Monday, August 17, 2015

Service Dogs Sometimes Belong in Shopping Carts: Justice Department Amends a FAQ

In a webpage the Department of Justice has posted, Frequently Asked Questions about Service Animals and the ADA, one question and DOJ answer now read as follows:

Q31: Are stores required to allow service animals to be placed in a shopping cart?

A: Generally, the dog must stay on the floor, or the person must carry the dog. For example, if a person with diabetes has a glucose alert dog, he may carry the dog in a chest pack so it can be close to his face to allow the dog to smell his breath to alert him of a change in glucose levels.

Until last week, there was one additional word in the answer to the FAQ, which began with "No."  Thus, the DOJ had been saying that a dog could not be put in a shopping cart, but generally it had to walk on the floor or be carried by the owner. Why the wording was changed in the last week may be due to a dispute that arose between a grocery story in California and a woman with a seizure alert dog.  

FAQ 31 as downloaded by the author on July 20.
The Department’s stance on shopping carts--specifically the No that has now been removed--had received the approval of some service dog users.  An article in The Daily Courier of Prescott, Arizona, on July 17, entitled “No dogs in shopping carts: service dog owners hail clarification of ADA rules," by Nanci Hutson, quotes a service dog user as saying:

"My husband and I have experienced a lot of problems with fake service dogs in the area, usually in grocery stores…. They will start barking from the carts and distract my husband's service dog whose job is to provide a sense of protection and a bubble around my husband."

This undoubtedly reflects the experience of many service dog users whose legitimacy has been questioned by store owners who have encountered people trying to disguise their pets as service animals in order to gain access. 

Butler v. WinCo Foods

In the California case between a shopper and WinCo Foods, LLC, the Ninth Circuit Court of Appeals found that WinCo Foods’ “store-wide policy prohibiting service animals from riding in its grocery carts” was not moot merely because the grocery story had offered the plaintiff an exception to its no-dogs-including-service-dogs-in-shopping-carts policy.  The exception was that Butler could put her dog in a grocery cart while she was shopping as long as the animal was in a carrier.  Butler v. Winco Foods, LLC, No. 13-55862, 2015 U.S.App.LEXIS (9th Cir. May 8, 2015), on appeal from the Central District of Califoria (CV 12-980 PA).

A Seizure-Alert and Seizure-Response Dog

Lynda Butler, who sued WinCo Foods over its service animal policies, explained in a Declaration filed with the trial court what her dog does for her:

I have a service dog, Coco Beans, who is a Cairn Terrier and who weighs about 15 pounds. I bathe her every two weeks and she is always clean. She does not bark or misbehave in public. She alerts me to the onset of a seizure and she orients me as I am coming out of the seizure. She alerts me by staring at my face, whining and scratching at my arms or chest. She orients me by repeatedly licking both sides of my face. This assists me in understanding that I have had a seizure and allows me to come into focus because my seizures effect my consciousness.

Butler’s Declaration says that the dog “never exhibited these behaviors before my seizures in 2006.”

About a month or two after my hospitalization in 2006 I realized that Coco Beans scratched and whined at me only when I had a seizure. I realized that she would scratch and whine, I would lose consciousness and I would wake up to her licking my face repeatedly. I put two and two together and realized that she was letting me know I was having a seizure even before I knew it. I also realized that her repeated licking of my face helped bring me into focus and to understand what had happened to me. I then began training her to continue these behaviors by praising her when she performed them. Instead of giving her corrections or disciplining her to stop the behaviors as I had been doing, I let her know they were acceptable by giving her positive reinforcement.

Dog’s Alerting Ability Allows Owner to Be in Public

Fearing she would have a seizure in public, Butler was largely housebound and got others to do her shopping for her but she began to trust that the dog could give her sufficient advance warning and she began to go out, including to shop.  She describes an early incident where the dog’s advance warning allowed her to sit down before a seizure struck:

I rely on Coco Beans’ alerting function. She alerted me to a seizure when I was shopping at the Albertsons near my house. She was in the cart seat and she began whining and pawing at my arms. I took her from the cart seat, sat down and placed her on my lap. I awoke to her licking my face repeatedly and there were customers and a store employee around me. If I did not have Coco Beans alert me, I would have fallen to the floor and hurt myself. I told the people around me that I had had a seizure, that Coco let me know about it and I did not need medical help. Coco helped me avoid having to go the hospital, which the people likely would have made me do if I had been injured.

The dog must be close to Butler’s upper body for the dog to alert or for it to be visible to Butler:

Coco Beans has only alerted me when she is in close proximity to my upper body, either when she is on my lap, next to me in a chair or in bed or is in a cart seat. I do not know how she knows to alert me. All I know is that when she is on the ground, she does not alert me or I do not understand the alert. I have fallen three times when Coco Beans did not alert me.

Most stores have not given Butler any difficulty about having the dog in a shopping cart, and neither did WinCo at first:

I shopped at Winco with Coco Beans in the cart seat without a problem until the summer of 2010. A female manager told me I had to remove Coco Beans from the cart seat. I told her that Coco needed to be in the cart seat to alert me to seizures. The female manager told me it was a “health and safety” violation. I did not believe that was true and I contacted the Health Department, which gave me a copy of Health and Safety Code 114259.5. I spoke with the Health Department official who was responsible for the Perris area and he told me that the Code only applied to food preparation workers, not to customers. I then discussed this with the female Winco manager who told me she would discuss it with Winco’s food safety person. After that, I was allowed to continue shopping with Coco in the cart seat.

WinCo Reverses Earlier Position

In 2011, a new manager at the WinCo store reversed the decision of the prior manager and told Butler she could not have the dog in a shopping cart.  This was an economic burden because Butler found WinCo’s prices much lower than other grocery stores in the area.  Alternatives to putting the dog in a shopping cart were not available to Butler:

I cannot carry Coco Beans while doing my month’s shopping at Winco because of my back problems. I also cannot carry her while I shop because I have to hold onto her carrier’s shoulder straps when we walk so that they do not fall off of my shoulder. I cannot hold onto the straps and push a grocery cart with one hand, particularly when it is loaded with groceries.

Thus, the chest pack option suggested by the Department of Justice in FAQ 31 is not available to Butler.  Butler tried once to put the dog in the cart inside the carrier, but again the manager told her that this was unacceptable.  It was not optimal to Butler either, as it left very little room for groceries. 

Hanging Carrier Inadequate for Butler and Coco Beans

WinCo at some point began offering patrons a “hanging carrier” that it deemed acceptable for situations like that of Butler, but this was also inadequate:

I looked at the pictures of the hanging carrier offered now by Winco. I understand the carrier is 13.5 inches long. Coco’s spine alone is 18.5 inches long, from the base of her neck to the base of her tail. Winco’s carrier will not work for me because it is too small for my service dog. Even if I could get her to stay in that small space, she would not fit comfortably in it. She would have to sit up for the whole two hours or so that it would take me to shop. This would be very stressful for her. Also, on the box for the carrier, it says that it is made for dogs up to 14 pounds.  Coco is already above that weight, so the carrier is not only too small, it is unsafe. 

Using the carrier would also put Butler too far from the cart she was pushing, which she needs to be close to for her own support needs. 

Expert Opinion

A witness retained by Butler, Dr. Adam Kirton, also submitted a Declaration on the motion for summary judgment in which he summarized the research on seizure alerting, including his own, and stated that Butler “describes seizure alerting behaviours that directly assist her in managing her seizures.  The descriptions are consistent with those found in multiple published studies.”  Kirton expressed doubt regarding some of WinCo’s reasons for refusing to allow the dog in a shopping cart:

Though I am not an expert in animal behaviour or infectious disease, I believe there is no evidence of anything greater than an extremely remote risk to the individual or public of having such an animal accompany their owner in a store with the service animal located in a cart seat on a blanket or in a carrier. Therefore, it is my opinion that the benefits of the seizure response behaviours offered by this dog clearly and substantially outweigh any risks posed by allowing Ms. Butler's dog in the Winco cart seat. The ability of her service dog to alert her to seizures not only gives Ms. Butler confidence to venture into public places like stores, it allows her to avoid serious injury that can result from a fall caused by a seizure. 

Connecting these observations to the legal questions involved in the case, Kirton states: “Without her service animal, the unpredictability of the seizures makes plaintiff afraid to go into public, which substantially limits her ability to socialize, to shop and to lead a normal life.”

Kirton notes that the “mechanism by which seizure alerting could occur remains speculative and further studies are required to confirm the possibility and understand the mechanism.”   I should note that I have written a chapter in a forthcoming book on canine olfaction that deals with the possibility that the mechanism may be olfactory (though behavioral and “sixth sense” explanations have also been offered).  

Health Regulations Not Implicated
 
A Google search for "shopping carts + service dogs" turned up one discussion regarding the possible application of health regulations prohibiting putting dogs in shopping carts.  This issue has, that I can find, not been raised in Butler v. WinCo, but if it were there would have to be an analysis similar to that in Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997), where a brewery sought to exclude a visitor with a guide dog from taking a tour of the brewery plant. The district court in the case, which was affirmed by the Fifth Circuit, had noted that the "marginal increase in contamination risk associated with over 5,000 annual human visitors to the Spoetzl Brewery is greater than the marginal increase in contamination risk associated with the maximum foreseeable number of annual guide dog visits by an order of magnitude."  People put children with leaky diapers, colds and other contagious diseases in shopping carts, as well as coats, hats, handbags and countless other items, and the health risks from service dogs occasionally riding in carts would, I suspect, be substantially lower than might come from the mass of other items regularly pushed around in carts.

I agree with Veronica Morris of Psychiatric Service Dog Partners that in those rare cases where safety or disability mitigation requires a service dog to be in a shopping cart, the handler should, if possible, bring a towel or blanket so that the dog does not actually come in contact with the cart. Putting the animal inside its carrier into the cart, the exception WinCo offered Butler, creates a similar barrier, but as noted in Butler’s Declaration, the dog was too large for that to be a practical solution. 

Conclusion

The Ninth Circuit remanded Butler v. WinCo to the Central District of California for further proceedings and, as of this writing, there is no indication that the matter will be settled.   At the very least, the facts of the case establish that there are instances where a simplistic statement that dogs do not belong in shopping carts cannot be supported within the framework of the Americans with Disabilities Act.

It appears to this observer that the Department of Justice may have changed the wording to its shopping cart FAQ so as to avoid becoming an unwitting proponent of the store's side in the California case. It would be good if the Department would go the next step and add a sentence to FAQ 31 acknowledging that service dogs sometimes do belong in shopping carts. In any case, the FAQ now only provides a partial answer so without some additional rewording neither stores nor service dog users will know what to do. 

Thanks to Veronica and Brad Morris and Leigh Anne Novak for reviewing and providing comments that vastly improved this blog.

17 comments:

  1. I also have a medical alert type service dog. He rides in all shopping carts so he can work for me undistracted by people walking and other carts getting too close. My service dog weighs 10-12 pounds and is easily not recognized by others when on the floor thus presenting a hazard to him that I am uncomfortable with besides the limitations it places upon him to properly alert me. I read a CDC opinion one time which pointed out that there has never been in all of history record keeping a single service dog to human infectious incident thus declaring service dogs less of a health threat than any other human. Why can't this be a rule?

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  2. agreed .......I have the same problem with 2 Walmarts here in Florida. Now I just walk the dog around the crner before I put her in the cart.

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  3. Has there been any further development on this case?

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  4. I'm having the same problem with Walmart here in Grants Pass, Oregon. How do we get the DOJ to address this more thoroughly?

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    1. dont know if you will read this but I was just kicked out of winco for having my 8 pound chihuahua in the kid seat of a shopping cart.I was told to put him on the floor I asked them if they would take responsibility for any injuries he might sustain I was told absolutely not.been kicked out of Walmart 4 times for the same thing I too live in grants pass also safeway also on Williams highway has turned me away.I will mention I am a disabled Vietnam vet not that it means anything anymore and even less at these three stores. want did you do if anything, I will support any cause that would change this. seems that the only thing I can do is get my own shopping cart.

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  5. I have a seizure dog and Safeway is being the same way, except they are extremely rude. They made me feel like she was a horrible desease carrier and that I was lucky she was even allowed in the store. The manager made me feel so uncomfortable that I will now travel 17 miles to the next closest grocery store. Because of how they made me feel, I will not ever go there again.

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  6. If a service dog gets too distracted by people walking by with shopping carts then it needs more training before it is going out into public as a service dog.
    People with FAKE small breed service service dogs are fond of putting them in carts because the dog does not heel well and they can get more attention when all the shoppers can see him in the cart.
    How does a service dog that has to be in a cart for it to do its job for you work out in the world when you are not shopping? And if it does, why would you not have your own cart that is with you at ALL times to not cause any back strain, for your dog to be chest level for proper alerts according to Butler.
    A service dog is a very solid piece of equipment, small or large there should not be to many special provisions made for the dog to be able to do its job to help it's handler. The DOG should be trained well enough to be able to perform alerts despite MOST distractions like public setting and having to heel on the floor like ALL service dogs, because that is the real world that Butler lives in and that is where she needs her dog to alert her. not find a way to put her dog close enough to her face to pay constant attention to it, if it's in training, then it's IN TRAINING and needs to be doing solid alerts from the floor before being in a cart in public. It has already proven dangerous as Butler has fallen 3 times, when the dog did not alert her from the floor.
    This is an issue that needs to be taken care of in TRAINING not in a court room.

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    1. By your statments, I'm assuming you do not have any experience with disabilities like Butler. I'm happy for you. I having disabilities similar to hers(breathing problems) I understand her situation. A dog, no matter how well trained, needs to be near their owners face and chest to sense certain conditions. I have found this to be true through experience. So please keep your biased uneducated ideas to yourself. I hope you are never in our situation.

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    2. By your response, I can tell you haven't had to experience what people like Butler and I have. Good for you. No matter how well a dog is trained, they can and will be distracted some times. Also, speaking from experience, it is necessary for a dog trained for certain disabilities to be near it's handlers face or chest area to sense a condition. This has been proven and is common sense. So until you are in their situation, please keep your biased and uneducated opinions to yourself.

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    3. As a Service Dog TRAINER, if the dog is easily distracted, then the dog cannot do its job well. If the dog has been properly trained, then it should not be easily distracted. As the handler of a properly trained service dog, you should be keeping up its training often so that you are not questioned about it.

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  7. If I saw a trained service dog in a cart seat, so long as it was on a blanket or some sort of protection, it would not bother me. A blanket or other cover would prevent animal dander from transferring to the cart, and it would also prevent any bacteria from passing on to the dog, which would be a huge concern of mine! I've seen how some people treat cart seats, I wouldn't let a child or pet sit there without disinfecting it first. Additionally, the owner of a service animal can easily wipe the cart down once they are done shopping so that eliminates the risk.
    I do know FAKE service animals in carts have been a huge problem. People bringing their pets into stores is a problem, I have heard about people who have gone into shock and sopped breathing because they are so terribly allergic to dogs and had to encounter a fake service dog. One licked a child in the face and that child died. I believe this is why so many people have an issue with any dog they see is so many fakes are out there. . . harsher penalties need to be set up for fake service animals, so that stores do not have to be paranoid every time.

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  8. To pet owners who are disabled; somwhere among us there IS a reasonable happy medium. But for non disabeled pet owners I personally HATE seeing your dog in shopping carts or carried in arms in people public stores or outside.

    It is offensive to disregard store rules let alone the ADA law and other shoppers not to mention the moral law to willfully deceive when your dog is in a shopping cart.

    People tend to love their animal/s MORE than we fellow humans. I get that. To pet owners, animals are "their "children" and more times than not, animals behave better than children. But make no mistake about it, IS against the Golden Rule and our human moral law to care more about a souless animal over a human soul. Animals ARE animals. Humans ARE humans even if some humans behave worse than animals. Uufortunately many pet owners TOTALLY DISREGARD AND DISRESPECT fellow humans over their pets...(not to mention their cars and possessions but we won't go there.)

    My daughter has a poodle. I love that dog so much l call him my grand dog. I treat him with and give him love, love, love, love, love. He is my baby grand dog. BUT the buck stops when he is offensive to others even if it is as simple as getting to close to a fearful person. PEPOLE ARE MORE IMPORTANT THAN MY DOG I LOVE LOVE LOVE.

    So what's the solution? For starters I propose that ALL public establishments CLEARLY post on their entrance doors and throughout the store, "No pets in carts." AND post ON EACH CART "NO PETS IN CART"
    Additionally post "Pets must be on floor with leash or in a pet harnass designed to wear on the chest or in an animal container.

    For animal lovers whose animal is NOT AN OFFICIAL SERVICE DOG, please keep you dog out of public stores and keep peace with your fellow man.
    PLEASE

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  9. We were just at Winco in washington State and my dad was told he couldn't have his service dog in the shopping cart. His dog Elle was on a dog bed that is used specifically for shopping carts. I asked what other solutions they could give my dad since she is a very small dog and cannot be walking around also my dad is paralyzed on his left side so holding her and pushing the cart is not an option. They could not give me an answer all they said was that it was a state law that dogs were not allowed in shopping carts. I had to see the state law in writing but they could not find it.

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  10. I just had a confrontation with the store manager of a Walmart in the Austin TX area. I have a small pup that goes everywhere with me for emotional support. I suffer from severe anxiety and he helps me tremendously. I basically lost everything 8 years ago with the failure of a spinal fusion. And my little guy helps me to be able to get out of the house. Anyway, due to the back issues, I can't carry him and I won't let him walk on the nasty store floor. So I ALWAYS carry 2 blankets for him to lay on in the seat area of the cart. He doesn't bark, lunge, or paw at anyone. In fact I get many compliments on his calmness. So today, this man comes up to me and says my dog can't be in the cart. He has to be on the floor or carry him. I explained about my back and he said he didn't care that it was their policy. I tried to explain that he was on 2 blankets and also tried to ask if it would be allowed if he was in a car seat. He was very rude and continued to interrupt me and refused to answer. So I told him that I had one thing to get and I would leave. He then threatened to call the cops on me!! I asked what they would arrest me for and he said having a dog in the basket!! I was so upset!! I went to my wife at another part of the store and she confronted him. He told her that he never said anything about calling the cops. She told him off basically and he called the cops and had us kicked out of Walmart!! Is there anything I can do?? Can I take my baby with me in the basket if I have him in a carseat?? Please help!!

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    1. Your "emotional support" dog is not allowed in public - period. In your apartment and on a plane with a letter from a licensed mental health professional. But, your dog is NOT a trained service dog and therefore is not covered by the ADA for public places.

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  11. There are three types of dogs that help people and are very beneficial. Service dogs, therapy dogs and emotional support animals. Each one has different roles and rights. A therapy dog helps out people, you see them in hospitals, nursing homes, schools and they provide comfort. They have no public access rights and are normally better trained then your normal pet. Emotional support animals require a doctor's prescription and have some special rights. They are accepted into no pet housing under the fair housing act and allowed on all public transportation planes, trains, and boats due to the air carrier access act. BUT they do not have any public access rights under the Americans with disabilities act. Service Dogs, who are trained to perform tasks that directly mitigate the handlers disabilities, are the only ones that have public access rights. Just because you are disabled does not mean you qualify for a service dog, you must have one or more conditions that severely limit your ability to live and function in all or every daily life task. So I am truly sorry, and I know that your pup helps you tons, but you have no access to public places that don't allow pets. And please keep in mind that presenting your dog as a service dog when it is not is illegal and in some states it's even a felony! Just letting you know because I believe that is the last thing you need to add to your plate. Wishing you a happy new year!

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  12. I have a service dog that I put in the seat of the cart , where other humans are allowed, he does have a carrier/bag he sits on, as he needs to be near my face to do his job, I can put food right next to him and he will not even sniff it, but it still goes in back as dont know what else has sat in those carts, he is extremely well concentrated and does not distract even though people try to, does not change around other dogs and has been noted as well trained and not distractable,I put my cane in the cart as well while holding on to cart, if have to walk away to get something, take him and cane with me, its common sense I think, he needs to be near my face to do his thing, they wouldnt have a problem with your oxygen tank in cart. I have had no problem with walmart yet, although US postal manager had problem with him walking in once, I do have my disability and his prescription documented at va medical if an issue comes but all stores across country I have been have not had problem yet, maybe its dog, maybe disability obvious or good luck for 9 yrs, but like the previous post the dog is necessary for my disability not comfort just as my cane or walker is.

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