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.
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:
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| FAQ 31 as downloaded by the author on July 20. |
"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.
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.
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.
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