[nagdu] Diner Must Provide Access, Not Civility

[Ginger Kutsch]

Diner Must Provide Access, Not Civility

By ADAM KLASFELD 

Source: http://www.courthousenews.com/2012/07/27/48772.htm

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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