Litigation: Siler v. Abbott House Condo
By: Matthew Dietz
Rachel Siler was looking forward to moving to Miami Beach in April 2016. Rachel went to art school in Chicago and after graduating from college she started working in the Independent Living and Disability Rights Movements. Aside from this passion she has also represented the disability community within the Occupy and Anti-war Movements. When she isn’t fighting for social justice she enjoys reading, antiquing and designing.
For the past thirteen years, she had lived in cold and windy Chicago working at Chicago’s Access Living, assisting people with disabilities and a coordinator of Chicago ADAPT, an organization that has dedicated disability rights activists that engage in nonviolent direct action, including civil disobedience, to assure the civil and human rights of people with disabilities to live in freedom. She found a job as an independent living specialist at the Center for Independent Living of South Florida and was ready to move to sunny Miami Beach.
As a wheelchair user herself, Rachel knew what she needed in order to live independently in Miami Beach. She needed to live near to public transportation, a safe surrounding area, a building with an elevator, a residence that was affordable and accessible, and adequate green space so that her service animal, Minty could be walked. Before moving down to Florida, she visited the area and hired a real estate agent. During her visit, she looked at eight residences. However, none these residences met her needs. When she returned home, the agent sent Rachel information about a condominium on Miami Beach at Abbot House Condominum, and it was perfect – one of the largest homes that she ever lived in.
She entered in to the lease with the owner of the condominium, and was told that a condition of moving in was physically meeting with the condominium association board screening committee and receiving written approval. This was only supposed to be a formality. So, Rachel spoke with the property manager, received permission to move her belongings in on May 21st, and packed and started the trek across the United States with her mother and a friend.
When Rachel came to Miami on May 20th, with her personal assistant, she did not get the reception that she was expecting. The association manager met her and was shocked, he told her that she did not know that she had a “condition”. She then went to a meeting with two of the board members of the Condominium.
Instead of speaking to Rachel, the board member started asking questions of Rachel’s assistant, as if Rachel could not speak for herself –
- “Do you live with her?”
- “Will you always be with her?”
- “Do you sleep with her?”
“No, she can speak for herself,” said the assistant. Rachel continued, and attempted to explain her existence, she explained that she works forty hours per week and she schedules personal assistants around that work schedule. Notwithstanding the humiliation at having to explain the fact that she lives and works like any other person, the screening committee than attempted to try to convince Rachel why she should not live at Abbot House.
- The Board of Directors does not want to be held liable if something were to happen to you.
- The building only has one elevator, how are you going to work if the elevator broke?
- Fire fighters and paramedics do not want to climb stairs to rescue an elderly resident who was unable to evacuate due to a fire. The board did not have the funds to pay for modifications to make the building accessible.
Rachel told the Board that she would pay for any modifications to her own residence and the buildings elements are accessible to her and she did not need any modifications. When they could not dissuade her, the association requested that she sign a waiver, releasing the condominium from all liability from any injuries. To live in her home, she agreed, and then was provided the keys to the public areas, including the exterior door with the wheelchair ramp.
But before she could move in, the property manager told her that, the board that approved her tenancy to her face, now decided to decline her rental request, and followed up with an email:
This is to inform you that Ms. Rachel D. Siler, as a prospective tenant of Unit 4A, was denied by the Board of Abbott House Condo under the powers and duties of the Bylaws of the Association (See two (2) pages of the attachment).
By the understanding of the Board of Directors of ABBOTT HOUSE, INC. A CONDOMINIUM, the building has not the appropriate accessibility for people with disabilities conditions for the following reasons:
– The access to the building and other common areas as accessible route are not appropriate. We have not physical access like route, curb ramps, entrances and loading areas,
– There is not an appropriate parking space for a disable people. All of them are narrows,
– There is not a restroom and bathroom accommodation, etc.
All of the above are part of the main considerations of the Americans with Disabilities Act (ADA). Therefore, the Association cannot be responsible for any future claim requested by Ms. Siler and any other officer of the Miami-Dade County
Stranded in Miami Beach, with no home, Rachel Siler, an independent living specialist, was in a nightmare that she would usually be the person who these issues would be reported to. But in a new city, she did not know where to turn. She reached out to Disability Independence Group.
On Monday, May 23, Rachel Siler, with the assistance of her family and her personal assistant, decided to move into her condominium in spite of Abbot House refusal to approve her lease in spite of their denial. Until a lawsuit was filed, Rachel and her service animal were harassed and attempts were made to block her and her personal assistant from the property.
It is unlawful to deny a person housing based upon insurance liability concerns. Historically, people with disabilities have been stereotyped in many different ways. Some of the stereotypes used to label people with disabilities as incapable of living independently, having a job, having a social and sex life and enjoying their life to the fullest.
The most common barriers to persons with disabilities are not physical barriers, but the attitudinal barriers that lead to this type of discrimination. The Fair Housing Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. This prohibition is both in housing, under the Fair Housing Act and with other accommodations under the Americans with Disabilities Act. As discussed in the comments Americans with Disabilities Act, one “cannot refuse to serve a person with a disability because its insurance company conditions coverage or rates on the absence of persons with disabilities. This is a frequent basis of exclusion from a variety of community activities and is prohibited by this part.” See 28 C.F.R. § 36.202.
Turns out that the least of Abbot House Condominium’s worries should have been whether Rachel Siler would not be able to get around in her wheelchair and would injure herself. Maybe instead of assuming she was an invalid who sleeps with her personal assistant, the Condominium Board should have started with the premise that she had a job, a life, and a passion for helping others. The real liability was the failure to acknowledge Rachel Siler as the die-hard disability advocate who works to help others destroy attitudinal barriers and harmful stereotypes.
Some children with autism, developmental or intellectual disabilities may wander off without any comprehension of possible danger. This might include running off from adults at school or in the community, leaving the classroom without permission, or leaving the house when the family is not looking. While most children are drawn to water, many autistic children seem even more fascinated by it — and they’re also fearless.
On April 29, 2012, Hannah Sackman, a seven year old Autistic little girl drowned when she eloped from a housing development at military housing in Fort Gordon. When Hannah’s mother was concerned with the size of the fens and the locking mechanism of the fence, she asked the management company if she could install additional locks on the doors that were higher up and out of Hannah’s reach. The house had three exterior doors and all of them had a locking mechanism on the knob and a dead-bolt – both of which could be unlocked from the inside with a simple twist and without using a key and Hannah’s mother was concerned she would figure out how to open them. In response to her request, the management said, “no, it was against policy” and would damage the doors. In 2013, Hannah’s parents sued the housing manager under the Fair Housing Act for the death of their daughter, and the case settled for an undisclosed amount in 2015.
What happened to Hannah Sackman is not unique, and the Fair Housing Act requires housing providers allow persons with disabilities or those associated with them to modify the premises if the modification is necessary for the person with a disability, and is done at the expense of the person with a disability. For residents of public housing or other housing that is federally funded, the modifications must be done at the expense of the housing provider. These modifications can be as simple as a lock on a front door, or grab bars in a shower; or as complicated or expensive, such as a pool lift, or installing ramps or sidewalks.
Kim Johnson came to Disability Independence Group because she was afraid to live in a home that would not be safe for her daughter. Kalia is a 10 year old girl who lives with Fabry disease, which is a rare genetic disorder. Along with a developmental disability, Kalia also suffers from episodes of pain, is legally blind, hard of hearing, and problems with her gastrointestinal system and a cecostomy. She requires twice daily flushing of her stoma which takes hours and hours of time. Kalia is a runner, and whenever she has a chance, she tries to escape. She knows how to unlock doors and turn handles.
In March of 2016, Kim was looking for a new rental home in Largo, Florida and found
perfect home. During the showing of the home and throughout the leasing process, Kim and Kim’s Mother, Donna, spoke with the leasing agent, and explained how urgent it was that they move and the needs of Kalia’s disability. Then, with the help of Donna, Kim entered a lease for the home. After signing the lease, the leasing agent, instructed Kim on the use of the front door lock. At that time, Kim said that she would need to install a chain lock on the door to keep Kalia inside since she has a tendency to elope. As with Hanna Sackman’s mother, Kim was concerned with the locking mechanism and wanted a mechanism that was higher up and out of Hannah’s reach.
The leasing agent refused. Kim explained that a that the chain lock was the most reasonable modification asserted her rights under the Fair Housing Act, in order for her daughter …”to be able to have an equal opportunity to have safe access to the majority of the home.” The leasing agent and owner refused to allow Kim to install a higher locking mechanism, as they believed that a chain on the door would damage the door. Then the lessor refused to return the money Kim spent on the home, and refused to allow her to find another home that would be suitable for Kim and her daughter.
Reasonable modification in housing is the law. A landlord cannot legally deny a reasonable modification to a home. In 2008, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued joint guidance on the requirements relating to reasonable modifications under the Fair Housing Act.
Adding a chain lock to the front door is the most reasonable, most effective modification given K.J.’s disability. The chain-lock modification is the most reasonable modification because the chain lock would be out of K.J.’s reach and would successful prevent K.J. from eloping. Pursuant to HUD’s guidance, adding a chain-lock to the front door is necessary because the other suggested modifications will not be effective. By denying Kim and her daughter Kalia an accommodation, this landlord denied them a safe home, solely due to Kalia’s disability.
 Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications Under the Fair Housing Act (March 5, 2008), http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf (last visited May 10, 2016).
By: Matthew Dietz
Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.
If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.
Summer camp must be inclusive
Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:
- Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
- Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
- Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
- Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
- Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.
Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.
It’s so damn hot – my kid has asthma and needs an air conditioner
Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.
According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!
Discrimination in Pool Rules
- No inflatable flotation devices.
- Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
- Absolutely no dogs allowed in pool area
Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.
In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.
By: Michele Lazarow, Hallandale Beach Commissioner
I have always wanted to fight for those who could not fight for themselves. Once I realized that putting an official title in front of my name would be the best way to impact change, I ran for political office. I am now a Hallandale Beach City Commissioner.
I fight against all animal cruelty, but mostly I fight against the sales puppy mill puppies in pet stores. On one afternoon while I was at an event in Miami, I met Debbie Dietz and she told me about Kiddle’s Law. Hardly hearing about it and before I had even read it, I said yes without hesitation. I wasted no time asking our city attorney to a draft a version for Hallandale Beach. I told our attorney that whatever obstacles there were, we needed to make it work. She worked with Matthew Dietz to draft the best law possible for our first responders and residents.
I have three rescue dogs and spend time at the dog park. That was where I first met Polett Villalta and her service dog, Brandi. Polett is a long time resident of Hallandale Beach and is very active in our community. I had asked her what she thought about Kiddle’s Law and that was when Polett told me about a sad and scary experience that had happened to her and Brandi. After hearing about Polett’s experience of her dog being attacked and having to wait for her mother to come to her aid, I knew this was necessary for not only Hallandale Beach, but all cities.
If our first responders are able to take our human family members to hospitals during times of crisis, why shouldn’t our service animals be treated the same? Our animals are just as much a part of our family and no one should have to feel powerlessness when their family member is injured. I know how I have felt when one of my dogs was sick and I am able to drive her to the hospital. The idea that my dog would be injured or sick and not being able to get her to a hospital would be a constant concern. I feel great to know that we have a law in place that hopefully help protect anyone from experiencing that fear. I knew that my colleagues would support it without hesitation. As a result of our passage other Broward county cities are now considering Kiddle’s Law. If there is ever anyone who would like to pass this in their city, I would be more than happy to help. Please do not hesitate to contact me.
Michele Lazarow, City Commissioner Hallandale Beach
Polett Villata’s Email:
“In 2007 as I was in my power wheelchair “riding” along Layne Blvd with my Service Dog, a man was rolling down the street in skates with a beautiful Siberian Husky off-leash. The Husky saw my dog and lunged at her, pinning her down and injuring her in multiple places. The dog’s owner ran over, grabbed his dog and took off without saying a word, calling for help or anything.
Now well, as a quadriplegic there was not much I could do to help my dog. She was crying, bleeding and helpless at the end of my leash. Luckily my Mother was a block away and drove over as soon as I called her, taking my dog to the vet for me.
Service animals are specifically trained to release all control to their owners. They trust us to keep them safe. That night I didn’t only lose thousands of dollars in training, plus vet bills, I lost my dog’s trust completely, and even though she still respects my
leadership, I no longer take her into public places as she’ll bark and try to hide under my chair anytime people approach.
Having 90% of my body not working, sitting in a wheelchair with a leashed dog who is injured, needing help and TRUSTING me to keep her safe and nobody around to assist is an extremely frustrating and powerless experience. I was “lucky” that my Mother was close by that night; this proposal – which I was delighted to hear about – would provide me a sense of relief in knowing that should I ever find myself in that situation again, I can call for help, get my Service Dog taken care of immediately, and focus on keeping her safe, healthy, trusting and working once such ordeal is over.
This would also empower our Police Department and/or Fire Rescue in my opinion, by providing them the legal grounds to assist without risking their jobs. I always say that Hallandale Beach has the BEST PD, and giving them the tools to do good would most definitely benefit us all as a community.
I have resided in Hallandale Beach for over 17 years.
By: Rachel Goldstein
For the last part of my series I am going to address how the Americans with Disabilities Act (ADA) applies to service animals and the responsibilities of businesses to allow service animals into their facilities. The ADA defines “service animal” as limited to a dog that is individually trained to do work or perform tasks for an individual with a disability and the tasks must be directly related to the person’s disability. An important distinction from other federal law (such as the Fair Housing Act) is that the ADA defines service animals to include only dogs and the ADA does not consider emotional support, therapy, companion or comfort animals as service animals.
When it is obvious that the animal is trained to do work or perform tasks for an individual with a disability, such as when the dog is retrieving items out of reach for a person using a wheelchair, staff cannot question the person. However, when it is not obvious that the dog is a service animal, businesses and their staff may ask only two specific questions:
- Is the dog a service animal required because of a disability? and
- What work or task has the dog been trained to perform?
In either instance, staff is not allowed to ask about the nature of the person’s disability or require any documentation for the dog like proof that the animal has been certified, trained, or licensed as a service animal, or require that the dog show what tasks it performs. The ADA does not require service animals to wear a vest, ID tag, or specific harness and businesses are not allowed to require such identification for entry. Staff must also allow service animals to go anywhere in the business the public and other customers are allowed to go and cannot be restricted to ”pet friendly” areas or rooms.
Staff are not responsible for watching or caring for a service animal when in its business and do not have to walk, feed or groom the dog. It is the responsibility of the person with a disability or a handler to supervise, care for and control the dog. If the service animal is out of control and the handler does not or cannot control it, or if the dog is not housebroken, staff may then request the animal be removed from the business. Also, if allowing service animals would fundamentally alter the nature of a service or program (change the essential nature of your business), service animals may be excluded.
Again, as I have previously emphasized, comprehensive training is essential! Staff has to be aware of their obligations and what they can and cannot ask as they play such an important role in making sure individuals with disabilities are included in everyday activities and provided the same opportunities as individuals without disabilities.
The Department of Justice issued guidance on July 13, 2015 entitled Frequently Asked Questions about Service Animals and the ADA, which may provide further useful information for your business. For more information please visit http://www.ada.gov/regs2010/service_animal_qa.html
This legislative term, Florida Representative Jimmie T. Smith, from Citrus and part of Hernando Counties, sponsored one of the most progressive service animal bills in the United States, Florida Statute 413.08 (2015). As a veteran, Rep. Smith has become a leader for the Florida House when it comes to issues dealing with veterans, servicemen and women with PTSD, and getting the young men and women who have defended our nation into the workforce after they are discharged from the military. Rep. Smith sweats, bleeds, and spits Red, White and Blue, and when voting on a bill that would mandate that the State of Florida and all of its cities and counties would have to buy American-made American flags, he made the comment, “the last honor the government will ever give me is a flag-draped coffin and God help me, I hope it’s American-made!”
Q: Why would a conservative Central Florida legislator who is an Army Veteran lead the fight for the rights of users of service animals?
A: There are over 200,000 veterans of the Iraqi and Afghanistan wars who suffer from Post-Traumatic Stress Disorder (PTSD), and service animals greatly alleviate symptoms of PTSD.
This law expands protection of the service animal statute to those with psychiatric disabilities or mental illness, and includes specific examples of tasks for those with psychiatric disabilities or mental illness. It also provides additional penalties for those who refuse entry for those who use service animals and for those who fraudulently misrepresent his or her animal as a service animal. Notwithstanding the penalty provisions of this statute, this law will lead to many more persons with mental illness opting to obtain dogs (or miniature horses) as an option to treat their mental illness or psychiatric disability.
Military Veterans with Post Traumatic Stress Disorder and Disability Rights
Major advances in the conception of persons with disabilities have covered as a result of recognition of the sacrifices of our military veterans. Prior to World War I, persons with disabilities were entirely marginalized and essentially deemed unworthy to reside in society. However, when veterans with disabilities returned from Europe and expected that the government provide rehabilitation in exchange for their service, and vocational rehabilitations programs were started throughout the country. World War II brought another influx of persons with disabilities, and more emphasis was placed on rehabilitation and vocational training. Prior to the civil rights era, the focus on persons with disabilities was to find a cure or to fix the impairment, and to assimilate the person into the “normal” society.
While soldiers have suffered from shell-shock, battle stress, or battle fatigue from the beginning of warfare, the effects of normalization into the community for those who suffer from, what is now called PTSD did not fit into the goal to fix or cure disability. This was highlighted in World War II when General George S. Patton allegedly slapped two soldiers who were suffering from battle fatigue in a military hospital and yelled to a doctor, “Don’t admit this yellow bastard…There’s nothing the matter with him. I won’t have the hospitals cluttered up with these sons of bitches who haven’t got the guts to fight”.
The rise of Disability Rights as a social concept in the United States arose at the same time when Vietnam Veterans were returning with severe battle fatigue. Disability was recognized not as a medical issue – with rehabilitation as a final goal, but as a social issue, with community integration and demands for equal treatment and equal access as a goal. “Vietnam combat reaction” was recognized as a severe form of combat fatigue which was mostly seen in soldiers nearing the end of their tours and was described as follows:
“The first symptoms of Vietnam combat reaction are either insomnia, anorexia or both, later progressing to a full blown syndrome which typically . . . includes: insomnia; recurrent terrifying nightmares, which are usually a reliving of a severe psychic trauma (friends and fellow combatants severely injured, mutilated, or killed, the subject himself wounded close to a vital organ, or perhaps his unit overrun by enemy with few survivors); anorexia progressing to nausea; vomiting (precipitated by enemy contact or explosions) and sometimes even watery diarrhea; depression, including guilt over not having saved his buddy’s life or perhaps not having grieved enough for him, as well as shame for having broken down when others in his unit maintained emotional control; and, most prominent, severe anxiety with tremulousness, to such a degree as to make the soldier ineffective in combat. . . . Subjectively the soldier experiences a deep fear of combat or the thought of it, and notices increasing tremulousness beyond his control when in the field, especially if actual enemy contact is made”
Notwithstanding the hundreds of thousands of veterans who suffered from the anxiety, depression, insomnia, and other disorders that sprung from battle fatigue, PTSD was not recognized as an “official” diagnosis until the DSM-III in 1980. However, approximately 830,000 male and female Vietnam theater Veterans (26% of veterans) had symptoms and related functional impairment associated with PTSD. However, the lack of effective mental health veterans after Vietnam lead to an epidemic of mental health issues, including alcohol and drug abuse and dependence, generalized anxiety disorder, and antisocial personality disorder.
The military is trying to learn the lessons of Vietnam and have placed increased focus on the psychological needs of soldiers and veterans. The wars in Afghanistan and Iraq are the longest combat operations since Vietnam and research on these Veterans suggests that 10% to 18% of veterans are likely to have PTSD after they return. From 2002 to 2009, one million troops left active duty in Iraq or Afghanistan and became eligible for Veterans’ Administration care. Of those troops, approximately 23% were diagnosed with a mental health problem.
While it has long been established that the emotional connection between a person and an animal promotes release of oxytocin from the pituitary gland, and thus serves to alleviate symptoms of depression and anxiety, the VA has not recognized the benefits of animals for emotional support for veterans with PTSD. Due to grass roots efforts from veterans, the Department of Defense is funding a three year research study at Purdue University to determine whether service dogs can alleviate symptoms of PTSD. This may eventually lead the VA to provide service dogs to former troops with certain physical disabilities and those with mental health disorders.
In fact, assistance animals for depression and anxiety have been recognized by courts since the 1970s, as a therapeutic alternative. This alternative is a simple, beneficial and effective alternative to medication. PTSD is only one issue within the scope of mental illness, and in the larger context of invisible disabilities. However, it has brought increased focus to all issues involving stigma and discrimination directed against persons with mental illnesses, how to integrate persons with mental illness into society, and the role of human-animal interaction in that integration.
What is the Florida Law, and how is this law different from the Americans with Disabilities Act or the Fair Housing Act?
The Americans with Disabilities Act is the federal law that allows persons with disabilities have dogs or miniature horses who are individually trained to do work or perform tasks related to the person’s disability, in order to have full and equal access to all places of public accommodation and local or state governmental programs and services. See the ADA Service Animal Guidance
The Fair Housing Act is a federal law that allows a reasonable accommodation for a person with a disability for the rules or policies of a dwelling to accommodate that person’s disability. The accommodation is required to be necessary for his or her equal use and enjoyment of the dwelling or the common areas. For an animal to be required under the Fair Housing Act, the person must have a disability, and the animal must alleviate a symptom of the disability. See the Fair Housing Guidance for assistance animals from the Department of Housing and Urban Development.
The main difference between the type of animals permitted under the Fair Housing Act and the Americans with Disabilities Act, is that the Fair Housing Act permits any and all types of animals (subject to the animal being a direct threat to the health or safety of others or unreasonable) to be an “emotional support animal” that provides emotional support, well-being, comfort, or companionship for a person with mental illness or psychiatric disability. The ADA specifically exempts tasks including emotional support, well-being and companionship from the definition of a service animal.
The gray area between the definition of service animal and emotional support animal is when an animal is used for an emotional or mental disability and is trained to do a task, when is that animal deemed to be a service dog, and not an emotional support animal.
The intent of the Florida law was to incorporate current federal law into the Florida law, and add in penalties for both denying a person with a disability access, and providing penalties against a person who lies about his or her disability or need for an animal. However, it adds to the explicit definition of the tasks of a service animal that includes psychiatric animals, and it expands remedies under the act.
The revised definition of “physical and mental impairment” provides as follows:
- A physiological disorder or condition, disfigurement, or anatomical loss that affects one or more bodily functions; or
- A mental or psychological disorder that meets one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, such as an intellectual or developmental disability, organic brain syndrome, traumatic brain injury, posttraumatic stress disorder, or an emotional or mental illness.
Florida law focused on psychiatric or mental illness as a goal of this statute, which is further reflected in the duties of a service animal, as follows:
(d) “Service animal” means an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work done or tasks performed must be directly related to the individual’s disability and may include, but are not limited to,
- guiding an individual a person who is visually impaired or blind,
- alerting an individual a person who is deaf or hard of hearing,
- pulling a wheelchair,
- assisting with mobility or balance,
- alerting and protecting an individual a person who is having a seizure,
- retrieving objects,
- alerting an individual to the presence of allergens,
- providing physical support and assistance with balance and stability to an individual with a mobility disability,
- helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors,
- reminding an individual with mental illness to take prescribed medications,
- calming an individual with posttraumatic stress disorder during an anxiety attack,
- or doing other specific work or performing other special tasks.
A service animal is not a pet. For purposes of subsections (2), (3), and (4), the term “service animal” is limited to a dog or miniature horse. The crime-deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition.
Other differences –
- The Florida law does not require an entity to provide any accommodations for the use of the animal other than what would be permitted from any other users of the programs or services. Accommodations or changes in the facility or program are not required, even though such accommodations may be required under the ADA, such as a designated area to relieve itself, bowls of water or assistance with the handling of the dog.
- The Florida law provides protection to trainers of service animals and the ADA does not
- Similar to the ADA, an employee or agent of a covered entity may ask if an animal is a service animal required because of a disability and what work or what tasks the animal has been trained to perform.
- Similar to the ADA, A public accommodation may exclude or remove any animal from the premises, including a service animal, if the animal is out of control and the animal’s handler does not take effective action to control it, the animal is not housebroken, or the animal’s behavior poses a direct threat to the health and safety of others. Allergies and fear of animals are not valid reasons for denying access or refusing service to an individual with a service animal.
The expansive list of tasks that service dogs may blur the lines between those who previously claimed that their dogs were emotional support dogs due to anxiety or depression – as a person with anxiety can claim that their dog is trained to calm during an anxiety attack, and a person with depression can claim that his or her dog is trained to prevent or interrupt destructive behaviors.
Is licensure or certification required?
No. A person may train a service animal themselves or may have the animal trained by an entity that has training and expertise to train a service animal. The rationale behind not requiring a specific license or certification is that there are many different types of disabilities, and as such many different types of training that is required. However, the basic training for all service animals include obedience training, as the handler must be in control of the animal, and the animal must not be a direct threat to the public. While there is no government mandated standards for training of service animals, Assistance Dogs International, a coalition of not for profit assistance dog organizations, has developed recommended training and obedience standards for service animals. For example, ADI standard require a service dog to be trained in at least three tasks to a minimum compliance rate of 80%.
Even though there is not an official licensure for service animals, dogs or miniature horses require significant training of specialized commands in order to be an effective tool for a person with a disability. For example, dogs with PTSD are trained in five commands, these include:
- “Block,” – the dog will stand in front of the veteran, offering a barrier and space.
- “Behind,” which tells the dog to position itself behind the veteran.
- “Lights,” – the dog will enter a room before the veteran and turn on the lights so they don’t have to enter a dark space.
- “Sweep.” -the dog will enter a room or house and sweep it for people or intruders, alerting the veteran by barking.
- “Bring” – the dog will fetch an item and bring it to the veteran.
However, many service animals are self-trained, and according to federal or Florida law, need only to be trained in one task. There is no need for an identification card or a vest for the animal.
Is there penalties for violation of the Service Animal Statute?
The Florida Service Animal Law provides additional penalties against persons who interfere with a person with a service animal, and also against those that misrepresent the need for having a service dog.
Under the new Florida Law, there are additional penalties against any “person, firm, or corporation, or the agent of any person, firm, or corporation, who denies or interferes with admittance to, or enjoyment of, a public accommodation or, with regard to a public accommodation, otherwise interferes with the rights of an individual with a disability or the trainer of a service animal while engaged in the training of such an animal pursuant to subsection (8), commits a misdemeanor of the second degree, .. and must perform 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months.”
While the only questions that a person may ask a user of an alleged service animal is whether a service animal is required because of a disability and what work or what tasks the animal has been trained to perform – if a person is found to misrepresent the disability or the use of a service animal, the Florida law provides a penalty as follows:
(9) A person who knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using a service animal and being qualified to use a service animal or as a trainer of a service animal commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 209 775.083 and must perform 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court, to be completed in not more than 6 months.
This should not be taken as a license to ask additional questions, which would be a violation of the statute. Also, a false accusation of misrepresenting one’s disability or need for a service animal would state a claim for retaliation under the Americans with Disabilities Act. The only time in which I could see this law being used is where a person willingly admits that they misrepresented their status without being asked questions.
Is there a cause for additional damages for violation of the Florida Service Animal Statute
Probably yes. This is also a difference between the Florida Service Animal Statute and the Americans with Disabilities Act. Under the ADA, there are no damage remedy for discrimination in public accommodations. Under the Florida Civil Rights Act (section 760.07, Fla. Stat.), any violation of any Florida statute making unlawful discrimination because disability gives rise to an action under the Florida Civil Rights Act. This includes an action for damages and attorney’s fees. However, to obtain such damages, the victim of discrimination is required to file a complaint with the Florida Commission of Human Relations, and go through their administrative processes.
What does this mean for the future of service animals in Florida
This statute is a welcome mat for dogs. This statute appears to be intended to serve as a deterrent to question those who choose to use a service animal for their disability. However, to go back to the question:
Q: Why would a conservative Central Florida legislator who is an Army Veteran lead the fight for the rights of users of service animals?
A: The law is a paradigm of libertarian thought. If a service dog helps someone live a better life, and does not cause any trouble or concern for anybody else, its none of your damn business.
 Marlowe, David, Psychological and Psychosocial Consequences of Combat and Deployment with Special Emphasis on the Gulf War (2000), found at http://www.gulflink.osd.mil/library/randrep/marlowe_paper/
By: Matthew Dietz
In Florida, the summer brings tropical squalls, as well as the quiet that marks the end of the legislative session in Florida. Out of the 65 bills that mentioned disability, seven bills passed both houses, most notably a broad state protection for users of service animals, a guardianship program for dependent children with disabilities, and the Florida version of the ABLE Act to increase financial independence for persons with disabilities. In this issue, we will discuss the impact of the guardianship provisions and service animal law for Florida residents.
By: Matthew Dietz
On February 10, 2014, United States District Court Judge Beth Bloom ruled that Broward County School District violated Anthony Merchante’s rights, as a child with a disability, by denying his right to have a seizure alert animal accompany him at his elementary school.
Anthony’s mother, Monica, requested that the school allow Anthony to bring his seizure alert and protect dog to school. Because Anthony is non verbal and lives with cerebral palsy, Stevie, the service dog, is tethered to Anthony’s wheelchair and needs to be tethered and untethered to the wheelchair, and may need to urinate during the day. The school distict demanded that Stevie’s mother be the handler of the dog during the day, provide insurance for the dog, and require proof of vaccinations required of animals sold in pet stores.
In a lenthy decision, the Court found that a person with a disability has a right to choose an accommodation that will meet that persons needs:
The Court is also guided by the basic premise that while not every accommodation chosen by a disabled person is “reasonable,” a public entity is not permitted to survey the universe of possible accommodations or modifications and determine for the individual what, in its estimation, is the best or most “reasonable,” approach.
The Court also reaffirmed the importance of the pair bond between a person with a disability and his or her service animal. The Court found that to assist or monitor Anthony in using his service animal is a reasonable accommodation under the Americans with Disabilities Act and Section 504 off the Rehabilitation Act, and the insurance and additional vaccinations were unlawful requirements. “In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog – the accommodations here are reasonable.”
On Saturday, February 21, 2015, The Miami Herald published an article by Carol Marbin Miller about Anthony’s victory and some great pictures and a video of Anthony, Stevie, and Monica Alboniga.