Johnson v. Or. Bureau of Labor & Indus.

415 P.3d 1071, 290 Or. App. 335
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 2018
DocketA158278
StatusPublished
Cited by2 cases

This text of 415 P.3d 1071 (Johnson v. Or. Bureau of Labor & Indus.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Or. Bureau of Labor & Indus., 415 P.3d 1071, 290 Or. App. 335 (Or. Ct. App. 2018).

Opinion

HADLOCK, J.

*337In the final order challenged in this judicial review proceeding, the Oregon Bureau of Labor and Industries (BOLI) determined that respondent Johnson, owner and operator of Duck Stop Market (DSM), violated ORS 659A.142(4) and OAR 839-006-0300(2) (Feb. 24, 2010) when she refused to allow complainant, an individual with a disability, to enter DSM with a service dog. In seeking judicial review, Johnson makes three narrow arguments, each of which we reject for the reasons set out below. Accordingly, we affirm.

On April 17, 2013, complainant visited DSM, accompanied by her husband and two dogs, Contessa and Panda. Complainant is visually impaired, hard of hearing, and has been diagnosed with PTSD, agoraphobia, and schizophrenia. Along with a friend, Murlin, complainant operates Sunstone Service Dogs, a nonprofit organization that trains service dogs. In April 2013, Contessa was still considered "in training" with Sunstone Service Dogs. However, by that time, she had been trained to assist complainant by performing several tasks, including "covering" and chest compression during a PTSD attack, alerting complainant to take her medication, opening and closing doors, providing tactile stimulation, helping complainant walk through crosswalks, alerting complainant to traffic, leading complainant to vehicles that she was to travel in, and helping complainant avoid running into objects. By the same date, Panda was trained to assist complainant by performing tasks including "covering" and chest compression during a PTSD attack, waking complainant from nightmares and calming her, helping complainant breathe again after complainant stops breathing at night, and *1073ensuring that complainant does not run into street curbs or objects.

When complainant and her husband visited DSM on April 17, both animals were leashed and Contessa wore a "service dog in training" vest, along with a soft muzzle and training harness. Shortly after the complainant, her husband, Contessa, and Panda entered DSM, respondent said they could not bring dogs into the store and that they needed to leave. Complainant informed respondent that Panda and *338Contessa were service dogs and referenced a sign in the DSM's front window allowing service dogs. Respondent stood by her initial statement, suggesting that complainant use the DSM's drive-up window or let DSM employees hold the dogs outside while complainant shopped. Eventually, complainant stayed outside of DSM with Contessa and Panda while her husband went into the store.

After that visit, respondent briefed her employees on the incident and told them that she did not want the dogs in DSM. Meanwhile, complainant completed a BOLI "Civil Rights Division Public Accommodation Discrimination Questionnaire" online and asked Elizabeth Fuell, a caregiver, to help her organize paperwork about service dogs and to accompany her to DSM the next day as an observer.

On April 18, complainant and Fuell visited DSM, bringing Contessa, who wore her service dog in training vest. Respondent was not present, but a store clerk met complainant and Contessa at the door, telling complainant, "You're not welcome here; your dog needs to leave." Complainant notified the clerk that Contessa was a service dog and Fuell announced that she was recording the conversation. The clerk told the two that she did not care and threatened to call the police if they did not go outside. Fuell then called the sheriff's department, and while she, complainant, and Contessa waited in Fuell's car for deputies to arrive, someone from DSM came out and told them that "No matter what happen[ed], [they were] 86'd off the property." When deputies arrived, they took handouts that complainant and Fuell had brought along and gave them to the clerk before asking complainant and Fuell to leave, suggesting that complainant come back the next day to meet with respondent. Complainant was upset by that incident and decided to complete a new online BOLI "Civil Rights Division Public Accommodation Discrimination Questionnaire" addressing that experience and to go back to the store the next day to meet with respondent.

On April 19, complainant returned to DSM with Contessa and Murlin. Respondent and the store clerk met them in front of DSM, and the four had a conversation in which respondent agreed to read material about the *339Americans with Disabilities Act (ADA) that complainant provided her but also told complainant that dogs were not allowed in DSM and that complainant was not allowed back to DSM until respondent decided what she would do about complainant's dogs.

A few days later, respondent called complainant to notify her that respondent had read the materials and would allow complainant to shop at DSM so long as she brought only one dog. Complainant did not return to DSM after that conversation. Complainant experienced trauma from her interactions with respondent and DSM and became more reticent about leaving her home.

Following those events, respondent and her employees committed multiple acts that did not take place at DSM and caused distress to complainant, which BOLI determined contributed to its damages award, including mailing a letter to Murlin at Sunstone Service Dogs, which complainant perceived as a threat; following complainant as she took a bus; following and photographing complainant and her young granddaughter on a walk; and photographing complainant's apartment and complainant's neighbor's car.

Within a few weeks of the incidents at DSM, complainant filed a complaint with BOLI, asserting that respondent had discriminated against her because of her disability. BOLI subsequently issued formal charges alleging, as pertinent here, that respondent had violated ORS 659A.142(4), which prohibits any "place of public accommodation" from making "any distinction, discrimination or restriction because a customer or patron is an individual with a disability."1

*1074Specifically, BOLI asserted that respondent had violated that statute on each of three days by refusing to allow complainant to shop at or enter DSM with dogs that were trained to assist with complainant's disabilities, including visual impairment. BOLI requested that complainant be *340awarded at least $30,000 in damages for physical, mental, and emotional distress.

After a contested-case hearing, BOLI issued a final order that includes two legal conclusions that respondent challenges on judicial review: (1) that respondent violated ORS 659A.142(4) on April 17 and 18, 2013, by refusing to allow complainant to "enter DSM to purchase groceries while accompanied by her service animal," and (2) that respondent violated ORS 659A.142

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Cite This Page — Counsel Stack

Bluebook (online)
415 P.3d 1071, 290 Or. App. 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-or-bureau-of-labor-indus-orctapp-2018.