Wednesday, September 13, 2017
C.A.: Disabled Man Properly Denied Entry To Market With Untrained Service Dog
By a MetNews Staff Writer
A handicapped man was properly barred from entering two fish markets with his dog, the Court of Appeal for this district held yesterday, because the animal was not trained as a service dog.
The opinion by Justice Jeffrey Johnson of Div. One affirms a summary granted by Los Angeles Superior Court Judge Russell S. Kussman to defendant Fortune Commercial Corporation which owns and operates Seafood City markets.
Plaintiff Joey Miller—who suffers an intellectual deficiency and autism preclude him, at 20, from functioning at a higher level that as 12-year-old—sued under the Unruh Civil Rights Act, the Disabled Persons Act (“DPA”), and for intentional infliction of emotional distress. He claimed the dog, Roxy, was able to recognize some of his symptoms and would deter him from wandering off.
Johnson said the Unruh Act does not, itself, define a service animal, but incorporates the Americans With Disabilities Act (“ADA”). A regulation accompanying that act provides:
“Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
“The ADA regulation notably uses the past tense in describing a service dog—“trained.” In other words, the language of the ADA regulation indicates that a dog that is in the process of being trained as a service animal, but whose training has not yet been completed, cannot yet be considered a service animal.”
The jurist added:
“Accordingly, we hold that the Unruh Act prohibits arbitrary discrimination in public accommodations with respect to trained service dogs, but not to service-dogs-in-training.”
Under the DPA, a service dog may be taken to a place open to the public for the purpose of training. Johnson said the evidence showed that neither Miller nor hos step father, who accompanied him, had knowledge training techniques and, in any event, initially went to a Seafood City market based on a spur-of-the-moment decision to buy fish.
Addressing the emotional distress claim, Johnson said:
“[A]s Miller concedes, his emotional distress claim is premised on Defendants’ violation of the Unruh Act and/or the DPA—that is, if no such violation occurred, then there was no extreme and outrageous conduct by the Defendants. Since we hold that Defendants are entitled to judgment as a matter of law on Miller’s statutory claims, we must necessarily hold that Miller failed to present substantial evidence in support of his emotional distress claim.”
The case is Miller v. Fortune Commercial Corporation, B271214.
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