Thursday, September 15, 2011

"Inquirers" Were Little More Than Guests, Retreat Was Little More Than Spa/Hotel, Yet Church Group Battles to Exclude Guide Dog

Optimum Health Institute is a non-profit, religious organization affiliated with the Free Sacred Trinity Church, which describes itself as a “non-denominational church rooted in early Judeo-Christian doctrine.” OHI invites people “from all religious traditions” to attend its “spiritual retreat” in Lemon Grove, California, near San Diego, where they will participate in “prayer circles” and perhaps have their lives transformed by “miraculous healings on all levels.”

Those coming to Lemon Grove reside in guest rooms, but Robert Nees, Ecclesiastical Superior of the Free Sacred Trinity Church, says that OHI is not a hotel. Rather, “the guest rooms are intended to enhance the monastic experience of the OHI’s holistic health.” There is, however, a focus on “diet, food preparation, and ritual purification.” OHI’s “ultimate goal is to bring the participants to an understanding of their purpose in life and to get them to affirm or reaffirm the reality of God.” OHI claims not to need to evangelize because “all paths eventually lead to Jesus Christ as Lord and Savior.”

Guests, Inquirers, Adherents

All first time guests are “inquirers.” If they return, they become “adherents.” There are about 22,000 adherents of Free Sacred Trinity Church. OHI claims to have helped over 100,000 people, most of whom were apparently first-time visitors, i.e., inquirers in the Church's terminology.

Nancy Stevens attended a program in 2007 and says she was always called a guest, not an adherent. Another individual who visited Lemon Grove about the same time submitted a declaration to the same effect. In 2009, Stevens telephoned OHI to ask about its holistic health program because she was about to undergo cancer surgery. She explained that she used a guide dog but was told she could not bring the dog. She said she would attend for one week with a cane. OHI apparently became concerned and said that Stevens would have to bring someone with her because OHI was worried that she might fall down stairs or put her hand in a juicing machine.

“Plaintiff told OHI representatives that ‘she did not need anyone's assistance, that she was independent and able to care for herself’; ‘she has lived independently for over 20 years’; ‘she has traveled all over the world as part of a paralympic ski team and as the world champion blind woman triathlete’; ‘she travels independently wherever she goes, utilizing public transportation and her excellent mobility skills’; and ‘she has skillfully managed all of her household appliances and food preparation utensils, including knifes, food processors and blenders.’”

OHI held fast to its requirement that Stevens bring someone, but agreed to charge half-price for the companion. As to the guide dog, Nees stated:

“The grounds of OHI are sacred. In order to maintain a pure environment for healing and worship, OHI cannot—and does not—welcome animals.... [I]n the eyes of the Church, based upon the teachings of the Old Testament, OHI's grounds are sacred but animals are not.... Allowing animals into the grounds is antithetical to the promotion of a safe, healing environment at the Institute, particularly for people who have animal phobias or allergies....”

Stevens Files Suit

Stevens sued, seeking monetary damages of $75,000. She also moved “for an order enjoining Defendants from preventing or causing the prevention of a guide dog, signal dog, or service dog from carrying out its functions in assisting a disabled person who attends OHI's detoxification program or who visits OHI's health center in Lemon Grove, California.”

OHI moved for summary judgment, arguing that it was not a business establishment or public accommodation, but rather a religious organization to which disabilities laws did not apply.

The Unruh Civil Rights Act requires that all “persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The act allows for triple damages and attorney’s fees, as well as injunctive relief. The California Disabled Persons Act applies to public accommodations, including hotels and other places to which the general public is invited, and specifies that an “individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose….” Cal. Civ. Code § 54.1

While the Unruh Act refers to “business establishments” and the Disabled Persons Act applies to “public accommodations,” California courts have seen the terms as significantly overlapping. The Unruh Act, in prior cases, has been held not to apply “truly private social clubs” or “a charitable, expressive, and social organization,” but it has been held to apply to a charitable organization that lacks a significant business-related purpose “if the entity’s attributes and activities demonstrate that it is the functional equivalent of a classic ‘place of public accommodation or amusement.’” In looking at a boy’s club, the California Supreme Court said that the club “offers basic recreational facilities to a broad segment of the population,” and was therefore covered (so that a suit for discrimination against girls was allowed). Isbister v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 83, 219 Cal.Rptr. 150, 707 P.2d 212 (1985). See also Warfield v. Peninsula Golf & Country Club, 10 Cal.4th 594, 607 n. 7, 42 Cal.Rptr.2d 50, 896 P.2d 776 (1995); Curran v. Mount Diablo Council of the Boy Scouts, 17 Cal.4th 670, 696, 72 Cal.Rptr.2d 410, 952 P.2d 218 (1998).

Everyone is Welcome (?)

In the case before it, the federal district court noted that OHI does not make decisions about who might attend its program based on religious beliefs. In fact, nonmembers, nonadherents, and nonbelievers are welcome. No activities are required, so people coming to Lemon Grove can use the facility much like a hotel. Thus, “the Court finds that there is no genuine issue of material fact that, as applied to Plaintiff, OHI is a 'business establishment' pursuant to the Unruh Act and a 'public accommodation' pursuant to the Disabled Persons Act.” The court further concluded that OHI violated both Acts and that “Plaintiff is entitled to judgment as a matter of law as to Plaintiff's claim that Defendants violated the Unruh Act and the Disabled Persons Act when Defendants refused to allow Plaintiff to attend OHI alone, without a service animal and with a cane.”

The court noted that OHI has “offered no evidence that any of the people who attend OHI's detoxification program are members of FSTC or OHI and/or that any of them believe dogs defile spaces more than other animals that are not sacred and that roam OHI's multiacre facilities.” If allergies are a big problem, why are there other animals running around the area in the first place? The court held that even if there were “some slight infringement” on OHI’s member’s rights of expressive association, this infringement was justified because of the State’s compelling interest in eliminating discrimination against the disabled.

OHI then argued that even if the California Acts were to apply to OHI, the federal Americans with Disabilities Act would preempt them. That Act (42 U.S.C. 12187) exempts religious organizations or entities controlled by religious organizations from its coverage. Analyzing the legislative history of the ADA, however, the district court concluded that the federal legislation was not intended to displace rights and remedies available to disabled individuals under state law.

“The Court finds that it was the intent of the U.S. Congress that the ADA not preempt more expansive state laws such as the Unruh Act and the Disabled Persons Act. The Court finds that the religious organizations exemption in the ADA does not actually conflict with or otherwise preempt the application of the Unruh Act and the Disabled Persons Act in this case.”

There are a number of provisions that support the court in this respect. Under 42 U.S.C. 12201, the ADA specifies that nothing in it is to “be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities….” See also 28 CFR 36.103, providing that the ADA regulations do “not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.”

It is worth pausing to consider why the defense wanted to put the case under the ADA, which one might expect to be the linchpin of Stevens’ case, while Stevens’ counsel relied so heavily on state law claims. My guess is that it was a strategic decision. Stevens perhaps really wanted the monetary damages that could be obtained under the state law claims, but not the ADA. Although the ADA could have provided injunctive relief, Stevens wanted to come to OHI prior to her cancer surgery. By the time the case was resolved, the surgery would have happened, and the injunction would likely come too late. Damages may have been the only realistic relief.

Service Animal Issue Not Yet Resolved

It would seem the matter was settled, but the court determined that it could not grant summary judgment to Stevens with regard to her ability to bring the service animal.

“With respect to Plaintiff's presence at OHI with a service animal, and giving appropriate deference to Defendants' ‘view of what would impair [their] expression,’ … the Court finds that the competing affidavits submitted by the parties create a genuine issue of material fact as to whether application of the Unruh Act and/or the Disabled Persons Act to Defendants would violate Defendants' First Amendment rights to free expressive association.”

OHI, in its FAQs, states that pets “including service animals are not permitted in any area of OHI. During the detoxification process, guests become very sensitive to aromas, contaminates and pet allergens.” It is to be noted that service animals are not pets, something the court did not remark upon. In any case, the court may be signaling that it is possible OHI can make a “fundamental alteration” argument. In revising the ADA regulations in 2010, the Department of Justice allowed that a service animal could be removed from a public accommodation if “the presence of the animal constitutes a fundamental alteration to the nature of the goods, services, facilities, and activities of the place of public accommodation.” 75 Fed. Reg. 56267 The Department of Justice “maintains that the appropriateness of an exclusion can be assessed by reviewing how a public accommodation addresses comparable situations that do not involve a service animal.” 75 Fed. Reg. 56271. Thus, the court might look to whether OHI also precludes flowers from being in vases around the facility, or air fresheners from being in rooms, since pollens and chemicals are common triggers of allergic reactions. It is also to be noted that appropriate grooming of the dog might reduce allergic reactions.

OHI would also have to show that there would be no accommodation that could not take possible allergic reactions of the dog into account. The people with significant allergies might be given rooms separated by some distance from the dog, for instance (as is recommended, for instance, by the Department of Transportation in airplane cabins when service dogs are on the same flights as people with severe allergies)


Stevens has a picture of herself with her dog on her website. Stevens may not have helped herself on the service dog issue by agreeing at one point to use a cane instead of bringing her guide dog. It may have been more important for her to go to OHI than win on the service dog issue, and it is not clear at the moment that the case will continue. Since some important issues are involved, it is to be hoped that the court will be able to consider them. Others with guide dogs may encounter problems with OHI and similar facilities in the future, and it would be unfortunate if they have to fight the same battle over again.

Stevens v. Optimum Health Institute - San Diego , 2011 WL 3741055 (S.D. Cal. 2011)

Thanks to Joan Esnayra, Patty Dobbs Gross, and Kristina Chew for comments and suggestions.

Addendum. I received an email asking that I provide an example of where I thought a guide dog could be excluded based on a “fundamental alteration” argument. One situation that comes to mind is a petting zoo. California and Arizona have statutes that provide that zoos may exclude guide and other service dogs from places where such a dog might come in direct contact with zoo animals. The zoo must provide a kennel for the service dog at no charge, and must also provide a sighted person to accompany the blind person (Calif. Civ. Code. § 54.7(d)); Az. Counties Code § 11-1024.F). This is reasonable given that zoo animals cannot be expected to distinguish service dogs from other dogs. If—and I don’t think this is at all likely—OHI were able to carry the day on a fundamental alteration argument, the Church should not be able to charge for a person who accompanies a blind person during a stay at the facility. I believe that attempting to do so would violate the ADA.

No comments:

Post a Comment