Johnson v. Gambrinus Company

REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40780

_____________________

FRANKLIN JOHNSON,

Plaintiff-Appellee,

v.

GAMBRINUS COMPANY/SPOETZL BREWERY,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

March 27, 1997

Before KING, SMITH, and WIENER, Circuit Judges.

KING, Circuit Judge:

Gambrinus Company/Spoetzl Brewery appeals the district

court’s judgment and injunctive order entered after the district

court found a violation of the Americans with Disabilities Act

and Texas law when it refused to permit Franklin Johnson, who is

blind, to tour the Spoetzl Brewery with his guide dog. Finding

no error, we affirm.

I. BACKGROUND

The Gambrinus Company (“Gambrinus”) owns the Spoetzl Brewery

(the “brewery”) in Shiner, Texas. The brewery offers free daily

public tours. A brief description of the tour is necessary to

understand the issues in this case. The tour begins at the gift

shop where tourists watch a video about the brewery. After

seeing the video, the tour group is guided through a long hallway

and up a flight of metal stairs that leads to the brewhouse. The

tour then roughly traces the production process for Shiner Beer.

Tourists are not shown the beginning part of the brewing

process where grain is mixed with water and then converted to

wort. Tourists first see the grant, which is a copper collecting

vessel located in the brewhouse. Wort passes through the grant

on the way to the brewkettle. At various times in the production

process, the lid to the grant is open. In the brewkettle, hops

are added and the wort is brought to a boil. Tourists are

frequently permitted to look into the brewkettle with their faces

directly over the surface of the wort. When the boiling is

finished, the wort is transferred to a settling tank and then

moved through a cooler. The liquid is then pumped into the

cellars where yeast is added, and the wort is fermented for ten

to twelve days. Visitors are not permitted in this area. After

fermentation, the beer is cooled further and then filtered to

remove the yeast. The beer is then carbonated, and some of it is

pasteurized.

After the tour group leaves the brewhouse, it enters a door

leading to the bottling and canning line. The tourists pass

within a few feet of both the bottling and canning lines. From

the can-filling area, the tourists are led to the keg room. In

the keg room, kegs are debunged (the plug is removed) and

2

sanitized. The kegs are then rolled down a conveyor into the

racking room. The tour group proceeds to the racking room, where

the empty kegs are filled, sealed with a new bung, and stacked.

Tourists get so close to the keg filling operation that they are

sometimes splashed with beer as the bungs are hammered in. After

leaving the racking room, visitors exit the brewery and are

invited to sample beer in the hospitality room.

On July 8, 1993, Franklin Johnson and his guide dog visited

the brewery, along with Johnson’s friend Scott Bowman and

Bowman’s son, to take the tour. During the video presentation at

the gift shop, the tour guide, Bernadette Fikac, noticed that

Johnson had a dog and called the brewmaster, John Hybner, to

confirm the brewery’s policy that no animals were allowed on the

tour or in the brewery. Hybner confirmed that the brewery had a

blanket “no animals” policy, based on its interpretation of

applicable Food and Drug Administration (“FDA”) regulations.

Fikac then informed Johnson that he would not be allowed to take

the tour with his dog, but that he could take the tour with a

personal human guide such as herself. Johnson informed Fikac

that he had a legal right to take the tour with his guide dog,

but the brewery would not budge on its blanket no animals policy.

Johnson declined to take the tour without his dog, and he waited

outside while Bowman and his son took the tour. Although Hybner

instructed Fikac to inform Johnson that he could visit the

hospitality room, Fikac forgot to do so. However, the brewery’s

3

blanket no animals policy at that time applied to the hospitality

room also.

On July 1, 1994, Johnson filed suit against Gambrinus,

seeking relief under Title III of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12181-12189, and Texas law. A bench

trial was held on July 18 and 19, 1995. In its findings of fact

and conclusions of law, the district court determined that

Gambrinus’s blanket no animals policy, which included service

animals,1 was not compelled by any law and violated the ADA. The

court ordered Gambrinus “to modify or establish policies,

practices, or procedures to ensure that disabled persons with

guide dogs or other service animals have the broadest feasible

access to the public tour of the Spoetzl Brewery consistent with

the brewery’s safe operation,” to seek guidance from the Justice

Department, and to submit to the court a written policy carrying

out its order. Gambrinus timely appealed.

On appeal, Gambrinus makes several arguments. It asserts

that the district court improperly placed upon it the burden of

proving that allowing the dog on the tour was unreasonable,

thereby refusing to consider its argument that allowing service

animals on the brewery tour would fundamentally alter the nature

of the tour. Gambrinus also claims that “broadest feasible

1

The lower court, briefs, statutes, and literature use

various terms to refer to guide dogs and other animals used for

assistance by individuals with disabilities, such as “service

animals,” “assistance animals,” and “support animals.” In line

with the language of the ADA regulations, we will use the term

“service animals.”

4

access” is merely a goal and not the appropriate legal standard

to assess violations of the ADA concerning service animals in

public accommodations. Gambrinus further argues that the

district court erred in finding that allowing a guide dog on some

parts of the tour would not violate FDA regulations. Finally,

Gambrinus contends that it cannot be held liable for a state law

violation when a federal statute, namely the Food, Drug, and

Cosmetic Act, 21 U.S.C. §§ 301-395, mandates its actions. We

reject each of these arguments, and we affirm the district

court’s judgment.

II. STANDARD OF REVIEW

We review the district court’s legal conclusions de novo and

its factual findings for clear error. Joslyn Mfg. Co. v. Koppers

Co., 40 F.3d 750, 753 (5th Cir. 1994). We must affirm the

district court’s factual findings “unless we are left with the

firm and definite conviction that a mistake has been made.” Id.

at 761.

III. JURISDICTION

After this case was fully briefed, Johnson filed a motion to

dismiss the appeal for lack of jurisdiction. Johnson contends

that we have no jurisdiction over this appeal because there is no

final judgment or final order, the order was not an appealable

collateral order, and the district court did not fully adjudicate

the rights and obligations of the parties. Before oral argument,

we denied that motion, and upon reconsideration we have

determined that our initial decision was correct. We make no

5

comment on Johnson’s specific arguments, instead concluding that

we have jurisdiction under 28 U.S.C. § 1292 because the district

court’s order granted an injunction.2

The district court’s order reads as follows:

Defendant is ORDERED to modify or establish policies,

practices, and procedures to ensure that disabled

persons with guide dogs or other service animals have

the broadest feasible access to the public tour of the

Spoetzl Brewery consistent with the brewery’s safe

operation. As Defendant establishes or modifies its

policies, practices, or procedures, it is hereby

ORDERED to seek guidance from the United States

Department of Justice in the form of a letter opinion

or, if necessary, a formal or informal rulemaking. In

seeking guidance from the Justice Department, Defendant

may request that the Justice Department consult with

the United States Food and Drug Administration and the

Occupational Safety and Health Administration.

Defendant is further ORDERED to submit to the Court, as

soon as practicable, a written policy governing support

animal access to its public tour, incorporating

whatever guidance the Justice Department provides. The

Court shall maintain continuing jurisdiction over

Defendant to ensure that this policy is carried out and

that disabled persons with support animals are afforded

the broadest feasible access consistent with the safe

operation of the Spoetzl Brewery.

The order, in effect, requires Gambrinus to make modifications to

allow individuals with service animals the broadest feasible

access to the tour, to consult with the Department of Justice in

formulating these changes, and to submit a written policy to the

2

Section 1292 provides in pertinent part:

(a) Except as provided in subsections (c) and (d) of

this section, the courts of appeals shall have

jurisdiction of appeals from:

(1) Interlocutory orders of the district

courts . . . granting, continuing, modifying,

refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions

. . . .

6

district court as soon as practicable. This is very similar to

the desegregation order in Board of Pub. Instruction v. Braxton,

326 F.2d 616 (5th Cir.), cert. denied, 377 U.S. 924 (1964). In

Braxton, the lower court’s order listed five types of prohibited

acts, for example, “[c]ontinuing to operate a compulsory biracial

school system,” “[a]ssigning pupils to schools on the basis of

race and color,” and “[a]ssigning . . . personnel to schools on

the basis of . . . race and color.” Id. at 617 n.1. The order

then indicated that the prohibitions would not go into effect

immediately and required the defendants to submit “a detailed and

comprehensive plan” to implement the prohibitions. Id. We held

that the order was an appealable injunction, reasoning that “the

ordering of the plan dealing expressly with these prohibited acts

amounts to a mandatory injunction.” Id. at 619. The order in

the case at bar is similar, given that it prohibits an act

(banning all service animals from the brewery tour) and orders

Gambrinus to consult the Department of Justice and submit a

written policy incorporating that guidance. Thus, we conclude

that the order in this case is an appealable injunction under

§ 1292(a)(1). See also Morales v. Turman, 535 F.2d 864, 867 n.6

(5th Cir. 1976) (“[T]he order requiring that the parties meet and

negotiate a plan complying with the decision is itself a

mandatory injunction which is appealable under 28 U.S.C.

§ 1292(a)(1).” (citing Braxton)), rev’d on other grounds, 430

U.S. 322 (1977).

7

IV. STANDARDS OF PROOF UNDER THE AMERICANS WITH DISABILITIES ACT

Title III of the ADA, which applies to public

accommodations,3 establishes the general rule that “[n]o

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.” 42 U.S.C. § 12182(a). The ADA then defines

discrimination to include

a failure to make reasonable modifications in policies,

practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities,

privileges, advantages, or accommodations to

individuals with disabilities, unless the entity can

demonstrate that making such modifications would

fundamentally alter the nature of such goods, services,

facilities, privileges, advantages, or accommodations.

Id. § 12182(b)(2)(A)(ii).

The central issue for us to address in this case is the

allocation of the burdens of proof in a “reasonable

modifications” case under Title III. Because no Fifth Circuit

case sets forth these burdens in the context of Title III, we

will look to the more fully developed case law under Title I of

the ADA, which prohibits disability discrimination in employment.

See id. § 12112.

In Riel v. Electronic Data Sys. Corp., 99 F.3d 678 (5th Cir.

1996), the plaintiff brought suit under the ADA after he was

3

The parties do not dispute that the public tour and

hospitality room are places of public accommodation.

8

fired for repeatedly failing to meet milestone deadlines on

projects. Id. at 681. He claimed that his failure to meet those

deadlines was caused by his disability, which was fatigue

attributed to renal failure and diabetes, and he requested

accommodations. Id. at 680-81. The district court granted

summary judgment for the employer, in part by concluding that the

plaintiff’s requested accommodations were not reasonable. Id. at

680. We reversed and remanded. Id.

Title I of the ADA provides that discrimination includes

“not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a

disability . . . unless [the employer] can demonstrate that the

accommodation would impose an undue hardship on the operation of

the business.” 42 U.S.C. § 12112(b)(5)(A). The Riel court noted

that the statutory language, by requiring a reasonable

accommodation unless the employer “can demonstrate” undue

hardship, clearly placed the burden of proof with respect to

undue hardship on the employer. 99 F.3d at 682. As to the

burden of proving the reasonableness of the accommodation, the

court noted that “[i]n contrast, discrimination is defined to be

a ‘failure to implement reasonable accommodations,’ suggesting

that the plaintiff bears the burden of proof on that issue.” Id.

The court went on to describe the substance of these burdens:

“[A] reasonable accommodation is ‘a method of accommodation that

is reasonable in the run of cases, whereas the undue hardship

inquiry focuses on the hardships imposed by the plaintiff’s

9

preferred accommodation in the context of the particular

[employer’s] operations.’” Id. at 683 (quoting Barth v. Gelb, 2

F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1538

(1994)) (alteration in original). Thus, a plaintiff meets the

burden of proof on reasonableness by proposing and putting forth

evidence of an accommodation that is generally reasonable, or

reasonable “in the run of cases.” The employer can challenge the

reasonableness of the accommodation only by evidence showing that

the accommodation generally would not be reasonable. Moving on

to the affirmative defense, if the employer introduces evidence

that disputes the appropriateness of the accommodation in the

specific circumstances, that constitutes evidence of undue

hardship (on which the employer bears the burden of proof). The

Riel court held that an employer’s only mechanism for challenging

a requested accommodation (that is reasonable in the run of

cases) on grounds that are specific to the circumstances is

through the undue hardship defense. Id. at 683-84.

The plaintiff in Riel requested that his employer

accommodate him either by transferring him to a position without

milestone deadlines or by adjusting the deadlines for him. Id.

at 683. The employer argued that relaxing the milestone

deadlines would disrupt its work structure. Id. The court

concluded that there was a fact issue on that question and

accordingly determined that summary judgment was inappropriate.

Id. The employer also argued that its internal polices would not

allow it to transfer the plaintiff because the plaintiff had

10

received ratings of “below average” as a result of missing

milestone deadlines. Id. The court concluded that this evidence

focused upon the plaintiff’s specific circumstances and thus

could not be used to rebut the plaintiff’s showing of an

accommodation reasonable in the run of cases, but instead was

relevant only to meeting the employer’s burden of showing undue

hardship. Id. at 683-84. The employer, however, did not plead

undue hardship, which is an affirmative defense. Id. at 684.

The employer’s evidence therefore was not sufficient to show that

it was entitled to judgment as a matter of law and that there

were no genuine issues of material fact. Id.

While Riel was a Title I reasonable accommodations case, its

analysis is easily transferrable to the Title III reasonable

modifications context. The language of both provisions is very

similar: Title I defines discrimination to include “not making

reasonable accommodations . . . unless [the defendant] can

demonstrate that the accommodation would impose an undue

hardship.” 42 U.S.C. § 12112(b)(5)(A). Title III defines

discrimination to include “a failure to make reasonable

modifications . . . unless the entity can demonstrate that making

such modifications would fundamentally alter the nature of [the

public accommodation].” Id. § 12182(b)(2)(A)(ii). In light of

the statutes’ parallel language, we find no basis for

distinguishing their respective burdens of proof. While Title I

provides an undue hardship defense and Title III provides a

fundamental alteration defense, fundamental alteration is merely

11

a particular type of undue hardship. See 29 C.F.R. pt. 1630

app., § 1630.2(p). Consequently, while the scope of the

affirmative defense under Title III is more narrow than that

provided by Title I, the type of proof -- that is, proof focusing

on the specific circumstances rather than on reasonableness in

general -- is the same.

Applying the Riel framework to the Title III reasonable

modifications context yields the following allocation of burdens

of proof. The plaintiff has the burden of proving that a

modification was requested and that the requested modification is

reasonable. The plaintiff meets this burden by introducing

evidence that the requested modification is reasonable in the

general sense, that is, reasonable in the run of cases. While

the defendant may introduce evidence indicating that the

plaintiff’s requested modification is not reasonable in the run

of cases, the plaintiff bears the ultimate burden of proof on the

issue. See also Staron v. McDonald’s Corp., 51 F.3d 353 (2d Cir.

1995) (reversing the district court’s Rule 12(b)(6) dismissal of

Title III suit based on district court’s determination that

plaintiffs’ requested accommodations are not reasonable as a

matter of law and remanding to give plaintiffs the opportunity to

prove that the requested accommodations are reasonable).4 If the

4

The Rehabilitation Act is the predecessor to the ADA, and

Rehabilitation Act precedent is to be used in interpreting the

ADA. See, e.g., 56 Fed. Reg. 35544, 35545 (1991). However, we

have not been consistent in our interpretation of the

Rehabilitation Act regarding the burden of proof on

reasonableness. Compare McGregor v. Louisiana State Univ. Bd. of

Supervisors, 3 F.3d 850 (5th Cir. 1993) (concluding that in a

12

plaintiff meets this burden, the defendant must make the

requested modification unless the defendant pleads and meets its

burden of proving that the requested modification would

fundamentally alter the nature of the public accommodation. The

type of evidence that satisfies this burden focuses on the

specifics of the plaintiff’s or defendant’s circumstances and not

on the general nature of the accommodation. Under the statutory

framework, such evidence is relevant only to a fundamental

alteration defense and not relevant to the plaintiff’s burden to

show that the requested modification is reasonable in the run of

cases.

Service animals present potential concerns not encountered

with other types of personal assistance mechanisms for

individuals with disabilities. The Justice Department, which

Congress directed to issue regulations to carry out the

provisions of Title III, 42 U.S.C. § 12186(b), has promulgated a

regulation and commentary discussing the use of service animals

in places of public accommodation. The regulation states:

“Generally, a public accommodation shall modify policies,

practices, or procedures to permit the use of a service animal by

an individual with a disability.” 28 C.F.R. § 36.302(c)(1). In

Rehabilitation Act case concerning higher education, plaintiff

had the burden to prove that his requested accommodations were

reasonable), cert. denied, 510 U.S. 1131 (1994), with Prewitt v.

United States Postal Serv., 662 F.2d 292 (5th Cir. Unit A Nov. 5,

1981) (concluding in a Rehabilitation Act case involving

employment discrimination that the employer has the burden of

persuasion on the issue of reasonable accommodation). The

analysis in Riel is much more similar to McGregor than Prewitt,

and thus we will continue to follow that path.

13

its interpretive commentary, the Justice Department has stated as

follows:

Section 36.302(c)(1) of the final rule now

provides that “[g]enerally, 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.

28 C.F.R. pt. 36 app. B, at 623 (alteration in original)

(citations omitted). This Justice Department interpretation fits

well within the Riel framework. Under the Riel framework, the

plaintiff must show a modification that is reasonable generally

or in the run of cases. The regulation and commentary reflect an

administrative determination that modifying a no animals policy

to allow a service animal full access with its owner in a place

of public accommodation is generally reasonable, or, in Riel

language, reasonable in the run of cases. The commentary also

mirrors the Riel framework by stating that a public accommodation

must modify its animal restriction policy to allow a service

animal to accompany its owner unless it can demonstrate that such

modifications would cause a fundamental alteration or jeopardize

the safety of the public accommodation.

14

Congress has specifically directed the Justice Department to

issue regulations implementing Title III. See 42 U.S.C.

§ 12186(b). In reviewing such regulations, we must first

determine whether the statute has “directly spoken to the precise

question at issue.” Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837, 842 (1984). We agree with the

district court in this case that Title III of the ADA does not

explicitly address the issue of who bears the burden of proving

the reasonableness of allowing service animals in places of

public accommodation. Next “if the statute is silent or

ambiguous with respect to the specific issue, the question for

the court is whether the agency’s answer is based on a

permissible construction of the statute.” Id. at 843. The

agency’s construction does not have to be the only permissible

reading of the statute. Id. at 843 n.11. “Such legislative

regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.”

Id. at 844.

We agree with the district court that the Justice

Department’s interpretation is not arbitrary, capricious, or

manifestly contrary to the statute. As previously discussed, the

regulation corresponds with the ADA’s statutory framework as

discussed in Riel. Furthermore, 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

15

use of service animals.5 We also defer to the Justice

5

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), 101st 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), 101st Cong., 2d Sess. 59 (1990),

reprinted in 1990 U.S.C.C.A.N. 445, 482. 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 accommodations 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 certified, and don’t create public

disturbances nor pose any public health risk

whatsoever. Generally speaking, any facility where it

is safe for a person to go, it is safe for a trained

assistive animal to go, including restaurants and other

16

Department’s commentary concerning service animals because it is

not inconsistent with the plain language of the regulation. See

WRT Energy Corp. v. Federal Energy Regulatory Comm’n, No. 95-

60326, 1997 WL 85280, at *4 (5th Cir. Feb. 28, 1997) (citing

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)) (giving

deference to FERC’s interpretations of its regulations).6

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. S10,800 (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).

6

Gambrinus argues that the “broadest feasible access”

language in the commentary is merely a goal, not a legal rule.

Gambrinus insists that having a broadest feasible access standard

is inconsistent with the wording of the statute because broadest

feasible access is a “do or die” standard whereas the text of the

statute mandates only reasonable modifications. Contrary to

Gambrinus’s assertions, a broadest feasible access standard is

not a do or die standard in contradiction to the reasonable

modification requirement, but merely an explanation of what is

reasonable in this context. Under the Riel framework, the

plaintiff’s proposed modification must be reasonable in the run

of cases. The administrative agency charged with interpreting

the statute, aided by clear legislative history, has determined

that allowing the broadest feasible access for service animals to

accompany their owners in places of public accommodation is

reasonable. This is not a do or die standard, for in the “rare

circumstance[]” that allowing service animals would fundamentally

alter the nature or jeopardize the safety of the public

accommodation, the public accommodation would not be required to

make the modification.

However, even in such a rare circumstance, the public

accommodation must designate the exact areas where exclusion is

17

Before discussing the application of the burdens of proof in

this case, it is necessary to examine the relevant FDA

regulations and the district court’s findings regarding those

regulations.

V. THE FOOD, DRUG, AND COSMETIC ACT

The Food, Drug, and Cosmetic Act governs, among other

things, the manufacturing of food to prevent adulteration. 21

U.S.C. § 342. The regulations implemented pursuant to the Food,

Drug, and Cosmetic Act controlling manufacturing processes state

that “[g]uard or guide dogs may be allowed in some areas of a

plant if the presence of the dogs is unlikely to result in the

contamination of food, food-contact surfaces, or food-packaging

materials.” 21 C.F.R. § 110.35(c). Gambrinus claims that this

FDA provision requires its blanket no animals policy because it

has an open manufacturing system and the tour passes by places

where the beer or the beer packaging is exposed to air, thereby

risking contamination. Of the various types of contamination,

Gambrinus is mostly concerned with physical contamination --

i.e., dog hair in the beer.

Gambrinus is particularly worried about physical

contamination at “critical control points” in the manufacturing

appropriate. Letter from Turner, 4 NAT’L DISABILITY L. REP. 185

(May 10, 1993) (discussing the use of service animals in

hospitals). This is consistent with the broadest feasible access

requirement and with the general requirement under Title III that

“[g]oods, services, facilities, privileges, advantages, and

accommodations shall be afforded to an individual with a

disability in the most integrated setting appropriate to the

needs of the individual.” 42 U.S.C. § 12182(b)(1)(B).

18

process. A critical control point is a point “where there is a

high probability that improper control may cause, allow, or

contribute to a hazard or to filth in the final food.” Id.

§ 110.3(e). Gambrinus asserts that there are at least five

critical control points on the tour, namely:

. the grant, through which wort flows as the brewkettle

is filled and which must remain open whenever wort

flows through it;

. the lip of the brewkettle, which is exposed to air when

brew flows through;

. the lid of the brewkettle, which must be opened to

check the consistency of the beer and is opened for

tourists so they can see the beer being processed;

. the bottle and can filling stations, in which unsealed

containers are exposed to open air; and

. the keg sealing area, where unsealed kegs and bungs are

exposed to air before the kegs are refilled and sealed.

The district court made findings indicating that because

contamination was unlikely at several of these points, the FDA

regulation did not compel Gambrinus’s blanket no animals policy.

Gambrinus claims those findings constitute clear error. After

reviewing the evidence and the district court’s findings, we

conclude that the district court did not commit reversible error.

The district court made two types of findings regarding the

likelihood of contamination. First, the district court examined

the risk of contamination presented by a guide dog versus the

19

risk of contamination presented by the tourists. All parties

agree that in the entire history of the brewery, there have only

been three known visits by guide dogs and only one known request

to take a guide dog on a tour. By contrast, over 5800 tourists

visit the brewery annually. The district court found that guide

dogs are groomed daily and likely to shed less hair than dogs

that are not groomed daily. By contrast, the tourists are not

required to wear any hair or beard covering, even though tourists

often put their faces directly into the opening of the

brewkettle. Based on these findings, the district court

concluded that

[t]he marginal increase in contamination risk

associated with over 5,000 annual human visitors to the

Spoetzl Brewery is greater than the marginal increase

in contamination risk associated with the maximum

foreseeable number of annual guide dogs visits by at

least an order of magnitude. More likely than not,

these risks differ by several orders of magnitude.

Gambrinus claims that the contamination risk posed by humans is

irrelevant because the FDA regulation specifically targets guide

dogs. However, Gambrinus’s own expert (R.D. Sowards from the

Texas Department of Public Health, the agency that enforces FDA

regulations in Texas) admitted under cross-examination that an

inspector would consider all the circumstances, including the

exposure risk posed by the tourists, in determining whether to

cite the brewery. The evidence also showed that the Texas

Department of Public Health has been aware for some time that the

brewery conducts public tours but has never issued a citation to

the brewery based on the contamination risk from the tourists.

20

Hybner testified that in the twenty-three years that he has been

brewmaster, he has never heard of a hair in Shiner beer. From

this evidence, the district court did not clearly err in

determining that “[t]he Texas Department of Public Health will

not issue a citation to the Spoetzl Brewery if, consistent with

the Americans With Disabilities Act, the Spoetzl Brewery permits

disabled persons to take their guide dogs on some parts of the

brewery tour, subject to specific limitations that make

contamination unlikely.”

Second, the district court made other findings based not on

relative contamination risk but on the risk of contamination

posed by the presence of a guide dog alone. The district court

determined that contamination is “unlikely -- virtually

impossible -- at the Spoetzl Brewery if a guide dog is permitted

to enter the hospitality room.” Gambrinus apparently agrees with

this conclusion, given that it has already changed its policy to

allow guide dogs into the hospitality room.7 The district court

also found that contamination was “unlikely -- virtually

7

The district court found that at the time of the tour,

Johnson was welcome in the hospitality room only without his

guide dog. Gambrinus claims it could not have discriminated

against Johnson because Johnson did not request to visit the

hospitality room. However, the district court found (from clear

evidence in the record, including Hybner’s own testimony) that

Gambrinus’s blanket no animals policy at that time included the

hospitality room. No one disputes that the standard tour

procedure was to invite the tourists to the hospitality room at

the end of the tour, and Gambrinus never invited Johnson to enter

the hospitality room. The district court did not err in finding

that Gambrinus discriminated against Johnson through its policy

of conditioning admittance to the tour, including the hospitality

room, on Johnson not bringing his guide dog.

21

impossible” if a guide dog is permitted in the stairs leading to

the brewhouse. Gambrinus does not contest this finding either.8

The district court made further findings implying that any

part of the production occurring before the boiling and filtering

process could be exposed to a guide dog because the boiling and

filtering would remove any possible contaminants. The district

court noted that Gambrinus’s experts did not comment on the

likelihood of physical contamination (hair in the beer) if the

prefiltered wort were exposed to a guide dog, and the district

court found that the liquid in the grant and subsequently in the

brewkettle would be filtered. Thus, Gambrinus failed to make an

adequate showing that it would be in violation of FDA regulations

to allow a guide dog on the early portions of the tour where

tourists see the wort flowing through the grant and peer into the

brewkettle.

The district court found that contamination in the bottle

filling station was unlikely because presealed bottles are behind

glass and tourists are only directly exposed to sealed, capped

bottles. Gambrinus argues that this finding is clearly erroneous

because the glass barrier was not in place on July 8, 1993 when

Johnson wanted to tour the brewery. The evidence in the record

8

Gambrinus claims that the fact that there is no

contamination risk in the stairs is irrelevant because the public

accommodation is the tour, not the stairs leading to a part of

the tour. The finding is relevant, however, in demonstrating

areas in the building in which a guide dog would not present a

risk of likely contamination, which is pertinent in planning a

potential alternative tour route that does not make contamination

likely.

22

shows that the glass was not in fact in place on that date, and

thus the district court did commit clear error. This error does

not mandate reversal because the district court’s order can be

upheld based upon the findings of other places on the tour where

a guide dog does not present a likelihood of contamination.

Furthermore, the finding that a glass barrier could reduce the

likelihood of contamination tends to indicate that other

modifications could possibly be made to eliminate any risk of

contamination.9

The gist of Gambrinus’s argument is that there is no

evidence to show that a guide dog could go on any part of the

tour without creating a likelihood of contamination. Gambrinus

repeatedly points to evidence in the record where its experts

make sweeping statements about guide dogs in a place like the

brewery, but Gambrinus ignores the evidence to the contrary, most

of which was elicited on cross-examination. After reviewing all

of the evidence, we are not left with a definite and firm

conviction that the district court made a mistake in finding that

a guide dog could go on parts of the tour without presenting a

likelihood of contamination and thus Gambrinus’s blanket no

animals policy is not compelled by the FDA regulation.

9

Gambrinus argues that the glass barrier in place does not

fully protect the area from contamination exposure because it

does not reach the ceiling and covers only part of the area.

Even if this contention is correct, it shows that Gambrinus can

conceive of types of glass barriers that could make contamination

unlikely.

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VI. APPLICATION OF ADA STANDARDS IN LIGHT OF THE FDA FINDINGS

After analyzing the district court’s interpretations and

findings regarding the FDA regulation, we now turn to a

discussion of whether each party has met its burdens under the

ADA.

As previously stated, Johnson has the burden to show that he

requested a modification that is reasonable in the run of cases.

Johnson has met that burden: he requested a modification of

Gambrinus’s blanket no animals policy to allow full access for

his guide dog in Gambrinus’s place of public accommodation. As

indicated in the Justice Department’s regulation and commentary,

this modification is generally reasonable.10

Thus, as established by Riel and the Justice Department

regulation and commentary, Gambrinus must make modifications to

allow guide dogs on the tour unless it can demonstrate either 1)

that such modifications would fundamentally alter the nature of

the public accommodation or 2) that such modifications would

jeopardize the safety of the public accommodation. Gambrinus has

failed to make such a showing.

10

Gambrinus agrees that the burden to prove reasonableness

is on Johnson but argues that this burden also requires Johnson

to prove that there are no obstacles to full access, such as the

FDA regulation. However, the fact that FDA regulations apply to

particular public accommodation shows only that in Gambrinus’s

unique circumstances there may be a barrier to full access for

service animals. That type of evidence is irrelevant to

Johnson’s burden to show that his requested accommodation is

reasonable in the run of cases, but instead is relevant only to

Gambrinus’s affirmative defenses, on which it bears the burden of

proof.

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Gambrinus argues that it is not required to allow guide dogs

on the tour because it would either require Gambrinus to violate

the FDA regulation or to shut down beer production while a dog

was present to avoid exposure. According to Gambrinus, shutting

down the production process would fundamentally alter the nature

of the tour, which is to see beer actually being made. However,

as we have previously discussed, Gambrinus’s interpretation and

application of the FDA regulation are flawed because the district

court did not err in finding that there are parts of the tour

where a guide dog could go without a likelihood of contamination

and thus without violating the FDA regulation.

Gambrinus further complains that the district court erred by

“not considering” its fundamental alteration argument. However,

a reading of the district court’s findings of fact and

conclusions of law reveals that the district court found that

“[a] modification to provide Plaintiff and his support dog the

broadest feasible access to the public tour of the Spoetzl

Brewery consistent with the safe operation of its manufacturing

facilities will not work a fundamental alteration of the nature

of the goods, services, facilities, privileges, or accommodations

offered or provided.” Gambrinus complains that this finding is

clearly erroneous because the district court could not assess

whether any modifications would cause a fundamental alteration

when the exact nature of the changes to be made is still

uncertain. Basically, Gambrinus is arguing that the district

court had a duty to delineate the exact nature of the changes

25

Gambrinus must make before it could conclude that Gambrinus had

violated the ADA. The district court had no such duty because

Johnson met his burden of showing that modification of a blanket

no animals policy is reasonable in the run of cases and therefore

Gambrinus must make the modification unless it can demonstrate an

affirmative defense. As previously discussed, the district court

found many areas of the tour where a guide dog could be present

without a likelihood of contamination. It was not clearly

erroneous to determine that a modification to allow service

animals on those parts of the tour would not result in a

fundamental alteration. Findings concerning fundamental

alterations relating to other modifications will come later. As

Gambrinus acknowledges, the district court contemplates further

action in this case. The court’s order requires Gambrinus to

submit a plan for the court’s approval that provides “the

broadest feasible access consistent with the safe operation” of

the brewery.11 In an order concerning attorneys’ fees entered

after the findings of fact and conclusions of law, the court

noted that additional time may be expended litigating this case.

11

The district court framed its order in terms of the safe

operation of the brewery. The Justice Department’s ADA

commentary addresses the safety of the public accommodation,

which in this case is the tour. When the district court refers

to the safe operation of the brewery, it is not applying the

Justice Department’s commentary but is intending to encompass

within this inquiry the FDA regulation and the risk of

contamination to the brewery. We read this as the district

court’s reconciliation of the potentially conflicting demands of

the FDA regulation and the ADA in this context. Only if this

proves to be impossible will the analysis compelled by Morton v.

Mancari, 417 U.S. 535, 550 (1974), be required.

26

Gambrinus will have the opportunity to make further arguments

relating to fundamental alterations and safety of the brewery in

whatever proceedings occur when it submits its policy governing

service animal access. Although we have jurisdiction to consider

this appeal, this litigation is not over.

VII. TEXAS LAW

Texas law specifically prohibits excluding a blind person

from any public facility because of that person’s use of a

service dog:

No person who is blind or physically handicapped may be

denied admittance to any public facility in the state

because of the blind or handicapped person’s use of a

white cane, assistance dog, wheelchair, crutches, or

other device of assistance in mobility, or because the

person is blind or handicapped.

TEX. HUM. RES. CODE ANN. § 121.003(c) (Vernon Supp. 1997). This

prohibition is “[s]ubject only to limitations and conditions

established by law and applicable alike to all people.” Id.

§ 121.003(a). A violation subjects a defendant to a minimum of

$100 in damages. Id. § 121.004.12 The trial court found that

the brewery’s refusal to admit Johnson without his dog violated

the statute and awarded Johnson $100.

Gambrinus claims that it cannot be found to have violated

the Texas statute because its refusal to allow Johnson’s dog on

the tour was required by the FDA regulation. The district court

disagreed and determined that Gambrinus’s blanket no animals

policy violated the Texas statute because the dog could go on

12

After the trial court’s judgment, the Texas Legislature

amended the statute to provide minimum damages of $300.

27

parts of the brewery tour without violating the FDA regulation.

We have already concluded that the district court’s determination

that Gambrinus’s blanket no animals policy was not established by

the FDA regulation was correct, and therefore we affirm the

district court’s finding of liability and award of $100 to

Johnson.

VIII. CONCLUSION

For the foregoing reasons, we AFFIRM.

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