Marco Island man in battle over need for service dog in no-pet condominium

Article Courtesy of The Naples News


Published October 5, 2012

— When Larry McKay gets up in the morning, he reaches for Kane to brace himself and walk through his Marco Island condo.

If he falls, the 80-pound Boxer is immediately at the 56-year-old disabled man's side to help him up. At McKay's command, Kane can turn on the lights by hitting a box, even call for medical help by hitting a medical call box with his paw.

Like a cane, Kane gives McKay support and provides mobility, bracing his strong body and allowing McKay to hold his metal U-shaped harness to get up and walk.

But McKay lives part-time in a no-dog community, South Seas East Condominium Apartments of Marco Island, which considers Kane a canine non grata.

"You'd have thought I brought a leper colony with me," McKay said of his mobile-assistance service dog. "They said, 'Go home and take your dog. Dogs aren't allowed here.' … People do not recognize the Americans with Disabilities Act. I'm tired of being part of the invisible minority with no rights."

South Seas brands Kane a nuisance.

"The dog urinates over the railing of the unit, incessantly relieves itself on the walkways and is permitted to be unleashed outside," the association wrote in a complaint to the state Department of Business and Professional Regulation, alleging McKay never provided it with enough information to gauge his request for a service dog.

McKay denied the allegations. Still recovering from surgeries after an infection disabled him, he lost that fight in January, when the association won a default judgment barring Kane from the property.

Now, both sides are locked in a battle over the ADA in U.S. District Court in Fort Myers, where a trial is scheduled for March, if mediation this month doesn't resolve the dispute.

The lawsuit filed by McKay's attorney, Casey Weidenmiller of Naples, alleges South Seas is 

Larry McKay, of Marco Island, poses for a portrait with his service dog, Kane, in front of his condominium on Thursday Sept. 19, 2012. The boxer helps him stand, walk, get up when he falls, turn on lights, and dial 911. South Seas East Condominium Apartments of Marco Island evicted Kane from the no-dog condo, alleging Kane urinates incessantly and defecates on the property.

violating the ADA, the federal Fair Housing Act and Florida Housing Rights Act. It alleges McKay is handicapped, his impairments substantially limit his walking and balancing and that South Seas should have allowed the service dog as an accommodation under the ADA.


"It is unbelievable that Mr. McKay's neighbors choose to make his life more difficult and not help a man they admit is disabled," Weidenmiller said. "His doctor has stated time and time again that his dog is medically necessary and yet the association prefers litigation over working together for a solution to help Mr. McKay."


"We have a mediation scheduled and hopefully the association will do the right thing and let Mr. McKay have the service dog he needs," he added.


South Seas' attorney, Matthew Rabin of Sunrise, declined to comment.


Under the Federal Fair Housing Act of 1968, the U.S. Department of Housing and Urban Development (HUD) investigates cases involving service animals, as well as companion- and emotional-support animals.


Nationally, 346 complaints were filed so far this year involving service animals, according to HUD statistics, which show 20 filed in Florida. Last year, 441 were filed nationwide, 40 in Florida, and in 2010, 495 were lodged nationally, 60 in Florida.


Marco Island resident Larry McKay’s case was one of the Florida cases filed this year, but it was closed after the party that filed the complaint didn’t cooperate with federal investigators, HUD spokeswoman Shantae Goodloe said.


Records show HUD investigated 12 service animal complaints in Collier County over the past five years. Half were found to be without cause, two were settled, and the rest were dismissed by a judge or administratively closed.


Service dogs are licensed without fees. Collier County dog licensing records show there were eight service dogs licensed in fiscal 2012, six the prior year, and eight in 2010.

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Some major retailers have been charged by the U.S. Department of Justice with barring service animals.


In 2009, Wal-Mart was cited for violations after denying access to people with service dogs. It agreed to pay $150,000 to people who filed grievances and agreed to train its employees and launch a public service campaign. It was required to pay $100,000 into a fund the U.S. Civil Rights Division will use to finance a public service announcement campaign to increase awareness of access rights of people with disabilities who use service animals.


In July 2010, Blockbuster settled a similar complaint. In Florida, the Golden Cab Corp. of West Palm Beach settled one in 2008.


Court records show South Seas denies refusing to accommodate McKay, pointing out it's just relying on the default judgment. It denies McKay is handicapped, has physical impairments or needs a service dog, contending other assistance devices such as a walker or cane could provide the same assistance.


South Seas accuses McKay of being aware of its no-dog policy before he bought his condo, alleging he brought Kane in without telling anyone or filing an application. The association repeatedly refers to Kane as a pet and initially maintained he wasn't a properly trained service animal. Now, the association is focusing on McKay, asking him to prove his disability and confirm Kane won't cause medical, physical or psychological harm to other residents.


Passed in 1990, the ADA protects the rights of the disabled, including the use of service dogs. Last year, the federal law was amended to clarify service animals as dogs or, in limited cases, miniature horses. The amendments clarified their functions, specifying service dogs can be trained to assist children and adults with various disabilities, including physical and psychiatric, autism, hearing and vision-impaired, and those who need animals to fetch items or pull wheelchairs.


The amendments also clarify that those with mental disabilities who use service animals trained to perform a specific task are protected under the ADA, but dogs not trained to perform tasks that mitigate effects of a disability, including dogs used for emotional support, aren't service animals.

McKay wasn't disabled when he purchased his condo in December 2008. A month later, he was in a Maryland hotel and noticed his foot was bleeding in the bathroom. The next morning, he felt sick and couldn't move. He collapsed and kept falling down. When he checked out, hotel employees urged him not to drive, but he drove home and a friend took him to the emergency room. "I felt like I was dying," he said.


Doctors discovered he had MRSA — methicillin-resistant Staphylococcus aureus, a powerful infection resistant to most antibiotics. It had traveled up his leg and into his spine. He was put in a medically induced coma and doctors removed a portion of his toe and spine, shortening him an inch.


He was in intensive care for three weeks and rehab for six weeks. When he returned to his home in Fairfax, Va., he slept, unable to care for his two daughters and two dogs, including Kane. After he was able to walk again, the infection returned in December 2009, and he underwent three amputations until his right big toe was fully removed.


"I had to learn how to walk again," he said, adding that he decided to have Kane trained as a mobility service dog and teach him to use Service Dog Assistance Products, which turn on lights and appliances or call for medical help.


"He's given me my independence back," McKay said, noting that the Social Security Administration declared him disabled. "But those condo people are after me because I look normal. I tell them he's my service dog and they say it's a scam. They told me not to come back with Kane or I would be arrested."


Bill and Donna Lovejoy, who rented a South Seas condo last year, couldn't believe residents' attitudes toward McKay and Kane, whose jacket signifies he's a service dog.


"As soon as he got there, all those old biddies started telling him he couldn't be there with the dog," Donna Lovejoy said. "It really was a shame. They didn't care that he was handicapped. They treated him like he had leprosy."


"They don't realize their lives could change in a flash," she said of getting disabled.


Two weeks ago, McKay traveled to Naples for a deposition and stayed in his condo with his fiancée, Beth McColl. McKay struggled, breathing heavily as he got up. He held Kane's metal brace as he walked around his condo, his limp and disability apparent. Later, he used his motorized wheelchair to take Kane outside to relieve himself, using a bag to remove it.


When the couple goes to restaurants, Kane, who wears a red jacket marked "Service Dog," obediently crawls under the table, sitting quietly.


"He's better behaved than most children," McColl said.