[nfb-talk] followup to service animal case

John G. Heim jheim at math.wisc.edu
Tue Aug 11 19:25:04 UTC 2009


Judge dismisses man's lawsuit against city; the man had argued his dog was a
service dog
By SANDY CULLEN
608-252-6137
scullen at madison.com
A federal judge on Monday dismissed a lawsuit claiming Madison police
violated the rights of a man with epilepsy to be accompanied by a service
animal.

U.S. District Judge Barbara Crabb ruled that Stephen Bottila had not
presented enough evidence to prove he qualified as disabled, or that his dog
was a service animal, under the federal Americans with Disabilities Act.

Bottila, who represented himself in the lawsuit, said he would appeal.

"Without rights, I have no life," Bottila said.

"I'm not sure the court got it right," Linda Kilb, an attorney with the
Disability Rights Education and Defense Fund in Berkeley, Calif., said in
response to Crabb's ruling.

Attorney Steven Zach, who represented the city, declined comment on the
ruling.

Bottila had claimed officers violated his rights on Sept. 3, 2007, by
prohibiting him from being in a State Street restaurant and city park with
his German shepherd mix, Justice, which he identified as a service dog.

In May, Madison police used pepper spray and a Taser on Bottila after he
refused to leave a McDonald's restaurant where a manager wanted him to leave
because of his dog.

Zach asked the judge for a directed verdict after Bottila presented his case
before a jury.

Zach argued that expert testimony was required to prove Bottila has a
disability that substantially impairs or limits a major life activity.

"That is absent in this case," Zach said. "The only testimony that exists is
(Bottila's) own, non-expert testimony."

Zach also argued Bottila failed to show that Justice is a service dog under
the ADA, which requires an animal be "individually trained" to perform tasks
for someone with a disability.

Bottila testified at length about his epilepsy, saying the seizures he
suffers have significantly limited his employment options and prevent him
from driving.

He also testified that over time Justice developed the ability to sense when
he was about to have a seizure and to alert him. Bottila said he then
activates a device implanted under his skin to help prevent a seizure.

Crabb said Justice has "an innate ability," but "he has not been trained to
recognize a seizure."

Bottila argued that Justice has been trained by observing his seizures over
several years.

Alejandro Miyar, a spokesman for the U.S. Justice Department, said in June
that Bottila's description of the dog suggests it  is indeed a service
animal. "Animals trained as seizure alert animals are used by many persons
with seizure disorders and they perform an important function for the person
with a disability," he said. "As such, the owner need not provide
certification or proof of the animal's status as a service animal."

Bottila also presented a transcript of a 911 call by Sue Foster, manager of
Einstein Bros. Bagels, in which she stated a man was a refusing to leave the
State Street restaurant with a dog he claimed was a service animal.

He later testified that Officer Kipling Kellogg threatened to arrest him and
send Justice to the pound if he didn't leave the restaurant. Kellogg then
refused to accept what proof Bottila could provide that he has a disability
and that Justice qualifies as a service animal, Bottila said.

Bottila also presented a police report, in which Kellogg stated he thought
Bottila, who was homeless at the time, was pulling a scam to take his dog
into the restaurant.

Later the same day, Bottila testified, now-retired Officer Meredith York
told him he could not have Justice in city-owned Peace Park.

Under the Americans With Disabilities Act, businesses must allow people with
disabilities to bring their service animals into any areas customers are
normally allowed. Employees may ask if an animal is a service animal and
what tasks it is trained to perform, but they cannot ask what a person's
disability is nor require proof that the animal is a service animal.






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