Colonel Johnny

Before turning to the blog entry of the day, today is Veterans Day. I want to wish everybody who fought for our country or has family that served in the military a good Veterans Day. I also want to wish everyone a happy Veterans Day.

 

The case of the day is from the Northern District of Alabama decided on July 21, 2020. It is Smith v. Morgan18067671181971186767. It is an interesting case involving a deaf individual with a service dog, a business that didn’t know what the service dog rules were but immediately leapt in to fix it when they found out what went wrong, the police, and the city attorney. I chose the case because you don’t often see service animals with respect to the deaf, though I have one. Also, it is an interesting representation of what can happen when a business races to fix the problem even when non-architectural barriers are involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning the case is not moot; court’s reasoning that the injunction is not necessary; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts (taken directly from the opinion)

 

On May 4, 2017, Amber stopped at an Exxon gas station in Hanceville, Alabama with her husband, Chad Smith, and their two kids. The Smiths regularly stop at the Hanceville Exxon when they visit Chad’s parents in the area. Chad and the kids entered the store first. Amber followed a few minutes later with her service dog, Sassy. A store employee quickly approached Amber and told her that dogs were not allowed in the store. Doc. 51-2 at 6. Amber, of course, could not understand the employee. Chad intervened and explained to the employee that Amber was deaf and that she used Sassy as her service dog. Id. The employee then demanded proof that Sassy was a service dog, to which Chad responded that it is unlawful to request a service animal’s papers. Id. At that point, the employee “got made and stormed off.” Id. The employee went to consult with another employee—Ashleigh Chaffin. Doc. 51-3 at 4. Chaffin says she had a conversation with Chad too, id. at 5, but Chad does not remember this conversation, doc. 51-2 at 6. According to Chaffin, she *4 asked Chad if he had papers to prove that Sassy was a service animal, to which Chad again replied that it was unlawful to ask for a service dog’s documentation. Doc. 51-3 at 5. Chaffin told Chad she was going to call the police for “clarification.” Id. 4 3 4 3 In her deposition, Chaffin insists that neither she nor the first employee would have asked to see Sassy’s papers; they would have asked only if Sassy had papers. Doc. 51-3 at 5, 8. That is not how Chad remembers it; he specifically remembers that the first employee wanted to see Sassy’s papers. Doc. 51-2 at 6. On a motion for summary judgment, Chad’s memory governs. Either way, the question was unlawful. See 28 C.F.R. § 36.302(c)(6). 4 In a declaration, Chaffin elaborates on her decision to call the police: “[I]t was not clear to me at the time how I was to determine if the animal was a service animal without some documentation, and I did not want to violate any health department regulations concerning the presence of animals in establishments that serve food.” Doc. 51-7 at 3. After Chaffin announced that she was calling the police, Amber and Chad approached the counter to purchase a few items from the store. Doc. 51-2 at 7. When Amber and Chad tried to pay, however, Chaffin allegedly told the cashier: “We’re not selling them anything. Don’t sell them nothing.” Id. at 8. Amber and Chad waited at the counter until the police arrived. Id. Three police officers responded to the call. Doc. 51-1 at 6. Like the employees, the police questioned whether Sassy was a service animal, and asked to see documentation. Doc. 51-2 at 10. Again, Chad responded that it is unlawful to ask to see documentation for a service animal. Id. The police decided to call the city attorney. Id. at 5 11; doc. 51-3 at 10. *5 According to Chad, the city attorney advised that the store was allowed to ask to see Sassy’s papers, and the Smiths had to produce those papers. Doc. 51-2 at 12. At that point, Amber showed the police a certificate from a website that said Sassy was a service animal. Id. Even after producing the certificate, the police forced Amber 5 2 Smith v. Morgan Civil Action Number 5:18-cv-01111… and Sassy to stay with them by the front of the store while Chad paid for their items. Id. The Smiths then left the store. The Smiths intend to return to the store, because it is the most convenient gas station when they visit Chad’s parents, but they have not yet done so. Id. at 13-14. 5 Wilson recalls that the city attorney (correctly) advised them that they could not ask for proof of a service animal. Doc. 51-4 at 9. This would be a devastating confession, since they continued to seek proof that Sassy was a service animal after receiving the city attorney’s advice. See doc. 51-3 at 7.

 

Wilson, the manager and majority-owner of the store, claims that “[i]mmediately after the Smiths left,” she looked up the law about service animals and learned that businesses “could not ask for proof that animals brought into the store were service animals.” Doc. 51-6 at 4. The Smiths promptly retained counsel, and one week after the incident they mailed a notice to preserve evidence to the defendants. Doc. 51-3 at 21. After receiving this notice, Wilson posted a sign on the store window reading, “Service Animals Welcome.” Doc. 51-4 at 5; doc. 51-3 at 10. She also printed a summary from the Department of Justice (“DOJ”) of the rules regarding service animals, and *6 placed it near the register. Doc. 51-4 at 6; Doc. 51-3 at 23-25. Furthermore, Wilson required the store’s employees to sign an agreement indicating that they had reviewed the DOJ’s summary. Doc. 51-4 at 13; doc. 51-6 at 14-28 (showing that the first employee signatures occurred on May 22, 2017). 6 6 6 Also on May 22, two of the officers who responded to the scene drafted statements memorializing their memory of the incident. Doc. 51-4 at 20-21. Either Wilson or Chaffin asked the officers to draft the statements. See doc. 51-3 at 10. The timing of the officers’ statements further corroborates that the defendants sprang into action after they received notice of legal action.

 

Plaintiff lawsuit alleged violations of the ADA and various state law claims. In particular, plaintiff asked for a declaratory judgment stating that the defendant violated the ADA as well as an injunction ordering them to modify their policies and practices to be consistent with the ADA to allow her full and equal access to the store. Defendants moved to dismiss the ADA claims arguing that the claims were now moot because they had changed their policy to comply with the law. The court denied that motion and the defendants moved for summary judgment.

 

II

 

Court’s Reasoning the Case Is Not Moot

 

  1. A case is not generally mooted when a defendant voluntarily ceases a challenged conduct.
  2. Voluntary cessation only moots a case where the defendant meets the heavy burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.
  3. In the 11th Circuit, three factors are considered with respect to the probability of recurrence and they are: 1) whether the challenged conduct was isolated or unintentional as opposed to a continuing and deliberate practice; 2) whether the defendant’s cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and 3) whether in ceasing the conduct, the defendant has acknowledged liability.
  4. While the defendant admitted they asked customers with service animals for documentation in the past, at the time defendant did not know the ADA prohibited asking such questions. Therefore, the challenged conduct was continuing but unintentional.
  5. Evidence shows that it was not until after the defendant received notice of a potential lawsuit that they posted the sign welcoming service animals and required employee to sign the agreement acknowledging familiarity with the rules concerning service animals. Therefore, defendants’ actions were motivated by the impending lawsuit. Reform timed to anticipate or blunt the force of a lawsuit offers insufficient assurances that the practice sought to be enjoined will not be repeated.
  6. The defendants explicitly conceded that they cannot ask for documentation of a service animal, and that they must provide persons with disabilities full and equal access to the store. As such, that gives the court little reason to fear future injury.
  7. The main bulwark against recurrence of the requirement is that new employees read DOJ’s summary of the law regarding service animals. That is hardly a foolproof solution. Defendants testified that the store has a lot of turnover. All it takes for this bulwark to fail is one new employee falsely claiming to have read the summary or the store forgets to tell an employee about the policy. After all, defendants have consistently argued that most people have no idea you cannot ask for a service animal’s papers. So, it is entirely conceivable that the defendant could also grow weary of the policy and simply revert to their own practice. As such, telling the court that the challenged conduct no longer exist in disclaiming any intention to revive the practice is not enough to moot the case.

 

III

Court’s Reasoning That an Injunction Is Not Necessary

 

  1. Evidence shows that the defendant violated the ADA unknowingly.
  2. Evidence indicates that the defendants intend to respect the law regarding service animals going forward.
  3. Plaintiff has not presented any evidence challenging the defendant’s evidence that they have followed the laws since there encounter with her.
  4. Where the court to issue an injunction, it would not order the defendant to do more than they already doing.
  5. The analysis of whether a declaratory judgment is warranted is the same as the analysis for an injunction. After all, courts are not in the business of pronouncing past actions that have no demonstrable continuing effect right or wrong.

 

IV

Thoughts/Takeaways

 

  1. The defendant claimed that she could not be held individually liable as the ADA does not provide for individual liability. However, the defendant was the 60% owner of the store and therefore, she can be held liable under the ADA as the owner of the place of public accommodation.
  2. In the summary section before Judge Kallon gets into his facts and reasoning, he says that a place of public accommodation can only ask two limited questions when it comes to service animals: 1) is the animal required because of a disability; and 2) what work or tasks the animal has been trained to perform. The two questions are correct but saying that only those two limited question can be asked is not. If you look at 28 C.F.R. §36.30218168681191981196868(c)(6), you see that the phrase used is “two inquiries,” and not two questions. Inquiries are a broader category than questions.
  3. This is not an architectural barrier case. However, the case shows how fixing the problem promptly can forestall liability even in a non-architectural barrier case.
  4. You don’t see a lot of service animals with respect to the deaf, but they absolutely exist. I was talking to a person who is deaf recently and familiar with service dogs and the deaf. She told me that with respect to the deaf who have service dogs, they are commonly used in the house and not outside. It was nice to hear that I am not the only deaf person using my service dog in that way.
  5. I am not sure I follow why a declaratory judgment was not in order even though an injunction was not. The violation of the ADA was crystal clear. If the court had granted the declaratory judgment, then plaintiff would have been able to obtain attorney fees as the prevailing party even as the court denied the injunction. I am not sure why the declaratory judgment decision and the injunction decision necessarily have to be the same. I would love to see comments from readers doing litigation on the question of whether a declaratory judgment and an injunction must move in lockstep with each other.
  6. By using the search engine for my blog, you can find lots of relevant entries with respect to service animals, such as here18269691201991206969.
  7. Excellent move by the police getting the city attorney involved. Apparently, the city attorney made the right call.
  8. Ignorance of the law may be no excuse, but in this case it helped the defendant escape liability, especially since they raced to fix the problem once they were aware of their noncompliance.
  9. It is unclear what the court is referring to when it talks about the DOJ summary that the defendant has its employees read. Are they talking about the DOJ frequently asked questions document or something else? If they are talking about the frequently asked questions document, that document contradicts its final regulations with respect to whether the questions are limited to only two in number or whether it is inquiries that are limited to two in number. Under Kisor v. Wilkie18370701212001217070, discussed here, final regulations will prevail over a frequently asked questions document.
  10. Police forces definitely need training on the service animal rules for title III entities. In this case, the police mistakes with respect to what the law are required were alleviated by the city attorney. The lesson there is always get knowledgeable legal counsel involved when necessary and the earlier you do so the better.
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Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

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