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Flying with an Emotional Support Animal? Airlines no longer required to give ESAs in-cabin access.

Yesterday, the U.S. Department of Transportation (DOT) announced revisions to the Air Carrier Access Act (ACAA) rule on the transportation of “emotional support” and service animals on airplanes. This decision comes after years of tension surrounding emotional support animals being allowed to fly in plane cabins for free.

Unlike service animals, there is no requirement that emotional support animals have any kind of training. There is also no restriction on the type of animal that provides emotional support, while service animals are dogs or, in limited cases, miniature horses. In recent years, individuals have attempted to bring a range of animals, including turtles, a pig, a squirrel, and even a peacock, onto flights as emotional support animals.

The new rule is in keeping with the Americans with Disabilities Act in that airlines can treat emotional support animals as pets and do not need to give such animals public access rights. Now, airlines must only allow task-trained service dogs to fly for free in plane cabins. Airlines are also permitted to require that the service dog fit within the handler’s foot space, which means they can preclude service miniature horses.

DOT also stood by its earlier decision that prohibits airlines from banning service animals who are of a certain breed. Delta currently bans pit bull service dogs.

Specifically, the new rule, which goes into effect in 30 days:

  • Defines a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a person with a disability (no longer requiring airlines to accommodate miniature horses, cats, rabbits, birds and all other “service animals” that airlines are currently required to transport);
  • No longer considers an emotional support animal to be a service animal;
  • Requires airlines to treat psychiatric service animals the same as other service animals;
  • Allows airlines to require forms developed by DOT attesting to a service animal’s health, behavior and training, and if taking a long flight attesting that the service animal can either not relieve itself, or can relieve itself in a sanitary manner;
  • Allows airlines to require individuals traveling with a service animal to provide the DOT service animal form(s) up to 48 hours in advance of the date of travel if the passenger’s reservation was made prior to that time;
  • Prohibits airlines from requiring passengers with a disability who are traveling with a service animal to physically check-in at the airport instead of using the online check-in process;
  • Allows airlines to require a person with a disability seeking to travel with a service animal to provide the DOT service animal form(s) at the passenger’s departure gate on the date of travel;
  • Allows airlines to limit the number of service animals traveling with a single passenger with a disability to two service animals;
  • Allows airlines to require a service animal to fit within its handler’s foot space on the aircraft;
  • Allows airlines to require that service animals be harnessed, leashed, or tethered at all times in the airport and on the aircraft;
  • Continues to allow airlines to refuse transportation to service animals that exhibit aggressive behavior and that pose a direct threat to the health or safety of others; and
  • Continues to prohibit airlines from refusing to transport a service animal solely based on breed.

The full rule can be found here: https://www.transportation.gov/sites/dot.gov/files/2020-12/Service%20Animal%20Final%20Rule.pdf

And, as always, if you have questions about this new rule, consult an attorney.

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Being a volunteer is no defense to animal cruelty

The 11th District Court of Appeals rejected the argument that a volunteer cannot be criminally liable for animal cruelty or neglect.

Facts.  Jo Ann Brantweiner was charged with 8 counts of companion animal cruelty involving a total of 97 dogs and cats.  The animals were kept by a nonprofit organization known as the Animal Rescue Center in conditions of extreme filth.  The odor of urine and fecal ammonia caused their eyes and throat to burn.  Many animals were suffering from untreated illnesses, untreated, open wounds, emaciation and dehydration.  One had an exposed tendon.

Brantweiner was one of the main volunteers who cared for the animals. 

Brantweiner took her case to the Court of Appeals, claiming that a volunteer cannot be criminally responsible for animal neglect.  The Court rejected that argument.  A defendant can be a “custodian” or “caretaker” of an animal, subject to animal cruelty laws, even though she was an unpaid volunteer.

Brantweiner was ordered as part of sentencing to pay $85,000 restitution for the care of the animals prior to trial.  The Court of Appeals held that a trial court is not required to warn a defendant about the possibility of being ordered to pay restitution for care of neglected animals prior to trial, and failure to do so does not make the plea involuntary.  [Her restitution order was later reduced to $1,000 due to inability to pay.]

The case was investigated by the Eastlake Police Department with assistance from Lake Humane Society.

The Case citationState v. Brantweiner, 11th Dist. Lake Nos. 2019-L-155, 2019-L-156, 2019-L-157, 2019-L-158, 2019-L-159, 2019-L-160, 2019-L-161, 2019-L-162, 2020-Ohio-5235.

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Special sanctions for Ohio animal hoarders

Inside the ARC facility

The 11th District Court of Appeals upheld a number of notable, special sanctions in an animal hoarding case we prosecuted in the Willoughby Municipal Court for the Eastlake Police Department.

Facts:  Defendant Nadine Betchel operated a loosely organized nonprofit animal rescue operation called the Animal Resource Center in Eastlake, Ohio.  Officers executed a search warrant at the property.  Officers found 97 dogs and cats living in conditions of filth with high concentrations of urine and fecal ammonia.  Many were suffering from untreated medical issues.  All were deemed to be suffering unnecessarily by the veterinarian on scene and were removed and impounded at the Lake Humane Society.

Defendant was found guilty of eight counts of companion animal cruelty involving all 97 animals.

Here are the highlights from the Court of Appeals:

(a) A court may impose a lifetime ban on possessing companion animals.
(b) A court may order an offender to reimburse a humane society for costs of care and rehabilitation of victims of companion animal cruelty.
(c) $85,296.10 in restitution is not an unconstitutionally excessive fine, especially where the defendant makes efforts to prevent the humane society from adopting out the animals.
(d) A prosecution for companion animal cruelty does not require a finding of probable cause in an R.C. 959.132 civil forfeiture hearing. The two proceedings are separate and distinct.
(e) A court may only order 18 months in jail as the maximum term of consecutive misdemeanors.  If the trial court errs by ordering a longer term, the sentence may be simply modified and reduced to 18 months by the appellate court.

The Case:  State v. Bechtel, 11th Dist. Lake Nos. 2019-L-145, 2019-L-146, 2019-L-147, 2019-L-148, 2019-L-149, 2019-L-150, 2019-L-151, 2019-L-152, 2020-Ohio-4889

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Covid-19: Connecting to loved ones in lock down

How do you connect with loved ones in lock down at nursing homes? Residents in nursing homes, assisted living, group homes or other care facilities are isolated in the best of times. Now, with the lock down of facilities to protect against Covid-19 infection, they are completely cut off from family and loved ones. What can you do to help?

Lockdowns protect the fragile

The elderly are the most likely to die from the Covid-19 virus. Most already have underlying conditions and the ravages of aging itself makes it harder to fend off virus symptoms that may be very severe.

Some of the very first precautions taken during the pandemic was the screening of visitors to nursing homes. A masked employee would take your temperature, give you a survey about recent travel and ask if you had any symptoms. Very soon after that, facilities completely closed to visitors and any other unnecessary personnel. Non-medical staff moved off site, and medical staff were screened before each shift. They would wear masks for their entire shifts.

Know what’s happening inside

Visiting a loved one in a nursing home is the best way to ensure they are being treated properly and are doing well. But, there are other ways to check on them during this lock down.

In Ohio, the Department of Health issued an order that nursing homes must notify family members within 24 hours if someone in the facility tests positive for Covid-19. Ohio also provides a list of facilities with reported cases at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards/long-term-care-facilities/cases

Family members also may wish call the facility and ask. Specific questions may include: Are patients confined to their rooms or allowed to be in the halls? Are they eating in their rooms? Have you had any cases? Have you had any deaths? What are you doing with those who test positive? Are you taking in new residents? Are you quarantining them before they are mixed in with current residents?

Also ask questions about your loved one’s general wellness: How is he/she? Is he/she eating properly? Do they seem worried or depressed? Are they less active than before? Is their health good? Are they showing any symptoms?

You may want to call every 7 to 10 days in most circumstances. Care facility staff are busy, but most will take a few minutes to update you on your loved one.

Some facilities have a web page available only to family members and loved ones to give updates on the facility and its response to the pandemic.

Connecting with your loved one

While you can’t visit, there are other ways to connect with your loved ones. The news is full of families standing outside windows waving or holding signs for their loved ones. Many facilities are offering Skype or other video sessions so you can see your loved one as you speak to them. Phone calls cheer up residents who can speak on the phone.

You might also try sending cards or letters. Having a child write a letter or draw a picture for their grandparent, uplifts the spirit of the child and the elder. If you usually bring a favorite snack to your loved one, ask the facility if you can mail it.

Keeping your loved one safe

The safest place for your elderly loved one is in a care facility which is taking the utmost precautions to prevent spread of the virus. As much as you would like to visit or take them out for a day, the most thoughtful thing you can do is to leave them in place until the virus threat is past. Meanwhile, keep in touch with the facility and your loved one.

For information about specific areas of law, see our web page: http://holland-muirden.com/

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Ohio’s Coronavirus “Stay at Home” order and Animal Care

Image result for dog at home alone

Ohio’s COVID 19 “Stay at Home” order does not prevent you from caring for animals.

The Ohio Department of Health issued an emergency order effective March 24, 2020 requiring all Ohio citizens to shelter at home to prevent the spread of the coronavirus. But there are exceptions:

  • Paragraph 5(e) permits a person to travel in order to provide care for or for the transportation of pets.
  • Paragraph 7 permits travel for the purpose of providing “veterinary care and all healthcare services provided to animals.
  • Paragraph 12(c) specifically permits people to engage in “essential work or activity,”  including “businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, kennels, and adoption facilities.”  This means that humane societies, dog shelters, animal rescues and animal boarding facilities can continue their important work.

Remember, anyone who keeps, harbors or confines an animal has a legal duty to provide care to prevent unnecessary suffering. Failure to do so could result in criminal penalties. (See O.R.C. 959.13 and 959.131.)

We urge everyone in this time of emergency to use social distancing and to take extra efforts to clean and sanitize to avoid spreading the virus while you care for your pets, and while you continue the vital work of animal rescue.

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When I’m gone, who will speak for my disabled child?

Every parent of a child with a disability worries – what happens when I’m gone?   Other children grow up to become self-sufficient. A child with a disability grows into an adult with a disability. They will need someone there for them. Who will speak for your disabled child when you’re gone?

Finding someone who “gets it”

Caring for a special needs child is tough enough. Parents know their own child. They know what they need now and what they will need as an adult.  Along the way, there are family or friends who also “get it.” These are people the parent would entrust with their child.

Parents planning for the future can ensure their child –whether a minor or an adult – is looked after by one of these trusted people.  Ohio law permits them to nominate a specific guardian for their disabled child, even if their son or daughter has entered adulthood.   

Parents nominate a guardian for the future when they may not be there. A guardian who will speak for their disabled child.

Who will speak for your child?

An adult with disabilities may need a guardian whether they live independently, in a group home or in an institution.  Even if a guardian doesn’t provide direct care, they will need to make important decisions about health care, living quarters or special educational needs.  A guardian oversees their care and steps in if something goes wrong. They become the disabled person’s voice.

If you pass away or are unable to make decisions for your child, the court can appoint a guardian.  If you have nominated someone for the post, the judge must consider that person, ask if they meet the legal requirements and determine it is in the best interest of your child.   Without a nomination, the court must consider whoever applies to be the guardian of your child.

We can help

At Holland & Muirden, we understand that the future – and estate planning – is different when you care for someone with special needs.  Contact us today to make your plans. http://holland-muirden.com/ohio-law-areas-of-practice/ohio-estate-planning-probate-attorneys/

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What happens to my Facebook page when I die?

By now, you’ve probably seen someone’s Facebook page change to memorial status when they pass away.  Facebook even lets you appoint a “Legacy contact” to manage your memorialized account.  Or, you can choose to delete your account completely once you die.

This Online Tool handles your Facebook account, but what about everything else?  Snapchat? Google Hangouts? Amazon? The online electric bill?  What happens to your email when you die? If you die, can someone else sign on to your account and pay your bills? Or turn off an automatic payment?

Ohio has a law to help answer these questions and let you plan for your Digital Assets if you die or become disabled.   In 2017, Ohio legislators passed the Digital Assets Act which gives you the tools to include online information in your estate planning.

If I am incapacitated…

 First, the newest Statutory Power of Attorney (a POA) form includes “Digital Assets” and “the content of electronic communication sent or received by me.”   In a POA, you select an agent to handle your affairs if you are alive but not able to make decisions. 

  The Digital Assets option gives them access to everything EXCEPT the content of your emails.  So, your agent can pay your electric bill or use your email address book to send health updates to some or all of your contacts.  So, if you want your agent to actually read your emails, you select the “content of electronic communication” option.  State lawmakers felt email content was highly personal and need to be chosen separately.

If I pass away…

However, a POA expires when you die.  So, to ensure someone has access to your Digital Assets and/or “the content of electronic communication” you should specify this in your will.  This language can be as general or as specific as you want.  It can be for all of your accounts or for a specific account, such as LinkedIn.

In conclusion, you can make sure someone has all your passwords, but accounts and passwords change.  Using “online tools” such as the Facebook options helps manage some accounts.   However, adding digital assets to your estate planning can ensure that all of your accounts are covered.  Your POA agent or the executor of your estate will be able to open and use your accounts to do what you wish or what’s best for your estate.

We can help

So, contact us today to talk about your Digital Assets and all your estate planning needs.

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Courts may order forfeiture of horses in animal cruelty case

On September 20, 2019, the 11th District Court of Appeals in Ohio held that a sentencing court may order an animal cruelty offender to forfeit horses as a condition of probation without going through the more cumbersome process of a full forfeiture proceeding.

The history of this case is complicated. Defendant Bianca Marcellino was convicted after a jury trial of two counts of animal cruelty for neglecting two horses, which were found to be emaciated and suffering from rain rot. Bianca Marcellino stated in a sworn affidavit that she was the sole owner of the horses. However, just before her sentencing hearing, Bianca’s mother, Karen Marcellino, filed a motion claiming to be the owner in an attempt to block forfeiture of the horses to the Geauga County Humane Society. The Court found that there was no evidence supporting Karen’s claim and ordered the horses to be forfeited.

The horses were rehabilitated by the Humane Society and placed in a new home. 

Karen filed an appeal. The Court of Appeals dismissed her case, finding that the case was moot, as the horses were already placed with a new home. State v. Marcellino, 11th Dist. Geauga Nos. 2019-G-0199, 2019-G-0200, 2019-Ohio-3329. Karen filed a motion to reconsider, claiming that there should have been a separate forfeiture proceeding beyond the sentencing in her daughter’s case.

The Court of Appeals denied the motion to reconsider. This appears to be the first appellate case in Ohio holding specifically that a sentencing court may order forfeiture of livestock as a condition of probation under R.C. 959.99(D) without further court proceedings.

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