SLC Case Docket & Activities Aug 2005.pdf

SLC July 2004 Docket

Cases supported by FBF State Support Grant

(Formerly referred to as Companion System Grant)

           Armstead v. Coler, Case No. 84-96-Civ-J-10 (M.D. Fla., JJ. Moore, Adams)

           SLC Attorneys: Alice K. Nelson & Jodi Siegel

           Summary of Case: This is a class action originally brought by Jacksonville Area Legal Aid (JALA) challenging the State of Florida's practice of housing persons with developmental disabilities at Northeast Florida State Hospital (NEFSH), a facility for persons with mental illness, in Macclenny. Our class is comprised of individuals with the dual diagnosis of a developmental disability and a mental illness. Class members resided at NEFSH’s In-Reach unit, and remain in the class for at least six months post-discharge. The State closed the unit at NEFSH that housed our class members, and we participated in the discharge planning. To close the case, we will be reviewing the community placements of the remaining class members and make a determination as to whether they continue to be appropriately placed.

           Canupp, et al. v. Liberty Behavioral Health Corp., Case No. 2:04-CV-260-FTM-29DNF (M.D. Fla.)

           SLC Attorneys: Peter P. Sleasman and Alice K. Nelson

           Co-Counsel: Florida Institutional Legal Services

           Summary of Case: A class action complaint was filed challenging the lack of adequate mental health and medical treatment at the Florida Civil Commitment Center (FCCC). Under Florida’s Jimmy Ryce Act, the State may involuntarily civilly commit anyone it deems a “mentally disordered sex offender” for an indefinite period of time. FCCC is a former prison facility where, upon release from prison, Florida detains and indefinitely confines sex offenders.

          Although the stated justification for civil commitment is the provision of treatment aimed at rehabilitation and eventual release, FCCC ignores even the most basic requirements of an effective treatment regimen. The limited counseling available does not, by the facility’s own admission, offer the level of care that detained or committed sex offenders would need to progress and ultimately obtain their release. In effect, these people are warehoused for life in a rundown and defunct prison. Although the “treatment” facility was opened over four years ago, no one has been released from the facility. In addition, some of the residents have serious mental illnesses that require traditional mental health treatment. These residents appear to receive no treatment at all.

          Approximately 450 men are currently detained at FCCC, with more arriving every day. Treatment geared toward the specific needs of sex offenders requires a trained and licensed staff of therapists, individualized treatment plans, a therapeutic treatment environment, and many hours of both group and individual counseling sessions. FCCC fails to provide this constitutionally adequate treatment. Its program appears to be a substantial departure from accepted professional practice, standards, and judgment.

           City of Cocoa v. Ritz Condominium Corp., et al., Case No. 05-2002-CA-006334, (Fla. 18th Cir. Ct., Brevard County)

           SLC attorney: Peter P. Sleasman

           Co-counsel: Community Legal Services of Mid-Florida (formerly Central Florida Legal Services), Cocoa office

           Summary of Case: CFLS and SLC represent several individuals who own units in the Ritz Condominium located in the City of Cocoa. The condominium is a rehabilitated apartment complex located in an impoverished area of the City. The units were marketed and sold to low income African-American individuals and families with the incentive of zero interest down payment loans from the City. Although the loan assistance program required applicants to obtain housing inspection reports, no inspections were done. Serious problems with the condo’s sewer and electrical systems developed within a year of the sales. The developer turned control of the condominium association over to the unit owners as soon as the problems began. Unfortunately, the association board was ill-equipped to deal with the widespread problems. Conditions deteriorated to the point that the City brought an action against the unit owners to condemn the entire complex. We agreed to represent the owners in the condemnation action and are reviewing several claims that we may bring on behalf of the owners. This case presents a complicated set of factual and legal issues involving liability of the developer, the City, the condo association, and the mortgage lenders. The condo development corporation and the association are defunct and the developer has left the state. We reached an agreement with the City on the condemnation proceeding. The City has obtained an order condemning the property. It is the City’s intention to demolish the building and foreclose on its liens to obtain title to the land. Through this process, the City is assisting our clients with our negotiations with the mortgage lenders regarding forgiveness of the mortgages.

           Davis et al. v. Kennedy Homes Ltd. Partnership, et al., Case No. 1:04CU52MMP/AK (N.D. Fla., J. Paul)

           SLC Attorney: Peter P. Sleasman

           Co-counsel: Three Rivers Legal Services and National Housing Law Project

           Summary of Case: This case is on behalf of eight displaced tenants of Kennedy Homes in Gainesville and a tenant association. Kennedy Homes is a very low income multifamily housing development assisted under federal housing programs. In October 2003, a fire occurred at Kennedy Homes and its residents were relocated to hotels. The Plaintiffs have not been able to obtain comparable replacement housing. Further, although there is a prospective buyer of the property that wants to rehabilitate the apartments, HUD’s plan is to terminate the federal rent subsidy at the complex for very low income families. If the subsidy is terminated, it will result in the permanent loss of 170 apartments for very low income residents. The complaint seeks to maintain this needed affordable housing as well as obtain appropriate relocation housing for the plaintiffs. The injunction seeks to preserve the rental subsidy contract at the apartments so it may continue to provide housing to low income tenants once it is rehabilitated.

           Grayden, et al., v. City of Orlando, et al., Case No. 6:00-cv-888-Orl-22B (M.D. Fla., J. Conway)

           SLC Attorney: Peter P. Sleasman

           Co-counsel: Community Legal Services of Mid-Florida (formerly Greater Orlando Area Legal Services) and Cathy Lucrezi

           Summary of Case: This case involves the City of Orlando’s condemnation of the Lafayette Square Apartments, which houses approximately 250 low and moderate income tenants, most of whom are African-American. On June 30, 2000, the City of Orlando inspected the complex and issued an emergency condemnation order. The tenants were told to be out of the complex by the end of the day. None of the tenants were told of their right to a hearing to contest the condemnation and eviction orders. They were either required on very short notice to find alternative housing or forced into homeless shelters. We believe the law is clear that the tenants, not just the owner, had the due process right to notice and an opportunity to be heard on the condemnation order. The Court ruled that the City’s condemnation procedures violate due process and that plaintiffs are entitled to permanent injunctive relief to change the procedures. She has referred the case to the Magistrate to determine precisely what changes are needed.

           Houston v. City of Cocoa, Case No. 89-082-Civ-Orl-19 (M.D. Fla., J. Fawsett)

           SLC Attorneys: Alice K. Nelson & Peter P. Sleasman

           Summary of Case: This class action was originally brought by Central Florida Legal Services (CFLS), and involves the preservation of a historically African-American neighborhood. SLC’s investigation into the history of the implementation of the Consent Decree has revealed that the defendants have not fully complied with the Consent Decree, and as a consequence, the historic African-American community remains in danger of being displaced. Defendants’ “benign neglect” of the community over the past five years has led to further deterioration in the community. We completed a motion arguing that the City should be held in contempt for violating the consent decree, and sent it to City counsel for his review prior to filing with the court. This led to a meeting with City officials and our clients regarding some new approaches to the redevelopment of the neighborhood. It appears that the City and our clients have the same basic goal of fostering more affordable single family housing in the neighborhood.

Cases Supported by FBF General Support Grant

           Dubois, et al., v. Bush, Meadows (Secretary for Fla. Agency for Health Care Admin.) & Agwunobi (Secretary of the Fla. Dep’t of Health), Case No. 4:03-CV-107 (N.D. Fla., J. Mickle)

           SLC Attorneys: Andrea Costello and Peter P. Sleasman

           Co-Counsel: Jane Perkins and Sarah Somers, National Health Law Program

           Summary of Case: This class action seeks to remedy the systemic problems faced by individuals eligible for home and community based services through the Brain and Spinal Cord Injury Medicaid Waiver Program (BSCIWP). The class consists of all current and future individuals with traumatic brain or spinal cord injuries that are receiving, eligible for, or who have applied for BSCIWP services. Although the State’s application for this Waiver Program states that 200 individuals will receive services, there are only approximately 160 people receiving them and over 124 individuals on the waiting list for up to several years. Based upon our outreach, we believe that there are potentially hundreds of persons that are eligible for the BSCIWP, but due to the State’s deficiencies in the administration of the program, these persons may be unaware of or discouraged from applying for services.

           One of our class representatives lives in a nursing home (although he could be living in the community) and the other individuals live with their families and are at risk of institutionalization without home and community-based services. The clients have been on the waiting list for BSCIWP services from several months to over two years. This case seeks to make systemic improvements in Florida’s community-based care services for disabled persons and to prevent the unnecessary institutionalization of persons with disabilities. The Court denied the State’s motion to dismiss the case and granted our motion to certify the case as a class action. Discovery is proceeding.

           Florida Ass’n of Retarded Persons, Inc., v. Bush, Case No. 79-418-CIV-ORL-18 (M.D. Fla., J. Presnell); 246 F.3d 1296 (11th Cir. 2001)

           SLC Attorneys: Alice K. Nelson & Jodi Siegel

           Summary of Case: SLC served as co-counsel in trial proceedings leading up to the October 1982 final injunction, having been retained by court-appointed guardian ad litem to represent the class, and as lead counsel on enforcement and compliance. The class consists of former residents of Orlando Sunland, a facility for persons with developmental disabilities, which the court ordered closed. Various enforcement injunctions were entered regarding the care and treatment of our class members. The state also was required to keep SLC apprized of where the class members were residing. We currently are focusing on various compliance issues regarding nutritional and physical management of our class members.

          Killmon, et al. v. City of Miami, et al., Case No.: 04-20707 (S.D. Fla., Miami Division, J. Altonaga)

           SLC Attorneys: Andrea Costello and Alice Nelson

           Co-Counsel: Robert W. Ross, Jr., Carol A. Sobel, Mara Verheyden-Hilliard, Carl Messineo and Jonathan Moore

           Summary of Case: This is a class action for declaratory and injunctive relief with individual damage actions as a result of demonstrations by a variety of labor and social justice groups during the meetings of the Free Trade Area of the Americas (FTAA) in November 2003 in Miami. There were massive arrests (over 280 people), as well as excessive uses of force by police against those at the protests and while people were in jail. The use of force (against trade unionists, retirees, journalists, and activists alike) involved chemical weapons (such as pepper spray bullets and tear gas), “non-lethal projectiles” (e.g., rubber bullets and wooden bullets), tasers, taser shields, concussion grenades, use of sticks and batons and the deployment of tanks. Several individuals also complained of sexual assaults and inappropriate verbal harassment while in custody. Further, many of the arrests were without probable cause and/or based on unconstitutional statutes. The equitable relief seeks to have law enforcement authorities cease the use of the brutal and unlawful tactics that were utilized during the demonstrations and for a declaration concerning the violations of the constitutional rights of those at the demonstrations. The damages claims seek compensatory and punitive relief for injuries sustained by the plaintiffs during the course of the demonstrations.

           Lake Worth for Global Justice, Inc. v. City of Miami, Case No.04-20262 (S.D. Fla., Miami Division, J. Graham)

           SLC Attorneys: Andrea Costello and Alice Nelson

           Co-Counsel: Carol A. Sobel and Robert W. Ross, Jr.

           Summary of Case: This case also involves the demonstrations against the FTAA meetings in Miami. It seeks, inter alia, a temporary restraining order for enforcement of the City of Miami’s permitting scheme concerning marches and demonstrations on public sidewalks, streets and parks. Lake Worth Group for Global Justice wished to participate in demonstrations during the course of the Miami Civilian Investigative Panel’s investigation into police action at the demonstrations, as well as other demonstrations in the Miami area. The suit was amended to include other organizations and individuals that want to participate in demonstrations in Miami. Since the Court’s entry of an order extending an expedited permit process to all groups seeking to demonstrate and a requirement for the City to advise the Court of any denials of any permits, the City has repealed two of the challenged ordinances and revised the permit scheme. However, even with the revisions, the City’s code remains constitutionally defective. The City announced that it would be amending the ordinances that were still at issue. We will analyze the new provisions.

           Mosher v. State of Florida, Case No. 1D03-5569 (Fla.1st DCA)

           SLC Attorney: Peter P. Sleasman

           Summary of Case: Ms. Mosher is a person with a severe and persistent mental illness who has been institutionalized for significant periods of time. We first knew her when she was a class member at South Florida State Hospital in our Sanbourne litigation. Over the years, we have assisted her with a number of matters. Ultimately, she began living in Bay County. In March 2002, she was charged with aggravated battery arising from an incident at a convenience store where allegedly she attacked the clerk with a ball point pen. Pursuant to the dictates of Chapter 916 of Florida Statutes and Fla. R. Crim. P. 3,212, she was found not competent to proceed to trial and confined to forensic unit at Florida State Hospital. FSH reported that she would not regain competency. In cooperation with Ms. Mosher’s public defender, SLC filed a notice of special appearance in the criminal charge seeking her release from confinement under Chapter 916 (with re-hospitalization if necessary under the civil commitment statute “the Baker Act”) and dismissal of the charges. The treating psychologist testified that Ms. Mosher will not be restored to competency in the foreseeable future absent the discovery of a miracle drug. Thus, it was argued that these actions were required as under the statute and that she did not have to wait five years in a forensic facility. A hearing was held in November. The trial court denied the motion. We appealed the trial court’s ruling by filing a petition for writ of certiorari with the First District Court of Appeal.

           Aged/Disabled Adult Medicaid Waiver Project

           SLC Attorneys: Andrea Costello and Alice K. Nelson

           Possible co-counsel: Anne Swerlick, Florida Legal Services

           This is another of Florida’s home based and community services waiver programs. The project will provide advocacy to the elderly and elderly disabled who are eligible for Medicaid Waiver Programs. The ultimate purposes of the project are to ensure that: (1) all elderly persons eligible for waiver services have access to the programs, and (2) the Waiver Programs provide appropriate services.

          SLC will reach out to individuals who meet Olmstead’s requirements to assist them in applying for and obtaining community services. Through this advocacy, SLC attorney will document systemic problems or limitations of the waiver programs and bring those problems to the attention of state officials. If informal efforts to resolve the problems fail, litigation strategies will be pursued.

Cases Supported by FBF Children’s Legal Services Grant

           Special Education Advocacy Project

           SLC Attorneys: Jodi Siegel & Alice K. Nelson

           SLC provides intensive consultation, co-counseling and direct representation as appropriate with education advocates at legal service and legal aid programs. This grant year, SLC expanded to providing state support on special education, i.e., rather than working with a few specified programs, SLC has become a statewide resource for all IOTA programs to assist advocates in their cases.

           Further, we are working collaboratively with several programs to develop strategies on several impact issues: Race and Special Education in Alachua County with Three Rivers Legal Services, Homeless Education in Northeast Florida with Florida Legal Services, Special Education in Prisons with Florida Institutional Legal Services, and a statewide challenge to the Department of Education’s failure to ensure that foster children with special needs are appointed surrogate parents under the IDEA with Legal Aid Society of Palm Beach County and Florida’s Children First!

           We also are coordinating a Foundation-sponsored Children Legal Services Training to be held on June 21-22 in Ft. Lauderdale.

           Haley C. v. Highlands County School Bd., Case No. 03-1991E (Fla. DOAH)

           SLC Attorneys: Jodi Siegel & Peter P. Sleasman

           Summary of Case: SLC represents a family in Highlands County on behalf of their Second Grade daughter who has a specific learning disability, a speech and language disorder and occupational therapy needs. The parents had already filed for a due process hearing because the school board had not fully recognized or addressed all of her unique learning needs. The school board attorney had filed a motion seeking sanctions against the family under a new Florida statute that permits sanctions for frivolous actions in administrative proceedings. SLC entered its appearance and filed a response. The Administrative Law Judge agreed with SLC that this statute does not apply to IDEA due process proceedings. SLC then negotiated a comprehensive settlement. The school board agreed to provide a wide array of specialized services, including individualized speech-language therapy, a multimodality reading and spelling program, parent training, one-on-one tutoring, and duplicate textbooks and software programs for the home. The school board also agreed to administer testing over the course of the school year to objectively determine progress.

           Margarita Lopez, o/b/o William Reyes, Jr. v. School Bd. of Osceola County,

           Case No. 99-4916E (DOAH, ALJ Clark) (Nelson & Siegel)

           Case No. 5D00-306 (Fla. 5th DCA) (Nelson & Siegel)

           Case No. 6:00-cv-913-Orl-22C (M.D. Fla., J. Conway) (Nelson & Siegel)

           Case No. 00-14406-FF (11th Cir.) (OCSB appeal of preliminary injunction) (Siegel & Nelson)

           Case No. 01-12915-F (11th Cir.) (our appeal of dismissal on basis of standing) (Siegel & Nelson)

           Summary of Case: After Judge Baker dismissed the federal case, the mother immediately filed for another due process hearing as he directed. The Friday before a Monday morning trial, OCSB filed a motion to dismiss. OCSB argued that DOAH had no jurisdiction because the child, W.R., had just turned 18 and the rights under the Individuals With Disabilities Education Act transferred to him, thus the mother could not proceed without a state court appointing her as a guardian. In December 1999, the ALJ did not dismiss, but abated the proceedings until a guardian could be appointed. OCSB appealed the abatement, which was dismissed by the Fifth DCA. After a guardianship was established, we won the due process hearing in July 2000 and obtained a preliminary injunction from the federal court in August to place W.R. at a residential facility in Texas. OCSB interjected itself into the state guardianship proceedings in which the probate judge temporarily removed the mother as guardian. Judge Conway concluded that William desperately needs a residential placement, but dismissed the case on the basis that the mother lacks standing because she was not his guardian on educational matters, and thus her rights under the IDEA transferred to William. The Eleventh Circuit in an unpublished per curium opinion vacated the dismissal and remanded for further proceedings based on the mother having been re-appointed as plenary guardian subsequent to the dismissal. A court-ordered mediation was conducted in December 2003. We sought to turn the four years of compensatory educational services that we believed we could obtain from the court into money to be used for the mother to buy needed private medical and educational services for her son. The mediation resulted in an agreement that the School Board will pay $200,000 to be placed in a special needs trust to be used for Williams’ medical and educational needs.

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