Senate Bill sb0434c1

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    Florida Senate - 2005                            CS for SB 434

    By the Committee on Governmental Oversight and Productivity;
    and Senators Wise, Fasano, Haridopolos and Rich




    585-1652-05

  1                      A bill to be entitled

  2         An act relating to individuals with

  3         disabilities; amending s. 413.08, F.S.;

  4         providing definitions; providing that an

  5         individual with a disability has full and equal

  6         access to and enjoyment of public

  7         accommodations and state and local facilities,

  8         programs, services, and activities; providing

  9         that an individual with a disability may be

10         accompanied by a service animal in places of

11         public accommodation and in state and local

12         facilities; directing that documentation that a

13         service animal is trained may not be a

14         precondition for providing service to an

15         individual accompanied by a service animal;

16         requiring that a service animal be given access

17         to all areas of a government facility or public

18         accommodation that the public or customers are

19         normally permitted to occupy; prohibiting

20         segregating an individual with a service animal

21         from other customers or the public; prohibiting

22         a public accommodation from imposing a deposit

23         or surcharge on an individual with a disability

24         as a precondition to permitting a service

25         animal to accompany the individual; providing

26         that an individual with a disability may be

27         liable for damage caused by a service animal;

28         providing that the animal's owner is

29         responsible for the care and supervision of a

30         service animal; providing that the public

31         accommodation or government entity is not

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 1         required to provide care or food or a special

 2         location for a service animal; providing that a

 3         public accommodation or government entity may

 4         exclude or remove any animal from the premises

 5         if the animal's behavior poses a direct threat

 6         to the health and safety of others; increasing

 7         certain penalties for violations of the act;

 8         providing that the trainer of a service animal

 9         has the same rights and privileges as a person

10         with a disability while training the service

11         animal; amending s. 413.081, F.S.; conforming

12         provisions to changes made by the act;

13         providing an effective date.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

17         Section 1.  Section 413.08, Florida Statutes, is

18  amended to read:

19         413.08  Rights of individuals with disabilities who

20  physically disabled persons; use of dog guides or service

21  animals dogs or nonhuman primates of the genus Cebus;

22  discrimination in public employment or housing accommodations;

23  penalties.--

24         (1)  As used in this section, the term:

25         (a)  "Direct threat" means a determination that the

26  person poses a significant risk to the health and safety of

27  others which cannot be eliminated or reduced to an acceptable

28  level. A direct threat cannot be based on generalizations or

29  stereotypes about the effects of a particular disability; it

30  must be based on an individual assessment that considers the

31  particular activity and the actual abilities and disabilities

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    Florida Senate - 2005                            CS for SB 434
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 1  of the individual. The assessment of a direct threat must be

 2  based on reasonable judgment that relies on current medical

 3  evidence, or on the best available objective evidence, to

 4  determine the nature, duration, and severity of the risk; the

 5  probability that the potential injury will actually occur; and

 6  whether reasonable modifications of policies, practices, or

 7  procedures will mitigate or eliminate the risk.

 8         (b)  "Housing accommodation" means any real property or

 9  portion thereof which is used or occupied, or intended,

10  arranged, or designed to be used or occupied, as a home,

11  residence, or sleeping place of one or more human beings. The

12  term does not include a single-family residence if the

13  occupants rent or lease to others for compensation not more

14  than one room in the residence.

15         (c)  "Individual with a disability" means a person who

16  has a physical or mental impairment that substantially limits

17  one or more of his or her major life activities, has a record

18  of such an impairment, or is regarded as having such an

19  impairment. The term does not include an individual who has

20  any of the following conditions: homosexuality, bisexuality,

21  transvestism, transsexualism, pedophilia, exhibitionism,

22  voyeurism, a gender-identity disorder not resulting from

23  physical impairments, any other sexual-behavior disorder,

24  compulsive gambling, kleptomania, pyromania, or a psychoactive

25  substance abuse disorder resulting from the current illegal

26  use of drugs, or an individual who currently engages in the

27  use of illegal drugs.

28         (d)  "Major life activities" means activities that an

29  average person can perform with little or no difficulty,

30  including, but not limited to, walking, speaking, breathing,

31  

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 1  performing manual tasks, seeing, hearing, learning, caring for

 2  oneself, working, standing, lifting, and reading.

 3         (e)  "Mental impairment" means any mental or

 4  psychological disorder, such as mental retardation, organic

 5  brain syndrome, emotional or mental illness, and specific

 6  learning disabilities.

 7         (f)  "Physical impairment" means a physiological

 8  disorder or condition, cosmetic disfigurement, or anatomical

 9  loss affecting one or more of the following body systems:

10  neurological; musculoskeletal; sensory organs; respiratory,

11  including speech organs; cardiovascular; reproductive;

12  digestive; genitourinary; hemic and lymphatic; skin; and

13  endocrine.

14         (g)  "Place of public accommodation" means a facility,

15  operated by a private person, whose operations affect commerce

16  and fall within at least one of the following categories:

17         1.  An inn, hotel, motel, or other place of lodging,

18  except for an establishment located within a building that

19  contains not more than five rooms for rent or hire and that is

20  actually occupied by the proprietor of the establishment as

21  the residence of the proprietor;

22         2.  A restaurant, bar, or other establishment serving

23  food or drink;

24         3.  A motion picture house, theater, concert hall,

25  stadium, or other place of gathering;

26         4.  An auditorium, convention center, lecture hall, or

27  other place of exhibition or entertainment;

28         5.  A bakery, grocery store, clothing store, hardware

29  store, shopping center, or other sales or rental

30  establishment;

31  

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 1         6.  A laundromat, dry cleaner, bank, barber shop,

 2  beauty shop, travel service, shoe repair service, funeral

 3  parlor, gas station, office of a health care provider,

 4  hospital, or other service establishment;

 5         7.  A terminal, depot, or other station used for

 6  specified public transportation;

 7         8.  A museum, library, gallery, or other place of

 8  public display or collection;

 9         9.  A park, zoo, amusement park, or other place of

10  recreation;

11         10.  A day care center, senior citizen center, homeless

12  shelter, food bank, adoption agency, or other social services

13  establishment; and

14         11.  A gymnasium, health spa, bowling alley, golf

15  course, or other place of exercise or recreation.

16         (h)  "Service animal" means an animal that is trained

17  to perform tasks for an individual with a disability. The

18  tasks may include, but are not limited to, guiding a person

19  who is visually impaired or blind, alerting a person who is

20  deaf or hard of hearing, pulling a wheelchair, assisting with

21  mobility or balance, alerting and protecting a person who is

22  having a seizure, retrieving objects, or performing other

23  special tasks. A service animal is not a pet.

24         (i)  "Substantially limits" means renders the

25  individual unable to perform an activity compared to an

26  average person in the general population. Factors to consider

27  in determining whether an impairment substantially limits a

28  major life activity include the nature and severity of the

29  impairment, how long it will last or is expected to last, and

30  its permanent or long-term impact or expected impact.

31  

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 1         (2)(1)(a)  An individual with a disability is The deaf,

 2  hard of hearing, blind, visually handicapped, and otherwise

 3  physically disabled are entitled to full and equal

 4  accommodations, advantages, facilities, and privileges on all

 5  common carriers, airplanes, motor vehicles, railroad trains,

 6  motor buses, streetcars, boats, and other public conveyances

 7  or modes of transportation; in all state and local government

 8  facilities, programs, services, and activities; and at hotels,

 9  lodging places, places of public accommodations accommodation,

10  amusement, or resort, and other places to which the general

11  public is invited, subject only to the conditions and

12  limitations established by law and applicable alike to all

13  persons. This section does not require any person, firm, or

14  corporation, or any agent thereof, to modify or provide any

15  vehicle, premises, facility, or service to a higher degree of

16  accommodation than is required for a person not so disabled.

17         (3)(b)  Every individual with a disability deaf or hard

18  of hearing person, totally or partially blind person, person

19  who is subject to epilepsy or other such seizure disorders, or

20  physically disabled person has the right to be accompanied by

21  a dog guide or service animal dog, specially trained for the

22  purpose, in any place of public accommodation or state or

23  local government facility, program, service, or activity the

24  places listed in paragraph (a) without being required to pay

25  an extra charge for the dog guide or service dog; however,

26  such a person is liable for any damage done to the premises or

27  facilities by such a dog. The dog guide or service dog must be

28  capable of being properly identified as being from a

29  recognized school for seeing-eye dogs, hearing-ear dogs,

30  service dogs, including, but not limited to, seizure-alert and

31  seizure-response dogs, or guide dogs.

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    Florida Senate - 2005                            CS for SB 434
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 1         (4)  Documentation that the service animal is trained

 2  is not a precondition for providing service to an individual

 3  accompanied by a service animal. A public accommodation or

 4  government entity may ask if an animal is a service animal or

 5  what tasks the animal has been trained to perform in order to

 6  determine the difference between a service animal and a pet.

 7         (5)  A service animal may accompany the individual with

 8  a disability to all areas of a government facility or public

 9  accommodation that the public or customers are normally

10  permitted to occupy. An individual with a service animal may

11  not be segregated from other customers or the public.

12         (6)(a)  A public accommodation may not impose a deposit

13  or surcharge on an individual with a disability as a

14  precondition to permitting a service animal to accompany the

15  individual with a disability, even if a deposit is routinely

16  required for pets.

17         (b)  An individual with a disability is liable for

18  damage caused by a service animal if it is the regular policy

19  and practice of the public accommodation to charge nondisabled

20  persons for damages caused by their pets.

21         (7)  The care or supervision of a service animal is the

22  responsibility of the individual owner. A public accommodation

23  or government entity is not required to provide care or food

24  or a special location for the service animal.

25         (8)(a)  A public accommodation or government entity may

26  exclude or remove any animal from the premises, including a

27  service animal, if the animal's behavior poses a direct threat

28  to the health and safety of others. Allergies and fear of

29  animals are not valid reasons for denying access or refusing

30  service to an individual with a service animal. The perception

31  

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    Florida Senate - 2005                            CS for SB 434
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 1  of a threat or fear based on past experience does not

 2  constitute a direct threat.

 3         (b)  If a service animal is excluded or removed as

 4  being a direct threat to others, the public accommodation or

 5  government entity must provide the individual with a

 6  disability the option of continuing access to the public

 7  accommodation or government entity without having the service

 8  animal on the premises.

 9         (c)  Every person with paraplegia or quadriplegia has

10  the right to be accompanied by a nonhuman primate of the genus

11  Cebus, specially trained for the purpose of providing personal

12  care services, in any of the places listed in paragraph (a)

13  without being required to pay an extra charge for the nonhuman

14  primate; however, such a person is liable for any damage done

15  to the premises or facilities by such nonhuman primate.

16         (9)(2)  Any person, firm, business, or corporation, or

17  the agent of any person, firm, business, or corporation, who

18  denies or interferes with admittance to, or enjoyment of, the

19  public accommodation of, facilities enumerated in subsection

20  (1) or otherwise interferes with the rights of, an individual

21  with a disability a deaf person, a hard of hearing person, a

22  totally or partially blind person, a person who is subject to

23  epilepsy or other such seizure disorders, or an otherwise

24  physically disabled person under this section, or the trainer

25  of a dog guide or service animal dog while engaged in the

26  training of the animal under such a dog pursuant to subsection

27  (14) (7), commits is guilty of a misdemeanor of the second

28  degree for the first offense and a misdemeanor of the first

29  degree for each subsequent offense, punishable as provided in

30  s. 775.082, or s. 775.083, or s. 775.084.

31  

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    Florida Senate - 2005                            CS for SB 434
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 1         (10)(3)  It is the policy of this state that

 2  individuals with disabilities the deaf, hard of hearing,

 3  blind, visually handicapped, and otherwise physically disabled

 4  shall be employed in the service of the state or political

 5  subdivisions of the state, in the public schools, and in all

 6  other employment supported in whole or in part by public

 7  funds, and an employer may not refuse employment to an

 8  individual with a disability the deaf, the hard of hearing,

 9  the blind, the visually handicapped, or the otherwise

10  physically disabled on the basis of the disability alone,

11  unless it is shown that the particular disability prevents the

12  satisfactory performance of the work involved.

13         (11)(4)  Each individual with a disability is Deaf

14  persons, hard of hearing persons, blind persons, visually

15  handicapped persons, and otherwise physically disabled persons

16  are entitled to rent, lease, or purchase, as other members of

17  the general public, any housing accommodations offered for

18  rent, lease, or other compensation in this state, subject to

19  the conditions and limitations established by law and

20  applicable alike to all persons.

21         (a)  As used in this subsection, the term "housing

22  accommodations" means any real property or portion thereof

23  which is used or occupied, or intended, arranged, or designed

24  to be used or occupied, as the home, residence, or sleeping

25  place of one or more human beings, but does not include any

26  single-family residence the occupants of which rent, lease, or

27  furnish for compensation not more than one room therein.

28         (b)  This section does not require any person renting,

29  leasing, or otherwise providing real property for compensation

30  to modify her or his property in any way or provide a higher

31  degree of care for a deaf person, hard of hearing person,

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 1  blind person, visually handicapped person, or otherwise

 2  physically disabled person than for a person who is not so

 3  handicapped.

 4         (12)(c)  Each individual with a disability deaf person,

 5  hard of hearing person, totally or partially blind person, or

 6  otherwise physically disabled person who has a service animal

 7  dog guide, or who obtains a service animal dog guide, is

 8  entitled to full and equal access to all housing

 9  accommodations provided for in this section, and the such a

10  person may shall not be required to pay extra compensation for

11  the service animal dog guide.  However, an individual with a

12  disability such a person is liable for any damage done to the

13  premises by such a service animal dog guide.

14         (d)  Each person with paraplegia or quadriplegia who

15  has or obtains a nonhuman primate of the genus Cebus,

16  specially trained for the purpose of providing personal care

17  services, is entitled to full and equal access to all housing

18  accommodations provided for in this section, and she or he

19  shall not be required to pay extra compensation for such a

20  nonhuman primate. However, the person is liable for any damage

21  done to the premises by such a nonhuman primate.

22         (13)(5)  An Any employer covered under subsection (10)

23  (3) who discriminates against an individual with a disability

24  the deaf, hard of hearing, blind, visually handicapped, or

25  otherwise physically disabled in employment, unless it is

26  shown that the particular disability prevents the satisfactory

27  performance of the work involved, or any person, firm, or

28  corporation, or the agent of any person, firm, business, or

29  corporation, providing housing accommodations as provided in

30  subsection (11) (4) who discriminates against an individual

31  with a disability commits the deaf, hard of hearing, blind,

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 1  visually handicapped, or otherwise physically disabled is

 2  guilty of a misdemeanor of the second degree for the first

 3  offense and a misdemeanor of the first degree for each

 4  subsequent offense, punishable as provided in s. 775.082, or

 5  s. 775.083, or s. 755.084.

 6         (6)(a)  As used in this section, the term "physically

 7  disabled person" means any person who has a physical

 8  impairment that substantially limits one or more major life

 9  activities.

10         (b)  As used in this section, the term "hard of hearing

11  person" means an individual who has suffered a permanent

12  hearing impairment that is severe enough to necessitate the

13  use of amplification devices to discriminate speech sounds in

14  verbal communication.

15         (14)(7)  Any trainer of a dog guide or service animal

16  dog, while engaged in the training of the service animal such

17  a dog, has the same rights and privileges with respect to

18  access to public facilities and the same liability for damage

19  as is provided for individuals with a disability those persons

20  described in paragraph (1)(b) accompanied by a service animal

21  dog guides or service dogs.

22         (8)  Any trainer of a nonhuman primate of the genus

23  Cebus, while engaged in training such a nonhuman primate to

24  provide personal care services to a person with paraplegia or

25  quadriplegia, has the same rights and privileges with respect

26  to access to public facilities and the same liability for

27  damage as is provided for a person with paraplegia or

28  quadriplegia who is accompanied by nonhuman primates of the

29  genus Cebus. As used in this subsection, the term "trainer of

30  a nonhuman primate of the genus Cebus" means a paid employee

31  

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 1  of a training organization, and does not include volunteers

 2  chosen to raise the animals.

 3         Section 2.  Section 413.081, Florida Statutes, is

 4  amended to read:

 5         413.081  Interference with or injury to a guide dog or

 6  service animal; penalties; restitution.--

 7         (1)  A Any person who, with reckless disregard,

 8  interferes with, or permits any animal a dog that he or she

 9  owns or is in the immediate control of to interfere, with, the

10  use of a guide dog or service animal by obstructing,

11  intimidating, or otherwise jeopardizing the safety of the

12  service animal or its user commits is guilty of a misdemeanor

13  of the second degree for the first offense and a misdemeanor

14  of the first degree for each subsequent offense, punishable as

15  provided in s. 775.082 or s. 775.083.

16         (2)  A Any person who, with reckless disregard, injures

17  or kills, or permits a dog that he or she owns or is in the

18  immediate control of to injure or kill, a guide dog or service

19  animal commits is guilty of a misdemeanor of the first degree,

20  punishable as provided in s. 775.082 or s. 775.083.

21         (3)  A Any person who intentionally injures or kills,

22  or permits a dog that he or she owns or is in the immediate

23  control of to injure or kill, a guide dog or service animal

24  commits is guilty of a felony of the third degree, punishable

25  as provided in s. 775.082, or s. 775.083, or s. 775.084.

26         (4)(a)  A person who is convicted of a violation of

27  this section, in addition to any other penalty, must make full

28  restitution for all damages that arise out of or are related

29  to the offense, including incidental and consequential damages

30  incurred by the guide dog or service animal's user.

31  

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 1         (b)  Restitution includes the value of the service

 2  animal; replacement and training or retraining expenses for

 3  the service animal and the user; veterinary and other medical

 4  and boarding expenses for the service animal; medical expenses

 5  for the user; and lost wages or income incurred by the user

 6  during any period that the user is without the services of the

 7  service such an animal.

 8         (5)  As used in this section, the term "service animal"

 9  means an animal that is trained to perform tasks for an

10  individual with a disability. The tasks may include, but are

11  not limited to, guiding a person who is visually impaired or

12  blind, alerting a person who is deaf or hard of hearing,

13  pulling a wheelchair, assisting with mobility or balance,

14  alerting and protecting a person who is having a seizure,

15  retrieving objects, or performing other special tasks. A

16  service animal is not a pet.:

17         (a)  "Guide dog" means a dog that is trained for the

18  purpose of guiding blind persons or a dog trained for the

19  purpose of assisting hearing impaired persons.

20         (b)  "Service animal" means an animal that is trained

21  for the purposes of assisting or accommodating a disabled

22  person's sensory, mental, or physical disability.

23         Section 3.  This act shall take effect July 1, 2005.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 434

 3                                 

 4  Creates definitions based on the federal standards for "direct
    threat," "housing accommodation," "individual with a
 5  disability," "major life activities," "mental impairment,"
    "physical impairment," "place of public accommodation," and
 6  "substantially limits."

 7  Provides that the first violation for discriminating against
    an individual with a disability, when providing housing
 8  accommodations, is a second degree misdemeanor and that
    subsequent violations are misdemeanors of the first degree.
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