Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent's Licensure and Practice Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797. Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida. Case No. 90-4549 On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog. Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian. Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog. An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained. Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead. English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs, R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed. As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems, however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care. It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed. Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success. Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances. Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C. Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent. While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death. A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed. Case No. 90-8113 On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant. After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption. Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt. Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/ A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1991.
The Issue The issue is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The applicant HCA Health Services of Florida, Inc. (formerly Bayonet Point Hospital, Inc.) proposes to construct and operate a 96-bed acute care hospital in the Springhill area of western Hernando County. It is to be located on the north side of State Road 50 approximately two miles east of the intersection of State Road 50 (a two-lane east-west corridor) and U.S. Highway 19 (the area's main north-south corridor). The proposed facility is to be known as the Oakhill Community Hospital and the cost of the project is $14,952,000. The applicant proposes to serve primarily western Hernando County and two census areas in Pasco County. It is estimated that approximately 12 percent of its patients will come from Pasco County. Its primary service area does not include Citrus County or east Brooksville. An 81 percent occupancy level by the year 1988 is anticipated. The hospital will consist of medical and surgical beds, and its services will include 41 private rooms, 40 semiprivate rooms, three isolation beds, eight ICU/CCU combined beds, two operating rooms, a full-time emergency room, a laboratory, respiratory therapy, a pharmacy, radiology and nuclear medicine. The new facility will share administrative and various ancillary services and equipment with the Bayonet Point Hudson Regional Medical Center located in Pasco County. It will also be able to utilize and benefit from the HCA National Contract in the purchase of equipment and supplies. This will result in cost savings and reduced charges to patients. The western portion of Hernando County, where the Springhill area is located, has experienced a 238 percent population growth in the past ten years. Hernando County is expected to experience a growth rate of 50 percent between 1980 and 1988. The growth in population has been illustrated by the rapid expansion of schools, churches, banks, retail establishments and residential projects. The population in western Hernando County is primarily an elderly population, composed to a large degree of retirees from urban areas. It is estimated that approximately 80 percent of the residents from the Springhill area currently travel out of Hernando County for hospital services. Only one out of fourteen doctors from western Hernando County practices at Lykes Memorial Hospital, the only existing hospital in the County. The closest hospital for residents of western Hernando County is Lykes Memorial Hospital, a county-owned facility some 8.5 to 9 miles from the proposed Oakhill site. Virtually every resident of Hernando County can travel to Lykes Memorial within 30 minutes, though travel times can vary due to the amount of truck traffic on State Road 50, a two-lane road. At a time when it was operating with 140 licensed beds, Lykes Memorial experienced an overall occupancy level of 82 percent for the year 1982 and 94 percent in January and February of 1983. It is not unusual to encounter patients in beds in the hallway at Lykes, and doctors often experience difficulties in scheduling the operating rooms, with elective surgery having to be scheduled two to three weeks in advance. Lykes Memorial has recently received approval for an additional 26 beds and other areas of expansion and renovation are planned. If Lykes did not expand and the proposed facility were not constructed, Lykes Memorial would have substantial problems in meeting patient needs by 1988. The only other facility within 30 minutes driving time for the residents of western Hernando County is the Bayonet Point Hudson Regional Medical Center located in Pasco County. This facility, also owned by HCA, is located some eight miles from the Hernando County line and some 16 miles from the proposed Oakhill site. Driving time between Bayonet Point and the proposed facility is between 20 and 25 minutes. Bayonet Point opened with 200 licensed beds in March of 1981, and has experienced an occupancy level exceeding 90 percent since mid-January, 1983. In March of 1983, its occupancy rate was 94 percent. Bayonet Point derives approximately 23 percent of its patients from Hernando County. While it is estimated that Bayonet Point would lose 50 percent of its Hernando County patients, or 11 or 12 patients a day, should the new Oakhill facility be opened, this was considered to be a beneficial effect. Due to present high occupancy levels, the loss of 11 to 12 patients per day to the new facility would relieve the pressure for beds and enable Bayonet Point to admit waiting patients and improve its quality of care. It was also felt that there is sufficient new development in Pasco County to make up for any loss in patients. There are two hospitals located in Citrus County, the nearest county to the north of Hernando County. Citrus and Hernando Counties are in the same health planning district and are considered together when determining bed needs for those areas. Fifty-five percent of the population of both counties presently reside in Citrus County. Citrus County also has a higher percentage of elderly residents than Hernando County--29 percent compared to 24.5 percent. The rates of growth for the two counties are equivalent. Citrus Memorial Hospital is located at a travel distance of about 43 minutes from the proposed Oakhill site. No evidence was presented at the hearing as to the effect of the new facility on Citrus Memorial Hospital. The petitioner, Medfield Corp., d/b/a Seven Rivers Community Hospital, is a 75-bed hospital located in Crystal River, approximately 41 minutes driving time from the proposed Oakhill site. Seven Rivers presently has a great deal of unused physical capacity, with associated costs, and plans to expand its number of licensed beds without expanding its physical facility. Its application for a Certificate of Need for an additional 15 beds was recently denied by HRS because of the proposed addition of the new Oakhill facility in Hernando County. Seven Rivers estimates that it may lose 50 percent of its projected admissions from the south Citrus County area if the Oakhill facility opens. While it thus perceives a decrease in patient days and income, it was not established that increased costs would be borne by its patients or that its operating margin would decline. Even with the new Oakhill facility, it was not established that the occupancy level of Seven Rivers would be below 80 percent. As noted above, the primary service area proposed by the respondent HCA does not include portions of Citrus County. There appears to be a lack of patient origin studies and area-specific data regarding current hospital utilization in Hernando and Citrus Counties. The parties did agree that, for planning purposes, an 80 percent occupancy standard and the population projections medium range, of the University of Florida, Bureau of Economic and Business Research, should be utilized in projecting bad needs. There are numerous methodologies which can be employed to determine the hospital bed needs of a given area. One such methodology is to utilize the statewide use rate developed by the Task Force on Institutional Need and apply that rate to a specific population, making adjustments for the characteristic of age, since persons 65 and older utilize hospital services approximately three times more than persons under 65. While the statewide use rate includes urban area use rates, it is still appropriate to utilize such rates for Hernando County because retirees come from urban areas and their consumption patterns will therefore be urban, as opposed to rural. Utilization of this methodology (referred to during the hearing as the "Amherst" method) results in a need for 125 additional medical/surgical beds in Hernando County by 1988, and an additional 182 beds for Citrus County by 1988. While not adopted or promulgated in rule form yet, HRS prefers a methodology which is based on use rates for specific services for two different age groups. Use of this "Statewide Uniform Bed Need Methodology" results in a need for 148 additional medical/surgical beds for Citrus and Hernando Counties combined. Other methodologies for determining bed needs for an area include using bed-to-population ratios. Utilizing the ratio in the Florida State Health Plan (1981) for the subject planning area--3.77 beds per 1,000 population, results in an additional bed need of 197 for Hernando and Citrus Counties. The national planning standard of four beds per 1,000 population contained in the Federal Guidelines illustrates a need for 232 beds for the two counties. The area Health System Plans for 1982 through 1986 and for 1983 through 1987, which respectively utilize the ratios of 3.17 and 2.93 beds per thousand population, result in a need for 122 beds (1982-86) and 86 beds (1983-87) for Citrus and Hernando Counties combined. The Health Systems Plans' projections are somewhat suspect inasmuch as a use rate based on patient days at hospitals only within the planning area is utilized. This method does not take into account the outflow of patients from the area. Such a methodology can result in a "self- fulfilling prophecy," with the use rate restraining the number of available beds. The fact that no beds are available in an area would, if use rate were determinative, result in a finding that no beds were needed in that area. Specific area use rate methodologies also fail to address problems of adequacy and accessibility of existing facilities.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of HCA Health Services of Florida, Inc. to construct a 96-bed acute care hospital in western Hernando County be GRANTED. Respectfully submitted and entered this 17th day of June, 1983. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1983. COPIES FURNISHED: C. Gary Williams, Esquire Michael J. Glazer, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida Robert A. Weiss, Esquire Assistant General Counsel Department of Health and Rehabilitative Services Building 1, Suite 406 1323 Winewood Blvd. Tallahassee, Florida 32301 Jon C. Moyle, Esquire Thomas A. Sheehan, Esquire Moyle, Jones & Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 Donna H. Stinson, Esquire Moyle, Jones & Flanigan 858 Barnett Bank Building Tallahassee, Florida 32301 David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2018.
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2011.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.
Findings Of Fact At all time material to this case, the Respondent was licensed as a veterinarian in the State of Florida, license no. VM0004187. The Respondent worked as a veterinarian at Animal Hospital Hyde Park, a combination animal hospital and kennel facility. The facility encompassed approximately 5,000 square feet, and was located at 800 West Kennedy Street, Tampa, Florida. During the Respondent's tenure at Animal Hospital Hyde Park, another veterinarian, Marianne Keim, owned the facility. Ms. Keim operated a boarding business, a grooming center, and a veterinary clinic, all located within Animal Hospital Hyde Park. There is no evidence that the Respondent had an ownership interest in Animal Hospital Hyde Park. The Petitioner presented testimony suggesting that the Respondent was the "responsible veterinarian" for Animal Hospital Hyde Park, and as such was responsible for the actions of all facility employees. The testimony is not supported by the greater weight of the evidence and is rejected. There is no evidence that the Respondent was responsible for the operation of the facility. There is no evidence that the Respondent presented himself to the public or to facility staff as a veterinarian generally responsible for boarded animals. The evidence establishes that the Respondent provided veterinary services by appointment only for animals brought to the facility. The Respondent also provided veterinary services by appointment on a "house call" basis. There is no evidence that the Respondent generally provided routine medical services to animals being boarded. Boarded animals received medical treatment from the Respondent only when an animal owner, after being advised by kennel staff of a medical problem, gave approval for the Respondent to treat the identified problem. After receipt of the authorization, kennel staff would take the ill animal to the Respondent's examination room. After receiving the medical attention, the animal would be returned by kennel staff to the boarding area. On February 9, 1996, the Respondent examined two dogs, Casey and Chloe, owned by Mr. and Mrs. Robert Yuill. The Yuills had moved to the Tampa area in January of 1996. The apartment facility where the Yuills lived did not permit large animals inside the housing units. At the time the Respondent met Mr. Yuill, the dogs had been living in the back of Mr. Yuill's Ford truck for three to four weeks. The Respondent examined the animals on February 9, 1996. Both dogs were overweight. At the February 9 examination, Chloe had an ear infection. The Respondent offered to medically treat the infection. Mr. Yuill declined, noting that he had appropriate medication remaining from the animal's former veterinarian. At the February 9 examination, Casey had a foot problem. The Respondent suggested Epsom salt soaks, and subsequently treated the foot with an antibiotic. There is no evidence that the February 9 examination and medical treatment provided at that time, or as follow-up care for problems identified during that examination, was inappropriate or failed to meet acceptable standards of care. From March 23, 1996, to August 12, 1996, the Yuill dogs were boarded at Hyde Park Animal Hospital. Upon admission to the kennel, the dogs remained overweight. The Yuills advised the kennel staff that the dogs were to receive food specifically designed to promote weight loss. The Yuills provided the food to the kennel. In April of 1996, the Respondent performed a successful spay surgery on Chloe, complicated only by the dog's obesity. There is no evidence that the spay surgery or any related follow- up was inappropriate or failed to meet acceptable standards of care. The Yuills took the dogs from the kennel for the Memorial Day weekend. The Yuills testified that the animals were dirty, ungroomed, appeared lethargic, and were infested with fleas. Nonetheless, they returned the animals to the facility at the close of the weekend. The Yuills testified that they advised Ms. Keim of the situation when the animals were returned to the kennel at the end of the Memorial Day weekend. Ms. Keim denies that the dogs were not in acceptable condition upon their release for the weekend, and denies being advised of any problem. From Memorial Day weekend until August 10, 1996, the Yuill dogs remained in the kennel facility, unvisited by the Yuills. The Yuills testified that they refrained from visiting the animals after Ms. Keim advised them that family visits were resulting in psychological and behavioral problems for the animals. Ms. Keim denies that she ever advised the Yuills to refrain from visiting the animals. On August 10, 1996, the Yuills came to remove the dogs after being advised that Ms. Keim was closing the facility. Prior to releasing the animals, Marianne Keim weighed Chloe at 54.5 pounds. Casey was too heavy for Ms. Keim to lift and was not weighed. According to Ms. Keim's testimony, the Yuills owed a balance of approximately $1,300 at the time the dogs were removed from the facility. Ms. Keim asserted at the hearing that the bill remains unpaid. The Yuills dispute her recollection. Shortly after retrieving the dogs from the Animal Hospital Hyde Park, the Yuills contacted the Board of Veterinary Medicine and was advised to take the animals for examination by Dr. Jerry Alan Greene at the Academy Animal Hospital. Dr. Greene examined the animals on August 13, 1996. Dr. Greene photographed the dogs and performed a number of tests at the expense of the Petitioner. According to the tests, there was an indication that the dogs had hookworms, but there was no other indication of disease or other illness. Blood test results provided no indication of illness. Hookworms can occur when an animal comes into contact with fecal material from another animal. There is no evidence that hookworms resulted from any negligence or poor medical practice by the Respondent. Dr. Greene stated that Ms. Yuill had remarked on Chloe's thirst and possible dehydration. There is no evidence that the dog was dehydrated. Dr. Greene testified that Chloe had otitis externa, an ear infection. According to Dr. Greene's testimony, Chloe's weight upon examination was 46 pounds. Dr. Greene opined that the dog was grossly underweight. The Respondent presented the testimony of Dr. Richard Goldston. The testimony of Dr. Goldston is credited. Based on his review of the photographs, including bone structure and coat of the animal, Dr. Goldston opined that the dog, though perhaps thin, was of a healthy weight. The dog's coat appeared to be healthy. No bones were observed to protrude from the dog's frame. Chloe also had an ailment identified as an "acral lick granuloma," on her lower leg. The condition, a swollen reddish lump generally surrounded by saliva-stained skin, results from excessive licking of an area. There was credible testimony that the licking behavior can initially result from boredom. Although an acral lick granuloma can be visually identified upon examination, there is no debilitation such as limping that would draw attention to the animal. The condition does not result in pain or discomfort to the animal, other than itching. The itching results in further licking, which aggravates the condition. There is no evidence that the Respondent was aware of the granuloma. There is no evidence that boarding staff advised him or sought approval from the Yuills to have the condition treated. According to Dr. Greene's testimony, Casey remained overweight and had a slight foot problem. He advised the Yuills to treat the problem area with Epsom salt soaks. Several boarding kennel employees testified at the hearing. All were very familiar with Casey and Chloe, noting that their familiarity was related to the dogs long-term boarding status. According to the boarding employees, the dogs were healthy and energetic while at the kennel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order DISMISSING the Administrative Complaint filed in this case. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles E. Lykes, Jr., Esquire 501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner is entitled to an award of Attorney Fees and Costs under the provisions of Section 57.111, Florida Statutes.
Findings Of Fact By Administrative Complaint dated September 3, 1997, the Department alleged that Donald J. Beck (Beck) was incompetent or negligent in his practice of veterinary medicine under Section 474.214 (1)(r), Florida Statutes. The Administrative Complaint further alleged that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner. A formal hearing was conducted on January 20, 1999. At the close of the Department's case presentation during the hearing on the Administrative Complaint, Beck moved to have the case dismissed. The motion to dismiss was granted as to the alleged violations related to medical and examination records, and was denied as to the alleged incompetent or negligent practice of veterinary medicine. The factual allegations in the Administrative Complaint involved two dogs boarded at a combination animal clinic and boarding facility identified as "Animal Hospital Hyde Park" in Tampa, Florida. The Animal Hospital Hyde Park facility was owned and operated by another veterinarian not a party to this proceeding. The two dogs were boarded at the facility for a period of months. The owners of the dogs had minimal contact with the animals during the boarding period. During the boarding period, the owners had informed the facility staff that the dogs were overweight and that the animals should be placed on restricted diets. After being notified by the facility owner that the facility was being closed, the owners retrieved the dogs and were apparently unhappy with the condition of the animals. The dog owners took the animals to another veterinarian, Dr. Jerry Alan Greene, who examined the dogs on August 13, 1996. The dog owners subsequently filed a complaint with the Department, which investigated the case. As part of the investigation, the Department interviewed witnesses including Dr. Greene and a second treating veterinarian. The Department reviewed medical records and photographs related to the animals. The Department also obtained an opinion from Dr. Sheldon Pinkerton, a third veterinarian, who opined that based on his review of the investigative information, Dr. Beck was in violation of Section 474.214(r), Florida Statutes, as well as other statutes and administrative rules. The investigative information and Dr. Pinkerton's opinion were submitted to the Board of Veterinary Medicine's Probable Cause Panel. Based on their review of the information, the Panel determined on August 28, 1997, that there was probable cause to charge Beck with violation of Section 474.214(r) and (f), Florida Statutes. Based on the Probable Cause Panel determination, the Department filed the Administrative Complaint dated September 3, 1997. During the formal hearing on the disciplinary case, the Department presented the testimony of Dr. Jerry Alan Greene, the veterinarian who tested and examined the relevant animals on August 13, 1996. According to Dr. Greene's testimony there was evidence, based on test results, that the animals had hookworms. Based on his examination, Dr. Greene further diagnosed one animal with an ear infection and opined that the animal was "grossly underweight." The other animal was still overweight and had some type of "foot problem." Beck presented the testimony of Dr. Richard Goldston at the formal disciplinary hearing. Dr. Goldston based his testimony on a review of photographs taken of the animals. Dr. Goldston opined that the "underweight" dog, although thin, was healthy. Dr. Goldston also opined that the other animal's "foot problem" was an "acral lick granuloma," which resulted from excessive licking of the area. Based on review of the testimony of the two expert witnesses presented at the formal hearing, the opinion of Dr. Goldston was credited. At the hearing, the Department offered testimony to suggest that Beck had a duty to provide medical care to all of the animals boarded at the facility. The testimony was not persuasive. The evidence presented at the hearing failed to establish that Beck was responsible for the medical needs of all the animals boarded at the Animal Hospital Hyde Park. By a Recommended Order dated March 29, 1999, the Administrative Law Judge recommended that the complaint against Beck be dismissed. By Final Order filed September 16, 1999, the Department of Business and Professional Regulation, Board of Veterinary Medicine adopted the Recommended Order and dismissed the Administrative Complaint.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in violation of the Fair Housing Act by refusing to allow her to keep a dog in her condominium as an accommodation.
Findings Of Fact On April 5, 2006, Petitioner purchased a condominium (hereinafter "condo") at Point East Three Condominium Association, Inc. She has resided in Unit N-508 continuously since she purchased the condo. Breziner was provided the Association's Declaration of Condominium and Rules and Regulations, which both prohibited unit owners from keeping pets in their units. Point East is the entity responsible for operating and managing the condo property in which Breziner's unit is located. Breziner signed the association rules when she moved into the condo. At all times relevant to this proceeding, Respondent had a no pets written policy. Section 10.3 of the Declaration states in relevant part: No animals, birds, fish, reptiles, amphibians or pets of any nature and description shall be raised, bred, or kept in any apartment, the limited common elements or the common elements. Point East's rules that Breziner signed state in relevant part: 6. I understand that there is a restriction on pets and that I may not bring a pet, nor may any guest, visitor or tenant bring a pet into POINT EAST THREE CONDOMINIUM nor acquire one, either temporarily or permanently after occupancy. Petitioner's son gave her an American Cocker Spaniel dog after she moved into the condo. She keeps the dog in her unit. The dog is named Oossa. Breziner took the dog to 10 classes for 10 weeks, and the dog was trained to be obedient, sit, to listen to her, to walk near her, and not to eat food from the street. Oossa received a diploma from the local Pet Smart store for completion of the training. Oossa did not receive any training as an emotional support animal and has not been trained to perform tasks to assist with a disability. However, Petitioner paid $107.00 to Goldstar German Shepherds: All Breed Dog Training & Service Dogs training facility in Nevada to receive a certificate that says Oossa is a service animal. The certificate states: Goldstar dog training is a private entity not affiliated with the Dept. of Justice or any other state or Federal Agency. Goldstar dog training is not empowered to make legal decisions pertaining to your rights. Should you encounter issues pertaining to access for your service animal, use the number above to contact the United States Department of Justice (Disability Rights Section). Breziner is a holocaust survivor and on July 10, 1998, she was robbed, beaten and left to die. The incident caused her to be unconscious for several days and have major surgery. From the assault, she also lost her business. On July 18, 2007, Petitioner by letter requested a meeting with Point East regarding her dog. She indicated that she had a doctor's note for the dog. On July 19, 2007, Breziner requested that Point East allow her to keep her dog as a service dog under Section 413.08, Florida Statutes. On September 6, 2007, Point East sent Petitioner a letter notifying her of a violation of Section 10.3 of the Declaration of Condominium and informed Petitioner that she needed to remove the dog. On September 28, 2008, Petitioner provided Point East with documentation asserting emotional and physical disabilities and a request to keep her dog as a reasonable accommodation. Petitioner wants to keep the dog because Oossa provides companionship and comfort, which makes Petitioner happy. In addition, the dog has motivated Breziner to be more active. Breziner has an emotional bond with her dog. Petitioner saw Dr. Judith Chavin on July 3, 2006, and was given a prescription that stated: "Please allow Ms. Lillian Breziner to have her dog at her home. The dog is beneficial to her health." Dr. Cauvin also wrote a letter on September 27, 2007, that stated that "[i]t would be tragic if Mrs. Breziner were to lose her dog. I believe that her depression would be worse and that would impact on her mental and physical well being." On July 10, 2008, Dr. Vindimir Derenoncount, a family medical doctor, filled out a Medical Certification form for Petitioner. He noted that "I am a Physician temporarily covering the clinic which Mrs. Breziner attends. The following information has been gathered from her chart . . ."suffers from chronic severe depression and anxiety . . . partially deaf in l[eft] ear."1 Derenoncount did not independently diagnose or evaluate Breziner. Marilyn Miller, Breziner's Holocaust Survivor Case Manager, has known Breziner for nine years. She visits Petitioner's home and tracks her status. She works with Breziner because she is a holocaust survivor. Miller testified that she does not diagnose patients because she is a social worker. However, she reviewed Breziner's records and testified that the records indicate that she has anxiety and depression. Breziner takes antidepressant and anxiety medicine daily prescribed by her primary care doctor. Prior to January 12, 2009, Breziner's dosage of Celexa prescription was 20mm. The doctor increased it on January 27, 2009, to 30mm and to 40mm on Febraury 12, 2009. On September 11, 2008, Dr. Jose Rivas did a psychiatric evaluation on Breziner. He referred Petitioner to Richard Walsh at Bayview Center for Mental Health, Inc., for individual counseling regarding her multiple losses. Walsh is a licensed clinical social worker but has no advanced degrees in medicine. He agrees with the multiple diagnoses Breziner received prior to seeing him of post traumatic stress syndrome, anxiety and depression. Breziner's depression and anxiety do not substantially limit any life activities. She goes everywhere and takes Oossa with her to stores and restaurants. Breziner is capable and performs all life activities she chooses. Oassa is Breziner's companion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of April, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2009.
