• Date: May 4, 1999
• To: Kent Ryan, Director of Safety
• From: James L. Johnson, Assistant City Solicitor
• Subject: Your March 4, 1999, Request for a Legal Opinion Regarding Guide Dogs in Taxicabs

According to the information you provided, the essential facts are uncontroverted. On February 4, 1999, at 3:45 P.M., Annie McEachirn, a legally blind person, approached Sunshine Cab #742, first in line on the Omni Taxi Stand at Fifth and Race Streets, and requested a ride to her residence. Ms. McEachirn was accompanied by her guide dog, a Black Labrador. The driver of the taxi, Hassan Taher, refused the fare, telling her he was allergic to dogs and that it was against his religion to be in the same car as the dog. Ms. McEachirn was transported to her residence by Tom Ellis, the driver of Ellis Taxicab #3, the second taxi on the stand. The question raised is whether the driver could legally refuse to transport a legally blind person and her guide dog for either of the two reasons he gave.

LEGAL OPINION

The Americans with Disabilities Act (ADA), the Cincinnati Municipal Code and the Ohio Revised Code require that a taxicab driver transport a blind person and the person’s guide dog. This determination is supported by decisions of the United States Supreme Court. His complaints that he is allergic to dogs and that it would violate his religious beliefs are not sufficient to overcome Ms. McEachirn’s rights under the ADA, the Ohio Revised Code, or the Cincinnati Municipal Code.

LEGISLATIVE AUTHORITIES

The First Amendment to the United States Constitution provides that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” Ohio Revised Code (ORC) S. 955.43 (A) provides that When “a blind, deaf or mobility impaired person is accompanied by a dog that serves as…a guide, leader or listener, or support dog,…the person is entitled to full and equal accommodations, advantages, facilities, and privileges of all public conveyances, hotels, lodging places, all places of accommodation,…and other places to which the general public is invited, and may take the dog into such conveyances and places…” ORC S. 955.43 (B) provides that “No person shall deprive a blind, deaf or mobility impaired person of any of the advantages, facilities, or privileges provided in division (A) of this section, nor charge the blind, deaf, or mobility impaired person a fee for the (guide) dog.^_ Cincinnati Municipal Code (CMC) S. 407-39 provides “It shall be the duty of every driver of an unengaged taxicab upon request, to transport any orderly person between any two points within the city” CMC S. 408-1 (c) provides that “every applicant for a license as a driver of a taxicab…shall make application to the director of safety…(which) shall set forth that the applicant is free of…any..infirmity, physical or mental, which would render the applicant unfit for safe operation of a public vehicle.” Section 304 (a) of the Americans with Disabilities Act of 1990, which became law on July 26, 1990 provides:

Sec. 304(a) GENERAL RULE- No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.

Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. S. 12182 (a) which applies to public accommodations establishes the general rule that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

Disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

Major life activities are “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”

Place of public accommodation means “a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories: a terminal, depot, or other station used for specified public transportation; Specified public transportation means transportation by bus, rail or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.”

42 U.S.C.S. 12186 (b) directs the Justice Department to issue regulations implementing Title III of the ADA.

The definition for place of public accommodation is further clarified by Rules and Regulations, Department of Justice.

Place of public accommodation.

The term “place of public accommodation” is an adaptation of the statutory definition of public accommodation in section 301(7) of the ADA and appears as an element of the regulatory definition of public accommodation. The final rule defines “place of public accommodation” as “a facility, operated by a public entity, whose operations affect commerce” and fall within at least one of 12 specified categories. The term “public accommodation”, on the other hand is reserved by the final rule for the private entity that owns, leases (or leases to), or operates a place of public accommodation. It is the public accommodation, and not the place of public accommodation, that is subject to the regulation’s nondiscrimination requirements. Placing the obligation not to discriminate on the public accommodation, as defined in the rule, is consistent with section 302 (a) of the ADA, which places the obligation not to discriminate on any person who owns, leases (or leases to), or operates a place of public accommodation. (56 Federal Register (F.R.) 35544, 35551). 28 Code of Federal Regulations (C.F.R.) S. 36.302 (C) (1) provides that generally, “a public accommodation shall modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability”. (ADA regulations use the term “service animals” for guide dogs and other animals used by individuals with disabilities.) In its interpretive commentary, the Justice Department states:

“Section 36.302 (c) (1) of the final rule now provides that generally, a public accommodation shall modify policies, practices, and procedures to permit the use of a service animal by an individual with a disability.” This formulation reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals. It is intended that the broadest feasible access be provided to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes. The section also acknowledges, however, that, in rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods, services, facilities, privileges, advantages, or accommodations offered or provided, or the safe operation of the public accommodation would be jeopardized.

CASE LAW

The United States Supreme Court determined, in a case involving the issue of the sacramental use of peyote, an illegal substance under Oregon state law that:

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” (Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-879 (1990).

Quoting, with approval, language from a Supreme Court opinion previously overruled for reasons unrelated to the issues relevant to Ms. McEachirn’s complaint, the Court further stated:

“As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. Of Ed. v. Gobitis, 310 U.S. 586, 594-595, 60 S. Ct. 1010, 1012-1013, (1940), ‘Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. Laws, we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id., at 879.

In a decision reversing convictions for violating a Connecticut statute prohibiting the solicitation of funds for religious causes without prior state approval, the United States Supreme Court stated:

“Thus the First Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. Cantwell v. State of Connecticut, 310 U.S. 296, 304 (1940).

In a decision determining that a brewery violated the ADA by refusing to allow a blind man and his guide dog to take a public brewery tour, the United States Court of Appeals for the Fifth District stated in Johnson v. Gambrius Company/Spoetzl Brewery, 116 F. 3d 1052, 1060-1061 (1997):

“The legislative history of Title III makes clear that Congress concluded that it is a reasonable modification for places of public accommodation with animal restriction policies to allow individuals with disabilities full use of service animals. “ (See Exhibit #1, the footnote providing portions of the legislative history.)

The brewery in this case offered to provide a personal human guide which Mr. Johnson declined.

ANALYSIS

Ms. McEachirn experienced discrimination and unequal treatment despite the fact that the next cab in line drove her to her destination. Mr. Taher would have transported her without hesitation if she were not disabled. Her inconvenience would have been greater had he declined to transport her upon being dispatched to her home. Mr. Taher’s right to hold the religious belief that dogs are impure is protected by the First Amendment to the United States Constitution. His decision to act on that religious belief by declining to transport a blind person with a guide dog is not protected by the First Amendment and violates the ADA, Ohio law and the Cincinnati Municipal Code. (The decisions of the Supreme Court made it unnecessary to consider whether his approach to dogs is consistent with the tenets of his religion.) The Supreme Court has made it clear that the exercise of religious beliefs may be restricted by laws addressing legitimate areas of political concern that are aimed at neither the promotion nor restriction of religious beliefs. The ADA and similar legislative enactments clearly meet the standard the Court has articulated. The Department of Justice has determined, in interpreting the ADA, that taxi services to the public are covered by the ADA. The Department, stated, in an opinion letter dated April 29, 1992, written by the Chief of the Department of Justice, Civil Rights Division, Coordination and Review Section to a New Orleans consulting firm:

“Section 304 of the ADA prohibits discrimination on the basis of disability in the provision of transportation services to the general public by bus, rail, or any other conveyance on a regular and continuing basis by any private entity that is primarily engaged in the business of transporting people and whose operations affect commerce. This requirement would include taxi services.” Mr. Taher’s second reason for not transporting Ms. McEachirn, that he is allergic to dogs, similarly does not provide him with a legitimate defense to her complaint. He stated to Public Vehicle officials that his allergy to dogs is such that a dog in the car would make him so ill that he would have problems driving due to sneezing and watery eyes. He made no such representation, however, when answering the question directed at the existence of an infirmity…which would render (him) unfit for safe operation of a motor vehicle^_ in his application for a public vehicle license. (See CMC S. 408-1 above.) The statement from his doctor, Manuel S. Villareal, M.D., dated February 25, 1999, was that, based on a February 23 skin test, “Mr. Taher is allergic to grass, ragweed, plantain, sorrel, aspergillus, cat, dog, dust mites and house dust.”

Although Mr. Taher did not raise the issue as one of ADA accommodation, under certain circumstances, the Department of Justice would consider an allergic condition a disability covered by the ADA:

“The Department (of Justice), however, declines to state categorically that (various environmental illnesses, also known as multiple chemical sensitivities) are disabilities, because the determination as to whether an impairment is a disability depends on whether, given the particular circumstances at issue, the impairment substantially limits one or more major life activities (or has a history of, or is regarded as having such an effect).”

Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under the regulation. Such an individual would be entitled to all of the protections afforded by the Act and this part. In other cases, individuals may be sensitive to environmental elements or to smoke but their sensitivity will not rise to the level needed to constitute a disability. For example, their major life activity of breathing may be somewhat, but not substantially, impaired. In such circumstances, the individuals are not disabled and are not entitled to the protections of the statute despite their sensitivity to environmental agents.

In sum, the determination as to whether allergies to cigarette smoke, or allergies or sensitivities characterized…as environmental illness are disabilities covered by the regulation must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. 56 F.R. 35544, 35549.) However, even if Mr. Taher’s allergic reaction to dogs was determined to be a disability covered by the ADA, the ADA might not require that the City accommodate him as a taxicab driver:

“Sec.102

(a). GENERAL RULE! No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”(b) CONSTRUCTION! As used in subsection (a), the term “discriminate” includes: (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;… (3) utilizing standards, criteria, or methods of administration (A) that have the effect of discrimination on the basis of disability; or (B) that perpetuate the discrimination of others who are subject to common administrative control; (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; (5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairment of the employee or applicant; (6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity…Section 102. DISCRIMINATION of the Americans with Disabilities Act of 1990. (Emphasis added.) 

RECOMMENDATIONS

1. Mr. Taher’s public vehicle license should be revoked based on his representations regarding his exercise of his religious beliefs and his allergic reaction to dogs. The Public Vehicle Office should reinstate his license only if the following two conditions are met: 

(a) Mr. Taher provides the necessary medical information for a determination of whether his allergic condition amounts to an ADA disability. He describes a severe allergic reaction to dogs that, in his own words, would make it difficult for him to drive with a dog in the cab. If his condition amounts to an ADA disability, an accommodation analysis will be necessary. If his condition is not an ADA disability, an analysis of his suitability to hold a public vehicle license must be made under the provisions of the Cincinnati Municipal Code. Depending on the severity of his condition, he could experience the same reaction in the presence of a dog owner, even if the dog is not present. (See Exhibit #2, memo from Lawrence S. Holditch, M.D.); and 

(b) Mr. Taher provides written assurance that he will transport blind persons and disabled persons with guide dogs or other service animals and will otherwise comply with the ADA, Ohio law and the Cincinnati Municipal Code.

2. Jamal Alwawi’s status as the holder of public vehicle licenses should be reviewed. Mr. Alwawi is the owner of Sunshine Taxi; he owns and maintains a public vehicle license on the taxi Mr. Taher operated when he declined to transport Ms. McEachirn. In a Channel Nine News interview broadcast on February 4, 1999, Mr. Alwawi stated, regarding his religious beliefs:

“We don’t try to touch this dog. Because, if you touch this dog, if this dog spits on you, nothing in the world would clean you up from that.” 

In response to the interviewer’s question whether he would have given Ms. McEachirn a ride if she had approached him rather than Mr. Taher, he stated:

“No, I wouldn’t. I wouldn’t, because of belief.” 

3. The Public Vehicle Office, with the assistance of the Solicitor’s Office should review its license application and the rules sheet it provides when issuing a public vehicle license. Obligations imposed by Federal, State and local law should be clear to holders of a public vehicle license.

EXHIBIT #1

The Court provided the information below, by way of footnote, from committees of the United States House of Representatives as examples of the legislative history.

The legislative history of the ADA contains many statements regarding the use of service animals in places of public accommodation. The Education and Labor Committee indicated that public accommodations should modify their operations to allow service dogs. A public accommodation which does not allow dogs must modify that rule for a blind person with a seeing-eye dog, a deaf person with a hearing-ear dog, or a person with some other disability who uses a service dog. Refusal to admit the dog in these circumstances is tantamount to refusing to admit the person who is in need of the dog. Moreover, a public accommodation may not require the person with the disability to be separated from the service, guide, or seeing-eye dog once inside the facility.

H.R. REP. No. 485 (II), 101 Cong., 2d Sess. 106 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 389. Indeed, the Judiciary Committee specifically listed changing a “no pets” policy for the use of service animals as an example of a reasonable modification, stating that the refusal to modify such a policy is discriminatory:

“It is discriminatory to fail to make reasonable modifications in policies and practices when such modifications are necessary to provide goods or services, unless it can be demonstrated that the modifications would fundamentally alter the nature of the goods or services provided. For example, it is discriminatory to refuse to alter a “no pets” rule for a person with a disability who uses a guide or service dog.” (H.R. REP. No. 485 (III), 101 Cong., 2d Sess. 59 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 182).

Similar sentiments were expressed in the Congressional Record. For example, Senator Simon stated as follows:

“One form of discrimination faced by thousands of people with disabilities in public accommodation is prohibiting entry by an assistive animal. Part of the problem lies in ignorance…Regretfully, many people still don’t understand that these animals are well-trained, and don’t create public disturbances nor pose any public health risk whatsoever. Generally speaking, any facility where it is safe for a trained assistive animal to go, including restaurants and other public accommodations.”

It should be further understood that a person with a disability using a guide, signal or service dog should not be separated from the dog…A person with a disability and his or her assistive animal function as a unit and should never be involuntarily separated. Nor is there any need for this separation. To require it would be discriminatory under the Americans with Disabilities Act. (135 CONG. REC. S 10,800 (1989)). Representative Hoyer, when speaking of reasonable modifications under Title III, expressed that it would be discriminatory for a restaurant to refuse to alter a “no pets” rule for a person who uses a guide or a service dog, because such an alteration would not fundamentally alter the nature of the goods being provided. (136 CONG. REC. E1919 (1990)).

MEMO

• To: James Johnson, Law Department
• From: Lawrence S. Holditch, M.D., Primary Care Medical Director,
• Health Department
• Subject: Dog Allergy

I am writing you in response to your request for information on allergies to dogs. Dogs are a potent source of allergic reactions, although dog allergic reactions are less common than those to cats. The reactions are caused by exposure to an allergen protein which is found in the dog dander. Reactions can be triggered by direct exposure to the dog, or by exposure to the dander on furniture, on clothing, in house dust or aerosolized in the air. Thus, reactions can occur even when the dog is not present. Allergic reactions to dogs vary in symptoms and severity. The most common type of reaction is that of allergic rhinitis: Runny nose, sneezing, itchy and draining eyes, and mild facial swelling. A less common reaction is asthma, with wheezing and difficulty breathing. Eczematous skin rashes can also occur with exposure to dog allergens. True life-threatening, anaphylactic reactions to dog allergens are extremely rare. In the case of the most common type of reactions, that of allergic rhinitis, the patient’s discomfort with the symptoms and frequency of reactions determine the severity of the reactions and how aggressively the allergy is treated. One major dog allergen, Can f 1, has been purified and can be tested for by prick testing. Treatment usually consists of antihistamine therapy when symptoms appear, although desensitization therapy (allergy shots) can also be done. Other interventions, such as frequent washing of the dog and use of HEPA filters, have also been shown to decrease the levels of environmental dog allergens. I hope this information on dog allergy answers your concerns. If I can be any further assistance in this matter, please let me know.

For more information, contact:

Raul Gallegos
President
National Association of Guide Dog Users
(813) 626-2789
president@nagdu.org