Outside Article Service Dog Beach Ban ADA Claim

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As illustrated by the case described herein, under certain circumstances, a federal court may dismiss a claim alleging a violation of the Americans with Disabilities Act (ADA) as "moot" if the challenged governmental policy or practice has been terminated with no reasonable possibility that it will reoccur.

In the case of Silva v. Lee County, 2021 U.S. Dist. LEXIS 197008 (M.D. Fla. 10/13/2021), Plaintiff Cesar Silva, a disabled military veteran living in Lee County, Florida, required the use of a service animal, an 8-year-old German Shepherd named Sophia. Silva claimed he was unable to visit a public beach with Sophia because Lee County had banned all service animals from that beach in violation of the ADA, 42 U.S.C. §§ 12101-12213. Accordingly, Silva sued Lee County for violating Title II of the ADA.

In response, Lee County filed a motion to dismiss Silva's lawsuit. In so doing, Lee County argued its so-called "ban" on service animals was nothing more than a poorly worded sign that has since been removed. According to Lee County, the voluntary removal of the sign had effectively addressed any alleged violation of the ADA and, therefore, had "mooted" Silva's lawsuit (i.e., no live dispute remained to provide jurisdiction for a federal court).

Silva opposed the motion to dismiss because he believed there was still a live continuing controversy as to Lee County's purported ban on service animals.

No Pets or Service Animals
Silva had multiple disabilities, including post-traumatic stress disorder (PTSD) and required the use of a walker and cane to ambulate. Silva's service dog, Sophia, helped Silva by picking up objects he dropped, alerting others when he required assistance, and acting as a barrier between him and large crowds. Sophia had "received over 1,500 hours of training in obedience, socialization, desensitization, public access training and advanced skill work" through Guardian Angels Medical Service Dogs, Inc.

In February 2021, Silva and Sophia attempted to visit Bunche Beach, a public beach in Lee County. Silva claimed he was prevented from visiting Bunche Beach because Lee County had banned all pets and service animals from that beach. To prove the existence of this ban, Silva's complaint cited: (1) a screenshot from Lee County's website that provided information about Bunche Beach and stated, "Pets are not allowed at this park"; and (2) a picture of a sign Silva encountered on his visit.

The sign at issue contained the words "NO PETS OR SERVICE ANIMALS" in large print on top. In smaller print immediately below, the sign stated: "This preserve provides habitat for wildlife protected by the Endangered Species Act." The middle of the sign contained an interdictory circle, inside of which was a silhouette of a dog on a leash.

Toward the bottom, the sign cited "Lee County Ordinance 18-12 as amended" and stated that according to "Architectural Barriers Act Standards § 1019.1 exceptions to the ADA exist where compliance is limited or precluded by federal law, including the Endangered Species Act (16 U.S.C. §§ 1531 et seq)" or other laws intended to "preserve threatened or endangered species."

On March 11, 2021, Silva brought this action against Lee County, alleging that its policy banning service dogs from Bunche Beach violated Title II of the ADA. About a month later, Lee County moved to dismiss the action as moot.

New Signage
In support of the motion to dismiss, Lee County filed a declaration from Alise Flanjack, deputy director for Lee County Parks and Recreation. Flanjack stated that the sign Silva photographed at Bunche Beach had been removed on February 18, 2021.

As described by Flanjack, the original sign was erected because the U.S. Fish and Wildlife Service "had designated all of the shoreline at Bunche Beach as a critical habitat for federally threatened species of birds."

As characterized by the federal district court, the sign seemed to recognize that "dogs ostensibly posed some kind of threat to these birds." That being said, it remained unclear to the court "how the Architectural Barriers Act and the Endangered Species Act interfere with a person with a disability's right to bring a service dog to a public beach":

The Architectural Barriers Act and its administrative standards were enacted "to insure whenever possible that physically handicapped persons will have ready access to, and use of, qualifying buildings." 42 U.S.C. § 4152. While the Architectural Barriers Act Standards § 1019.1 exempts compliance if precluded by the Endangered Species Act, it is not clear how that statute relates to service dogs.

In her declaration, Flanjack indicated Lee County had "ordered new signage with revised language" and installed it at Bunche Beach on March 17, 2021. A mockup of the "new signage" was attached to Flanjack's declaration. The design for the new signage was very similar to the original sign Silva had photographed; i.e., a blue background with an interdictory circle containing a silhouette of a dog. The language of the new sign, however, was much different. The top of the new sign now stated, "NO PETS ALLOWED," without reference to service animals or the Endangered Species Act. Below the interdictory circle, the new sign contained the following language:

In accordance with the Americans with Disabilities Act (ADA), service dogs are permitted on any beach open to the public. A service dog is trained to do specific tasks directly related to the owner's disability. Emotional support animals, comfort animals, and therapy dogs are not considered service animals under the ADA and, therefore, are not permitted. A service dog must remain under the owner's control at all times. Any individual whose failure to maintain control of a dog results in disturbance to wildlife will be asked to leave the beach and may receive a citation.

At the bottom, the new sign again cited "Lee County Ordinance 18-12 as amended." Besides the redesign, Flanjack also noted that Lee County Ordinance 18-12 exempted service animals from any prohibition on entering any public park, including Bunche Beach. In particular, Lee County Florida Ordinances No. 18-12, § 9.6(M) (2018) provided: "Service Animals are exempt from area restriction in accordance with federal and state law." As a result, Lee County contended the sign Silva had photographed was "apparently contradicted by the same local law that it cited."

After Silva was notified of Lee County's motion to dismiss, he returned to Bunche Beach and photographed a different sign that was "still posted on the property" and made it "appear as though not all animals are permitted at Bunche Beach." This sign, however, merely stated, "NO PETS Allowed," and contained an interdictory circle with a dog silhouette. The sign made no references to service animals, the Endangered Species Act or Lee County ordinances.

 

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Challenged Practice Terminated
As noted by the federal district court, Article III of the Constitution limits the jurisdiction of federal courts to deciding "cases" or "controversies." U.S. Const. art. III, § 2. Further, the court found: "The doctrine of mootness derives directly from the case-or-controversy limitation because an action that is moot cannot be characterized as an active case or controversy." Moreover, the court acknowledged that "a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome."

In determining the ongoing existence of a "live" controversy, the federal district court acknowledged that "mere voluntary cessation of a challenged practice does not render a case moot":

Otherwise, a party could moot a challenge to a practice simply by changing the practice during the course of a lawsuit, and then reinstate the practice as soon as the litigation was brought to a close. Voluntary cessation only moots a case if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

Moreover, in cases where the defendant is a government actor, the federal district court noted that "there is a rebuttable presumption that the objectionable behavior will not recur," but only after the government "has shown unambiguous termination of the complained of activity." Accordingly, if the government can demonstrate termination of the complained of activity, the federal district court would dismiss as "moot" a lawsuit challenging a governmental policy, in the absence of "some reasonable basis to believe that the policy will be reinstated if the suit is terminated."

In determining whether a challenged conduct will reoccur, the federal district court would consider the following three factors before terminating a lawsuit as moot:

(1) whether the termination of the offending conduct was unambiguous; (2) whether the change in government policy or conduct appears to be the result of substantial deliberation or is simply an attempt to manipulate jurisdiction; and (3) whether the government has consistently applied a new policy or adhered to a new course of conduct.

In addition to these three factors, the court also would consider "other relevant factors," including "the timing and content of the cessation decision, and whether the challenged behavior was a continuing practice."

Ordinance Exempted Service Dogs
In this particular instance, Lee County had argued that "removal of the sign Silva photographed renders this case moot." Moreover, Lee County maintained "the sign was never intended to conflict with the plain language of Ordinance 18-12 (cited in the sign), which exempts service dogs from the Ordinance's general prohibition on dogs in public parks."

The federal district court found Lee County had effectively acknowledged "the original sign was flat-out wrong," but noted Lee County's contention that "any problems it may have caused are now moot because it was removed."

In response, Silva disagreed that the case was moot, claiming he had "encountered at least three signs prohibiting service animals during his first visit to Bunche Beach." While this fact was not mentioned in his complaint, Silva argued his claim was not moot because Lee County had "not definitely confirmed" that all three signs were removed.

In addition, Silva claimed he had returned to Bunche Beach after his lawyers told him Lee County "had removed the problematic sign and replaced it with a new sign." On this second visit, Silva photographed a different sign that read, "NO PETS Allowed," without mentioning service animals. This other sign, according to Silva, made it appear that Lee County continued to ban service animals from Bunche Beach.

The federal district court rejected Silva's argument. In the opinion of the court, "Lee County's removal and replacement of the offending sign (or signs) has mooted the case."In reaching this conclusion, the court held Lee County, as a government defendant, was "entitled to a rebuttable presumption that its allegedly illegal behavior will not reoccur if it can demonstrate that it has unambiguously terminated the activity."

As noted by the court, Silva has alleged "the illegal behavior is Lee County's supposed policy of banning service animals from Bunche Beach." The court, however, found it was "unclear whether such a policy ever truly existed." In the opinion of the court, it was "doubtful whether the sign was intended to enforce any kind of coherent 'policy' against service dogs at Bunche Beach":

Lee County Ordinance 18-12, which is cited in the sign Silva photographed, exempts service animals from any prohibition on entering public parks like Bunche Beach. While the sign may have said, "NO PETS OR SERVICE ANIMALS," that language was contradicted by the same legal authority cited in the sign.

Poorly Worded Sign Removed
Under the circumstances of this case, the court found Silva had apparently "just encountered a poorly worded sign." Moreover, regardless of "the intent behind the sign," the federal district court noted the sworn declaration of Flanjack, Lee County's deputy director of parks and recreation, which showed "the offending signage was removed, and new signage was installed at Bunche Beach on March 17, 2021."

While Silva had claimed to have seen three problematic signs upon his return to Bunche Beach, the federal district court noted Silva had not produced "any photographic evidence that any such signs remained." On the contrary, the court found Silva had simply "photographed entirely different signs that did not specifically mention service animals."

In the opinion of the federal district court, Lee County's redesign of the signage, as opposed to mere removal, was further "evidence that there was some deliberation behind the County's decision, at least enough deliberation to think about what the new sign should say." Further, the court found "no reason to believe that Lee County's 'new' policy is not being consistently applied." That being said, it was "unclear" to the court "whether this policy is 'new' in the first place, considering the plain language of Lee County Ordinance 18-12." As characterized by the court, "the new sign appears to reflect what Lee County's policy has been all along (or at least since 2018 when Ordinance 18-12 was originally enacted)."

Based on this evidence, the federal district court concluded "Lee County has shown unambiguous termination the complained-of activity" and, therefore, "Lee County is now entitled to a rebuttable presumption that its behavior will not reoccur." In failing to rebut this presumption, the court noted Silva had merely "demonstrated that Lee County's website and some other signs ban 'pets' from Bunche Beach." In the opinion of the court, this apparent ban on pets was "not enough" to rebut the presumption that any alleged ban on service animals had been terminated.

Pets Not ADA "Service Animals"
As cited by the federal district court, the ADA's implementing regulations define "service animal" as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." 28 C.F.R. § 35.104. Other than dogs, the court acknowledged "no other animal may be a service animal" and "the tasks which the service animal performs must be directly related to the individual's disability."

In the opinion of the court, this narrow definition of service animals under the ADA and its regulations did not include "household pets" because "the crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks" directly related to an individual's disability:

The ADA does not create unlimited license for disabled customers to enter facilities of public accommodation with their pets. An animal that simply provides comfort or reassurance is equivalent to a household pet, and does not qualify as a service animal under the ADA.

Having found pets were not service animals under the ADA's regulations, the court concluded "Silva cannot refute Lee County's presumption of non-reoccurrence with evidence that its website or some remaining signage bans pets from Bunche Beach":

Such a ban on pets would not violate the ADA. And the allegations in Silva's own complaint make clear that Sophia is more than a pet. She has more than 1,500 hours of specialized training and performs tasks that are directly related to Silva's multiple disabilities. A ban on pets plainly does not apply to her.

Conclusion

Having found the alleged violation of the ADA had effectively been terminated and unlikely to reoccur, the federal district court granted Lee County's motion to dismiss Silva's ADA complaint as moot.

SEE ALSO: ADA Claim to Allow Emotional Support Hog in Parks, James C. Kozlowski, Parks & Recreation, Oct. 2019, Vol. 53, Iss. 10 and Code of Federal Regulations (CFR) Part 35 - Nondiscrimination on The Basis of Disability in State and Local Government Services CFR § 35.136 SERVICE ANIMALS.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Click here for Law Review articles archive (1982 to present).

Service Dog Beach Ban ADA Claim | Law Review | Parks & Recreation Magazine | NRPA

Examine the federal district court’s decision in the case of Silva v. Lee County.

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