Title III of the American with Disabilities Act prohibits discrimination against persons with disabilities in places of public accommodation and commercial facilities. Practically all types of businesses that serve the public are covered by Title III. These include restaurants, hotels, theaters, convention centers, doctors’ offices, retail stores, museums, libraries, private schools, health spas, and day care centers. This is the case regardless of the size of the business and the age of the building the business occupies. Among the affirmative steps Title III requires of a place of public accommodation is the making of “reasonable modifications” to its business policies and procedures when necessary to serve customers with disabilities. There are few exceptions to this rule.
In a case brought under Title III, the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) found the customer was unable to show she was excluded from a restaurant that refused to permit her service animal in the restaurant. Accordingly, the Court affirmed dismissal of her claims based on the ADA and the laws of New York State and New York City. Krist v. Kolombos Rest. Inc., No. 11-1263-cv (2d Cir. July 24, 2012).
Cheryl Krist had been disabled since at least 2003, when she began using walking aids and a wheelchair. She acquired a service dog in 2008. Krist had been going to the Coopertown Diner (Kolombos Rest. Inc.) since 1988. She went there nearly every day for breakfast and lunch and often stayed for more than five hours. She knew other customers, the employees, and its owners.
When she told the owners she will be coming in with a service dog, one of them told her this was permitted as long as the dog was licensed and was truly a service dog; otherwise, the dog would be excluded in order for the restaurant to avoid being penalized by the health department.
Krist went to the restaurant with the service dog from December 2008 to September 2009. She claimed restaurant employees became “very cool” and pleasantries with other customers ceased, one even refused to speak with her. She also claimed the owners yelled at her on several occasions. She said that one of the owners had once, “from behind the counter on the opposite side of the restaurant, stared at the dog and made growling sounds.” When the dog responded with a sound, Krist said the owner ordered her to leave the restaurant. On another occasion, when she took the dog out from under the table to show it to another customer, the owner yelled at her, accusing her of playing with the dog.
When Krist complained to the other owner, he told her that she should sit at a table at the front of the restaurant and that she should leave after eating. The owners, concerned about a safety hazard to customers and the servers, told her to keep the dog out of the aisle. Krist, however, preferred a back booth when it was available, sometimes allowed the service dog to lie in the aisle, rather than under the table, and stayed after she had finished eating.
Krist sued Kolombos Rest. Inc. for discrimination on the basis of her disabilities, alleging violations of Title III of the ADA, New York State Executive Law §§ 290-301 (“State Human Rights Law”), and New York City Administrative Code §§ 8-101 to 8-703 (“City Human Rights Code”). She claimed Kolombos discriminated against her by attempting to restrict her access, and that of her service dog, to the restaurant and by verbally harassing her on account of her disability and use of the service dog. (There never was any issue over whether the dog in fact was a service dog.)
After a bench trial, the district court entered judgment in favor of the restaurant. It found the restaurant had not denied Krist full and equal access to and use of the restaurant, either with or without her service dog. It ruled that restaurant employees’ comments, which Krist considered rude or insensitive, did not constitute a violation of the ADA. Krist appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit.
On appeal, Krist contended principally that the district court erred by (1) basing its decision on the premise that a plaintiff complaining of a violation of Title III of the ADA is required to establish that discrimination was intended, (2) failing to find that Krist was actually excluded from the restaurant, and (3) failing to construe the ADA as imposing a code of civility and to rule that the restaurant violated the ADA by constructively excluding Krist from the restaurant.
The Second Circuit, concluding that there was no error in the district court’s decision, affirmed the judgment.
ADA Title III
Title III of the ADA prohibits discrimination against an individual “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases … or operates a place of public accommodation,” e.g., a “restaurant … serving food or drink.” The law defines discrimination to include, in relevant part,
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services … to individuals with disabilities, unless … such modifications would fundamentally alter the nature of such goods, services….
To state a claim for violation of Title III, which authorizes private actions only for injunctive relief, not monetary damages, a plaintiff must establish:
- he or she is disabled within the meaning of the ADA;
- that the defendants own, lease, or operate a place of public accommodation; and
- that the defendants discriminated against the plaintiff within the meaning of the ADA.
The appellate court explained that only the third element is at issue in this case.
First, the Court said it was “inclined to agree” with Krist that intentional discrimination is not required for recovery under the ADA. It found, however, the district court did not require a showing of intent as an element in the Title III claim.
Next, the Court agreed with the district court’s ruling that Krist did not show she was excluded from the restaurant because of her disability. Krist was permitted to sit where she wanted, keep the dog where she wanted so long as she did not block an aisle, and stay as long as she wanted. Further, the Court found any shouts by the owners were isolated and the restaurant employees’ behavior was not outrageous or demeaning verbal harassment. In addition, the owners yelled at her only on two or three occasions over 10 months, and these incidents concerned the dog’s conduct or Krist’s handling of the dog.
Finally, the Court held the ADA “does not impose a civility code.” The ADA was designed to prevent a facility offering public accommodation from denying individuals with disabilities goods and services, the Court pointed out. Krist failed to prove she was denied any goods or services by the defendant.
State Human Rights Law
The Court dismissed Krist’s claim under the New York State Human Rights Law, explaining that “the State-law claim is coextensive with Krist’s Title III claim and her challenge to the dismissal of the State-law claim thus lacks merit for the reasons discussed above with respect to Title III.”
City Human Rights Code
Krist asserted a claim for punitive damages under the New York City Human Rights Code, under which an award may be available upon a showing of intent to discriminate in violation of the law. The district “court’s findings with regard to discriminatory intent,” the Court said, “were pertinent to punitive damages, which could not have been awarded except under the City Code.” However, as Krist did not challenge the district court’s dismissal of the City Code claim in her appeal, the Court considered it abandoned.
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Public accommodations, including restaurants and retailers, should consider implementing policies and procedures regarding the use of service animals on their premises by patrons and customers. Such policies would further Title III compliance efforts by providing a uniform and consistent response to situations where disabled customers enter the premises with service animals, including permissible inquiries regarding the service animals and health-related issues, typically of interest to restaurants. Any “blanket” policy or practice prohibiting service animals on the premises should be modified to avoid Title III claims by disabled customers. Of course, any policy also should be reviewed for compliance with the state and local disability action laws.