505 F.3d 1173 (11th Cir. 2007), 06-13791, Sheely v. MRI Radiology Network, P.A.

Docket Nº:06-13791.
Citation:505 F.3d 1173
Party Name:Annette SHEELY, Plaintiff-Appellant, v. MRI RADIOLOGY NETWORK, P.A., d.b.a. University MRI-JFK, Defendant-Appellee.
Case Date:October 24, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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505 F.3d 1173 (11th Cir. 2007)

Annette SHEELY, Plaintiff-Appellant,


MRI RADIOLOGY NETWORK, P.A., d.b.a. University MRI-JFK, Defendant-Appellee.

No. 06-13791.

United States Court of Appeals, Eleventh Circuit.

October 24, 2007

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Appeal from the United States District Court for the Southern District of Florida.

Matthew W. Dietz, Law Office of Matthew Dietz, Miami, FL, for Sheely.

Andrew David Rafkin, Broad & Cassel, West Palm Beach, FL, for Defendant-Appellee.

Maggie E. Sklar, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Washington, DC, Jay M. Levy, Jay M. Levy, P.A., Miami, FL, for Amicus Curiae.

Before ANDERSON, MARCUS and COX, Circuit Judges.

MARCUS, Circuit Judge:

At issue today are whether the plaintiff's claims for injunctive and declaratory relief under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12181-12189, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, became moot after the defendant voluntarily ceased the alleged misconduct, and whether non-economic compensatory damages are available under the Rehabilitation Act. After thorough review, we conclude that the plaintiff's claims are not moot because the defendant has not met its heavy burden of showing under controlling law that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted). We also hold that non-economic damages are indeed available under the Rehabilitation Act. Accordingly, we reverse and remand for further proceedings consistent with this opinion. Finally, we affirm the district court's determination that the plaintiff failed to state a claim under the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.

I. Background

The essential facts, which we cull from this summary judgment record and take in the light most favorable to the plaintiff, see Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999), are these; unless otherwise noted, they are undisputed.

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Plaintiff Annette Sheely ("Sheely") has been legally blind since 1999, and is aided by the use of an eighty-pound Labrador retriever guide dog. On June 7, 2005, Sheely accompanied her minor son to one of five diagnostic imaging facilities owned and operated by the defendant MRI Radiology Network, P.A. ("MRN"), where her son had an appointment to receive magnetic resonance imaging (an "MRI"). When Sheely checked her son in, the receptionist, Felicia Anderson ("Anderson"), asked whether Sheely's dog was a service animal.1Sheely replied that he was, and nothing more was said at that time. Sheely and her son waited in the main waiting room for his appointment.

Beyond the main waiting room is a hallway, at the end of which is a "holding area" with three or four chairs and a table with magazines on it where patients wait once again to be called in for their actual examination. The holding area also contains lockers where patients place certain belongings, including any metal items like jewelry or watches, prior to entering the MRI suite. Off of this hallway lie four examination rooms -- two MRI "suites," one x-ray room, and one ultrasound room. The typical MRI suite is divided into two rooms by glass. Metal-sensitive MRI equipment and the patient are located in one room, while the technician performs the examination remotely from the other side of the glass in the adjoining room.

When Sheely's son was called, he asked his mother to accompany him. According to the deposition testimony of Lana Amiel, MRN's Director of Front Office Management ("Amiel"), parents who wished to do so were permitted to accompany their minor children beyond the main waiting room to the "holding area" at the end of the hallway. Nevertheless, when Sheely stood to accompany her son, the receptionist, Anderson, 2 told her that she would have to remain in the main waiting room, since it was MRN's policy that animals were not permitted beyond that point. When Sheely asked if her dog would be permitted beyond the main waiting room if she were the patient, Anderson said that the dog would still not be permitted beyond the main waiting room, and that Sheely would only be treated if she brought someone else to watch the dog in that area.

When Sheely asked why her service dog was not permitted beyond the main waiting room, Anderson gave various reasons. According to Sheely, Anderson said, among other things, that the policy existed for the dog's safety, for Sheely's own comfort, and that it reflected the concern that the metal in the dog's harness might harm the MRI equipment. According to the police report filed following the incident, 3

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Anderson similarly told the investigating officer that the dog was not permitted in the MRI exam room because of the metal in the dog's harness and for the dog's own safety, and that although Sheely would have been permitted in the hallway waiting area, the dog was not permitted there because, in the officer's words, "having the animal in this area could have been a problem due to it being a traveled hallway." Anderson also told the officer that she believed that MRN was a private facility, not a public accommodation subject to the Americans with Disabilities Act, and that Sheely's son was competent and did not need a parent to accompany him. In an email sent to Amiel on the morning of June 9, Anderson added that "[t]his was a very big dog and there would not be room for him to even lie on the floor in the back hall waiting area for MRI patients." MRN admitted in its answer that it told Sheely her dog was not allowed past the waiting room "for several reasons, including but not limited to, the issue of space, safety, compliance with the applicable procedures for entry into the MRI room and the preclusion of metal objects in a magnetic area."4

Sheely's son eventually proceeded alone beyond the main waiting room for his appointment. Meanwhile, Sheely called MRN Director of Scheduling Jim Stannard ("Stannard"), with whom she had had prior contact concerning MRN's accommodation of her disability, about the situation.5 According to Sheely, Stannard told her that a parent was entitled to accompany her minor child beyond the main waiting room, and that she was entitled to do the same with her dog, like any other parent.6 Sheely says that Stannard then called Anderson, and that when Anderson hung up with Stannard she said, "Well, we have to let her back."

However, when she was still not admitted, Sheely again called Stannard. Sheely says that Stannard explained that he was currently on the phone with Amiel, who had explained that she was denying Sheely's dog access based on MRN owner Fred Steinberg's policy that animals are not permitted beyond the waiting room, without exception for service animals. According to Amiel's testimony, at the time of the incident, MRN did not have a written policy covering either how patients with disabilities would be accommodated generally, or how MRN would approach service animals

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in particular. Instead, MRN had an unwritten "policy" that service animals were permitted only in the main waiting room area, and that she had spoken to Steinberg "several times over the years" regarding that policy. In the end, Sheely was not permitted to take her dog beyond the main waiting room.

The incident with Sheely was apparently not the first time that a patient had disputed MRN's unwritten service animal policy. Within one or two days of the incident involving Sheely, Anderson emailed Amiel requesting that MRN develop a "written policy regarding 'pets' in our facility," complaining that the incident with Sheely was "the third time within a year's time that this issue has surfaced once again." (emphasis in original). Amiel likewise testified that animals had been brought into MRN facilities "several times," though she suggested that at least some of these incidents involved pets rather than service animals.

The record also contains information regarding a May 19, 2004, incident in which a patient, Mary Rose Mullane ("Mullane"), appeared for her appointment with her husband and her poodle, whom she alleged was her service animal. Anderson and Amiel told Mullane that her dog was not allowed anywhere in the facility, and that her husband would have to wait with the dog outside. When Mullane refused, stating that she believed that MRN's policy violated the ADA, MRN asked her to leave, and eventually called the police to have the Mullanes escorted off the premises. Anderson told the investigating officer that both Amiel and Steinberg were notified of the incident as it unfolded and had responded that Mullane was welcome so long as her dog left the building. The officer concluded that no violation had occurred because MRN was a private business, not a "public" place. After the incident, Amiel placed a note in Mrs. Mullane's file indicating that she was told "[a]s per Dr. Steinberg no animals within the facility," that "[s]ervice was denied," and future appointments were not to be scheduled for her.7

On July 27, 2005, about a month and a half after the incident, Sheely sued MRN in the United States District Court for the Southern District of Florida. Count one of her complaint sought declaratory and injunctive relief, as well as costs and attorney's fees, under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 ("ADA"). Count two sought the same relief, plus non-economic compensatory damages, under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("RA"). Finally, count three sought the same relief, plus punitive damages and interest, under the Florida Civil...

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