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Author Topic: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .  (Read 957 times)

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Offline responsiblek9

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Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« on: November 14, 2013, 12:28:26 AM »
http://www.nbcmiami.com/news/local/Couple-Forced-To-Move-Pit-Bull-Service-Dog-From-Miami-Dade-to-Broward-County-231846691.html
Couple Forced To Move Pit Bull Service Dog From Miami-Dade to ...
NBC 6 South Florida-1 hour ago
A Miami-Dade couple is suing the county after police came to their home to take their dog away, and they were forced to move him to Broward. NBC 6's Laura ...
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Offline RobinJ

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #1 on: November 14, 2013, 12:56:04 AM »
Provided the family can prove the dog's task training, Miami Dade will lose this one. In the official comments on the most recent ADA regulation update, DOJ already addressed the breed ban issue:

http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm#a35136

"Breed limitations. A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others.

Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individualís home jurisdiction but is nonetheless banned by other jurisdictions.

State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animalís actual behavior or historyónot based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety."

Denver and other cities have already modified city ordinances after the DOJ guidance. I'm surprised Miami Dade hasn't done the same yet, but it looks like they're still using the 1989 ordinance.

http://www.miamidade.gov/animals/pitbull-law.asp




Offline responsiblek9

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #2 on: November 14, 2013, 01:05:40 AM »
I believe Denver  and Aurora settled . If this one makes it through federal court and is ruled on, not settled could make fur a useful precedent. Provided they can prove they are disabled under the ADA by this condition. And can prove the training and the mitigation to meet the definitions. Keeping fingers crossed  this one can be a precedent and not blow up in their faces . Never know who might be claiming their pet is a SD when it is not.
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Offline Roxie

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #3 on: November 14, 2013, 01:08:04 AM »
I have never known anyone that can't tell when they are short of breath! Lack of oxygen is pretty noticeable to a person.

This thing with people choosing breeds that are banned where they are living gets under my skin. Sure I know here are no federal laws limiting the dogs breeds and mixes that can be service dogs. With all the choices, why choose one that will cause the most conflict, access issues, and problems??? And if one does make that choice - why try to force ones self to stay living where the breed is banned?
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Offline RobinJ

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #4 on: November 14, 2013, 01:52:35 AM »
The trained task is that the dog recognises the laboured breathing and goes and gets an inhaler. It's not recognising the breathing that's the mitigation, it's bringing the medication when needed.

Offline RobinJ

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #5 on: November 14, 2013, 02:08:51 AM »
Denver and Aurora didn't settle. They each changed their published city policies to accommodate pit bull service dogs. A judge then dismissed discrimination suits against each, ruling that the change in official policy after the ADA guidance was published met the accommodation requirement. 

(We should also note the suits were pretty weak--they couldn't even prove residency in one case. Mostly it was people saying they were afraid their pit bull would be taken away. The judge felt that once the published policies said a service dog would not be taken away, there was no more case.)

http://www.denverpost.com/news/ci_23787969/judge-tosses-pit-bull-lawsuits-against-denver-aurora

In contrast the Miami Dade case is very strong because the police came to their house, they were fined and told the dog had to be removed from city limits, which they did. So real financial damages to the couple plus loss of the dog's services, all documented by the official city record.  All based solely on the dog being a pit bull, apparently there was no history of misbehavior.  And the man takes a prescription medication for a documented disability.

So the only question of fact remaining is if the dog is actually trained to bring the med kit during a medical crisis. Pretty straightforward.

BTW--it's true that many people with respiratory disorders wear a belt pack with their medication so it's always at hand. My niece who has severe asthma does this. But it's also true that the ADA leaves the choice of treatment method up to the person with the disability, and if he wants to leave the medkit on the night stand and train a dog to go get it, legally he has that right.

Offline Kirsten

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #6 on: November 14, 2013, 02:14:31 AM »
Most people simply carry the inhaler in a pocket.

There's no guarantee either side would win in court.  It hasn't been tested.  If the county can show that pit bulls are inherently dangerous, they could win.  Or they could win on state's rights.  We were recently discussing a similar issue under the FHAA, but in that case it wasn't regulatory law.  In this case, while it is discussed in a final rule, they didn't actually make it regulatory law either.  It's more than a guidance, less than regulatory law.  It's not a slam dunk.  We'll just have to wait and see how it eventually plays out in court.  The case on the dog owner's side isn't as strong as it could be (should be) for such a test case.

I disagree about the ADA giving people a choice.  It is framed as a "reasonable accommodation" which means it isn't entirely about what the PWD wants, but what is reasonable for all.  It is generally assumed that use of a SD under Title III is reasonable which is why documentation is not required, but that's not exactly what this situation is.  It's Title II and it's about residence of the dog in a ban area. 

I'm not prepared to hazard a guess about which way it would go in court.  I see it as 50/50, not a "strong" case either way.
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Offline Kirsten

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #7 on: November 14, 2013, 02:23:38 AM »
The Bill of Rights includes the following (10th Amendment):

Quote
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Constitution trumps even statutory law, which trumps regulatory law.  Would a court rule that this comment/discussion by the DOJ that they didn't think important enough to actually put in the definition of service animal when they were ironing it out in 2011 over-rides a state or local ban on certain breeds of dogs?  You could make an argument either way, which is why we really need to wait for a court to weigh in before we can say anything with any kind of certainty.

Why didn't the DOJ say "service dog means any breed of dog, regardless of any breed ban..." in the definition instead of just casually discussing it in the discussion area?  I suspect because they would have had to open it to public comment and there would have been a lot of public comment on the topic.  But that's just my guess.
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In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

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Offline Kirsten

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #8 on: November 14, 2013, 02:31:54 AM »
Regarding choice:

I use a cane because of DJD in one of my legs.  I'd like to use this cane:  http://www.ebay.com/itm/Chinese-manual-sculpture-dragon-restoring-ancient-ways-copper-crutch-talisman-/261329262565?pt=Asian_Antiques&hash=item3cd87017e5 because I think it is beautiful.  If the ADA guaranteed me a right to choose absolutely any assistive device I preferred, just because I preferred it, then I could use this cane even in stores that have posted a "no weapons permitted" notice or a public school or county court house.  But I can't.  So there really are limits to choice of assistive device.  It's not open ended.
Kirsten and Tardis
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In loving memory of Cole (1/11/99 - 6/26/12)  He gave me back my life.

"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline RobinJ

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #9 on: November 14, 2013, 03:07:57 AM »
Absolutely, it's not total free choice on the part of the person with the disability. My apologies if I was confusing. But the usual guidance has been that the PWD's wishes should be the "primary" factor except when, as in the case of the sword cane, there is a compelling reason to do otherwise.

Lots of case law on this with regard to hearing dogs for the deaf. Employers under the ADA and landlords under the FHAct have often argued that the needs of the deaf person could be met through flashing lights or human notifiers. But DOJ and HUD have pretty consistently argued that it should generally be up to the PWD which mitigation they chose provided the dog is truly trained.  For that matter it's come up with regards to guide dogs for the blind as well, with employers and hospitals unsuccessfully arguing they could provide human assistants so the dog was not needed.

But you are quite right, I should have indicated there are limits. Thank you for the correction.  Another good example to your point is Segways as a mobility device. The 2010 ADA guidance distinguished between wheelchairs and Segways, saying that Segways might be restricted when there were legitimate safety concerns, even if the PWD preferred a Segway. This same issue was also upheld by a California court when a woman with multiple sclerosis sued Disney for not allowing her to use her Segway in the park.

http://www.ada.gov/regs2010/factsheets/title2_factsheet.html

http://www.law360.com/articles/458508/disney-s-segway-ban-doesn-t-break-ada-calif-appeals-court

As to how strong the Miami Dade case is, we'll see. Certainly residence is proved and the financial damages are real and documented in city records. Your point that the county may prevail if the judge agrees all pit bulls are always inherently dangerous regardless of training is interesting as that would directly contradict the DOJ position. So it could be a very long legal journey if the County wants to make that their defense.




Offline Kirsten

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #10 on: November 14, 2013, 03:11:54 AM »
It will certainly be interesting if it goes to court, but it would be best if it was a truly strong case so that the key issues of primary interest to us are actually addressed.
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Offline RobinJ

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #11 on: November 14, 2013, 09:48:08 AM »
It will certainly be interesting if it goes to court, but it would be best if it was a truly strong case so that the key issues of primary interest to us are actually addressed.

The police came to their house and officially served notice that the dog was not allowed within the jurisdiction because of his breed and they had to pay a fine. So there's no question about what was said, why, and there are documented financial damages. There is a third party trainer and the owner's disability is documented also. The dog's task of fetch prescription medicine when the owner has a health crisis is easy to explain to a judge. There doesn't appear to be any history of misbehavior, the breed is the only reason they were told they couldn't keep the dog in their home.

What more would you like to see to make a stronger case?

Offline responsiblek9

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #12 on: November 14, 2013, 10:04:21 AM »
 :trx:  I would hate to hang my hat legally only on fetching an inhaler as a task..
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Offline Kirsten

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #13 on: November 14, 2013, 11:52:59 AM »
I agree with Nora.  It's not much of a task and if it's the only thing the dog does and you weigh it against the public interest, it's a weak case.  It sounds like someone wanting an excuse to call a pittie a service dog rather than an actual service dog because it is needed.  How about tasks that could not more easily be managed in other common ways?
« Last Edit: November 14, 2013, 11:54:52 AM by Kirsten »
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"The one absolute, unselfish friend that man can have in this selfish world -- the one that never proves ungrateful or treacherous -- is his dog." -George G. Vest

Offline ZombieFodder

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Re: Couple Forced To Move Pit Bull Service Dog From Miami-Dade to .
« Reply #14 on: November 14, 2013, 11:57:49 AM »
I agree so much with Roxie. everyone can tell when they can't breath! You don't need a dog to tell you that. And everyone I know carries their inhalers or epi pens.

I almost drowned as a toddler when a lifeguard left the pool & I jumped in the deep end because she didn't tell me to wait until she got back. Its one of the few things I can remember from that age & its crystal clear because it was so teriffying to drown. If being short of breath is anything like drowning I would be carrying 10 inhalers in my pocket & a couple around my neck.

This "task" is right up there with people saying the dog carries the inhaler for them in a backpack so its an SD.

I'm not buying it at all. it sounds more like the typical excuse of calling something a thing it is not to skirt the law.

Don't get a banned breed of dog & live in an area that banned them. The law has been there for awhile now & the citizens don't want it to change so thats that.

I was going to say I wanted to replace my chair with a pony or an atv, but then you guys already discussed reasonable accomodation & ruined it  :biggrin:

I don't see this case as going anywhere expect fail.
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