and submitted June 21, 2016
Bureau of Labor and Industries 3014
R. Fetherstonhaugh argued the cause and fled the brief for
Buehler, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
DeVore, Presiding Judge, and Hadlock, Judge, and Powers,
Or.App. 336] Case Summary:
owner and operator of Duck Stop Market (DSM), challenges the
final order of the Oregon Bureau of Labor and Industries
(BOLI) determining that respondent violated ORS 659A.142(4)
(2011) 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 her first
assignment of error, respondent contends that BOLI erred in
concluding that one of complainant's dogs, Panda, was
acting as a service animal when complainant entered DSM with
the dog because Panda was under the control of
complainant's husband rather than complainant. In her
second assignment of error, respondent raises two arguments.
First, respondent challenges BOLI's determination that
complainant's other dog, Contessa, was a service animal
because she was still in training. Second, respondent argues
that BOLI should have considered since-repealed Oregon
statutes not referenced in ORS chapter 659A. Held:
BOLI did not err. Respondent's first assignment of error
fails because no rule requires a service animal's
"handler" to be the individual with a disability.
As to her second assignment of error, respondent's first
argument fails because the applicable regulation does not
limit the definition of "service animal" to dogs
that have completed all training that is contemplated or
possible. Respondent's second argument also fails because
BOLI was not required to have considered an Oregon statute
not referenced in ORS chapter 659A in determining whether
Contessa was a service animal.
Or.App. 337] HADLOCK, J.
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.I42(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.
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 ensuring that complainant does not
run into street curbs or objects.
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 [290 Or.App.
338] Contessa 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.
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.
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 sheriffs 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 ...