Opinion
Case No. 1D03-1433.
Opinion filed June 24, 2004. Rehearing Denied July 28, 2004.
An appeal from the Circuit Court for Duval County, James L. Harrison, Judge.
Nancy A. Daniels, Public Defender; A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for appellant.
Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for appellee.
Appellant raises five issues challenging his civil commitment under part V of chapter 394, Florida Statutes (commonly referred to as the "Jimmy Ryce Act"). We find none of the issues raised have merit, but we briefly comment on one: whether Florida's Jimmy Ryce Act which provides for involuntary civil commitment of sexually violent predators violates the Americans with Disabilities Act by failing to include the least restrictive alternatives to qualified persons with disabilities. While we seriously question whether Congress intended the Americans with Disabilities Act to provide protection to sexually violent predators, we find it is unnecessary to reach that issue because we find the following passage from Westerheide v. State, 831 So.2d 93 (Fla. 2002), to be dispositive:
[T]he statutory definition of a sexually violent predator renders less restrictive alternatives inapplicable. . . . The statute requires a determination by clear and convincing evidence that the person is a sexually violent predator, that is, the person "[s]uffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." § 394.912(10)(b), Fla. Stat. (2001) (emphasis added). Thus, if the person is amenable to less restrictive alternative treatment he or she does not meet the statutory definition of a sexually violent predator and is not subject to commitment under the Ryce Act.
Id. at 103 (emphasis in original).
The decision of the trial court is affirmed.
VAN NORTWICK, J., CONCURS; ERVIN, J., CONCURS WITH OPINION.
In my judgment, Westerheide v. State, 831 So.2d 93 (Fla. 2002), does not address the argument appellant raised, which appears to be that the Americans with Disabilities Act (ADA) preempts the involuntary civil commitment of a disabled person such as appellant, because the Act defines disability, among other things, as a "mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A) (2002). Appellant points out that he has been diagnosed with both paraphilia and an antisocial personality disorder, and that pertinent federal regulations implementing the ADA require placement of disabled persons in "setting[s] that enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible." Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. Pt. 35, App. A 450 (2002). He argues that total confinement in a secure facility for a disabled person such as himself, as required by the Jimmy Ryce Act, because of his designation as a sexually violent predator, is contrary to the dictates of the ADA, and requires reversal of the commitment order.
"Paraphilia" is variously defined as "aberrant sexual activity; sexual deviation; expression of the sexual instinct in practices which are socially prohibited or unacceptable, or biologically undesirable." Dorland's Illustrated Medical Dictionary 967 (26th ed. 1985).
§ 394.912 (10)(a), Fla. Stat. (2002).
It appears, however, that the term "disability" does not include persons diagnosed with sexual disorders. In the Vocational Rehabilitation Act, 29 U.S.C. § 705(20)(F)(I) (2002), the term "individual with a disability" expressly excludes "transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders." (Emphasis added.) The exclusion of sexual behavior disorders from the definition of disability in the Vocational Rehabilitation Act can be construed as applying to the ADA as well. See Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993) (observing that the ADA provides persons with disabilities the same rights and remedies as provided under Rehabilitation Act); Galloway v. Superior Ct. of D.C., 816 F. Supp. 12 (D.D.C. 1993).
The appellee has cited 42 U.S.C. § 12111, as containing the same language in the ADA; however, that exclusion no longer exists in the ADA.
I therefore join with the majority in affirming the commitment order, but for reasons different from those expressed by the majority.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.