Litigation UPDATE – Sabal Palm Condominiums v. Fisher

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Former Teacher with Multiple Sclerosis obtains a $300,000 settlement in her fight to keep her service animal in her home in Broward County

On May 8, 2014, Deborah Fischer and Larry Fischer obtained a $300,000 settlement against their condominium association for their three-year long fight to keep Deborah’s service dog, Sorenson, in their home. As part of the settlement, Sabal Palm Condominiums of Pine Island Ridge agreed to promulgate policies that do not request unnecessarily intrusive information about a person’s disability, especially in circumstances where the disability is obvious, and where the use of the dog evidently lessen the effects of the disability.

(click here to read more)

Litigation: Solodar v. OPC Lake Point Tower

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After more than three years, and a jury trial, Mrs. Carollee Solodar will finally receive the parking spot she deserves (and requires)!  Carollee and her husband Donald Solodar live in a lanai in North Palm Beach and have been allowed to park in a service area by their home for many years.  Following Mrs. Solodar suffering a heart attack, she was upset that she was blocked in and complained to the management.  As a result of her complaint, the Board of Governors of the Condominium decided to bar all vehicles from the parking area and insisted that Mrs. Solodar park in the garage down seventeen steps and three times the distance from her home.

Seeing as Mrs. Solodar’s condition was exponentially worsened when she exerted too much energy, such as walking from her allotted parking spot to her front door, she, along with her husband and her doctor, deemed it necessary that she park closer to her destination.  The Solodars therefore requested a reasonable accommodation for Mrs. Solodar to be able to park in the service area, as she had always done.

Lake Point Tower Condominium however did not respond positively to the Solodars’ request and instead demanded additional information from her doctors as well as videotaped her doing exercise necessary for her cardiovascular health.  The Board could not understand that just because a person did not “look disabled” did not mean that they were not in need of the accommodation.

Disability Independence Group represented the Solodars and as so, presented the argument that Mrs. Solodar has a disability that warrants a reasonable accommodation in accordance with the Fair Housing Act.  The Board of Governors attempted to argue that the request was unreasonable and would require the hiring of more staff members to monitor the service area.  They also proposed an alternative solution to the problem and suggested that Mrs. Solodar park in a pre-designated accessible parking space over 300 feet away. With staff already in place to monitor the service area, the claim of additional staff was found to hold no merit, and the alternative accommodations were simply not reasonable. After a nine day jury trial, the jury’s verdict was in favor of the Solodars.  The verdict stated that Mrs. Solodar is a person with a disability who requested an accommodation which is necessary to afford her the opportunity to equally use and enjoy her dwelling.  Since Lake Point Tower did not provide her with the requested accommodation, they were required to do so by the U.S. District Court Judge presiding over the case.

This is an important win for the Solodars for they now have the ability to use and enjoy their home, as well as an important win for all persons with invisible disabilities who require accommodations.  Many people who live with significant disabilities do not always display the symptoms of their disability, and are not given reasonable accommodations; an act of discrimination.  It was a long road getting Mrs. Solodar her access to her accommodation however the hard work was worth it in the end!

2014 Disability Policy Seminar

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On April 7-9, 2014, I had the privilege to attend the 2014 Disability Policy Seminar in Washington, D.C. and participate in advocacy efforts to make an impact on disability policy. The Disability Policy Seminar is an event that brings together advocates for individuals with disabilities with public policy experts and focuses on major federal issues and pending legislation that affect the lives of persons with disabilities and their families. The seminar provided me the opportunity to network with other advocates from around the country and share experiences about barriers that people with disabilities are facing throughout the country, as well as collaborate on ideas for solutions. Through the in-depth sessions, I learned about the federal policies, provisions, and pending legislation important to people with disabilities, including proposals related to Medicaid, Medicare, Social Security and SSI that may have effects on federal disability funding, housing, community living, education and employment, and services for individuals with disabilities. (click here to read more)    

 

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

Guardianship – Part 2

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Florida is one of the few states that has developed a process specifically designed to meet the needs of persons with DEVELOPMENTAL DISABILITIES—in Florida that process is GUARDIAN ADVOCATE. There are a few differences between GUARDIAN ADVOCATE and GUARDIANSHIP as I described in last month’s newsletter. First, Guardian Advocacy is limited to persons with at least one of five developmental disabilities as defined in Chapter 303, Florida Statutes.
They are out of the statute exactly, “retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that manifests before the age of 18 and that constitutes a substantial handicap that can be reasonably be expected to continue indefinitely”. Another important component is the person’s ability to make decisions. The standard is “an individual in need of guardian advocacy must lack SOME BUT NOT ALL the decision making ability to complete some or all of the tasks necessary to care for themselves, their property and or estate”. These distinguish this option from a standard Guardianship. There are advantages to a Guardian Advocacy if you meet the requirements. The law does not require a determination of incapacity. This is one of the main reasons that this is a less restrictive option for some folks. Also there is no requirement that the guardian advocate be represented by an attorney unless for a special reason the Court requires it or if the advocate is delegated any rights as to property other than being the representative payee for governmental benefits. For those reasons this is usually a less expensive, less intrusive option than guardianship. If you have any questions please call us at DIG (305) 669-2822 or email Sharon at Sharon@justdigit.org

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

A note from Matt – March 2014

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Matt and Phyllis

When I started practicing Disability Rights in 1998, one of my first clients was Edward Resnick. Edward was a renowned attorney who contracted polio in 1954, and was an attorney and became a quadriplegic. Following passage of the Americans with Disabilities Act in 1990, he had the hope that his community would quickly comply with the law so he, and his wife Phyllis, could be fully integrated in the community. Despite letters and pleading, it didn’t happen.

After eight years of asking, Edward and Phyllis founded Access Now, Inc., found attorneys willing to learn, and compelled compliance with this civil rights law.   Edward passed away several years ago, and Phyllis recently passed the torch to a new group of disability rights activists with David New as the president.  We all stand on the shoulders of the great people who come before us, and because of what Edward and Phyllis had accomplished,  Miami has become a more inclusive community.

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 six year old’s fight to have his seizure dog at school.

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Disability Independence Group filed a federal lawsuit against the Broward School Board, alleging the district discriminated against Anthony Merchante, a first grader, for imposing too many barriers to bringing his service dog to his elementary school. Anthony Marchante lives with cerebral palsy and is highly prone to seizures. His medium-sized terrier service dog, Stevie, alerts others to oncoming convulsions and helps calm the boy by licking his face. Anthony’s mother, Monica Alboniga said the district at first denied Stevie access to Nob Hill Elementary in Sunrise this year, demanding that she provide liability insurance for the dog and additional vaccinations that did not exist. Stevie was prescribed by Anthony’s neurologist at Miami Children’s Hospital and is part of Anthony’s treatment protocol. In order to be a service animal, the dog must have a temperament that allows it to stay focused on its job. Any dog that would be a direct threat to others would not be a suitable service animal. There cannot be insurance requirements or other conditions that a governmental entity or a public accommodation can place on a service animal. When Anthony’s mom initially brought this matter to the press and requested help and obtained publicity, the school board relented, and allowed Anthony to go to school with his service animal. Then, the School Board shifted tactics and demanded that Monica provide a handler for the dog since the child was not capable of doing so. Monica was required to go school every day just to care for Stevie but she was not allowed to help her son with any other activities. As a service animal, Stevie is trained to stay with Anthony and is constantly tethered to Anthony’s wheelchair, and does not eat or poop during the school day. Since it is legally required under Florida and Federal law, the Broward School Board is allowing the seizure alert and protect dog, but refuses to include the dog in Anthony’s care plan, and maintains that it has no duty to provide a handler for the dog as it disagrees with the medical prescription of Anthony’s neurologist. The Board maintains that caring for the service animal is a “personal service” of which it has no duty. However, as a child with a disability, the school board provides services from feeding to toileting for Anthony, but it considers tethering and untethering a dog from Anthony’s wheelchair is a “personal service” that is more of a burden than feeding or toileting Anthony. Further, even though Stevie was prescribed by Anthony’s neurologist, the School Board contends that this prescribed service is not necessary. However, Anthony’s care plan includes the insertion of a Diastat suppository in the event that Anthony has a seizure, but not the services performed by the dog.
Ms. Alboniga’s suit, filed last month, claims the district is violating the Americans with Disabilities Act and The Rehabilitation Act by implementing excessive procedural hurdles. She’s asking the district to amend its policies and ensure that she and Anthony are not forced to fight this matter throughout the rest of Anthony’s schooling, which may last until he is 23 years old.

 

 

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.