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Johnson v. Oregon Bureau of Labor and Industries

Court of Appeals of Oregon

February 22, 2018

Kara JOHNSON, dba Duck Stop Market, Petitioner,
v.
OREGON BUREAU OF LABOR AND INDUSTRIES, Respondent.

          Argued and submitted June 21, 2016

         Oregon Bureau of Labor and Industries 3014

          Jill R. Fetherstonhaugh argued the cause and fled the brief for petitioner.

          Dustin 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 General.

          Before DeVore, Presiding Judge, and Hadlock, Judge, and Powers, Judge. [*]

         [290 Or.App. 336] Case Summary:

         Respondent, 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 Second, respondent argues that BOLI should have considered since-repealed Oregon statutes not referenced in ORS chapter 659A.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.

         Affirmed.

         [290 Or.App. 337] HADLOCK, J.

         In 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.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.

         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 ensuring 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 [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.

         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 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 ...


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