Saturday, January 7, 2012

Restaurant Refuses to Let in Service Dog, Pays $250 Fine; Disabled Handler Left with $84,000 Legal Bill

Pursuing civil rights complaints privately, as opposed to obtaining the help of the Civil Rights Division of the U.S. Department of Justice, or a state or local agency with civil rights enforcement authority, can be expensive. A recent case involving a restaurant on Staten Island that refused to admit a service dog in 2006 has cost the woman whose dog was refused admission over $84,000, and as of this writing it is not clear that the case is over.

Incident at Staten Island Restaurant

Ilene Degregorio obtained a mobility impairment dog in 2005. The trial court described Degregorio’s use of the dog as follows:

“The service dog, which was present in court, wears a harness so that Ms. Degregorio could hold and lean on the dog for support and would support her when she stood and walked. The dog was trained to understand the commands of Ms. Degregorio and is capable of retrieving items, holding packages and opening doors. If Ms. Degregorio fell, the service dog could assist her to stand. As a result of the use of the service dog, Ms. Degregorio claims that she has substantially regained the independence she lost in 1991.”

The incident that led to the lawsuit was described by the trial court:

“On July 26, 2006, Ms. Degregorio claims she made reservations for six people and a service dog to go to defendant's Bella Vita II Restaurant for her birthday celebration. However, the reservation book presented by Adem Cukaj, the owner of the defendant restaurant, Richmond Italian Pavilion, Inc., doing business as Bella Vita II, discloses only that a reservation was made for six people and no mention of a dog. The reservation was not taken by Mr. Cukaj; it was taken by one of his employees. Nonetheless, Ms. Degregorio came to the restaurant, accompanied by her husband, two children, father-in-law, mother and her service dog. Upon arriving at the restaurant, everyone but Ms. Degregorio and her service dog entered the restaurant because she decided to first toilet the dog. After approximately five minutes, Ms. Degregorio entered the restaurant where she was confronted by Adem Cukaj, who told her that she could not enter the restaurant with a dog. In response, Ms. Degregorio informed Mr. Cukaj that she is disabled and the dog is a service working dog, which is permitted to enter the restaurant. Ms. Degregorio asserts that she was wearing the New York City Service Dog licensed on a necklace around her neck and that in addition, the service dog was wearing a vest with bold large lettering of ‘Service Dog,’ ‘Canine Companion for Independence,’ and ‘Please don't pet, I am working.’"

Canine Companions for Independence is one of the largest and best known service animal organizations in the world. The court further describes the restaurant owner’s reaction:

“Mr. Cukaj told Ms. Degregorio not to proceed any further and wait while he made a phone call to inquire about her right to be accompanied by the dog into the restaurant. Mr. Cukaj claims that he could not reach the Department of Health or his lawyer at 6:00 p.m. that evening because they were both closed. Upon returning to Ms. Degregorio, he told her that she did not appear to be blind and therefore he did not have to allow the dog in the restaurant and that perhaps she could leave the dog in her vehicle, since she had others present to assist her in walking to the table.”

The assumption that only guide dogs are true service dogs is, unfortunately, still found from time to time. Degregorio persisted with the owner:

“In response, Ms. Degregorio showed Mr. Cukaj her service dog license which had been issued by the New York City Department of Health, Canine Companions for Independence identification, and a pamphlet titled 'Legal Rights of Guide Dogs, Hearings Dogs and Service Dogs' stating that service animals are allowed in restaurants and other places of public accommodation. Mr. Cukaj briefly looked at the items, but told Ms. Degregorio that he cannot allow her with the dog into the restaurant because she was not blind. After some other words with Mr. Cukaj and her husband, Ms. Degregorio signaled her family, who had been previously seated and were served bread and water awaiting her arrival, to get up and leave the restaurant. Ms. Degregorio claims that Mr. Cukaj told her and her husband that it was his restaurant and he will do what he likes in it. Mr. Cukaj disagrees with that characterization of the events and asserts that he had decided to seat Ms. Degregorio with her dog, but that she and her family just left. However, when Mr. Cukaj was asked if he asserted himself to tell them not to leave, he claims he never tried to persuade them to stay.”

The owner appears to have felt that not understanding the law regarding service animals was a relatively trivial flaw on his part. The following is the trial court’s summary of his testimony:

“During trial, Mr. Cukaj did not dispute that Ms. Degregorio has a disability, nor did he contest her use and need of her service dog, or that his restaurant is a public accommodation as defined under federal, state and local laws. Further, Mr. Cukaj does not dispute that Ms. Degregorio demonstrated to him a service dog license, which he claims ‘I didn't even look, because she didn't look blind.’ Mr. Cukaj did not dispute that the service dog was wearing a vest clearly identifying itself as a service working dog. Mr. Cukaj claimed that he was ignorant of the law stating ‘I didn't know if the Health Department allows me.’ Mr. Cukaj advised the court that he allows disabled people into his restaurant regularly; in fact, on the evening in question another female patron was seated in a wheelchair in the restaurant when the Degregorio party was present. Moreover, Ms. Degregorio admits that she has eaten at the restaurant on prior occasions utilizing a wheelchair and a walker without her dog and the she was treated courteously by the restaurant personnel. Mr. Cukaj claims he was aware that blind persons are allowed to have a dog assist them in a restaurant, but he was not aware that persons with other disabilities were also allowed to have a service dog in a restaurant.”

Degregorio’s Rights Violated

The trial court found that the restaurant had violated the New York Civil Rights Law and Title III of the Americans with Disabilities Act, concluding that under a long list of “federal, state and local laws, Ms. Degregorio has the right to be accompanied by a service dog despite the fact that she is not blind.” Cukaj’s argument that he was ignorant of the law and regulation had “no force in law when determining liability.” The ADA covered “benign neglect, apathy and indifference.” As to New York law, the court stated:

“The New York Human Rights Law applicable to this case is contained in the Executive Law § 296(14), which states 'it shall be an unlawful discriminatory practice for any person...to discriminate against...a person with a disability on the basis of her use of a guide dog, hearing dog or service dog.' Hence, refusal to admit the service dog in these circumstances is tantamount to refusing to admit the person who is in need of the dog. Moreover, a public accommodation may not require the person with the disability to be separated from the service dog once inside the facility.”

The court analogized the circumstances to those in Johnson v. Gambrinus Company/Spoetzl Brewery, 115 F.3d 1052 (5th Cir. 1997), a case discussed extensively in Service and Therapy Dogs in American Society (Chapter 14: Food Safety Restrictions).

Penalty Findings

Degregorio attempted to make her suit into a class action for others similarly situated, but apparently did not comply with New York statutory requirements to establish a class. New York’s Civil Practice Law and Rules 901 and 902 specify class requirements, including that there be numerous members in the class, common questions of law or fact, claims or defenses typical for the class, appropriate representative parties, and that a class action be a fair and efficient way of conducting the litigation. It is not explained why the effort to certify a class was not made, but it appears likely that there were not enough members to the class since the restaurant probably did not exclude guide dogs and the number of non-guide service dogs attempting to enter might have been very few, if any besides that of Degregorio.

The trial court rejected punitive damages since a Court of Appeals case had previously held that punitive damages are not permissible in a court action for Human Rights Law violations (Thorson v. Penthouse International, Ltd., 80 NY2d 490 (1992)). Further, “the plaintiff has not even come close to establishing the requisite wanton and reckless or malicious conduct on the part of the defendant by a preponderance of the evidence, let alone by the clear and convincing standard followed by [certain state courts].” Also, “the plaintiff has not established any compensatory damages. Therefore, the claims for punitive damages must fail as well as the class action.”

Violation of New York’s Civil Rights Law from the denial “of equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog or service dog” was a violation with a fine of $250.

The court states that though ignorance of the law is not a defense on a discrimination violation, it may be considered in assessing a penalty. The court notes the lack of involvement of state and city authorities:

“Since the state legislature enacted the Civil Rights Law § 47-b and the Human Rights Law § 296(14), it was anticipated that such violations of those statutes would be enforced by either the New York State Division of Human Rights or the New York City Commission on Human Rights. Here, the plaintiff notified those agencies and the Attorney General, and none of them has appeared in this matter. The plaintiff is therefore prosecuting this violation individually. The plaintiff seeks compensatory and punitive damages as well as counsel fees, but gives no statutory justification for an award of compensatory damages. Nonetheless, the plaintiff has not shown any compensatory damages to this court. While this court can sympathize with her claim of humiliation, no damages have been shown as a result of that humiliation. The purpose of imposing a violation of statute is to penalize the violator and deter others from such conduct. That is exactly what this court is imposing here, as well as injunctive relief to comply with the New York Civil Rights Law, Human Rights Law and the Americans with Disabilities Act.”

The court's language about it being anticipated that either the state or city agency would handle discrimination cases may mean the court felt this should have been true here, with the result that the matter could have been resolved without significant expense to the plaintiff, or derivatively, the defendant. It is not clear why the state and city agencies did not make appearances before the court, but such agencies often prefer to handle complaints directly rather than joining in litigation an individual determines to pursue with private counsel. Such appearances carry some risk to the agencies in that plaintiff's counsel may take positions with which the agencies do not agree. It is also not described what efforts Degregorio may have made to involve these agencies, or the Department of Justice, prior to pursuing the claims with her own lawyer.

In a later motion, Degregorio moved for an award of attorney’s fees of $82,297.75 and costs of $2,034.74. The denial of this motion was the issue on which Degregorio based her appeal.

Appellate Court Considers Attorney’s Fees

The New York appellate court noted that under the ADA, a “court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the cots.” 42 U.S.C. 2000a-3(b). The New York City Human Rights law (Administrative Code 8-502(f)) also allows a court the discretion to award a prevailing party costs and reasonable attorney’s fees. The appellate court concluded that Degregorio had indeed prevailed.

Nevertheless, the appellate court cited a 1992 U.S. Supreme Court case, Farrar v. Hobby, 506 U.S. 103 (1993), which had held that in some circumstances a plaintiff who formally prevails “should receive no attorney’s fees at all.” The Second Circuit, four years after Farrar, had elaborated by saying that “fee awards are not appropriate where, having failed to capture compensatory or punitive damages, a plaintiff wins only ‘the moral satisfaction of knowing that a … court concluded that [their] rights had been violated.'” Pino v. Locascio, 101 F.3d 235 (2d Cir. 1996). New York is in the Second Circuit. Following these precedents, the appellate court affirmed the trial court's denial of the motion for attorney's fees.

Unfortunately, establishing compensatory damages may have been difficult since the potential patrons presumably moved to another restaurant or went home. The trial court had noted that it had asked Degregorio’s attorney before trial “whether he was presenting any expert testimony to prove his claim of extreme emotional distress as a result of the alleged violation, to which plaintiff’s counsel responded that he would not be offering any expert testimony.” If there had been evidence of this sort (though such an expert would have come with additional costs), attorney’s fees might have been awarded.

But did the plaintiff only win moral satisfaction? Was not the injunctive relief requiring that the defendant comply with the New York Civil Rights Law, Human Rights Law and the Americans with Disabilities Act, itself a significant result? In Farrar v. Hobby, there was no “enforceable judgment on the merits,” but here there was in that an injunction applied to the defendant’s future behavior, modifying that behavior “in a way that directly benefits the plaintiff.” It may thus be argued that Farrar could be interpreted more favorably to Degregorio’s claim for costs and fees.

Conclusion

The case demonstrates that in certain circumstances, a victory on a civil rights issue can result in bragging rights but little else. This is unfortunate since there obviously was discrimination here, apparently unintentional yet quite real. Perhaps Degregorio would have been better off pursuing the matter administratively through one of the civil rights agencies with authority to handle such issues, but it is always easier to make these calls from hindsight.

Degregorio v. Richmond Italian Paviolion, 2011 WL 6440491 (2011)

Thanks to Patty Dobbs Gross for her input on this piece.

1 comment:

  1. I have had a service dog at my side for 10 years. 2013 is nearly over and the Americans with Disabilities Act has been around since 1990.

    Yet I STILL run into people working in public places (restaurants, pharmacies, grocery stores) who state that they have NEVER heard of service dogs. One older woman stated she had never heard of a seeing eye dog! As the story indicates it feels as if YOU are being denied admission not just the dog. My dog is my best buddy...at my side on planes, cars,and at my feet at work. He probably would enjoy chasing squirrels more than working some days but he definitely enjoys working.

    The people who usually deny me admission are minorities..and I don't know why? But it is a punch to the gut to be thrown out of a place to say the least! Hey I don't want to be disabled! But I have seizures and this dog can warn me BEFORE I have a seizure (even when I do NOT know I am about to have one.) I can then take medication immediately to abort the seizure...if I do have a seizure he protects me until help arrives. My dog had a leather harness, walking handle, bright red vest that says SERVICE DOG on three sides and employees STILL walk up and ask "What is that dog?" I am NOT being a jerk when I say "English Cocker Spaniel" because many dog lovers DO want to know what breed he is. But today AGAIN I walked into a pharmacy, walked to the back counter and had this tall black woman come racing up to me at full speed YELLING "Hey! What kind of dog is that?" I said "A Cocker Spaniel." No! That's NOT what I meant! So I pointed to the Service Dog words...very large print! "Well what is wrong with you?" She can't ask that...but I WILL answer: seizure dog. Businesses can only ask 1) Is that a service dog. Yes 2) What does he do for you? He alerts me to a problem.

    It is so very tiring. I have YET to meet anyone with an IQ over 90 who has needed to stop me like that! Maybe my black brothers and sisters have been burned by Jim Crow laws. But it is awful!

    I think we need more $250 fines handed out. And such places of business put on the6 o'clock news! I know of two restaurants that were sued for $100,000 and the places were closed.

    I don't have an answer....I keep slogging away. It does seem that the dumber people are the more aggressive and louder people are. BUT I also know that some people just want to bring their pets into stores. It's a dead giveaway when the dog growls or bites someone or eats food off a bottom shelf!

    Regarding the NYC case. These seemed to be piss-poor attorneys who didn't understand that $250 was the maximum fine. $82,000 for fees? Why? How tough is it to download two civil codes?

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