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No. 04-02-00664-CV, 7/9/2003. Civil Litigation Click here for the full text of this decision FACTS:James Brown appeals the trial court’s judgment against him in his suit against Ramon and Maria Vasquez and Jesus Lopez for a violation of the Americans With Disabilities Act. James Brown is legally blind and requires the assistance of his service animal, Sam, at all times. On July 15, 2000, Brown, Sam and three companions visited a restaurant, Taqueria El Charro Tapatio. After Brown’s party was seated, and while they looked at the menu, a waitress told them that dogs were not allowed in the restaurant. Brown explained that because he is blind, he needs Sam, his service animal, to accompany him everywhere. Brown also attempted to show the waitress an identification card establishing his claims. Although the waitress looked at the card, she did not read it and instead went to the kitchen and, without explaining either that Brown is blind or that Sam is a service animal, she asked the cook and manager of the restaurant, Jesus Lopez, simply whether dogs were allowed in the restaurant. Without looking out of or leaving the kitchen, Lopez responded that dogs were not allowed. When the waitress conveyed the message to Brown, he asked to speak with a manager. He was not allowed to do so, and left with Sam and the rest of his party. Brown filed suit against the the appellees under the ADA. At the ensuing bench trial, the appellees argued that they are not liable under the ADA because the incident was a mistake since the waitress did not tell Lopez that Brown is blind and the dog is a service animal. Implicitly concluding that “mistake or misunderstanding” is a defense to a suit under the ADA, the trial court found the incident “was the result of a mistake or misunderstanding by defendants, rather than discrimination” and rendered a take-nothing judgment against Brown. HOLDINGReversed and remanded. “Mistake or misunderstanding” is not a defense to a suit under the ADA. Under �12182 of the ADA, “[n]o individual shall be discriminated against on the basis of disability.” 42 U.S.C.A. �12182 (a). “[D]iscrimination includes (ii) 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.” “Reasonable accommodation” includes allowing a disabled individual the full use of his service animal in a place where pets are not normally allowed. The ADA encompasses not only intentional discrimination but also the discriminatory effects of “benign neglect, apathy, and indifference.” Parr v. L&L Drive-Inn Restaurant, 96 F.Supp.2d 1065 (D. Haw. 2000). The failure to accommodate constitutes discrimination and a violation of the ADA even when the failure to reasonably accommodate a disabled person is due to only neglect or indifference. The trial court thus erred in concluding that “mistake or misunderstanding” is a defense under the ADA. The trial court’s error of law plainly caused the rendition of an improper judgment. The evidence conclusively establishes not only that Brown was denied service because he was accompanied by his service dog and, therefore, as a result of his disability, but also that the restaurant had no polices or procedures for accommodating disabled customers. Before this incident, the issue of serving disabled customers had never been discussed by the appellees or any other employee or by Lopez with any of the employees he supervised. It is, thus, not surprising that the waitress did not relay to Lopez that Brown is blind and the dog is a service dog; she was not trained to do so. OPINION: Duncan, J.; L�pez, C.J., Stone and Duncan, JJ.

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