Who Is An Authorized Service Dog Trainer

Miller v. Fortune Commercial Corp.

This is a 2017 California case arising out of events in August 2012 that analyzes the right to bring a service dog into a food establishment and makes an important holding regarding who constitutes an authorized service dog trainer.

Factual Background

A young man with intellectual disabilities and autism tried to bring his service dog (not yet fully trained) into a California fish market and was turned away on the ground that pet dogs were not permitted. He sued, claiming violations of two California statutes and the common-law tort of Intentional Infliction of Emotional Distress. Losing on summary judgment before the trial court, he appealed but the lower court’s decision was affirmed. The most interesting and novel aspect of this case is the appellate court’s analysis of who constitutes an “authorized trainer” of a service dog in training under California Civil Code section 54(c).

Joey Miller, who was 20 at the time, has an IQ between 50 and 75 as well as autism, and functions at the level of a 8- to 12-year-old boy. With the aid of his stepfather, Joseph Scribner, he obtained from a pet store a one-year-old mixed-breed dog, Roxy, to be trained to help Miller be more independent. At that time Roxy had received basic obedience training, and the family worked with an instructor at a Petco store in June or July to “teach [Miller] how to handle a dog.”

In August 2012, Scribner took Miller (with Roxy) to a mall to buy a Playstation as a reward for his progress with Roxy. There was also a Seafood City market there, and after buying the device they went there to buy seafood as a further treat (that being one of Miller’s favorite foods). They were stopped by an employee and told they could not bring a pet into the store. Miller was upset, but they drove to another nearby Seafood City market and had the same experience.

The next month, September 2012, Miller filed suit against Fortune Commercial Corporation (which operated the markets) and several other defendants, and in June 2015, all the defendants moved for summary judgment based on deposition testimony from Miller and Scribner. Miller opposed the motion based chiefly on a post-deposition declaration by Scribner. Neither side provided expert witness testimony regarding service animals, their training, or Miller’s disability. The court ruled for the defendants, issuing a 34-page written ruling, and Miller appealed.

Applicable Law

The appellate decision analyzes three causes of action: violation of the Unruh Civil Rights Act (Cal. Civil Code § 51 et seq.) (“Unruh Act”), the Disabled Persons Act (Cal. Civil Code § 54 et seq.) (“DPA”), and intentional infliction of emotional distress (“IIED”).

The Unruh Act, which prohibits arbitrary discrimination in public accommodations, includes disability as a prohibited basis but does not explicitly address service dogs. It does incorporate by reference the Americans with Disabilities Act of 1990 (“ADA”), making violations of the ADA per se violations of the Unruh Act. The ADA’s accompanying regulations do address service dogs, and it is under that rubric that courts evaluate an alleged Unruh Act violation regarding a service dog. “Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. . . . The work or tasks performed by a service animal must be directly related to the individual’s disability. . . .”

Because the ADA’s definition requires that the dog be “trained” and not “in training,” the court ruled that it does not encompass a dog whose training is incomplete. Miller had conceded during litigation that at the time of the incidents Roxy “wasn’t fully trained” and still “in the process of being trained.” Thus, the defendants were entitled to judgment as a matter of law on this claim.

The DPA, which substantially overlaps with the ADA and the Unruh Act, does explicitly address not only service dogs, but those still in training. Like the Unruh Act, the DPA incorporates by reference the ADA. The DPA identifies three types of service animal: guide dogs for the blind, signal dogs for the deaf, and service dogs for other disabled persons. The DPA provides that service animals in the process of being trained may be taken into places of public accommodation for the purpose of such training. Specifically, it states:

 

Individuals who are blind or otherwise visually impaired and persons licensed to train guide dogs for [such] individuals . . ., and individuals who are deaf or hearing impaired and persons authorized to train signal dogs for [such] individuals . . ., and individuals with a disability and persons who are authorized to train service dogs for [such] individuals . . . may take dogs, for the purpose of training them as guide dogs, signal dogs, or service dogs in any of the places specified in Section 54.1 without being required to pay an extra charge or security deposit for the guide dog, signal dog, or service dog.” (Calif. Civil Code §§54.2, subd. (b); 54.1, subd. (c).; emphasis added)

 

There are thus three classes of person entitled to bring a service dog in training into an establishment: the disabled person for whom that dog is being trained, persons “licensed” to train guide dogs, and persons “authorized” to train signal dogs or service dogs. California defines who is licensed to train guide dogs (see Bus. & Prof. Code, §§ 7209-7210, 7211-7211.1; see also § 54.1, subd. (b)(6)(C)(i)) but does NOT define who is authorized to train signal dogs or service dogs.

So Who Is Authorized to Train?

Miller argued in this case that “authorized” should mean ‘given authority by the disabled person to train the dog.’ The court concluded that although this would be “somewhat consistent with the general meaning of ‘authorize,’ it is entirely inconsistent with the manifest intent of the statute, which is to allow service-animals-in-training to complete their training in a such a way that it does not jeopardize other public policy goals, such as public health.” Miller’s proposed definition could thus “authorize someone to bring a service-animal-in-training into a restaurant or food market who not only lacks the training and experience to train a service dog, but who is also reckless with regard to the health and safety of others.” This would “make a mockery of the statute,” especially because “a guide dog must be trained by a licensed professional trainer. . . . The guide dog provision, when read in conjunction with the less demanding but similar provisions for trainers of signal dogs and service dogs (§§ 54.1, subd. (c), 54.2, subd. (b)), indicates that the authority which allows someone to train a signal dog or a service dog must be found in his or her credentialing broadly conceived.” In order to harmonize the different provisions of the DPA, the court concluded, “‘persons authorized to train service dogs’ means any person who is credentialed to do so by virtue of their education or experience.”

Because evidence showed that Miller lacked the capacity to train Roxy within the meaning of the DPA, and because Scribner could demonstrate neither the education nor the experience to perform such dog training, neither of them qualified as a “person authorized to train service dogs.” Moreover, the evidence showed that Roxy was not taken into Seafood City for the purpose of training her as a service dog. Therefore, Miller had no viable claim under the DPA and the defendants were entitled to judgment as a matter of law.

Finally, Miller’s IIED claim was premised on either the Unruh Act claim or the DPA claim, and having lost both, it had no basis and the defendants were again entitled to summary judgment.

In another post, I offer my own thoughts on this decision, especially on who is an “authorized trainer” under California law.

 

Joey Miller v. Fortune Commercial Corp. et al.

No. B271214

Calif. Court of Appeals, Second Dist.

Sept. 12, 2017

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