Miller v Fortune Commercial Corp.: My Own Views

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This California decision on who is an authorized service dog trainer, and what constitutes a training activity, raises several issues that it doesn’t fully address. Presumably that’s because they’re peripheral to the case being decided, but they are important to other disputes likely to arise under state and federal law. I decided to explore them further. (My summary of the case is available here.)

The Unruh Act part of the decision is straightforward. That act does not set forth, nor incorporate by reference, any other laws that require a landlord to permit entry by a dog that is not a fully trained service dog – that is, one capable of providing the assistance that a person with a disability requires. Moreover, California state law generally requires the exclusion of dogs and other animals from places that sell food (with some exceptions that do not apply here, such as exterior patios where prepared food is served). Fortune Commercial would have been in violation of state law if it permitted an animal other than a fully trained service dog in its premises, and was thus not only entitled but required to exclude Roxy.

The Disabled Persons Act creates another exception to the rule just stated, for the trainers of service dogs, but it is narrow: (1) the presence be for training purposes, (2) the trainer must be the “individual[] with a disability” or a “person[] authorized to train service dogs for individuals with a disability”, and (3) the dog must be both on a leash, and tagged as a service dog by identification tag (as set forth in Food & Agriculture Code section 30850).

The ruling in this case turned on whether the dog’s presence was for training purposes, and whether the trainer was either the person with a disability, or a person authorized to perform such training. The decision did not address the third requirement, a service dog tag.

“For Training Purposes”
There seems to have been evidence that Roxy’s presence in Seafood City was not for training purposes, but instead as a matter of convenience for Miller and Scribner as they went about buying seafood. If, however, a person training a service dog routinely took the dog into such establishments with the joint purpose of accustoming the dog to such locations and activities AS WELL AS going about their daily affairs, it should be treated as “training purposes”; it should not be necessary to limit the protection to visiting establishments purely for training purposes. The background provided in the court’s opinion is insufficient to determine whether that argument could be supported in this case. Other people training service dogs in California should maintain a training log that includes where the dog was taken (that a pet dog could be barred from) and when, with some notes about the dog’s behavior or progress on each occasion.

Disabled Owner as Trainer
The discussion of who was training Roxy, and of who generally constitutes an “authorized trainer,” breaks new ground in California law. In deciding that a judge or jury could not reasonably believe Miller was training Roxy unassisted, the court looked not only to Miller’s mental capacity but also to the lack of evidence that he had trained dogs or other animals before, or what role he had played in Roxy’s training up to that point. The statute does not contemplate these factors and says merely that “individuals with a disability . . . may take dogs, for the purpose of training them as . . . service dogs . . . in any of the places specified.” There is no dispute Miller is an individual with a disability, so he could presumptively take Roxy into Seafood City for training purposes (assuming other statutory requirements were met, e.g. the Assistance Dog ID Tag). The court read into the statute an additional requirement: that the individual with a disability be the actual, unassisted trainer of the dog. This new requirement, if rigorously applied, would mean that disabled persons who work with a professional trainer could not, in the absence of that trainer, take the dog into such establishments even for training purposes. That seems clearly at odds with the statute.

The court seems to create a special rule for persons with significant mental disabilities: they must have an actual, professional trainer, and that trainer must accompany the dog into establishments that could bar it if it were a pet dog. This is inconsistent with regulations implementing the ADA which permit persons with disabilities to train their own dog. As a matter of public policy, however, it is sound: not all persons with mental or emotional disabilities have the basic capacity to train a dog, let alone to the standards expected of service dogs in places of public accommodation, just as young children can be presumed to lack that capacity. The law makes no self-training exception for small children, nor for those with significant mental incapacities, but it is appropriate for courts to read such an exception in. Problems may arise, however, regarding people with less significant but still cognizable mental or (especially) emotional disabilities. Significant documentation and other evidence of both the person’s capacity, and their activities in training their dog, are likely to be important in such “edge cases.”

Who Is An “Authorized Trainer”?
Second, the ruling examines whether Scribner can be considered an “authorized trainer” of Roxy, and concludes he cannot, because he lacks professional qualifications or comparable experience as a service animal trainer. The discussion indicates relevant evidence would include “education or experience as a trainer of service animals[,] . . . certificates from training academies or testimonials from others attesting to his skill and dedication as an animal trainer[,] . . . [or] evidence that [his] methods as a trainer of service animals were consistent with protocols and practices accepted within the service-dog-training industry or community.” The rationale for this requirement is to protect “public policy goals, such as public health,” and to avoid “mak[ing] a mockery of the statute.”

This line of reasoning minimizes some important issues. The history of statutory protections for persons with service animals in California predates the DPA. Essentially, there have been several iterations of the law, with guide dogs the first subject, then later signal dogs, and finally service dogs. The laws regarding training for guide dogs are extensive and have been repeatedly reworked, largely predating relevant federal law. There is thus a statutory and regulatory superstructure into which service dogs have been wedged, one that has historically favored licensure and state oversight of guide dog trainers. Presumably the principled argument in favor of this approach is that blind people are uniquely vulnerable and extraordinarily dependent on their guide dogs, so the very highest standards must be maintained to protect them.

Trainers of signal dogs for the deaf and hearing-impaired have not historically received such oversight, and need merely be “authorized.” (There are no reported cases analyzing this requirement.) The legislature then used the same language regarding service animals for persons with other disabilities. Yet when Congress passed the Americans with Disabilities Act, and federal agencies drafted enabling regulations, they took a different approach that superseded California law, specifically authorizing people to train their own service animals. Subsequent changes to California’s statutes responded by incorporating that authorization. There is thus tension in California law between the restrictive traditional approach developed around guide dogs, and the permissive approach of federal law. The former emphasizes licensure and strict oversight; the latter favors giving persons with disabilities more control over their service dogs’ training.

The court’s decision here leans toward the stricter traditional approach, requiring “authorized” trainers to have something equivalent to licensure (“any person who is credentialed to do so by virtue of their education or experience”). It justifies this conclusion in part by invoking “other public policy goals, such as public health,” and in part by looking to the structure of the Disabled Persons Act and its requirements for guide dog trainers. This is not wholly consistent with the ADA’s approach, which on its face permits any person with a disability to perform all aspects of training their own service dog, without regard to the person’s knowledge, skill or experience.

As a matter of public policy, as with the determination Miller could not train the dog himself (discussed above), the ruling that “authorized” requires more than mere “permission” is justified. Dogs are potentially both dangerous and unsanitary, if not properly trained and when placed in potentially stressful situations, and the policy reasons the court lays out are reasonable. This situation, however, appears to be unusually “loaded” against finding Scribner to be an “authorized trainer.” He gave no indication of any relevant knowledge or ability, and pointed to only one or a few sessions (completed within a single month) of working with a trainer to learn how to train Roxy.

If the court’s test of demonstrable education, experience, or competence to train service animals is applied in future cases, especially where the “authorized person” has some such qualities but is not an experienced professional trainer, then a conflict with more permissive federal law could arise. In practice this is unlikely because federal law does not specifically address service dogs in training, or who may train a service dog (other than its owner). I am interested to see how other courts respond to this decision, especially those in other states that are starting to grapple with service dogs in training.

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