March 2022 - Parks & Recreation - 29

phia
attempted
to
visit Bunche
Beach, a public beach in Lee County.
Silva claimed he was prevented
from visiting Bunche Beach because
Lee County had banned all
pets and service animals from that
beach. To prove the existence of
this ban, Silva's complaint cited:
(1) a screenshot from Lee County's
website that provided information
about Bunche Beach and stated,
" Pets are not allowed at this park " ;
and (2) a picture of a sign Silva encountered
on his visit.
The sign at issue contained the
words " NO PETS OR SERVICE
ANIMALS " in large print on
top. In smaller print immediately
below, the sign stated: " This preserve
provides habitat for wildlife
protected by the Endangered Species
Act. " The middle of the sign
contained an interdictory circle,
inside of which was a silhouette
of a dog on a leash.
Toward the bottom, the sign cited
" Lee County Ordinance 18-12 as
amended " and stated that according
to " Architectural Barriers Act
Standards § 1019.1 exceptions to
the ADA exist where compliance is
limited or precluded by federal law,
including the Endangered Species
Act (16 U.S.C. §§ 1531 et seq) " or
other laws intended to " preserve
threatened or endangered species. "
On March 11, 2021, Silva
brought this action against Lee
County, alleging that its policy
banning service dogs from Bunche
Beach violated Title II of the
ADA. About a month later, Lee
County moved to dismiss the action
as moot.
New Signage
In support of the motion to dismiss,
Lee County filed a declaration
from Alise Flanjack, deputy
director for Lee County Parks and
Recreation. Flanjack stated that the
sign Silva photographed at Bunche
Beach had been removed on February
18, 2021.
As described by Flanjack, the
original sign was erected because
the U.S. Fish and Wildlife Service
" had designated all of the shoreline
at Bunche Beach as a critical
habitat for federally threatened species
of birds. "
As characterized by the federal
district court, the sign seemed
to recognize that " dogs ostensibly
posed some kind of threat to
these birds. " That being said, it remained
unclear to the court " how
the Architectural Barriers Act and
the Endangered Species Act interfere
with a person with a disability's
right to bring a service dog to
a public beach " :
The Architectural Barriers
Act and its administrative standards
were enacted " to insure
whenever possible that physically
handicapped persons will have
ready access to, and use of, qualifying
buildings. " 42 U.S.C. §
4152.
While the Architectural
Barriers Act Standards § 1019.1
exempts compliance if precluded
by the Endangered Species Act, it
is not clear how that statute relates
to service dogs.
In her declaration, Flanjack indicated
Lee County had " ordered
new signage with revised
language "
and installed it at Bunche
Beach on March 17, 2021. A
mockup of the " new signage " was
attached to Flanjack's declaration.
The design for the new signage was
very similar to the original sign Silva
had photographed; i.e., a blue
background with an interdictory
circle containing a silhouette of a
dog. The language of the new sign,
however, was much different. The
top of the new sign now stated,
" NO PETS ALLOWED, " without
reference to service animals or
the Endangered Species Act. Below
the interdictory circle, the new sign
contained the following language:
In accordance with the Americans
with Disabilities Act (ADA),
service dogs are permitted on any
beach open to the public. A service
dog is trained to do specific
tasks directly related to the owner's
disability. Emotional support
animals,
comfort animals, and
therapy dogs are not considered
service animals under the ADA
and, therefore, are not permitted.
A service dog must remain under
the owner's control at all times.
Any individual whose failure to
maintain control of a dog results
in disturbance to wildlife will be
asked to leave the beach and may
receive a citation.
The original sign was erected
because the U.S. Fish and
Wildlife Service " had designated
all of the shoreline at Bunche
Beach as a critical habitat for
federally threatened species
of birds. "
At
sign
the
bottom,
the
new
again cited " Lee County
Ordinance 18-12 as amended. "
Besides the redesign, Flanjack also
noted that Lee County Ordinance
18-12 exempted service animals
from any prohibition on entering
any public park, including Bunche
Beach. In particular, Lee County
PARK S ANDRECRE AT ION . OR G | MARCH 2 0 22 | Parks & Recreation
29
March 2022 - Parks & Recreation

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