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SUPREME COURT OF THE STATE OF FLORIDÅ20!?N0V30 PM i:44

CASE NO. SC ..

APPELLATE CASE NO. 5D11 729LWR TRBNL CASF NO. 2007-CA-171ï6-6-0-

SARA GRIMES,

Petitioner,

vs.

KEVIN BEARY, in his Official Capacity asSheriffof Orange County, a Political Subdivisionof the State ofFlorida, and PACINO'S, INC.

Respondent.

PETITIONER'S BRIEF ON JURISDICTION

SARA GRIMESPro Se Petitioner3275 S. John Young Pkwy. #122Kissimmee, FL. 34746

CASE NO. SC

GRIMES V. BEARY AND PACINO'S, et al.

CERTIFICATE OF INTERESTED PERSONS

Appellant, Sara Grimes, Pro Se, certifies that the following persons and

entities have or may have an interest in the outcome of this case.

1. Sara Grimes(Pro Se, Petitioner)

2. Bruce Bogan, Esquire,(Counsel for Kevin Beary, Respcndent)Hilyard, Bogan & Palmer

3. Gary Vasquez, Esquire(Counsel for Pacino's, Inc., Respondent)V isquez & Tosko, LLP

4. H te Kim, Esquire(C ounsel for Pacino's, Inc., Respondent)Vasquez & Tosko, LLP

5. The Honorable Julie O'KaneJudge of the Ninth Judicial Circuit Court

TABLE 03 CONTENTS

CERTIFICATE OF INTERESTED ?ERSONS...................................i

TABLE OF CONTENTS.............................................................ii

TABLE OF AUTHORITIES........................................................iii

PRELIMINARY STATEMENT....................................................1

STATEMENT OF THE CASE AND FACTS....................................1

SUMMARY OF THE ARGUMENT..............................................3

ARGUMENT........................... ...............................................4

THIS COURT SHOULD EXERCISE ITS DISCRETIONARYJURISDICTION TO REVIEW THE Title H Guidelinesfor theState Courts System ofFlorida, § Accommodations by the Courts(because they appear to be in conflict with the controlling FederalStatute (ADA)) ....................................................................4

CONCLUSION......................................................................11

CERTIFICATE OF SERVICE...... ...............................................12

CERTIFICATE OF TYPE SIZE AND STYLE.................................12

TABLE OF AUTHORITIES

CASES

Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S.837 (1984).............................................................................5

City ofBoerne v. Flores 521 U.S. 50 7, 532 (1997)..............................11

Evans V. County ofAlachua, 937 So 2d 693 (Fla. App., 2006).........5, 7, 8

Florida Bd. OfBar Examiners re S.G., 707 So.2d 323 (Fla., 1998)...........6

Haines v. Kerner, 404 U.S. 519, 520 (1972).....................................11

Ham v. Dunmire and All Americaa Termite and Pest Control, Inc., 891So.2d 492 (Fla. 2004)..............................................................9

Hilburn v. Murata Elec. N. Am., Inc. 181 F.3d 1220 (11th Cir. 1999).....8

Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962)....................................7

Maggio v.Department of Labor and Employment Security (DELS), 910So.2d 876 (Fla. 2005)...............................................................8

Overton v. Bazzetta, 539 U.S. 126, 118 (2003).................................11

Procunier v. Martinez, 416 U.S., at 405-406...................................11

Tennessee v. Lane, 541 U.S. 509, 511 (2004).....................................6

Thayer v. Chico's FAS, Inc. (Fla. Ap p., 2012)....................................7

Florida Constitution

Art. V § (3)(b)(3), Fla. Const. (1968)............................................7

IV

Florida Rules of Appellate Procedure

Fla. R. App. P. 9.030 (a)(3)(2012)................................................1

Fla. R. App. P. 9.030 (a)(2)(A)(iv)..................................................7

Fla. R. App. P. 9.030 (a)(2)(A)(v)..................................................9

Florida Rule of Judicial Administration

re Amendments to Florida Rule ofJudicial Admin. 2.540. (e) (A), 41 So.3d881 (Fla. 2010)........................................................................3

Florid a Title II

Title II Guidelines for the State Courts System of Florida §Accommodations Provided by the Courts..............................1, 2, 3, 10

Americans wi th Disability Act

Title II of the Americans with Disability Act of 1990 (ADA or

Act).......................................................................1,6,7,10,11

V

PRELIMINARY STATEMENT

Petitioner, SARA GRIMES, Pro Se, was the plaintiff and the two

respondents were the defendants in the Civil Division of the Circuit Court of

the Ninth Judicial Circuit, in and for Orange County, Florida. Petitioner was

the appellant and the two responden1s were the appellees in the Fifth District

Court of Appeal. In this brief, the parties shall be referred to as they appear

before this Honorable Court, except that petitioner may also be referred to as

"Grimes."

STATEMENT OF TEIE CASE AND FACTS

The facts relevant to this Court's decision of whether to exercise

discretionary jurisdiction are set fort i in the court rules controlling access to

the courts by the disabled found 11 the Americans with Disabilities Act

(Hereinafter ADA), 42 U.S.C. § 12101 et seq., Section 403 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Title H Guidelinesfor

the State Courts System of Florida (Hereinafter Guidelines.), §

Accommodations by the Courts. Federal Regulations have been designed to

enforce the ADA. These include the rules promulgated by the EEOC to

enforce Title I of the ADA (29 C.F.1. Part 1630), the rules promulgated by

the Department of Justice to enforce Title II of the ADA (28 C.F.R. Part 35),

1

and the rules promulgated by the Department of Justice to enforce Title III

of the ADA (28 C.F.R. Part 36).

Pursuant to Fla. R. of App. P. 9.030 (a) (3), a party may request a writ of

prohibition and all writs to the Supreme Court. On November 16, 2012,

Grimes mailed a request for a writ with a question of great importance to

this Court. She questioned the 11tent of the Guidelines section titled,

Accommodations Provided by the Court. The Guidelines 'only suggest' but

do not require that the disability be considered when requesting

accommodations for medical treatment or for telephonic hearings.

Grimes, acting as her own counsel in the instant action, filed requests for

accommodations (with medical d3cumentation) to the trial court for

continuances and for telephonic heaings. The court never forwarded these

to an ADA coordinator.

Because Grimes' was acting as lier own counsel, her disabilities should

have been considered administratively since they had an impact on her

abilities in court. (Appendix H of the Guidelines provides details about

providing accommodations to attorreys with disabilities. If those requests

are presented to a judge, then the judge is to confer with the court ADA

coordinator. These Guidelines created an ADA coordinator position to

2

relieve and guide the judiciary in other accommodation decision areas where

a court may have limited expertise.)

In re Amendments to Floridâ Rule ofJudicial Admin. 2.540. (e) (A),

41 So.3d 881 (Fla. 2010), the rule says:

...[W]hen a request for accon anodation is granted or denied, inwhole or in part, and if the request for accommodation is denied,the court must inform the disalled individual the reason therefore;or that an alternative accommodation is granted....

Every time the court denied Grimes request for accommodations, it

failed to give reasons for the denial.

Grimes had difficulties with cont nuing representing herself without those

requested accommodations for her disabilities. The court dismissed her

action after the respondents filed f>r sanctions due to Grimes inability to

meet the set deadlines. Grimes filed an appeal with the appellate court that

was dismissed with a Per Curiam Áffirmed decision on October 16, 2012.

Her motion for a written opinion and certification of questions of great

importance was also dismissed without review of her disabilities.

Grimes now comes to this Court for a special writ and requests that

this Court exercise its discretionary jurisdiction to review the Guidelines, §

Accommodations Provided by the C>urts, in relation to the Grimes' action.

SUMMARY OF THE ARGUMENT

3

This Court should exercise its liscretionary jurisdiction to review the

Guidelines, § Accommodations Provided by the Courts. In the instant case,

Petitioner contends that this Co art should exercise its discretionary

jurisdiction because the decision not to evaluate disabilities conflicts with

the ADA's intent, violate Due Pro::ess rights for the disabled and are in

direct conflict with state and federal pases.

ARGUMENT

THIS COURT SHOULD EXERCISE ITS DISCRETIONARYJURISDICTION TO REVIEW THE GUIDELINES, §

ACCOMMODATIONS PROVIDED BY THE COURTS

In part, the Guidelines' instructions, state:

...[T]he courts cannot administratively grant, as an ADAaccommodation, requests that impact court procedures within aspecific case. Requests for an cxtension of time, a change of venue,or participation in court proceedings by telephone orvideoconferencing must be sibmitted by written motion to thepresiding judge as part of the case. The judge may consider anindividual's disability, along with other relevant factors, in grantingor denying the motion....

The Guidelines state that the judge "may consider" but does not require

that the disability be considered. In effect, this is a giant loophole that gives

a 'green light' to circumvent the intent and meaning of the ADA. The trial

and appellate courts did not consider Grimes' disabilities as they related to

her accommodations' requests for telephonic hearings and numerous

continuances to get medical treatment.

Constant refusals of continuances for medical treatment caused a

hardship for Grimes and led to her action's dismissal. Grimes filed her

appeal for review ofher ADA claim and the trial court's discrimination.

The issue of ADA accommodations' requests as it pertains to a pro se

litigant was not reviewed at the app:llate level. Both the trial court and the

appellate court determined that a review of Grimes' disabilities did not need

to be done.

When disabilities are considered by the courts, then an ADA coordinator

is contacted by the court personne . Questions that an ADA coordinator

should have evaluated are: (1)would inability to sit or stand for any length of

time cause hardship for Grimes, (2) would having severe tissue loss and

nerve damage in Grimes' hands cause hardships for Grimes, etc., and (3)

would these combined injuries result in difficulties meeting court deadlines

and appearing in court.

In Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467

U.S. 837 (1984), the court develo;ed a two part test to determine when

administrative agencies should be given deference over courts based upon

congressional intent, and the agencies expertise in a particular area. In

Grimes, the trial court did not defer to the expertise of an ADA coordinator

in determining the need for accommodations, as required by the ADA and

5

legislative intent. This failure to effectively evaluate the need for

accommodations resulted in the dismissal ofGrimes' action.

Title II of the Americans with Disability Act of 1990 (ADA or Act),

provides that:

...[N]o qualified individual vrith a disability shall, by reason of suchdisability, be excluded from participation in or be denied the benefitsof the services, programs cr activities of a public entity, or besubjected to discrimination by any such entity. See ADA § 12132.

In Tennessee v. Lane, 541 U.S. 509, 511 (2004), the court found that:

"....Congress enacted Title I against a backdrop of pervasiveunequal treatment of persons v ith disabilities in the administrationof state services and programs, including systematic deprivations offundamental rights. The historical experience that Title II reflects isalso documented in the decisi ms of this and other courts, whichhave identified unconstitutiomi treatment of disabled persons bystate agencies in a variety ofpuilic programs and services...."

In Florida Bd. ofBar Examir ers re S.G., 707 So.2d 323 (Fla., 1998),

the court found the purpose of the ADA is to ensure that disabled persons

are put on equal footing with the non-disabled. It determined that S.G.

should be allowed extra time to take the Fla. Bar exam after reviewing her

disabilities.

In the trial court, Grimes also required and requested accommodations of

extra time so she could get medical treatment for disabilities but they were

denied without medical disability co isiderations in contrast with S.G. based

on a similar question of law.

6

Pursuant to the Fla. R. App. P. 9.030(2) (iv), when a decision of the

district courts of appeal expressly and directly conflicts with a decision of

another district court of appeal or of the Supreme Court on the same

question of law, the Florida Suprerre Court has discretionary jurisdiction to

review the decision. See also Art. V, § (3) (b) (3), Fla. Const. (1968).

In order for two decisions to be in express and direct conflict for the

purpose of invoking this Court's discretionary jurisdiction the decisions

should speak to the same point o ' law, in factual contexts of sufficient

similarity to permit the inference t1at the result in each case would have

been different had the deciding coirt employed the reasoning of the other

court as mandatory authority. Sg Kyle v. Kyle, 139 So. 2d 885, 887 (Fla.

1962). However, "[ifj the two c ises are distinguishable in controlling

factual elements or if the points of }aw settled by the two cases are not the

same, then no conflict cannot arise." Id. at 887.

Grimes conflicts with a significar t number of other cases (some of which

are presented here) and with the Title II of the Americans with Disability

Act of 1990 (ADA or Act).

In Thayer v. Chico's FAS, Inc. (Fla. App., 2012), Thayer was

terminated from her employment when she was unable to meet her deadlines

following the withdrawal of acco nmodations. Similarly, Grimes was

7

granted accommodations by the trial court on February 1, 2010 when two

hearings scheduled were rescheduled. However, like Thayer, the trial court

denied Grimes further accommodat ons. Grimes' case was then dismissed.

The appellate court failed to review the case de novo as requested and issued

a Per Curiam Affirmed decision.

To prove disability discrimination in Evans V. County ofAlachua, 937

So.2d 693 (Fla. App., 2006), Evais was required to show (1) she was

handicapped under the Florida Civil Rights Act; (2) she was otherwise

qualified for her job, with or without reasonable accommodations; and (3)

she was terminated solely because cf her handicap. See Hilburn v. Murata

Elec. N. Am., Inc., 181 F.3d 1220 (1: th Cir. 1999).

Similarly, to justify her inability to meet court deadlines, Grimes

presented numerous medical records that diagnosed her disabling conditions.

However, the trial court ignored these medical records and determined that

Grimes performed her court duties adequately. Then it dismissed Grimes'

action because of her inability to meet some deadlines without first

determining if accommodations were needed.

In Maggio v. Department of Laäor and Employment Security (DELS),

910 So.2d 876 (Fla. 2005), Maggio alleged that DELS denied certain

accommodations she needed in order to fully perform her duties, just as

8

Grimes was denied accommodation; she needed to fully represent herself as

a pro se litigant. A de novo review was done in Maggio, but not in Grimes.

In Ham v. Dunmire andAll Amer ican Termite and Pest Control, Inc., 891

So.2d 492 (Fla. 2004), the 1st DCA affirmed the dismissal with prejudice

entered by the trial court with regare to Ham's personal injury action against

Dunmire and All American. Ham was deposed but did not timely respond to

a set of interrogatories, failed to provide a formal witness list, and allegedly

did not appear at a meeting scheculed with opposing counsel to review

prospective trial exhibits. The cour; found that Ham was punished because

of her counsel's mistakes and reve:sed the order; but in Grimes, she was

sanctioned and her action was dismissed because of similar administrative

failures caused by Grimes' disabilities.

Pursuant to Fla. R. App. P. 9.030 (a)(2)(A)(v), when a decision of the

district courts of appeal pass upon a question certified to be of great public

importance, the Florida Supreme Court has discretionary jurisdiction to

review the decision. Several questions about ADA accommodations should

have been raised by the appellate court in the instant case but it failed to do

so.

On October 16, 2012, the appell1te court issued a PCA decision with no

written opinion. With no written opinion, it cannot be determined if a

9

critical point of fact or law was overlooked or misapprehended or whether

this decision expressly and directly ::onflicts with a decision of this Court or

another District Court of Appeal and, as such, no rehearing or rehearing en

banc is requested. The decision by the appellate court directly raised

additional questions that should have been certified to be of great public

importance. These questions are:

(1) Does service of motions of continuance and requests fortelephonic hearing, that include medical documentation, satisfy thegood faith intentions by a pre se litigant of "notice of medicaldisabilities requiring ADA accommodations" under Title IIGuidelines for the State Courts System ofFlorida; and

(2) Does uncontrovered proof ofdelivery of a disabled individual'smedical records to officers' of the court charge the officers with"knowledge" sufficient to cor stitute the denial of due processrights of a disabled individual required under the ADA?

Because of due process rights, ADA issues are matters of extreme

importance to every citizen. These questions and this appeal deserved a full

review by an appellate forum. Moreover, this case involves a pro se

claimant - with limited knowledge of court requirements - and courts have

traditionally favored leniency of court and administrative rules in this

context, particularly where the statute issue is an ADA-based remedial

statute to be construed in favor of thé petitioner, not the , not the defendant.'

1 See City ofBoerne v. Flores 521 U. 3. 507, 532 (1997). Title II'saffirmative obligation to accommodate persons with disabilities in the

10

In Haines v. Kerner, 404 U.S. 510, 520 (1972), the court said:

"According opportunities for responsive pleadings to indigentlitigants commensurate to the opportunities accorded similarlysituated paying plaintiffs is all the more important because indigentplaintiffs so often proceed pro se and therefore may be less capableof formulating legally competent initial pleadings."

In Overton v. Bazzetta, 539 U.S. 126, 138 (2003), the court imputed

rights under the constitution, saying:

[W]alls do not form a barrier separating [pro se litigants] from theprotections of the constitutions....

and then said:

[W]hen....a regulation or practice offends a fundamentalconstitutional guarantee feder†1 courts will discharge their duty toprotect constitutional rights. Procunier v. Martinez, 416 U.S., at 405-406.

CONCLUSION

For the reasons and legal authorities set forth herein, it is respectfully

requested that this Honorable Court exercise its discretionary jurisdiction

over the instant case.

Respectfully submitt,ed,

LSara GrimesPro Se Petitioner3275 S. John Young Pkwy. #122Ki ssimmee, Florida 34746

administration ofjustice cannot be se id to be "so out ofproportion to asupposed remedial or preventive object that it cannot be understood asresponsive to, or designed to prevent unconstitutional behavior."

11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was served by

U.S. mail this 29th day of Noveinber, 2012 to: Bruce Bogan, Esquire,

Hilyard, Bogan & Palmer, P.O. Box 4973, Orlando, Florida 32802; Gary

Vasquez, Esquire, and Hae Kim, Esquire, Vasquez & Tosko, LLP, 225 E.

Robinson, Suite 525, Orlando, Florida 32801.

By: 841L

Sara Grimes

CERTIFICATE lOF COMPLIANCE

I HEREBY CERTIFY that the foregoing complies with Rule 9.210, Fla.

R. App. P., in the typeface anc font size, Times Roman 14 point

proportionatelyspaced.

By: JAML

Sara Grimes

12

APPENDIX

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JULY TERM 2012

NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILED

SARA GRIMES,

Appellant,

v. Case No. 5D11-3729

KEVIN BEARY, IN HIS OFFICIAL CAPACITY, ETC.,

Appellees.

Decision filed October 16, 2012

Appeal from the Circuit Courtfor Orange County,Julie H. O'Kane, Judge.

Sara Grimes, Kissimmee, pro se.

Bruce R. Bogan and Deborah I. Mitchell,of Hilyard, Bogan & Palmer, P.A,Orlando, for Appellee, Kevin Beary.

Hae J. Kim and Esteban F. Scornik,of Vasquez & Tosko, LLP, Orlando,for Appellee, Pacino's, Inc.

PER CURIAM.

AFFIRMED.

GRIFFIN, EVANDER and BERGER, JJ., concur.