Diner Must Provide Access, Not Civility

     MANHATTAN (CN) – A New York City diner did not discriminate against a disabled woman who said that waiters gave her a cold shoulder once she starting bringing a service dog into the restaurant, an appellate court ruled.



     Cheryl Krist, whose combination of asthma, arthritis and tremor has hurt her mobility since 2003, bought the dog five years later to cope with her symptoms.
     At the time, she said, she had been a loyal customer of the Coopertown Diner, owned by Michael Kolombos and his self-named corporation, for nearly two decades.
     “Coopertown, for Krist, had been ‘like… Cheers… you went in and you knew people and people knew you and you were friendly and everything was fine,'” the appellate court summarized, quoting the trial transcript.
     But she said that “all went right out the window” after she brought the dog, according to the court.
     The 2nd Circuit decision, written by Judge Amalya Kearse and co-signed by Judges Susan Carney and Clifford Wallace, outlines what the undisputed trial evidence showed.
     “The first time she took the dog to the restaurant, Joe Mugno, a waiter with whom she frequently had had lunch, asked her if her dog was a service dog, using a tone of skepticism. Krist responded that it was a service dog, and she and Mugno had no further conversations about the dog; but Mugno never had lunch with her again. Krist testified that on this occasion, none of the other employees of the restaurant spoke to her, even to exchange pleasantries. In addition, one of the customers, who had sat with Krist every day she was at Coopertown for 10 years, refused to sit with her, never sat with her again, and stopped speaking to her.
     “Krist also testified that there were incidents in which [co-owners Fotios] Batas or Michael Kolombos ‘yelled’ at her. Thus, on her second visit to Coopertown with the dog, a few days after the first, Batas, from behind the counter on the opposite side of the restaurant, stared at the dog and made growling sounds,” the decision states.
     At one point, Krist and Batas quarreled about whether the dog barked. She claimed it made a “boof” sound, but he still ordered her to leave the restaurant.
     After more such incidents, Krist says she decided to stop going to Coopertown in September 2009, and she filed a federal lawsuit seeking punitive damages and an injunction.
     U.S. District Judge George Daniels found after a three-day bench trial that Krist showed “no evidence that any of these owners of this restaurant or employees of this restaurant treated plaintiff any differently because she was disabled.
     “There is no evidence of that from the 20 years before she had the dog, and there is no evidence of that when she got the dog,” he emphasized.
     The judge added that the Americans with Disabilities Act was intended to safeguard access, not friendliness.
     “The ADA doesn’t prohibit the conduct at issue here, complaining about the dog’s handling and the dog’s behavior, even if done in a rude and insensitive manner -if I could even characterize it as that,” Daniels wrote. “[That] is not what the ADA is intended to reach. This may have been thought of like Cheers, but the ADA does not guarantee that kind of atmosphere. The ADA prohibits discrimination and denial of use and enjoyment of public facilities.”
     The three-judge panel agreed with this reading of the statute.”We reject Krist’s contention that Title III imposes a civility code, and we see no error in the findings or conclusion of the district court,” the decision states.

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