundation, The Guide Horse Program, http:// www.guidehorse.org/ (last visited Jan. 14, 2010).

[FN157] . See The Guide Horse Foundation, Who Can Train a Guide Horse?, http://www.guidehorse.org/ (last visited Jan. 14, 2010).

[FN158] . The Seeing Eye, Mission & History, 80 Years of Independence, http://www.seeingeye.org/aboutUs/?M_ID=472 (last visited Jan. 14, 2010).

[FN159] . The Guide Horse Foundation, The Guide Horse Foundation Program, http://www.guidehorse.org/ (last visited Jan. 14, 2010).

[FN160] . The Guide Horse Foundation, Why Use a Mini Horse as a Blind Guide?, http://www.guidehorse.org/ (last visited Jan. 14, 2010).

[FN161] . Id.

[FN162] . See Warren Epstein, Blind Rancher Works Spread With a Little Help, Mobile Reg. (Ala.), Oct. 8, 1996, at D5 (A rancher with macular degeneration uses a seeing-eye horse named Silk Shotgun to assist in running his ranch.).

[FN163] . See Julie Rawe, Seeing-Eye Ponies, Time, Jan. 29, 2001, at 14.

[FN164] . See Rebecca Skloot, DoJ's Rationale Behind Banning Non-Canine Service Animals (Jan. 7, 2009), http:// scienceblogs.com/culturedish/2009/01/dojs_rationale_behind_banning.php.

[FN165] . See The Guide Horse Foundation, Why Use a Mini Horse as a Blind Guide, supra note 160 (“Because horses have eyes on the sides of their heads, they have a very wide range of vision, with a range of nearly 350 degrees.” Other advantages cited are “calm nature” (consider cavalry horses and police horses for proof that horses can be trained to function in stressful environments), “great memory” (“[a] horse will naturally remember a dangerous situation decades after the occurrence”), “focus” (“[t]rained horses are very focused on their work and are not easily distracted. Horses are not addicted to human attention and normally do not get excited when petted or groomed”), “safety conscious” (“horses are constantly on the lookout for danger. [Horses] demonstrate excellent judgment in obstacle avoidance training”), “high stamina” (“a properly conditioned Guide Horse can easily travel many miles in a single outing”), and “good manners” (“Guide horses are very clean and can be housebroken. Horses do not get fleas and only shed twice per year.”).).

[FN166] . Adam Miller, Blind Man Has Horse Sense, N.Y. Post, June 13, 2001, at 3.

[FN167] . See The Guide Horse Foundation, Who Is The Ideal Guide Horse Owner?, http://www.guidehorse.org/ (last visited Jan. 16, 2010).

[FN168] . Id.

[FN169] . Asthma and Allergy Foundation of America, Pet Allergies, http:// www.aafa.org/display.cfm?id=9&sub=24&cont=347 (last visited Jan. 19, 2010).

[FN170] . Leubsdorf, supra note 14.

[FN171] . Leubsdorf, supra note 14.

[FN172] . Leubsdorf, supra note 14.

[FN173] . Eugenia Firth, The Guide Horse Foundation: Joke Or Jeopardy?, The Braille Monitor, Apr. 2001, available at http:// nfb.org/legacy/bm/bm01/bm0104/bm010404.htm.

[FN174] . Guidehorseno.com, Get the Real Facts! Why Miniature Horses Should Not be Used as Guide Animals for the Blind, http:// www.guidehorseno.com/summary.html (last visited Jan. 16, 2010).

[FN175] . See id.

[FN176] . See Weschler, supra note 81. (“We really encourage people to use dogs because it's so much easier with public access . . . .” (quoting Carol King, vice president of the International Association of Assistance Dog Partners)).

[FN177] . Skloot, supra note 9.

[FN178] . Skloot, supra note 9.

[FN179] . See Skloot, supra note 9.

[FN180] . See Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973, 981 (E.D. Tenn. 2003).

[FN181] . See Pruett v. Arizona, 606 F. Supp. 2d 1065, 1078-79 (D. Ariz. 2009).

[FN182] . See Gerry Bucsis & Barbara Somerville, The Ferret Handbook 1 (Barron's Educational Services 2001) (stating that ferrets are now the third most popular companion pet in North America, after cats and dogs).

[FN183] . See Gwin v. Pyros, No. 09-527, 2009 WL 1269075 (W.D. Pa. May 6, 2009).

[FN184] . KDKA (Washington, Pa.), Local Woman Fights to Keep Ferrets (Mar. 27, 2008), http://kdka.com/pets/Ferrets.2.686478.html.

[FN185] . Small Animal Channel.com, Woman Says Ferrets that Alert Her to Seizures May Cause Her Eviction (Apr. 19, 2008), http:// www.smallanimalchannel.com/critter-news/legal-news/ferrets-cause-eviction.aspx.

[FN186] . Id.

[FN187] . Id. The ability of her ferrets to detect pre-seizure changes in her body can be compared to Kristy Pruett's macaque, which could sense changes in her biological composure associated with diabetes and would alert her or bring her something sugary. See Rubin, supra note 36.

[FN188] . Small Animal Channel.com, Woman Says Ferrets that Alert Her to Seizures May Cause Her Eviction (Apr. 19, 2008), http:// www.smallanimalchannel.com/critter-news/legal-news/ferrets-cause-eviction.aspx (“‘When I'm about to have a seizure, they look very unhappy,’ Gwin said. ‘They come over and bump my legs, like they're trying to correct me or stop me from having the seizure.”’).

[FN189] . Gwin v. Pyros, No. 09-527, 2009 WL 1269075, at *3 (W.D. Pa. May 6, 2009).

[FN190] . Id. at *1 (Ms. Gwin claims that apartment employees had been aware of her ferrets for months, and only sought her eviction after she complained about the treatment of other disabled residents. She obtained a temporary restraining order enabling her to stay in the apartment and is challenging her eviction on grounds of retaliation and discrimination based on disability.).

[FN191] . See Skloot, supra note 17.

[FN192] . Skloot, supra note 17. (Mr. Eggers describes his episodes as being “like when the Incredible Hulk changes from man to monster.” His run-ins with the law have included pouring hot coffee out of his window onto a man below and threatening to kill the Archbishop of St. Louis.).

[FN193] . Sarah Casey Newman, Sadie the Parrot, at Your Service, St. Louis Post-Dispatch, Oct. 7, 2006, at L30 (Among Sadie's calming phrases are “Jim, I love you,” “You're OK,” and “You're gonna be OK.”).

[FN194] . Skloot, supra note 17.

[FN195] . Skloot, supra note 17.

[FN196] . Skloot, supra note 17.

[FN197] . Skloot, supra note 17 (noting that “[s]everal top epidemiologists [he] interviewed for this article said that, on the whole, birds and miniature horses pose no more risk to human health than service dogs do”).

[FN198] . See Skloot, supra note 17 (The court concluded that “the school wrongfully denied access based on public-health concerns without assessing whether Sadie actually posed a risk.”).

[FN199] . Skloot, supra note 17 (“‘Therapy animals' (also known as ‘comfort animals') have been used for decades in hospitals and homes for the elderly or disabled. Their job is essentially to be themselves - to let humans pet and play with them, which calms people, lowers their blood pressure and makes them feel better. There are also therapy horses, which people ride to help with balance and muscle building.”).

[FN200] . See Barret J. Brunsman & Jane Prendergast, Kidding Aside, No One Will Get His Goats, Cincinnati Enquirer, Aug. 17 2006, at A1.

[FN201] . Jane Prendergrast, Livestock or ‘Gift From God’?, Cincinnati Enquirer, Nov. 4, 2005, at A1 (According to David, “the goats motivate him more than the other pets because they're like a kid with ADHD. ‘They don't really listen very well,’ he said. ‘That's kind of like me.”’).

[FN202] . Kevin Osborne, Federal Judge Tosses Goat Lawsuit, Cincinnati Enquirer, Dec. 9, 2005, at B2 (Miami Township's zoning law permits “only dogs, cats, birds, snakes of less than 6 feet, mice, gerbils, ferrets, hamsters, minks, rabbits, guinea pigs, fish, turtles, lizards, iguanas and pot-bellied pigs as household pets.”).

[FN203] . Id.

[FN204] . Brunsman & Prendergast, supra note 200.

[FN205] . Dave Reynolds, Settlement Allows Teen to Keep Goats (Aug. 26, 2006), http://www.raggededgemagazine.com/ide/002833.html.

[FN206] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,516.

[FN207] . Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,516 (alteration in original) (The DOJ further states that “[t]his language simply clarifies the Department's longstanding position and is not a new position.”).

[FN208] . 28 C.F.R. § 36.104 (2009).

[FN209] . See Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,515 (“It appears that many covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals.”).

[FN210] . Susan D. Semmel, Comment, When Pigs Fly, They Go First Class: Service Animals in the Twenty-First Century, 3 Barry L. Rev. 39, 39 (2002).

[FN211] . Id.

[FN212] . Id.

[FN213] . Id. at 40.

[FN214] . Id.

[FN215] . See Must Carriers Permit Passengers With a Disability to Travel With Service Animals?, 14 C.F.R. § 382.117(f) (2009) (“You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight's destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.”).

[FN216] . See Endangered and Threatened Wildlife and Plants, Definitions, 50 C.F.R. § 17.3 (2009) (“Harm in the . . . [Endangered Species] Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or . . . impairing essential behavioral patterns, including . . . feeding or sheltering.”).

[FN217] . See, e.g., Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009); Assenberg v. Anacortes Hous. Auth., No. C05-1836RSL, 2006 WL 1515603 (W.D. Wash. May 25, 2006); Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973 (E.D. Tenn. 2003).

[FN218] . Ware v. Wyo. Bd. of Law Exam'rs, 973 F. Supp. 1339, 1356 (D. Wyo. 1997).

[FN219] . See Semmel, supra note 210, at 54.

[FN220] . See Green v. Hous. Auth., 994 F. Supp. 1253, 1257 (D. Or. 1998) (The court struck down an Oregon statute requiring that a hearing ear dog be on an orange leash, finding that was not a valid requirement under the ADA.).

[FN221] . See Nondiscrimination on the Basis of Disability, supra note 6, 73 Fed. Reg. at 34,510; Semmel, supra note 210, at 54-57 (stating that two areas where states can give more rights are in damages and in service animal training).

[FN222] . Ga. Comp. R. & Regs. 290-5-14-.01(zzzz) (2009) (“‘Service animal’ means an animal such as a guide dog, signal dog, capuchin monkey, or other animal that is individually trained to provide assistance to an individual with a disability.”).

[FN223] . Ohio Admin. Code 5101:3-51-04(G)(2)(c) (2009).

[FN224] . Saenz v. Roe, 526 U.S. 489, 500 (1999).

[FN225] . President George Bush, Remarks of President George Bush at the Signing of the Americans with Disabilities Act, available at http:// www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html (last visited Jan. 16, 2010).

[FN226] . Joe Eskenazi, Service With a Snarl, S.F. Wkly., June 17, 2009, available at 2009 WLNR 11760274 (“In San Francisco, snakes, lizards, pit bulls, chickens, pigeons, and rodents have all been declared service animals, hauled onto public transportation, housed legally in city apartments, and, essentially, given the full run of the city.”).

[FN227] . Id.

[FN228] . See Green v. Hous. Auth., 994 F. Supp. 1253, 1257 (D. Or. 1998).

[FN229] . Pruett v. Arizona, 606 F. Supp. 2d 1065, 1076-77 (D. Ariz. 2009).

[FN230] . See Semmel, supra note 210, at 46-49.

[FN231] . Semmel, supra note 210, at 53-54.

[FN232] . See Brunsman & Prendergast, supra note 200. Of the service animals discussed in this article, only the goats D.J. and Blessing survived a legal challenge - when Miami Township elected to settle the case outside of court.

[FN233] . Helping Hands, supra note 76.

[FN234] . See The Guide Horse Foundation, supra note 156.

[FN235] . McCormick v. Verizon Maryland Inc., No. 07-2399-RWT, 2009 WL 2449886, at *10 (D. Md. Aug. 7, 2009) (alterations in original) (citing ADA Amendments Act of 2008, Pub. L. No. 110-325 § 4(a)(4)(A), 122 Stat. 3553 (2008)).

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