15-006147 Juan &Quot;John&Quot; Bocardo vs. Walt Disney Parks And Resorts U.S., Inc. Status: Closed Recommended Order on Tuesday, April 26, 2016.

Summary: Petitioner failed to establish that Disney violated section 760.08 by denying him access to its property because his service animal was unleashed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN "JOHN" BOCARDO,

Petitioner ,

vs. Case No. 1 5 - 6147

WALT DISNEY PARKS AND RESORTS

US , INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case w as heard on January 15, 2016, by video

teleconferenc ing at sites in Orlando and Tallahassee, Florida,

by D . R. Alexander, the assigned Administrative Law Judge of the

Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner : Geoffrey E. Pa rmer, Esquire

Dogali Law Group, P.A.

Suite 1100

101 East Kennedy Boulevard

Tampa , Florida 33602 - 5146

For Respondent : Jeremy M. White , Esquire

Kaye Scholer , LLP

The McPherson Building

901 15th Street, Northwest

Washington, D.C. 20005 - 2300

STATEMENT OF THE ISSUE

The issue is whether Respondent, Walt Disney P arks and

Resorts US, Inc. (Disney) , a place of public accommodation,

violated section 760.08, Florida Statutes, by denying

Petitioner , a handicapped individual, access to its property

because his service animal was unleashed .

PRELIMINARY STATEMENT

On or ab out February 3, 2015, Petitioner filed a Public

Accommodation Complaint of Discrimination (Complaint) with the

Florida Commission on Human Relations (FCHR) alleging that he i s

a handicapped individual with a service dog and was denied

entrance to Disney's theme parks on four occasions in 2014

because his service dog was unleashed. On August 26, 2015, the

FCHR issued a Notice of Determination: Reasonable Cause. On

September 29, 2015, a Petition for Relief was filed , and the

case was transmitted by FCHR to DOAH requesting that a formal

hearing be conducted. By Order dated January 14, 2016, Disney's

Motion to Strike was granted, and three r e quests for re lief not

authorized by chapter 760 w ere stricken from the pleading.

At the final hearing, Petitioner te stified on h is own

behalf and presented the testimony of four witnesses .

Petitioner ' s Exhibit s 1 , 4, 7 , 11, 12, 14, 15, 19 through 21,

the Epcot video in 24A, and 25B were accepted in evidence. To

the extent his Exhibits 8, 9, and 23 , all hearsay in natu re,

corroborate other competent evidence, they have been considered.

Disney presented the testimony of f our witnesses. Respondent's

Exhibits 1 through 4 we re accepted in evidence.

A two - volume T ranscript of the hearing has been prepared.

The parties f iled p roposed r ecommended o rders , which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A. Background

1. Disney is a public accommodation whose principal

business activity consists of the ownership, operation, and

mana gement of theme entertainment parks, resorts, and related

facilities located in the Orlando area. The theme parks include

Magic Kingdom Park, E pcot , Animal Kingdom Park, and Hollywood

Studios .

2. Petitioner is a 50 - year - old male who reside s in Winter

Gar den. In 2004, wh ile living in Illinois, Petitioner was

severely injured when a large truck rear - ended his motor

vehicle. In 2007, he was de clared p ermanently disabled due to

leg and spinal injuries suffered in the accident. As a result

of these injuries , he walk s only short distance s with the aid of

a walking device or cane. F or longer distances, he normally

uses a motorized scooter .

3 . Petitioner moved to Florida around 2012 to escape the

cold weather in Illinois. He testified that he and his fami ly

have always enjoyed visiting Disney theme parks and other non -

Disney tourist attractions in the area, and this was one of the

primary reasons he moved to the Orlando area. Until this

dispute arose, he was a Disney Annual Passholder, which allowed

him m ultiple admission s to the theme parks at a discounted rate .

Although Petitioner says he used the pass to access the theme

parks on numerous occasions , other than those at issue in this

case, there is no credible evidence that he was allowed to enter

the p arks with an unleashed service animal on any occasion.

B. The Service Animal

4 . In early 201 3 , Petitioner decided to acquire a service

animal to assist him while ambulating in side and outside his

home . He purchased Lily, an eight - week - old , female Dogo

A rgentino, which is a large, white muscular dog developed in

Argentina primarily for the purpose of big - game hunting . A

strong, powerful dog with a large bite, i t is one of the

deadliest breeds in the world and is banned in some European

countries .

5 . L ily resembles a pit bull in appearance and weighs

almost 100 pounds . In contrast, a mature m ale Dogo Argentino

weigh s around 150 pounds , but does not look like a pit bull.

Petitioner testified that he wanted his service animal to look

like a pit bull, so he chose a female even though a male is

easier to train .

6 . Although purchased in early 2013, Lily did not begin

service training until April 2014, or one month before

Petitioner's first claim of discrimination at the Epcot theme

park. Petitioner sele cted Southland Dog Training (Southland) as

Lily's trainer. Lily was the first Dogo Argentino Southland had

trained to be a service animal. Not surprisingly, Southland has

an indemnity provision in its training agreements to protect

itself from liability in the event a dog that has gone through

the training program ends up harming someone. And even though

Lily was given training on interacting safely with children in a

crowded setting, and never exhibited aggression during its

training sessions, Southland does not guarantee the dog will not

harm someone. In fact, Southland's owner admitted that " [ a ] ny

and every dog has the propensity to be aggressive, it's in their

genes [,] " and "[a]ny breed of dog can be aggressive."

7. A dog's propensity to be aggressi ve was also confirmed

by Disney's canine expert, Bob Gailey, a professional police dog

and civilian dog trainer who has trained between 20,000 and

30,000 dogs over a 6 5 - year career, including Dogo Argentinos ,

and conducts seminars on dog training and safet y issues . He

explained that no amount of training can guarantee that a dog

will not bite someone with or without provocation. For obvious

safety reasons, h e emphasized that service animals must be kept

on a leash while in crowded public areas , such as a Disney theme

park . Mr. Gailey noted that "freakish incidents" can and do

occur, and that even trained dogs, such as Lily, need to be on a

leash to protect the safety of others. In fact, Mr. G ailey

pointed out that he has been bitten a round 100 times by t rained

dogs , without any provocation, including some whose owners say

they have never bitten anyone. He added that due to a Dogo's

large bite, it could "definitely" kill a child. Thus, Disney

has a real and legitimate safety concern , and not one based on

mere speculation, that allowing unleashed service animals on its

property poses a potential safety threat to other guests ,

especially children . To address this concern, Disney has

adopted a policy for service animals , described below .

8. Lily has been t rained to perform the following tasks:

open doors; push handicap buttons; retrieve items; and pull

Petitioner out of a body of water. However, Petitioner can

perform some of these tasks on his own, such as pushing handicap

buttons and picking up items. Petitioner contends that forcing

him to keep Lily on a leash or harness at all times could result

in the leash becoming tangled in the scooter's wheels. However,

Mr. Gailey established that besides being trained to perform all

functions on a leash , servic e animals can be taught how to avoid

getting their leashes tangled up with the wheels. Being leashed

or tethered will not interfere with Lily performing her assigned

tasks.

C. Petitioner's Limitations

9 . Petitioner has had multiple surgeries related t o his

accident, the last one on his left shoulder on February 2, 2010.

At a follow - up appointment , Petitioner's surgeon noted that he

"has full range of motion, minimal pain at the end ranges of

forward flexion [and] 4 strength in all planes . . . ."

Pet'r Ex. 21 , at 00484. In plainer terms, this means that he

has nearly normal strength and full range of motion in his left

shoulder , with minimal pain . Petitioner does not dispute the

doctor's findings. Although his right shoulder and arm are not

at n ormal strength for an adult male , there are no serious

medical issues with either, and Petitioner acknowledged that

there are no physical limitations in using them. In fact,

Petitioner uses his right arm to drive and steer his motorized

scooter.

10 . Wh en walking short distance s , Petitioner uses a cane

with his right arm , sometimes with Lily, other times without

her. When Lily accompanies him, she provides balance and

stability on his left side . When riding in his motorized

scooter accompanied by Lily , Petitioner normally steers with one

hand and gr ips a leash or harness attached to Lily with his

other hand. The dog usually walks in front , or to the side, of

the scooter. However, when the dog is in the follow position

off - leash , Petitioner cannot see Lily and thus is unable to

control her , even if she is wearing an electronic collar . As

the Southland trainer explained, if the owner can not see the

dog, then they do not know what the dog is doing. Petitioner

admit s that he c annot maintain control of hi s service animal at

all times without holding a leash or harness.

1 1 . In both his Petition for Relief and testimony at

hearing, Petitioner acknowledged that except for "an extended

period of time," his disability does not prevent him from being

able to hold and use a leash or harness on Lily . This was

confirmed by his wife. Despite the injury to his left shoulder,

he has held and used a leash or harness with that arm. The

greater weight of evidence supports a finding that Petitioner is

able to hold a leash with his hand, at least for short or

moderate periods of time, or that a leash can be easily tethered

to his wrist or a mobility device on the scooter. A contention

that the leash may become entangled in the scooter's wheels has

been rejected for th e reasons stated in Finding of Fact 8.

D . Disney's Policy on Service Animals

1 2 . Disney theme parks are typically crowded and noisy.

On any given day, tens of thousands of guests, including l arge

numbers of young children , frequent the parks.

1 3 . Servi ce animals are routinely granted access to the

theme parks. However, Disney park rules provide that "[s]ervice

animals must be under the control of the owner at all times and

should remain on a leash or in a harness. " Resp. Ex. 1 , p. 2 .

The requirement is not just that the dog wear a harness, but

rather that the harness is being used. For the reasons

expressed above, t here are legitimate safety concerns that

under pin this rule.

1 4 . State and federal law require that a visitor seeking

entrance to a pu blic accommodation with a service animal must

have the animal on a leash, harness, or other tether, unless

either the handler is unable because of a disability to use a

harness, leash, or other tether, or the use of one of those

restraints would interfere with the animal's safe, effective

performance of work or tasks, in which case the service animal

must be otherwise under the handler's control, such as voice

control, signals, or other effective means. See § 413.08 (3)(a) ,

Fla. Stat.; 28 C . F . R . § 36.302(c) (4). Disney contends that its

policy conforms to both state and federal law.

E . The Charges

1 5 . The Complaint , filed on February 3, 2015, alleges that

on May 4, 2014, Petitioner was denied admission to Epcot because

his dog was unleas h ed; on August 27, 2014, he was asked to leave

Downtown Disney because Lily was un leashed; on October 9, 2014,

he was denied admission to Magic Kingdom because Lily was

unleas h ed; and on December 5, 2014, he was denied admission to

Animal Kingdom due to Lily being unleashed. However, no

evidence was presented concerning the visit to Magic Kingdom in

October 2014, and that charge has been disregarded. The

testimony concerning Petitioner's other three visits to the

theme parks is sharply in dispute. The undersigned has accep ted

as being the most credible the following version of events.

i. Epcot Visit in May 2014

1 6 . On May 4, 2014, Petitioner visited Epcot with his

wife, daughter, and service animal. As Petitioner entered the

International Gateway in his motorized scooter , Lily was

unleashed and sitting near the bag check area in front of the

park, which was around ten or 15 feet from Petitioner.

17 . A main entrance cast member is a Disney employee

trained on park rules who observes guests entering the park. A

cast membe r noticed that Lily was off - leash, which was against

park rules, and stopped Petitioner, informing him that he must

have the dog on a leash before entering the park. Petitioner

refused to do so. Petitioner's contention that the cast member

had a belliger ent and hostile attitude during the encounter is

not credited. Even assuming arguendo this i s true, treating a

guest in a rude and hostile manner does not equate to

discrimination by the public accommodation . See, e.g. , Lizardo

v. Denny's, Inc. , 270 F. 3 d 94, 102 (2d Cir. 2001).

1 8 . While Petitioner spoke with a second cast member, Lily

was unleas h ed and untethered, approximately ten to 15 feet away

from him near a half - wall by the entrance to the park .

1 9 . D uring th e 30 - minute encounter , there was li ttle, if

any, attention being paid to Lily, who had no physical tether to

prevent her from wandering off.

20 . A cast member then contacted Jim Beeson, Epcot's

Operations Manager, who arrived to speak with Petitioner and

apologized for the delay in havin g to walk from another area of

the park. Petitioner informed Mr. Beeson that he was unable to

hold a leash and needed to have his service dog untethered.

2 1. During his conversation with Petitioner, Mr. Beeson

observed Petitioner talking with his hands a nd did not see any

indication that Petitioner was unable to hold a leash. He also

observed that there was no leash on Lily , unlike any service dog

he had encountered while working at Disney.

22 . Mr. Beeson further observed that Lily was not always

by Pet itioner's side, she tried to get up and wander off several

times during the conversation , and she did not respond to voice

commands. In fact, Mr. Beeson noticed that Petitioner's wife

continually had to push the dog back so that it would not leave.

Based on his 33 years of experience at Disney, which includes

observing numerous guests with service animals, Mr. Beeson

concluded that Petitioner could not maintain control over his

dog with voice and hand signals.

2 3 . At no time during the interaction did Lily perform any

tasks for Petitioner. In Mr. Beeson's opinion, he questioned

whether Lily was even qualified as a service animal.

2 4 . After speaking with Mr. Beeson for approximately

30 minutes, Petitioner decided to leave the park. Disney did

not deny Petitioner access to the park on account of his

disability , or simply because of Lily's breed. No r was he

treated differently than any other guest with a service animal .

Rather, Disney's action was motivated solely by concerns for the

safety of the other guests. Had he agreed to place a leash on

Lily, Petitioner would have been admitted to the park.

ii. Downtown Disney Visit in August 2014

2 5 . On August 27, 2014, a guest notified a Downtown Disn e y

security cast member of concerns about a large, un leashed dog on

the property, which turned out to be Lily. Security control

radioed the duty manager, Dan McManus, who arrived on the scene

less than ten minutes later. When he arrived, Mr. McManus saw

Petitioner , accompanied by his wife, speaking with th e security

cast member .

2 6 . Petitioner told Mr. McManus that he was unable to hold

a leash due to his disability. According to Mr. McManus, he did

not see any indication that Petitioner was unable to hold a

leash, as he observed Petitioner waving a lar ge binder and

flipping through pages of what he claimed were American with

Disabilities Act ( ADA ) guidelines.

2 7 . Mr. McManus is familiar with ADA guidelines as he

frequently encounters guests with service animals on the

property. He noted that during his seven years at Downtown

Disney, he has observed service animals of all different shapes

and sizes on the property . However, Mr. McManus explained that

these service animals are always on a leash or tether, and that

if a guest is in a wheelchair or ele ctric scooter, the guest may

hold a leash, the leash may be tethered or attached to the

scooter or wheelchair, or another member of the party may hold

the leash for the guest. Petitioner refused to comply with any

of those options.

2 8. Mr. McManus again informed Petitioner that Disney's

policy required that service animals be on a leash. He noticed

that Lily was wearing some sort of a shock collar, but did not

recall the dog wearing a harness. At no time during the

interaction did Lily perform any tasks for Petitioner , who had

informed Mr. McManus that Lily helps open doors for him .

2 9. Before Mr. McManus arrived, Petitioner telephoned the

Orange County Sheriff's Office and requested that a deputy

sheriff be sent to the theme park, presumably to obser ve the

encounter. Petitioner's conversation with Mr. McManus ended

when two deputy sheriffs arrived on the property. At that

point, Mr. McManus went back to his office to check with the

Services for Guests with Disabilities Department to inquire

whether an electronic collar would satisfy the leash requirement

for service dogs. He was told to adhere to the Disney policy

and require that the dog be on a leash . Before Mr. McManus

returned, Petitioner departed the premises.

30 . Disney did not deny Petition er access to the park on

account of his disability or because of Lily's breed , and he was

not treated differently than any other guest with a service

animal . Had Petitioner used a leash or harness for Lily , he

would not have been approached or stopped dur ing his visit to

Downtown Disney.

iii. Animal Kingdom Visit in December 2014

3 1. On December 5, 2014, Petitioner visited Animal Kingdom

with his wife and mother. He was stopped at the front entrance

because Lily was not leashed or tethered.

3 2. Lar ry Hetrick, a guest service manager at the park,

was called over to speak to Petitioner. When Mr. Hetrick

arrived, Petitioner was speaking with two security employees.

No other Disney personnel were present. Petitioner's perceived

fear that Disney perso nnel were "waiting" for him when he

approached the park is unfounded.

3 3 . Petitioner explained his interpretation of federal

laws and civil cases to Mr. Hetrick but never said why Lily

could not be on a leash. Contrary to Petitioner's testimony,

Mr. Hetr ick did not tell him that Disney's policies superseded

federal law , and he patiently listened to Petitioner's summary

of the law while examining his paperwork. At no time during the

encounter did Lily perform any service animal tasks.

3 4 . Ten minutes l ater, the duty manager for Animal Kingdom

arrived and the three spoke for another ten minutes or so. When

Petitioner told them that he intended to file a legal action

against Disney, the conversation ended. He was not told that he

"had to leave the premi ses."

3 5 . Disney did not deny Petitioner access to the park on

account of his disability or because of Lily's breed. Moreover,

he was not treated differently than any other guest with a

service animal . Had Petitioner complied with Disney's polic y ,

he would have been able to access the park.

CONCLUSIONS OF LAW

3 6 . Petitioner has the burden of proving , by a

preponderance of the evidence , that Disney unlawfully denied his

right to access Disney property because his service animal was

unleashed. See § 12 0.57(1)(j), Fla. Stat.

3 7 . Section 760. 08 provides in relevant part that all

persons "shall be entitled to the full and equal enjoyment of

the . . . facilities . . . of any place of public accommodation,

as defined in this chapter, without discrimination or

segregation on the ground of . . . [a] handicap[.]" Petitioner

is an individual with a disability and Disney is a "public

accommodation . " Although the term "service animal" is not

define d in chapter 760 , Lily is a service animal within the

meaning of section 413. 08(1)(d) , as it is trained to perform

tasks for an individual with a disability. Section 413.408

makes it unlawful for a public accommodation to deny the use of

a service animal by an individual with a disability.

38. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of chapter 760 . See, e.g. , Fla. State Univ. v.

Sondel , 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Valenzuela

v. Globe G round N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

39. To establish a prima facie case in a typical public

accommodation case, a claimant must establish that (1) he is a

member of a protected class (i.e., handicapped); (2) he

attempted to afford himself of the full benefits and en joyment

of the public accommodation; (3) he was denied those benefits

and enjoyments; and (4) that similarly - situated persons outside

the protected class received full benefits and enjoyment, or

were treated better. See Afkhami v. Carnival Corp. , 305 F.

S upp. 1308, 1322 (S.D. Fla. 2004); Fahim v. Marriott Resort

Servs. , 551 F. 3d 344, 349 (5th Cir. 2008), and cases cited

therein. In this somewhat unusual case, h owever, the parties

have agreed that the case turns on whether Disney violated a

federal ADA re gulation, 28 C.F.R. § 36.302(c)(4) , which reads in

relevant part as follows:

(4) Animal under handler's control. A

service animal shall be under the control of

its handler. A service animal shall have a

harness, leash, or other tether, unless

either the handler is unable because of a

disability to use a harness, leash, or other

tether, or the use of a harness, leash, or

other tether would interfere with the

service animal's safe, effective performance

of work or tasks, in which case the service

animal mu st be otherwise under the handler's

control (e.g., voice control, signals, or

other effective means).

4 0 . In order to prevail, Petitioner must establish that

due to his disability, he is unable to use a harness or leash on

Lily , or the use of a harness o r leash would interfere with Lily

performing her tasks, in which case Lily must otherwise be under

his control at all times through other means.

4 1 . Petitioner has failed to establish that a violation of

section 36.302(c)(4) occurred. First, the eviden ce shows that

Petitioner has the physical ability to use a harness or leash,

at least for short or moderate periods of time, or that the

leash can be attached to his wrist or a mobility device.

Alternatively, his wife can hold the leash , when needed .

Sec ond, the evidence shows that the use of a leash will not

interfere with Lily performing her tasks. In fact, Lily was

trained to perform those tasks while on leash. Finally, the

evidence shows that Petitioner does not have Lily under his

control at all ti mes. He admitted this at final hearing .

4 2 . In sum, Petitioner is weighing the convenience of

having his dog unleas h ed over the safety of Disney's guests,

including children. The ADA does not require a public

accommodation to permit an individual to e njoy its facilities

when the individual poses a direct threat to the safety of

others. See 28 C.F.R. § 36.208. Here, t he evidence shows that

Disney's policy to require all service animals to be on leash is

based on legitimate safety concerns , and not spe culation . A

violation of section 760.08 and ADA requirements has not been

proven.

4 3 . For the foregoing reasons, the Petition for Relief

should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat the Florida Commission on Human Relations

enter a final order dismissing, with prejudice, the Petition for

Relief.

DONE AND ENTERED this 26th day of April , 20 1 6 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of Apri l , 201 6 .

COPIES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

(eServed)

Cheyanne M. Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplan ade Way , Suite 110

Tallahassee, Florida 32399 - 7020

(eServed)

G eoffrey E. Parmer, Esquire

Dogali Law Group, P.A.

Suite 1100

101 East Kennedy Boulevard

Tampa, Florida 33602 - 5146

(eServed)

Jeremy M. White , Esquire

Kaye S choler, LLP

The McPherson Build ing

901 15th Street, Northwest

Washington, D.C. 200 0 5 - 2300

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.