By Marion Gwizdala
On February 11, 2016, in a stunning blow to the rights of the disabled, the State Attorney for the 13th Judicial Circuit in Tampa, Florida released a two sentence statement in response to a criminal complaint filed with their office as the result of a clear and unequivocal denial of the rights of a person with a disability accompanied by a service dog that condones discrimination against the disabled. This two sentence statement, released by Mark Cox, Chief of Investigations for the state Attorney, stated, “This case has been reviewed by numerous prosecutors. They all agree that there is no likelihood of a successful prosecution.” Just as Jim Crow laws of the 20th century mandated segregation of the black community through the principle of separate but equal, the state of Florida is promoting an even more offensive policy of unequal but equal. How a team of the brightest minds in the legal field can come to such an arbitrary inference by drawing a conclusion without or in spite of the evidence is summed up by the repeated statement Douglas Covington, Chief of the Misdemeanor Division made to me: “You are not an attorney!” Mr. Covington had obviously arrived at a foregone conclusion based upon unfounded claims and no factual evidence would be allowed. Read on and see if you arrive at the same arbitrary inference as those whose job it is to prosecute those who violate the law.
Florida law states, “An individual with a disability is entitled to full and equal accommodations, advantages, facilities, and privileges in all public accommodations. A public accommodation must modify its policies, practices, and procedures to permit use of a service animal by an individual with a disability.” (413.08(2) This statute also asserts that “Allergies and fear of animals are not valid reasons for denying access or refusing service to an individual with a service animal.” (413.08(3)(f) Lastly, the statute prescribes that, “Any person, firm, or corporation, or the agent of any person, firm, or corporation, who denies or interferes with admittance to, or enjoyment of, a public accommodation or otherwise interferes with the rights of an individual with a disability…commits a misdemeanor of the second degree”. (413.08(4) The entire text of this statute can be viewed by visiting the official website for the state of Florida http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0413/Sections/0413.08.html>
On Monday, November 16, 2015, I scheduled a trip with the Hillsborough Area Regional Transit (HART) para transit service for Wednesday, November 18 from my residence to attend a professional grant writing conference. My scheduled pick-up was 7:30 a.m. with a return trip scheduled for 4:30 p.m. The conference I was to attend began at 8:20 a.m. and concluded at 4:00 p.m.
When the vehicle – a Chrysler minivan – arrived at approximately 7:10 a.m., I approached the vehicle accompanied by my guide dog. As I reached for the door handle, the driver ordered me to not open the door. When I inquired as to the reason I could not open the door, I was told there were two other people on the van. When I asked why this mattered, I was told there was not enough room for both me and my guide dog. I waited for a few minutes while the operator spoke with the Dispatcher. After several minutes, the driver exited the vehicle, approached me, and told me one of the other passengers was afraid of dogs and I could not ride on the vehicle. He told me the dispatcher had advised him to leave to drop off the other passengers and then return for me. I told him this was a violation of state and federal law and was advised he was following the orders of the dispatcher.
I called HART’s customer service and spoke with Kathy who put me on hold while she called the dispatcher. When she returned, she also advised me the dispatcher told her there was a passenger who was afraid of dogs and he had ordered the driver to leave, drop off the other passengers, and return for me once they had been dropped off. I also advised Kathy this was a violation of state and federal law and that fear of animals was not a valid reason to deny my ride. The communication between the dispatcher and the operator are recorded by HART, as is the telephone conversation between the customer service representative and me. The vehicle left my residence without transporting me.
At approximately 8:40 a.m. (1-1/2 hours later), the vehicle returned to pick me up. I advised the operator that I was recording our conversation and asked for his name and the name of the dispatcher. The operator did not object to the recording but refused to give me this information. As I attempted to pay for my ride, the operator told me there was no charge. I insisted on paying for the trip and the driver refused to accept my fare. I dropped the $4.00 fare on the floor next to the driver. I arrived at my destination at approximately 9:10 a.m. and to the conference registration table at approximately 9:15 a.m., nearly one hour late for the conference.
As I was leaving the conference at approximately 4:15 p.m., I was met by Gregory Brackin, HART’s ADA officer. Mr. Brackin apologized for the incident, stated there was more than adequate room for me and my guide dog on the vehicle, and handed me more than $200 worth of bus passes and coupons which I subsequently returned. I also received a telephone call from Kathryn Eagan, HART’s Chief Executive Officer, expressing her apologies and stating this incident should have never occurred. Though some may say HART apologized for the incident and question my motivation for pursuing criminal charges against those involved, it is important to note that there have been several instances of HART drivers interfering with the rights of a disabled person accompanied by a service dog in the past and each time we have met with insincere apologies, as supported by the absence of a real resolution and evidenced by this recurrent issue. Even in this instance, when HART was asked in writing what steps they would take to ensure such an incident would not occur in the future, HART did not respond.
When I returned home, I contacted the Hillsborough county Sheriff’s Office to file a criminal complaint against HART and was told there was nothing the sheriff’s office could do for me since this was a civil matter. I advised the person I was speaking with that it was a criminal violation and was transferred to a supervising deputy. This deputy also asserted there was nothing that could be done, in spite of the fact I cited and quoted the statute. He then transferred me to a sergeant who reiterated the same uninformed response. I asked to speak with the Watch Commander and was connected to Lt. Donald Morris. Lt. Morris also advised me that the violation was a civil matter outside the jurisdiction of the sheriff’s office. I asked Lt. Morris if he had a copy of the Florida statutes and requested he take the time to read the statute. He begrudgingly read the statute, agreed it was a second degree misdemeanor, but asserted it was a civil rights violation and, as such, not within the jurisdiction of law enforcement. He then began to look up the electronic record of previous cases and told me that every case he saw was nulle prosed. Null prosequi is a legal term meaning “be unwilling to pursue”, a phrase amounting to “do not prosecute”. It is a phrase used to describe a prosecutor’s decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered. I shared with lt. Morris that I was familiar with each of these cases and knew that the decisions to dismiss the charges were only made after the defendant agreed to and completed community service hours before a verdict was rendered so as to avoid a criminal record. He then became very condescending – a pattern that seems pervasive when advocating to law enforcement for people with disabilities and not accepting their uninformed assertion. (You will find this tactic repeated later in this article when attempting to advocate with the State Attorney’s office.) He told me I could not possibly know about every case of this offense filed in the county. I assured him I did and knew the outcomes. He again asserted there was nothing he could do for me.
In a last ditch effort, I asked him to contact the State Attorney’s office and get an opinion from them. Surely I thought they would understand the law and agree this case had merit. Surely I was mistaken!
On Friday, November 20, lt. Morris called to inform me that he had spoken with Rene Murrati, Assistant state Attorney for the 13th Judicial Circuit. Lt. Morris reviewed the facts I had shared with him and asked me if they were correct; I agreed they were. He told me Ms. Murrati agreed with him that the case was without merit and they would not pursue it. He gave me Ms. Murrati’s telephone number and advised me to contact her if I had any questions. I called the state Attorney’s office and left a message for Ms. Murrati to call me.
Later that afternoon I received a return call from Ms. Murrati. Ms. Murrati reviewed the facts with me as she said they were told to her by Lt. Morris. The facts she related to me were not the same facts lt. Morris reviewed with me when he called to advise me Ms. Murrati gave him her opinion the case lacked merit. Specifically, Ms. Murrati told me Lt. Morris advised her that the vehicle was too small to accommodate me and my guide dog and that another vehicle was immediately dispatched to transport me. The fact that the vehicle – a minivan with the center bench and front passenger seat removed and with two other passengers on board – had sufficient room for both my guide dog and me is objectively verifiable; however, the state of Florida refused my repeated invitations to demonstrate this fact. Also, the fact that the irrational fear of dogs is not a valid reason to exclude me is a matter of law (413.08(3)(f)). The fact that HART did not dispatch another vehicle but left me waiting for 90 minutes while the other passengers were dropped off is a matter of record. All the facts as I have presented them in my narrative are supported by HART’s audio recorded conversations between the vehicle operator and the dispatcher who gave the order to deny me transportation, as well as audio recorded conversations between HART’s customer service representatives and me. Ms. Murrati also repeated the mistaken notion that all charges brought in the past were dismissed, a fact she said indicated the law was unenforceable. Seemingly frustrated by my persistence and the logic of my arguments, Ms. Murrati cut me off and told me she would not discuss a hypothetical case with me. When I asked what she meant, she adopted a very condescending tone and asked me if I had a case filed with her office. I admitted I did not and expressed my frustration that I could not get an unbiased person willing to consider objective evidence and the provisions of the law. She advised me that, once I had a case filed with her office she would be willing to discuss this further. I am certain she believed this would be the final time she would hear about this.
I then contacted Kyle Cockream, director of Hillsborough County’s Public Transportation Comission. Mr. Cockream, who once was a law enforcement officer and with whom I had worked on other transportation-related issues involving service animals, was stunned with Ms. Murrati’s refusal to pursue this case, as well as lt. Morris’s attitude and behavior. Mr. Cockream agreed to help me and, true to his word, he did!
On Monday, November 23, a full five days after the incident, I received a call from Deputy Sheriff Raymond Clites to advise me he had a request for prosecution he wanted to deliver to me. I felt relieved and encouraged that this issue was being taken seriously; however, my feelings of encouragement were to be short-lived.
A request for prosecution requires a complainant to wait at least ten days but no more than twenty-one days to file the complaint. This is known as a “cooling off” period and is meant to clear the docket of cases filed out of emotion. Since the tenth day (November 28) was a Saturday, I filed my request for prosecution on Monday, November 30. I was advised I would be contacted in about two weeks with a decision. As the two-week period expired without any response, I was still feeling optimistic, trusting the State Attorney was performing due diligence to ensure their case was well supported. Once again, my optimism in the legal system meant to ensure our civil rights was misplaced.
In early January I decided to call the State Attorney’s office to find out how the case was proceeding. I received a return call from Assistant State Attorney Allison Hearn who advised me charges would not be filed. When I inquired about how the decision was made, Ms. Hearn told me that her office agreed there was not enough room in the vehicle to accommodate the two passengers on the vehicle and me and that one of the passengers was afraid of my dog. I advised her that it was absolutely untrue that there was not enough room and this could be objectively verified, again offering to demonstrate that my dog and I were able to comfortably fit in the van without encroaching upon the space of other passengers. I also once again cited Florida law that fear of animals was not a valid reason to deny my access. Then Ms. Hearn made a statement that literally took my breath away; she told me one of the witnesses made a statement that I became very angry and made racial slurs toward the driver. Such a statement is very offensive to me and, without mincing words, is a bold-faced lie! As a matter of fact, after the initial approach to the vehicle when I was told to not open the door, I never came within twenty feet of the vehicle. How could someone inside a closed vehicle twenty feet away with the engine and air conditioning running hear what I said. Furthermore, until Ms. Hearn told me of this statement, I knew nothing about the driver except his name which was given to me by Gregory Brackin. It is also a matter of record, as reported in the criminal complaint, that the second passenger on the vehicle stated he could not hear any part of the conversation between the driver and me. Furthermore, the driver to whom these racial slurs were allegedly directed made no such accusations. In the typical manner in which those who employ arbitrary inference, only the details that support the faulty, fallacious conclusion are considered no matter how untenable. Ms. Hearn then advised me the case was closed and no further action would be taken.
Dissatisfied with this decision, I once again contacted the State Attorney’s office and asked to speak with mark Ober’s office. Mr. Ober is the elected State Attorney for the 13th Judicial Circuit. I left a message at the extension to which I was transferred and received a return call from Douglas Covington, chief of the misdemeanor division. I could tell from Mr. Covington’s tone of voice he had adopted the same arrogant, condescending tone as Lt. Morris and Ms. Murrati. I had the feeling Mr. Covington was unwilling to consider anything that was to be said, yet still held out optimism that he might have an open mind to consider a reasonable argument. My assessment of his attitude was correct but my optimism was misplaced. Throughout the call, Mr. Covington reiterated the previous false assertion that there was not enough room on the minivan. I asked if he had objectively verified this and offered to get two of my biggest friends and demonstrate there is plenty of room for three people and a guide dog. He refused to objectively verify this, apparently unwilling to be confused by the facts. He stated both passengers and the driver all contend there was not enough room. I asked what expertise they had to make this assessment and was told they were both on the minivan. Again I inquired about their ability to make this assessment and he reiterated the same answer.
After reading the sworn statements of the passengers, I now know how the passengers were able to make this assessment; they were told so by the driver. In fact, the driver asked the passengers if they minded the dog sitting on their feet or on their laps! Again, this is a Chrysler Minivan with the center bench seat and the front passenger seat removed. There was more than adequate room for both my dog and me without encroaching on the space of another passenger. Mr. Covington was still unwilling to consider the facts!
Mr. Covington then said, continuing his mocking tone of voice, “Do you know what they are saying about you?” I told him I realize one passenger said I made racial slurs and that this was a lie. He replied the witness would testify to this fact. I asked how this excused the conduct and he told me it brought my character into question. I asked him why, if I had made such an inflammatory statement, neither the other passenger nor the driver made such an allegation and received no reply. He then stated that HART made a reasonable accommodation for me by returning to transport me ninety minutes later. I attempted to tell Mr. Covington the law does not provide for a reasonable accommodation; rather, it requires a modification of policies, practices, and procedures to allow a person with a disability accompanied by a service dog full and equal access but he refused to consider what I had to say. I asked him what part of being left for ninety minutes was full and equal to which he again replied, “And you are not an attorney!” I admitted I was not but was a primary advocate for this statute and understood its purpose and provision. He told me again that, since I was not an attorney, my opinion was irrelevant. I told him I was not satisfied, that I believed his interpretation was incorrect, and I would pursue this further. Again he said, “And you are not an attorney!” He offered to give me his supervisor’s name and I advised him I would be seeking a meeting with mark Ober. He wished me luck and terminated the call.
It is my firm opinion that the State Attorney for the 13th Judicial Circuit made a decision to not prosecute this case long before the facts were presented to them and they persist in their refusal despite the availability of objective evidence. The discrimination began with the refusal of HART to transport me, continued with the individual at the Hillsborough county sheriff’s Office who took my original call, was promulgated by the supervising deputy, reinforced by the Sergeant, and entrenched By Lt Morris. Rene Murrati decided before she saw the facts that the law was unenforceable, and every attorney who reviewed the case, as the reply from Mr. Cox asserts, was likely influenced by the reliance on inaccurate information about previous cases.
In their refusal to consider the objective evidence, the state of Florida not only denies the remedies available by law, they condone and support discrimination, marginalizing disabled people and relegating us to second-class status, unworthy of equal rights and equal protection. They set a precedent that a taxicab driver can violate state criminal law by refusing to transport a disabled person accompanied by a service dog provided another vehicle is dispatched ninety minutes later. And if that driver refuses to carry us, I guess the state of Florida would have us wait another ninety minutes; after all, they are making an accommodation! The state of Florida is telling us that a restaurant can refuse to seat those of us who use service dogs inside if they make an accommodation for us by serving us outside the restaurant. The state of Florida is telling us that, if a retail establishment refuses to allow us in the store, they can make an accommodation for us by bringing our purchase outside and letting us pay for them there. Perhaps the state of Florida also believes disabled people should live in our separate communities where we would not have the need to interact with our nondisabled peers, should have our own seating areas in restaurants, our own water fountains, be required to sit in the back of the bus (or in the front of the bus, as often attempted by HART drivers), should only be able to marry other disabled people, and, if the law does not require us to be sterilized, should we have children, we should not have the right to raise them! The legal decision by the state of Florida that the disabled are not entitled to participate in society on terms of equality is archaic and offensive. Every citizen in this state should be appalled by the treatment we are receiving by those who have the power to make an impact on this sort of discrimination, namely our law enforcement agencies and the state of Florida through their agents at the state Attorney’s office.
I am confident in my understanding of Florida statute and we cannot stay silent while the state pursues a pattern of discrimination against the disabled. There is no more graphic illustration of discrimination in violation of Florida law and no stronger evidence of the state’s support of our second-class status than is demonstrated by these facts. The contention that HART did not deny this right by leaving me in my driveway is irrational. The further contention that returning for me ninety minutes later was a reasonable accommodation, even if the law did allow it, is equally absurd! Mr. Covington told me he could not convince a jury of six reasonable people that HART denied my right of full and equal accommodations, advantages, facilities, and privileges by leaving me standing in my driveway. The only reason this would be so is because Mr. Covington has convinced himself and the other prosecutors in his office of the erroneous conclusion of law to which he has arrived. No matter how Mr. Covington rationalizes, justifies, or intellectualizes HART’s behavior, The law does not allow an entity to make an arbitrary, capricious unreasonable discriminatory decision he is calling an accommodation; rather, it requires the modification of policies, practices, and procedures so that the disabled have the rights to which all citizens are entitled: Full and equal accommodations, advantages, facilities, and privileges. This is what the law protects, this is what the law requires, and this is what disabled people should demand. Anything less is bigotry, plain and simple!
The state is not providing us equal treatment but telling all of us we should settle for less than equal
The state obviously believes disabled people are not entitled to equality but only the unreasonable accommodations those who know better what we need and deserve are willing to dole out to us. They have sent the clear, unambiguous signal that we should not expect equality but lower our expectation to the level of those, such as the state of Florida, who still hold low expectations for us
We should not live the life we want; we should be gracious and humble, living the life of low expectations, unequal treatment, and second-class status. They expect we should not be drivers in our own lives but be relegated to and settle for simply being passengers driven by those with an arrogant sense of authority who disregard our civil rights and our efforts of self-determination and self-advocacy. Unless all citizens stand up for the rights of others and demand the State Attorney prosecute those who violate these civil rights, we leave the door wide open for future discrimination and the undermining of our civil rights by the state
If you think this is only happening in Florida, you would be very wrong. I have faced the same arrogant condescension when advocating for guide dog users across the country. Our civil rights are minimized and trampled upon. We are seen as angry malcontents who should be grateful for the charity we receive and ignore the demeaning disregard with which we are treated.
The state of Florida has the strongest, most sound statute in the nation. We have used it as a model throughout the country; however, Mr. Covington and the staff of the State Attorney for the 13th Judicial Circuit are summarily nullifying it. By doing so, Mr. Covington, as an agent of the state of Florida, is actively sponsoring discrimination against the disabled. Unless we demand the state of Florida prosecute this case, we are condoning discrimination by our passivity. Unless our judicial system stands behind our fundamental civil rights, including our right of liberty, we will be unable to travel freely, unobstructed by arbitrary decisions borne of ignorance and will be relegated to second-class citizenship.
I urge every person who reads this article to do three things: first, call State Attorney for the 13th Judicial Circuit at (813-272-5400 and tell them you are appalled that they condone and support discrimination against the disabled. Secondly, send this to someone else and ask them to take action. Lastly, stand up and stand behind those working to ensure the rights of the disabled by getting involved in making the change. The best way to get involved in shifting public attitudes about the blind is to become a part of the oldest and largest organization of the blind in the world – the National Federation of the Blind. The National Federation of the Blind knows that blindness is not the characteristic that defines you or your future. Every day we raise expectations because low expectations are the obstacles that stand between blind people and our dreams. You can live the life you want. Blindness is not what holds you back.
For more information about the blind, the National Association of Guide dog Users, or the National Federation of the Blind, please call (813) 626-2789, email us at info@nagdu.org or visit our websites http://www.nagdu.org or http://www.nfb.org.