service-animal-2011.jpg
A hefty penalty assessed against a Lane County convenience store owner who turned away a customer and her two service dogs illustrates lingering confusion over what constitutes a service animal and where they are allowed to go with their handlers.
(Faith Cathcart/The Oregonian/2011)
A $60,000 penalty levied against a Eugene businesswoman who refused to allow two service animals into her convenience store was meant to send a resounding message in support of Oregon's public accommodations law, says state Labor Commissioner Brad Avakian.
But that doesn't mean the case – or the confusion around it – is going away.
The store owner is certain to challenge the ruling. The Oregon Legislature is likely to revisit the issues surrounding service animals and treatment of their handlers. And a civil rights lawyer, speaking from personal experience, says there is more work to do on public education.
In a ruling last week, Avakian found that Kara Johnson, owner of the Duck Market Store in Eugene, violated Michel Hilt-Hayden's civil rights when the woman entered the store with two dogs, seeking to buy milk, but was asked to leave.
Investigators for Avakian's Bureau of Labor and Industries found "substantial evidence of disability discrimination" by Johnson in the April 17, 2013, incident and subsequent visits by Hilt-Hayden on the two following days.
On Wednesday, Avakian said that he ordered Johnson to pay compensatory damages for "emotional, mental and physical suffering" as a way of signaling that discrimination in public places won't be tolerated.
"The message is the law is clear," he said. "When an individual (business) is open to the public, they need to allow people free and equal access, and that includes people with disabilities. Service animals are a reasonable accommodation and, in this case, the store owner shut her doors to the customer not once, but three times."
Avakian said he does not have authority to issue a civil fine under the state's public accommodations law, but can award compensatory damages, as he did in this case.
Jill R. Fetherstonhaugh, a lawyer representing Johnson, said she will file a petition for judicial review with the Oregon Court of Appeals, seeking to overturn Avakian's Nov. 6 final order.
The Eugene attorney alleges that by misinterpreting federal and state law on the issue, the Bureau of Labor and Industries is setting a precedent that "would allow any person to bring an untrained animal into a place of public accommodation."
Confusion persists
Beyond this one case, it remains clear that much confusion persists among the public around the questions of what defines a service animal, what distinguishes them from a companion animal, and how business owners and public agencies are supposed to respond.
Bill Spiry, a Springfield attorney who practices employment, labor and civil rights law and who uses a guide dog himself, said the circumstances of the case pitting a store owner against a prospective customer are familiar to anyone who's ever seen someone enter a business with an animal and wondered if it's a legitimate assistance animal or merely a pet.
"There are plenty of examples of people bringing in their companion dogs and emotional support dogs to a business, and it's really been stretched to the point of abuse," Spiry said.
In the Eugene case, he said, Hilt-Hayden entered the store with two dogs on leashes but with no obvious identification that they were service animals. Johnson asked her to leave, apparently concerned that they shouldn't be in a place that prepares food but unaware that people with disabilities may bring service animals into stores and other public places, Spiry said.
The 2013 Legislature sought to deal with such confusion by passing a law that defines a service animal as one trained to provide assistance to someone with a disability.
Sen. Jeff Kruse, R-Roseburg, said he sponsored the legislation (Senate Bill 610) to make it clear that not all animals are service animals and shouldn't be allowed into some establishments.
Sen. Jeff Kruse, R-Roseburg
"Because there was no definition," Kruse said last year, "people were taking all sorts of critters into stores and into restaurants and saying they were service animals."
Business owners, restaurant workers and others may ask only whether a dog is a service animal required because of a disability and what work or task the dog been trained for. Federal and state law forbid asking for more, such as specifics about a person's disability or medical documentation, or requiring an identification card, training documentation or demonstration by the dog.
A legislative fix
Kruse said Tuesday he plans to introduce a bill in the 2015 legislative session to help provide greater clarity in two areas.
One, to ensure that people are getting what they pay for when they purchase a service animal. Kruse said members of the Blinded Veterans Association have come to him with stories of people selling dogs as service animals that aren't trained.
Two, to help business owners determine what is and what isn't a service animal without creating more hassle for people who use them.
"Is there a way we can get some certification?" Kruse asked rhetorically. "If you have a service animal with certification and you have it on the collar for everyone to see, to me, it's simple – end of discussion."
Kruse said he will work with BOLI staff, as he did in 2013, on the proposed reforms and Avakian said he welcomed the effort.
"I'm hoping we can get more clarity for business people, and for disabled people so they are treated with a higher level of respect," Kruse said.
Need for public education
Spiry acknowledged that he provided expert testimony on behalf of Johnson in the BOLI case. But he said his main concern is one of public education "because it isn't easy for people to deal with this."
Spiry, 53, was diagnosed at age 14 with a genetic condition affecting his retina and in 1998 completely lost his eyesight. He graduated from law school at the University of Oregon two years ago after previously working in human resources. He uses a dog trained by Guide Dogs for the Blind, so it's obvious from the animal's harness that it's a service animal, Spiry said.
He agrees that people with disabilities shouldn't have to carry proof of their limitations, but he believes that "more respectful dialogue" would help all Oregonians. Discrimination against the disabled is a real thing, he said, but overall he's seen a positive trend in the level of understanding and knowledge of the requirements of the Americans with Disabilities Act.
Larger employers, with in-house legal counsel and greater resources to educate and train workers, have an advantage in this regard, Spiry said.
"It's always been in the mom-and-pop shops and small restaurants (where conflicts arise)," he said. "There's no question there's a correlation."
If there is a takeaway from the Duck Market Store case, said Spiry, it is this:
"This kind of challenge is hard for people to get it right and here you have government making an effort to help people understand how to do it right. That would be my silver lining: Take the opportunity to learn a little more."