Alboniga ex rel. A.M. v. Sch. Bd. of Broward Cnty. Fla.

• Decision Date: 10 February 2015
• Docket Number: Case No. 14–CIV–60085.
• Parties: Monica ALBONIGA, individually and on behalf of A.M., a minor, Plaintiff, v. The SCHOOL BOARD OF BROWARD COUNTY FLORIDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

87 F.Supp.3d 1319

Monica ALBONIGA, individually and on behalf of A.M., a minor, Plaintiff

v.The SCHOOL BOARD OF BROWARD COUNTY FLORIDA, Defendant.

Case No. 14–CIV–60085.

United States District Court, S.D. Florida.

Signed Feb. 10, 2015.

Matthew Wilson Dietz, Matthew W. Dietz, Miami, FL, for Plaintiff.

Marylin C. Batista–McNamara, Barbara Joanne Myrick, School Board Attorney's Office, Fort Lauderdale, FL, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

BETH BLOOM, District Judge.

THIS CAUSE is before the Court upon the Motion for Partial Summary Judgment, ECF No. [35] (Plaintiff's “Motion”), filed by Plaintiff Monica Alboniga (“Plaintiff”), individually and on behalf of her minor child, A.M., and the Motion for Summary Judgment, ECF No. [37] (Defendant's “Motion”) filed by Defendant The School Board of Broward County, Florida (the “School Board” or “Defendant”). The Court has reviewed the Motions, all supporting and opposing filings and submissions, the Statement of Interest of the United States of America, ECF No. [43], and the record in the case. For the reasons that follow, Plaintiff's Motion is granted.

I. MATERIAL FACTS

This case involves Defendant's alleged violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. (“Title II” and the “ADA”) by implementing practices, policies and procedures that have subjected the minor plaintiff to discrimination based on his disability, and violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”) by failing to provide the plaintiff with a reasonable accommodation through its initial denial of the child's service animal access to his school and then by implementing procedural barriers to the use of that service animal in school.

In January 2012, the School Board began to develop policies and procedures regarding students and employees being accompanied by a service animal in School District facilities. ECF No. [32] (Joint Statement of Undisputed Facts) ¶ 1; see also ECF No. [32–1] (“Draft Policies”). These policies were made after reviewing the existing laws, regulations, Department of Justice guidance, and rules promulgated by other school districts in Florida, the Florida Department of Education, and other school districts across the country. Jnt. Stat. ¶ 1. Although the policies and procedures were not formally adopted by the School Board until August 2014, see ECF No. [32–2] (“Finalized Policies”), the School Board's administrative staff followed the draft policies and procedures in responding to inquiries from students and employees beginning in January 2013. Jt. Stat. ¶ 2.

A.M. is a six year-old child with multiple disabilities who lives with his mother, Plaintiff Monica Alboniga, both of whom are residents of Broward County, Florida. Jnt. Stat. ¶ 3. A.M. lives with cerebral palsy

, spastic quadreparesis, and a seizure disorder; is non-verbal and confined to a wheelchair; and needs care and support for all aspects of daily living and education. Id. ¶¶ 6–7. A.M. attends a public school in Broward County, Florida. See, e.g., ECF No. [36–1] (Alboniga Decl.) ¶ 7. An Individualized Education Plan (“IEP”) was created by A.M.'s teachers and other school staff with input from Plaintiff on May 15, 2013. Jnt. Stat. ¶ 4. At the time, A.M. was attending the A.R.C. Pre–School program. Id. A.M.'s IEP dated May 15, 2013, states that A.M.'s Program Eligibilities include Intellectual Disability, Orthopedically Impaired, Visually Impaired, and Language Impaired. Id. ¶ 5.

At some point prior to development of the May 15, 2013 IEP, Plaintiff determined that A.M. required a seizure alert and response dog to protect A.M. when he has seizures. Plaintiff paid to find and train a seizure alert and response dog for A.M. ECF No. [36–2] (Dulniak Decl.) ¶ 4. Plaintiff obtained a service animal, named Stevie, to assist A.M. Alboniga Decl. ¶ 4; Dulniak Decl. ¶ 2. Stevie received all training in accordance with Assistance Dog International Standards for training and behavior. Dulniak Decl. ¶ 7. Stevie was specifically trained to provide A.M. with assistance in the event of a seizure or medical emergency regardless of the environment in several specialized tasks. Id. ¶ 9. Those tasks include “cover,” in which Stevie was trained to step up on A.M.'s wheelchair and lay across his lap in the event of a seizure. “Cover” provides A.M. with several benefits: Stevie can keep A.M.'s head up and prevent airway distraction or choking on saliva during a seizure episode; it helps calm A.M. during outbursts and helps disrupt abnormal behaviors or movements; and it provides A.M. with a tactile presence which can help arouse A.M. out of an episode. Id. Stevie was also trained to “tell” or “alert” human responders in the event that A.M. was experiencing a medical crisis. Id. ¶ 10. This includes activating a sensor mat by stepping, jumping on or passing across the mat which sets off an alarm; going for help, physically alerting a human responder, and then returning to and staying with A.M.; or otherwise acting in a way to bring attention to the medical situation. Id. ¶¶ 10–12. Stevie was also equipped with a special vest which carried pertinent medical supplies and information important for the care of A.M. in an emergency. Id. ¶ 13.

Plaintiff has submitted declarations, not controverted by Defendant, that Stevie and A.M. form a “service dog team.” Dulniak Decl. ¶¶ 11, 15–16. Separation of a service animal from the target member of its team is detrimental in diminishing the animal's responsiveness and effectiveness, reducing the animal's ability to respond and perform tasks for its target, and disrupting the animal-target bond that is important to the effective working connection between members of the service dog team. Id. These negative effects carry over even when the service dog team is reconnected. Id.

On or about May 15, 2013, Plaintiff spoke to Wladimir Alvarez from the Equal Education Opportunity Office of the School Board regarding her son being allowed to be accompanied by a service dog at school for the 2013/14 school year. Jnt. Stat. ¶ 8. On or about May 23, 2013, Mr. Alvarez mailed correspondence to Plaintiff, including a copy of a Request for Use of Service Animal in School District Facilities form.Id. ¶ 9. On or about July 22, 2013, the School Board received the completed Request for Use of Service Animal in School District Facilities form from Plaintiff, including a copy of the service dog's vaccinations

. Id. ¶ 10. The School Board's policies and procedures requested information regarding liability insurance for the service animal, proof of which was not provided by Plaintiff. Id. ¶ 11. In addition, the vaccinations of the service dog listed on the information provided by Plaintiff did not correspond with the required vaccinations in the School Board's policies and procedures. Id. The vaccinations required by the School Board mirror those applicable to dog breeders to ensure the health of the dog before its sale, see Fla. Stat. § 828.29, and exceed those related to the regulation of animals permitted in schools, see Fla. Stat. § 828.30, Fla. Admin. Code 6A–2.0040.

By August 15, 2013, the School Board had not agreed to Plaintiff's request for accommodation for her son, and sent her a letter requesting additional vaccinations

and liability insurance for a professionally trained service animal. Jnt. Stat. ¶ 12. The letter requested a certificate of current liability insurance covering the service animal and identifying the School District as an additional insured, with the amount of insurance coverage determined by the School District's Risk Management Department. Id. It further requested proof the following vaccinations : Distemper, Hepatitis, Leptospirosis, Paroinfluenza, Parvovirus, Coronatvirus, DHLPPC, and Bordetella. Id. Then, on August 16, 2013, the School Board informed Plaintiff that she needed to provide a “handler” for the dog. Id. ¶ 13.A.M. began attending Nob Hill Elementary School (“Nob Hill”) as a kindergarten student in August 19, 2013. Id. ¶ 15. Nob Hill is a public school under the auspices of the School Board. Id. A.M. has attended Nob Hill in accordance with his IEP during the 2013/14 and 2014/15 school years. Id. ¶ 16. Since Plaintiff obtained the service dog, at all times A.M. has attended school accompanied by his service dog. Id. Plaintiff served as the “handler” for A.M.'s service dog from August 2013 until November 2013. Id. ¶ 13. She was not paid by the School Board for doing so, nor did she assist school staff with any care or activities regarding A.M. in the classroom. Id. ¶¶ 14, 18. In November 2013, while continuing to maintain that it is not responsible for the care and supervision of A.M.'s service animal, which includes being the animal's “handler,” the School Board made an administrative decision to provide an employee to be the “handler” for A.M.'s service dog. Id. ¶ 19. Since that time, the School Board has provided a “handler” for A.M.s' service dog. Id. That “handler” is also the school's custodian. Alboniga Decl. ¶ 10. The “handler” received training from the same individual who initially trained Stevie. Jnt. Stat. ¶ 20.

The “handler's” only responsibilities in school are the following: to walk Stevie alongside A.M. with a leash instead of allowing Stevie to be attached to A.M.'s wheelchair via a tether; to take Stevie outside of the school premises to urinate; and to ensure that other people do not approach, pet or play with Stevie while he is working as a service dog. Id. ¶¶ 21–22, 24. The “handler” does not have any duties regarding A.M.'s education or care. Id. At all times while at home and in other public places, Stevie is tethered to A.M. Alboniga Decl. ¶¶ 6, 11. There is nothing preventing Stevie from going outside to urinate tethered to A.M. Jnt. Stat. ¶ 24. Stevie is trained to physically indicate when he needs to urinate. Dulniak Decl. ¶ 17. While at school, Stevie does not eat or drink. Jnt....