DIG Internship Progam

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DIG has established a successful internship program for both undergraduate students and law students at our local universities. This past semester we hosted two interns. Tiffany Blackmon, from FIU College of Law, assisted with federal litigation, helped us establish our ADA Mediation Project. We file complaints on behalf of persons with disabilities who have been discriminated against with the Department of Justice. These complaints are sent to a mediator who attempts to resolve the case without litigation. This is an exciting new project for DIG and we will be expanding it this summer with our new class of summer interns. Our second intern was Samantha Belabin from the University of Miami, School of Education. She was a tremendous asset to us this spring semester and worked on many projects, with a particular interest in the area of autism. This summer 19 law students have applied to our summer internship project and we will be selecting three to work with us this summer on a variety of issues. They will be researching new legislation both State and Federal that pertains to the rights of person with disabilities, create a white paper on emergency preparedness and how persons with disabilities can best access those services and identify gaps or barriers that may exist. They will also work on several significant cases that DIG is litigating. Interns bring not only talent to our program but also expertise we may not have, hands on assistance in many areas and they are a lot of fun to have around the office. We thank Tiffany and Samantha for all they have done for the folks we serve and look forward to welcoming our new interns this May.

Matt Dietz standing with Tiffany Blackmon, our intern this spring.       Samantha Belabin and Debbie Dietz

 

A Note From Matt

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The first one hundred days of operation of DIG has left us breathless with so much to do, and so much that has been accomplished.

Our litigation team has handled, or is handling 58 matters, and over 65 people have called DIG’s intake line for litigation assistance. The matters that we are currently working on range from a fair housing case with a man with Down Syndrome who the housing provider attempted to evict, to a person who is HIV positive being denied an operation.   The highest proportion of cases accepted are cases involving the deaf, with 22 cases, followed by eight cases involving issues relating to assistance animals.  The types of clients we represent from persons with visual impairments, pregnancy, mobility impairments, MS, learning disabilities, PTSD, other mental disabilities, and many, many others.  From the matters that we are handling, we currently have 19 cases pending in court, 11 cases in administrative proceedings, ten cases in pre-suit status, and nine cases on appeal.  We have also settled six matters in the past three months.

Our efforts at education and outreach have also been phenomenal.  We won the first “Leave a Legacy, Philanthropy Miami Shark Tank” competition for our joint effort with the Center for Autism and Related Disabilities and the Coral Gables Police Department for our “Wallet Cards- Let’s Save A Life” project, you can read more about this project in the story below.

Our organization has had a running start, but this is only the first hundred feet of a marathon.  We have only started, and we have a long ways to go.  We invite everyone to take this journey with us.

Litigation – Vindicating a right to an administrative option – McGuire v. Peabody Hotel

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Kevin McGuire

Kevin McGuire

Florida now recognizes that when a person is not treated equal because of his or her disability,– this is discrimination, and is actionable under the Florida Civil Rights Act.

In 1968, at the age of seven years old, Kevin McGuire, was hit by a drunk driver and was paralyzed from the neck down. By 1970, McGuire regained the use of his upper body but remained paralyzed from the waist down. Since the accident, he is required to use a wheelchair for mobility. Kevin’s business consists of advising clients on how to make sure that their projects and different venues comply with the disability access requirements. In the course of his business, he was contacted by the Orlando Magic to ensure that their arena complied with the disability access requirements.

Kevin’s office made a reservation, in advance, to stay for two nights at the Peabody Orlando, a Peabody Hotel Group hotel, in Orlando, Florida. At the time the reservation was made with Peabody Hotel staff, Kevin asked for a wheelchair accessible room.On or about June 14, 2010, between two and three AM, Kevin McGuire arrived at the Peabody Hotel. There was only one hotel representative available to check-in guests. Even though Kevin requested an accessible room, it did not have a room available with a roll-in shower. Instead, they sent Kevin to three different rooms which they claimed were accessible. Kevin was brought to one room, which did not have a wheelchair accessible bathroom. He was then brought to a second room. The second room did not have a wheelchair accessible bathroom either. After being escorted to a third room that did not have a wheelchair accessible bathroom, Kevin was upset. Since he was unable to use any of the rooms, he had no choice but to leave the hotel property and was forced to find lodging at another hotel at Three AM in the morning.

May 27, 2011, Kevin filed a Public Accommodations Complaint of Discrimination with the Florida Commission on Human Relations. In its defense, the hotel did not dispute any of McGuire’s allegations, but attributed the failure to have accessible features due to the ongoing renovations to the hotel, but despite Mr. McGuire’s inconvenience, they were now fully Americans with Disabilities Act (ADA) compliant, and if Mr. McGuire chose to return to the hotel, he would have a different experience. The Peabody Hotel expressed regret at the “inconvenience” that Mr. McGuire experienced.

Instead of attempting to conciliate the case, the FCHR decided to dismiss Mr. McGuire’s claims based upon a lack of jurisdiction. The FCHR acknowledged that the Peabody Hotel is a “public accommodation” under the Florida Civil Rights Act, and also found that Mr. McGuire had to leave the Peabody Hotel as no rooms were accessible to a person with a mobility impairment due to the lack of an accessible shower. However, the FCHR denied Mr. McGuire all relief due to the following statement:

All assertions relate to design, construction and accessibility. The Florida Commission on Human Relations does not have jurisdiction to enforce the ADA. Additionally, as to any issues concerning the alleged failure to provide a room meeting the petitioner’s criteria, it is unrefuted that the Respondent made all efforts possible under the circumstances to accommodate the demands, to no avail.

As a result, the case was dismissed. On January 10, 2012, Kevin McGuire appealed the FCHR’s finding to the appeals court.

The appeals court reversed and in a published decision, McGuire v. Peabody Hotel Grp., 99 So. 3d 984 (Fla. Dist. Ct. App. 2012), found that the existence of architectural barriers in a hotel constituted discrimination, as defined by the Florida Civil Rights Act, as such barriers may deny Mr. McGuire “by denying him the full and equal enjoyment of the hotel’s goods, services, facilities, privileges, advantages, and accommodations guaranteed by section 760.08.

Last year, Kevin founded a new business, “It’s called Able Road,” he said. “It’s a Yelp-like, Angie List-like, Zagat-like website and apps that allows you to rate interview and comment on any property, pretty much in the world, from a hearing site, cognitive mobility perspective.” For more information, go to http://ableroad.com

Americans with Disabilities Act Lawsuits – Frequently Asked Questions

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By: Matt Dietz

 Every year, across the United States, thousands of lawsuits are filed that compel compliance with the Americans with Disabilities Act, most to ensure that persons with mobility disabilities could have equal use and enjoyment of businesses in our community.  While these lawsuits are often the key to community access for persons with mobility impairments, these suits have been criticized by the business community.   I have been asked every question that could possibly be asked by both persons with disabilities and business owners.

This month, I will try to provide a better understanding of the rights and obligations of each may be necessary to understand the issues of how to bring a suit for a person with a disability, and the best way for a business to defend itself. Next month, you will learn the efforts undertaken by Disability Independence Group to streamline the process to promote full inclusion of persons with disabilities with the cooperation of the business community.

FREQUENTLY ASKED QUESTIONS (FAQ)

After practicing Disability Rights Law since 1998, These are the most common questions potential clients ask me when they would like to enforce their rights. If you have any others, please email me. Here are a few of the FAQs:

1. What is discrimination under the ADA?

Discrimination, under the ADA, is when a person with a disability does not enjoy a full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, which includes most businesses with a physical location. This includes:

  1. Policies and procedures that screen out or treat a person with a disability differently from anyone else, unless such policies are necessary;
  2. Failing to provide auxiliary aids and services, such as interpreters for the deaf, or Braille for the visually impaired;
  3. Failing to remove architectural barriers to access that are readily achievable or constructing new facilities in an accessible manner.

The ADA is a comprehensive law, and has many regulations, as well as guidance which provide more information as to what is an architectural barrier and the requirements of a public accommodation to comply with the law. For more information, see http://www.ADA.gov.

2. I have been discriminated against, why can’t I get damages under the ADA?

Because Congress said so. The ADA is one of the only civil rights acts that do not provide damages for the aggrieved person, unless the action is brought by the Department of Justice. The result of the lawsuit is usually a settlement which provides for the removal of the barrier, and your attorney’s fees and costs. However, there are some other laws which may allow damages:

  1.  If the public accommodation is a place of lodging, entertainment, or food service establishment, there may be a monetary remedy under the Florida Civil Rights Act;
  2. If the entity receives any federal financial assistance, such as receipt of Medicaid, Medicare, or federal student grants, it may be liable under the Rehabilitation Act of 1973;
  3. Counties, such as Miami-Dade, have county ordinances which provide for damages after an administrative process.

3. What do I need to prove to bring an action under the ADA?

Primarily, you need to show that there is a barrier to access in a public accommodation. In addition, you need to intend to visit the public accommodation in the future and there must be a probability that you will suffer the discrimination when you return. Also, you must be willing to go through the federal court litigation process, which includes disclosing a lot of information about your life and disability, and undergo questioning under oath, mediation, and possibly a trial. There is always a risk that you may lose, and when you do so, you may be liable for costs, and if the case has no basis in law or fact, you may be liable for fees.

4. I really need to have an intention to go back to a place that discriminated against me?

Yes. Not only must you intend to go back, there must be a probable date. For example, Disability Independence Group is currently appealing a case where the trial court stated that a boy with ulcerative colitis, and had his colon removed, did not have a case against his local hospital and the specialty children’s hospital because, though it was possible, it was not definite that he would go back for inpatient treatment at a hospital despite his condition. While in many circumstances, its simple to state that a person would go back to a supermarket or restaurant that discriminated against them and they had to sue.

5. Why would anyone go through all of this trouble to sue for access if they received no money and had to spend so much time to fix a place that did not care enough to be accessible?

Someone needs to take a stand for what is right. After 25 years of the existence of the law, there may have been hundreds of persons who have faced similar barriers and decided that they were not going to bother. There have been people that have accepted segregation as a way of life. However, with segregation, there are less opportunities with employment, housing, and community participation

FAQ for Businesses about ADA Title III Lawsuits:

Currently, DIG does not represent business owners in lawsuits, but we always appreciate the opportunity to speak to business owners about how to be more accessible and inclusive for their customers with disabilities. But when they are sued, these are my most common questions:

1. Why me. Why did I get sued?

There are two kinds of suits – a suit by an advocate whose mission is to make the world accessible or a person who this is his or her first suit or one of a few. For the person who does not have a mission, the reason is that the person was treated so horribly by the public accommodation that he or she is horribly angry and wants to ensure that the same treatment never happens to anyone else. The professional advocate notes several barriers to access, primarily starting at inaccessible parking and entrances.

In a recent Eleventh Circuit Court of Appeals decision where it upheld an advocate’s rights to uphold his rights as an advocate to uphold the law, the dissent in the Court of Appeals stated:

The Plaintiff is a serial litigator. The misfortune of his disability does not make him less so. Plaintiff has been a party to 170 cases in the Southern District of Florida and 101 in the Middle District. His travels up, down, and across the byways of South Florida, doggedly in search of a grievance to call his own, are worthy of a Carl Hiassen plot. Seeking injunctions, costs in every variety, and monetary grist for the mills of his attorneys’ offices (the wheels of which surely grind exceeding expensive), this plaintiff is doubtless a force with which many a small business will reckon.

In as much as the dissent meant this in a derogatory way, most advocates would view this description (with the exception of calling a disability a “misfortune”) as a badge of honor. This is a person that should have no personal stake in obtaining equality and community integration for the entire community of persons with disabilities.

2. This professional plaintiff has filed hundreds of cases. He has never been to my business. This is EXTORTION! The attorney is a bottom-feeder hack! I want to sue them back for fees!!

OK. Let it all out and tell it to your psychologist. This is an almost 25 year old law, and you should not need a personal invitation to integrate the disability population into your business. Ring, ring – this is your wake-up call. Get it done. The only way that you are going to prevail is if the plaintiff does not have a disability (Yes, it has happened before), or if the plaintiff did not know his attorney filed the suit (again, yes this has happened before). Even if he has not been to your business, he would need to prove that (1) he has knowledge of the barriers, and (2) he has an intention to go to your business in the future.

3. Oh man, the attorney’s fees are adding up. They gave me a settlement, should I just sign it and pay their fees and move on? Better yet, should I just agree to pay them and do nothing at all?

NO NO! Please don’t do that. The best thing to do is to hire a lawyer, and if the case involves any construction work, a trusted architect or contractor. More likely than not, if you sign a settlement without any advice, you will be required to do modifications that are not required by the law, which will cost much more than your immediate fees. If you negotiate without doing modifications, you will still be open to another suit. Your goal in resolving a case under the ADA is to become compliant with the law, and not only to settle the lawsuit. It may be more expensive on the front-end, but it is cheaper in the long run.

4. Can I get sued again?

You cannot be sued again if your business meets the architectural guidelines of the ADA. However, if your business was constructed or altered prior to 1993, then you need only to make modifications that are readily achievable, which is defined as easily accomplishable without much difficulty or expense. This may be less than the architectural guidelines, but the extent of the modification will be up for debate. So, there is always a chance.

5. How do I avoid being sued?

That’s the wrong question. The right question is – How can I be more inclusive and welcoming for my customers with disabilities? Persons with disabilities includes approximately 20% of the population, and are a major part of our economy and your business. Most persons who are currently able-bodied have friends, co-workers, and family members with disabilities. YOU probably have a person in your family that has a disability and need an accommodation. As such, the number one issue is always an attitude change. If you have a good attitude and treat persons with disabilities as valued customers and cater to their needs, you may not get sued. Ensure that your aisles and fixtures are placed where people in wheelchairs could reach them, teach employees to ask ALL customers if they want assistance. Read and review the business briefs published by the Department of Justice at ADA.gov.

Second, in Florida, and in most states, the current building code includes an accessibility code that uses the ADA as its floor. Call in your friendly neighborhood contractor and tell them that you want to be in compliance with the accessibility code. If you are doing some renovations, make sure that the renovations comply with the ADA or local accessibility code. If not, make a schedule of modifications to be done, starting with the parking and access into the facility, along with the low cost modifications, and then to the more expensive modifications. For businesses with less than 30 employees or less than one million in gross receipts, the IRS permits a disability access tax credit which allows a maximum of $ 5,000 of tax credits per year for expenditures related to ADA compliance

VICTORY for the Fischers and Sorenson the Dog

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larry and deb fischer

On Thursday, March 13, 2014, Judge Robert Scola vindicated the Deborah Fischer’s right to use a service animal, Sorenson the Dog, in her home because of her obvious need of this trained animal.  See  Order – Omnibus DE 283.  In this case, her condominum association sued Mr. and Mrs. Fischer in Federal Court to force them to produce ALL of her medical records to even request the dog, and then to establish that the dog is necessary for Ms. Fischer to “survive.”    In vindicating Ms. Fischer’s right, Judge Scola stated:

So the Court realizes that there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support. But this is not such a case. It is undisputed that Deborah has a bona fide physical disability that has severe physical symptoms. And her specially trained service dog does not assist her by providing emotional support: it assists her by helping her complete physical tasks that her physical disability makes difficult. That Counter Defendants turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society. And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the [Fair Housing Act].

Teacher with Multiple Sclerosis denied Service Dog in her own home.

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Deborah Fisher lives with her husband Larry at Sabal Palm Condominiums in Broward County, Florida. Deb has lived at Sabal Palms for the past twelve years. She lives with Secondary Progressive Multiple Sclerosis. Deb’s multiple sclerosis affects her ability to walk and her fine motor skills. It progressed from walking with a limp, then a walker, then a scooter, then a wheelchair and accessible van. She is now non-ambulatory and has been for about six years.

For Deb Fischer, the transformation from able-bodied to a person with a disability was difficult. Prior to the advancement of her MS, Deb was an art teacher in high school who was used to being self-reliant and in charge of her household. Now Deb is unable to work at a job she loved, and unable to hold a paintbrush. She depends on Larry to cook and clean and care for the home. In 2011, Deb and Larry found that they were chosen by Canine Companions for Independence to receive a highly trained service animal to assist Deb with her daily life activities.

On November 12, Deb and Larry brought Sorenson, the service animal to their home. Sorenson has been a blessing to the Fischers. According to Deb, “Sorenson has changed my life for the better, picking up everything I drop and cannot reach, opening heavy drawers and doors and pushing them closed, turning on switches and pushing buttons. He has taken some of the work and stress off my main caretaker, my husband. Sorenson is a perfect service animal, “invisible” in public situations. He only barks only on command, and stops when commanded “quiet”. We clean up after him on walks and he does not jump on anyone. He is never off leash outside our condo.”

Notwithstanding the obvious nature of Deb’s disability and the stated function of the service dog, her condo association would not approve her use of a service dog. For five months Deb tried her best to provide what asked for, but the condo association was not satisfied with the information she provided regarding the extent of her disability and need for the dog, and wanted copies of all of her medical records that detail her disability. Deb tried to educate her condominium and provide them information regarding the fair housing act, her rights as a person with a disability, and the level of training this animal received to serve her needs, but they maintained that she did not need the dog, since it was not necessary to “survive.”

Finally, on April 16, 2012, Sabal Palm Condominium Association filed a lawsuit under the Fair Housing Act against Deb and Larry Fischer, demanding that they get rid of Sorenson, and pay their attorney’s fees and costs. In fear of losing her service animal, Deb and Larry Fisher retained the lawyers of Disability Independence Group and Herb Milgrim to protect her rights and allow her to stay in her home with her chosen accommodation. The additional stress from this lawsuit and the fight to keep her dog has caused Deb’s condition to further deteriorate, but she could not even imagine life without Sorenson’s assistance.

We believe that the affirmative lawsuit by Sabal Palms Condominium Association was in retaliation for Ms. Fischer asserting her rights under the Fair Housing Act, and no better than using the law that is meant to protect persons with disabilities as a bludgeon against them. Deb and Larry filed a counterclaim against the condominium, its lawyer and president for violations of the Fair Housing Act and retaliation.

All persons who are substantially involved in a violation of the Fair Housing Act may be liable for compensatory and punitive damages, and such persons include members of the board of directors, property managers, or agents of the association. Deb and Larry would like to live in peace and to ensure that such acts do not re-occur in Sabal Palms, and that others are not put through the harassment that they have been forced to undergo.

“All cases are dependent on many factors that may or may not be present in all cases. As such, results may not be typical. You may not have as beneficial a result.”

A veteran is permitted his support animal in his home

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The Trial Team

Ajit Bhogaita, Kane the Dog, Aaron Bates, Esq. and Matt Dietz, Esq.

Litigation: Bhogaita v. Altamonte Springs Condominium Assoc.   

Ajit Bhogaita is a United States Air Force veteran who, like hundreds of thousands of other veterans, suffers from post-traumatic stress disorder (“PTSD”) As a result of his PTSD, Mr. Bhogaita attempted to take his own life, and then medicated with anti-depressants for his chronic depression and anxiety. Because of this disability, he has difficulty sleeping and is unable to form close personal or professional relationships. In 2008, Mr. Bhogaita received a dog, a pit-bull terrier named Kane.  For the first time in years, Mr. Bhogaita could sleep and the dog alleviated his anxiety and depression to the extent that he stopped seeking continual and emergency treatment for his disability.

While his condominium association realized that Kane weighed more than the 25 pound limit, it did not seek to enforce its limitations until 2010. When he received a letter stating that he was violating the pet rules, Bhogaita informed the association that he had a disability and needed an accommodation. When there were threats of further acts, it caused Mr. Bhogaita to panic, and he went back to his doctors at the Veteran’s Administration Medical Center and received letters from his psychiatrist who was familiar with the use of service animals and emotional support animals by veterans. Mr. Bhogaita wrote three letters to the condominium association verifying Mr. Bhogaita’s mental illness and need for Kane, the support dog. This did not satisfy the association, and the association and its lawyer demanded detailed information regarding Mr. Bhogaita’s mental health history, cause, treatment, and future treatment. Mr. Bhogaita said no.

Under the Fair Housing Act, a housing provider is not entitled to unnecessary and detailed medical or psychological information to determine whether a resident has a disability or whether the resident needs an emotional support animal. Matthew W. Dietz, Litigation Director of Disability Independence Group, and Aaron C. Bates, Esq. successfully represented Mr. Bhogaita in trial, and now the case in before the Eleventh Circuit Court of Appeals.

Currently, there are over 180,000 veterans with PTSD who served our country in Afghanistan and Iraq. For all these veterans do for our country, it is obscene that housing providers do not permit an accommodation in rules that will provide
considerable support to ameliorate a veteran’s suffering. It has long been established that the emotional connection between a person and an animal promotes release of oxytocin from the pituitary gland, thus serves to alleviate symptoms of depression and anxiety. It is a simple, beneficial and effective alternative to medication. One of the major goals of the Disability Rights movement is that each person with a disability has the right to self-determination – free from the patriarchal attitudes of the “able-bodied”. We are proud to be able to assist Mr. Bhogaita in allowing him the freedom and the ability to integrate into and live in our society.

Deaf Fair Housing Video Project

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This year DIG worked with the National Fair Housing Alliance on a joint project, funded by HUD, to create videos in America Sign Language (ASL).  We developed, wrote, filmed, and produced twelve videos on various fair housing and fair lending topics.  The videos are in ASL and have captioning.  Each video starts with a small vignette that sets up a fair housing/fair lending scenario and then explains the ramifications of the Fair Housing Act and other national laws that protect persons with disabilities. We created a website to host the videos and to be a resource center.

Please go to the videos — http://www.fairhousingdeafvideos.com/Cat Cloud and Debbie Dietz    production stills from deaf videos

Giddy the Gog

Giddy the Dog

 

 

Why

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“Why?” is the most common question asked when I said that I was going to  change my practice into a non-profit disability rights advocacy center. My reasons are each and every person with a disability that I have represented over the past eighteen years. With every single person, the issue was not about money, but about the dignity of being a human being, and having the same ability to enjoy life as any other person. Even when I was not successful, I was always able to give my clients the power and dignity to fight for their equality and humanity.
This is a new era where people with disabilities eschew labels and demand their rights. Those who are Deaf or who have vision impairments demand equal access to information, those with depression and anxiety demand emotional support animals, those with disabilities demand the right to have their own families
and make their own decisions regarding independent living, and those with learning disabilities demand testing and course accommodations. Disability Independence Group or DIG is an invitation for persons with disabilities to declare their independence from antiquated notions of a second class existence.
Disability Independence Group will be a center where people with disabilities can learn how to enforce their rights and a training center for future lawyers to learn how to enforce the rights of persons with disabilities. It will advocate for a definition of diversity and integration that includes persons with disabilities. DIG will be a hub for the growing internationalization of disability
rights in Central and South America. We have a big job and big dreams. Matt Dietz with Parrot