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Article Courtesy of The Naples
News
By AISLING
SWIFT
Published
October 5, 2012
MARCO ISLAND
— 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
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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.
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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.
*
* * * *
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.
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