Johnson v. Gambrinus Company

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
_________________________________________________________________
June 25, 1997

Before KING, SMITH, and WIENER, Circuit Judges.

KING, Circuit Judge:

The opinion entered in this cause on March 27, 1997,

reprinted at 109 F.3d 1040, is withdrawn, and the following

opinion is substituted therefor.

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

2
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

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

3
instructed Fikac to inform Johnson that he could visit the

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

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

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
animals on the brewery tour would fundamentally alter the nature

of the tour. Gambrinus also claims that “broadest feasible

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,

5
we denied that motion, and upon reconsideration we have

determined that our initial decision was correct. We make no

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

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

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

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.

7
§ 1292(a)(1).” (citing Braxton)), rev’d on other grounds, 430

U.S. 322 (1977).

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.

3
The parties do not dispute that the public tour and
hospitality room are places of public accommodation.

8
 In Riel v. Electronic Data Sys. Corp., 99 F.3d 678 (5th Cir.

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

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

9
is reasonable in the run of cases, whereas the undue hardship

inquiry focuses on the hardships imposed by the plaintiff’s

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.

10
Id. The employer also argued that its internal polices would not

allow it to transfer the plaintiff because the plaintiff had

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

11
provides an undue hardship defense and Title III provides a

fundamental alteration defense, fundamental alteration is merely

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

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.5 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

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
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.
5
This analysis applies under the facts and arguments
presented in this case. In this case, the parties agreed that
some modification to tour procedures was “necessary,” satisfying
that element of the statute. Additionally, Gambrinus’s argument
depends upon its claim that FDA regulations prohibited all
animals on the brewery tour. We conclude in Part V infra that
Gambrinus’s argument is flawed because the FDA regulations do not
compel Gambrinus’s no animals policy; this removes the basis for
Gambrinus’s proposed modification, thereby effectively
eliminating it as an alternative proposed modification and
leaving only Johnson’s proposal for analysis. In a different
case with competing proposed modifications, a different analysis
could control the plaintiff’s burden of proving that the
defendant “fail[ed] to make reasonable modifications . . . when
such modifications are necessary.” Indeed, had Gambrinus argued
that its modification of a personal human guide was reasonable,
even in the absence of the FDA regulations, our analysis could
have been different.

13
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

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

14
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.

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

15
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

use of service animals.6 We also defer to the Justice

6
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

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, 107 F.3d

314, 317-18 (5th Cir. 1997) (citing Thomas Jefferson Univ. v.

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
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).

17
Shalala, 512 U.S. 504 (1994)) (giving deference to FERC’s

interpretations of its regulations).7

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,

7
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
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
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

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;

19
 . 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

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

20
 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.

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

21
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.8 The district court

also found that contamination was “unlikely -- virtually

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

the brewhouse. Gambrinus does not contest this finding either.9

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

8
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.
9
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
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

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.10

10
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.

23
 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.

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.11

11
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

24
 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.12 Gambrinus

has failed to make such a showing.

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

FDA regulation. However, the fact that FDA regulations apply to
a 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.
12
Because we have concluded that the FDA regulation did
not mandate Gambrinus’s blanket no animals policy, the asserted
justification for its proposed modification -- a human escort --
disappears. Thus, our discussion assumes only one proposed
modification (the plaintiff’s), and we make no comment on the
situation in which there are two competing proposed reasonable
modifications.

25
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

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

26
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.13 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.

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:

13
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.

27
 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. § 121.004.14 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

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.

14
After the trial court’s judgment, the Texas Legislature
amended the statute to provide minimum damages of $300.

28