Dudley v. Hannaford Bros.

United States Court of Appeals
For the First Circuit

No. 02-1382

DAVID DUDLEY,
Plaintiff, Appellee,

v.

HANNAFORD BROS. CO.,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Lawrence C. Winger for appellant.
John M.R. Paterson and Bernstein Shur Sawyer & Nelson on brief
for Maine Restaurant Ass'n, Maine Grocers Ass'n, Maine Oil Dealers
Ass'n, and Maine Merchants Ass'n, amici curiae.
Peter M. Rice, with whom Tracie L. Adamson, Lipman, Katz &
McKee, P.A., and Disability Rights Center of Maine were on brief,
for appellee.

June 24, 2003
 SELYA, Circuit Judge. Congress enacted the Americans

with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000) (the ADA),

with a view toward eliminating discrimination against persons with

disabilities. That is a laudable policy — but so is the policy of

the State of Maine, variously expressed in statutes, regulations,

and judicial decisions, that constrains retailers against the

profligate sale of alcoholic beverages to inebriates. This

difficult case places those policies in tension with each other.

The underlying action arises out of a retailer's refusal

to sell alcoholic beverages to a disabled person whose symptoms

mimic the traits of intoxication. The district court first

concluded that Title III of the ADA permitted the maintenance of a

private cause of action. Dudley v. Hannaford Bros. Co., 146 F.

Supp. 2d 82, 85-86 (D. Me. 2001) (Dudley I). The court then found,

following a non-jury trial, that the retailer, defendant-appellant

Hannaford Bros. Co. (Hannaford), had sanctioned a policy that

forbade the manager of the store in question from reconsidering a

clerk's initial refusal to sell, even after the customer revealed

his disability. Dudley v. Hannaford Bros. Co., 190 F. Supp. 2d 69,

73 (D. Me. 2002) (Dudley II). In the court's view, this hard-and-

fast rule violated the ADA. Id. at 76.

We agree with the district court that the ADA requires a

retail establishment to exhibit more flexibility in serving

disabled patrons. Accordingly, we affirm the judgment below.

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I. BACKGROUND

We rehearse the facts as found by the district court,

consistent with record support. See Sierra Fria Corp. v. Donald J.

Evans, P.C., 127 F.3d 175, 180 (1st Cir. 1997).

In 1993, plaintiff-appellee David Dudley suffered massive

trauma to his head, legs, and internal organs in an automobile

accident. He never fully recovered from the effects of those

injuries. Although he lost the manual dexterity needed to operate

his appliance repair business, a regimen of therapy, stretching

over several years, enabled him to resume a modicum of activities.

His remaining symptomatology, however, included severely impaired

speech, a pronounced loss of muscular control, an inability to take

even breaths, and a tendency toward impulsive mood swings. The

district court observed Dudley during the trial and described his

speech as "awkward and often very difficult to comprehend." Dudley

II, 190 F. Supp. 2d at 72. The court concluded that his gait and

balance had been severely affected by his injuries and found his

movements "exceedingly labored." Id. The court added that the use

of an appliance, such as a cane or a walker, "would not

significantly ameliorate his condition." Id.

On Saturday, February 27, 1999, Dudley moved from Augusta

to a new abode in Gardiner, Maine. Although friends assisted him

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in making the move, Dudley found the day tiring.1 That evening, he

drove to a Shop 'n Save supermarket operated by Hannaford,

intending to purchase alcoholic beverages. He parked his van in a

spot reserved for handicapped patrons, entered the store, and

proceeded to the appropriate aisle. He then began slowly to

inspect the available merchandise.

The store's shift leader, Armand Cookson, noticed that

Dudley was spending what seemed to be an inordinate amount of time

staring at the shelves. When Dudley finally selected a four-pack

of wine coolers and proceeded toward the checkout counter, Cookson

observed his rambling gait, drooping eyelids, and flushed face.

Cookson jumped to the conclusion that Dudley was intoxicated.

Accordingly, Cookson advised the cashier, Erin Donnell, not to sell

Dudley any alcoholic beverages.

Dudley placed the wine coolers on the counter. Donnell

greeted him and received a slurred response. Donnell, like

Cookson, already had concluded that Dudley was drunk, and his

slurred speech reinforced her mindset. She told Dudley that she

believed him to be intoxicated and, therefore, would not sell him

any alcoholic beverages. Dudley immediately became agitated,

throwing his arms into the air and exclaiming, "Here we go again!"

1
The testimony is uncontradicted that Dudley spent the entire
day effectuating the move. There is no evidence that he consumed
any alcoholic beverages during that time span.

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 Speaking loudly, Dudley tried to explain that he was not

besotted but disabled. Donnell was taken aback by Dudley's

aggressive manner and stepped away from the cash register. Cookson

then intervened, reiterating that the store would not sell any

alcoholic beverages to Dudley and removing the wine coolers from

the counter. Dudley became increasingly frustrated; in his labored

speech, he tried to impart that injuries from a car wreck, not the

overindulgent consumption of alcohol, explained his behavior.

Cookson — who admitted at trial that he thought this explanation

plausible when given — informed Dudley that the store had a strict

rule prohibiting managers from reversing a cashier's decision not

to sell alcoholic beverages to a customer. Dudley nonetheless

persisted and asked to speak with the person in charge.

Henry Fossett, the night manager, responded. He had

observed much of what had transpired. Dudley calmly described the

nature of his disability. He pointed out that his car (clearly

visible through the plate glass storefront) was parked in a

handicapped parking place and bore license plates denoting that its

owner was a person with a disability. He also encouraged Fossett

to call the police so that he could take a breathalyzer test and

prove conclusively that he was not intoxicated. After hearing

Dudley's explanation, Fossett considered it possible that Dudley

suffered from a disability. Nevertheless, Fossett fell back on the

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store's policy, reiterating that management would not revisit a

cashier's refusal to purvey alcoholic beverages to a customer.

Dudley left the store empty-handed. Since that evening,

he has not attempted to purchase alcoholic beverages at the

Gardiner Shop 'n Save or at any of Hannaford's other locations

(despite Hannaford's relatively attractive prices). For its part,

Hannaford has not changed any of its policies or practices

regarding the sale of alcoholic beverages.

II. TRAVEL OF THE CASE

On or about September 1, 1999, Dudley filed a charge of

discrimination with the Maine Human Rights Commission (MHRC) under

the ADA and the Maine Human Rights Act (MHRA). After the MHRC

issued a right-to-sue letter, Dudley brought suit in the federal

district court under Title III of the ADA, 42 U.S.C. §§ 12181-

12189, and the counterpart provisions of Subchapter V of the MHRA,

Me. Rev. Stat. Ann. tit. 5, §§ 4591 to 4594-F (West 2002). On July

10, 2001, the district court denied Hannaford's motion to dismiss,

ruling that Dudley could pursue a private right of action under 42

U.S.C. § 12188(a)(1). See Dudley I, 146 F. Supp. 2d at 85-86.

Following a two-day bench trial, the district court took the merits

under advisement.

The court proceeded to write a thoughtful rescript

delineating Dudley's incapacities, describing the events of

February 27, 1999, and determining that Dudley was disabled within

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the meaning of the ADA. Dudley II, 190 F. Supp. 2d at 71-74. The

court found as a fact that "[a]t the Gardiner store it is an

unwritten rule that once a cashier refuses to sell alcohol to a

customer, the cashier's supervisors will rarely, if ever, reverse

that decision." Id. at 73. Based in part on this finding, the

court concluded that Hannaford's actions and policies violated

Dudley's rights under the ADA. Id. at 76. Deeming the ADA and the

MHRA coextensive, id. at 73, the district court further found that

Hannaford's actions violated the MHRA, id. at 76.

The court then turned to the question of relief. Acting

pursuant to both statutes, the court enjoined Hannaford from

continuing to enforce its discriminatory "refusal to reconsider"

policy at its Gardiner store. Id. Then, acting under the MHRA,

the court imposed a $5,000 civil penalty and awarded Dudley

reasonable attorneys' fees. Id. at 77. Hannaford now appeals.

III. ANALYSIS

We divide our analysis into several segments. We begin

with an overview of the pertinent provisions of the ADA. We then

discuss Hannaford's two principal defenses to the ADA claim.

Finally, we turn to the MHRA claim.

A. The ADA: An Overview.

The ADA did not emerge in a vacuum. Congress found that

"society has tended to isolate and segregate individuals with

disabilities," thus creating "a serious and pervasive social

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problem." 42 U.S.C. § 12101(a)(2). Such individuals "continually

encounter[ed] various forms of discrimination," id. § 12101(a)(5),

and, as a group, "occup[ied] an inferior status in our society,"

id. § 12101(a)(6). Mindful of these inequities, Congress enacted

the ADA "to address the major areas of discrimination faced day-to-

day by people with disabilities," id. § 12101(b)(4), hoping "to

assure equality of opportunity, full participation, independent

living, and economic self-sufficiency for such individuals," id. §

12101(a)(8).

Title III of the ADA targets discrimination by privately

operated places of public accommodation (including supermarkets and

other types of retail shops). It sends a bluntly worded message to

those establishments that fall within its purview: you may not

discriminate against an individual in the full and equal access to

goods and services on the basis of a disability.

The case before us involves Title III. The law's general

prohibition stipulates that:

No individual shall be discriminated against
on the basis of disability in the full and
equal enjoyment of the goods, services,
facilities, privileges, advantages, or
accommodations of any place of public
accommodation by any person who owns, leases
(or leases to), or operates a place of public
accommodation.

Id. § 12182(a). For purposes of section 12182(a), discrimination

includes:

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 [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 remedies contained in Title III are

made available to:

[A]ny person who is being subjected to
discrimination on the basis of disability in
violation of [Title III] . . . . Nothing in
this section shall require a person with a
disability to engage in a futile gesture if
such person has actual notice that a person or
organization covered by this subchapter does
not intend to comply with its provisions.

Id. § 12188(a)(1).

Dudley invokes these sections, claiming that Hannaford's

policies precluded him, because of his disability, from full and

equal access to the store's merchandise.

B. The Existence of a Private Right of Action.

Hannaford's initial response is that a single incident of

discrimination is insufficient to support a private right of action

under Title III of the ADA. In mounting this argument, Hannaford

does not challenge the district court's ruling that Dudley had

standing to bring his Title III suit. See Dudley I, 146 F. Supp.

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2d at 85-86.2 Rather, Hannaford attacks the court's closely

related determination, id. at 85, that the language of section

12188(a)(1) is broad enough to provide a private right of action

for an individual who suffered a single incident of discrimination.

To the extent that this argument rests on the proposition

that Title III is not intended to provide redress for past

discrimination that is unlikely to recur, it is well-founded.

Section 12188(a)(1) of the ADA incorporates the remedies set forth

in 42 U.S.C. § 2000a-3(a). That compendium of remedies allows only

injunctive relief (as opposed to money damages). See Newman v.

Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam).

It therefore requires some ongoing harm (or, at least, a colorable

threat of future harm). See 42 U.S.C. § 2000a-3(a) (permitting a

civil action for injunctive relief whenever "there are reasonable

grounds to believe that any person is about to engage in any

[prohibited] act or practice") (emphasis supplied). Otherwise, an

injunction would be pointless.

Dudley envisions the persistence of Hannaford's "refusal

to reconsider" policy as an ongoing harm. But Dudley never

attempted to purchase alcoholic beverages at the Gardiner Shop 'n

2
In any event, this ruling enjoys substantial support. See,
e.g., Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137-38
(9th Cir. 2002); Steger v. Franco, Inc., 228 F.3d 889, 892-94 (8th
Cir. 2000); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065,
1077-81 (D. Haw. 2000); see generally Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (discussing the elements
required to establish Article III standing).

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Save either before or after the night in question, and Hannaford

asserts that Dudley, in order to establish an ongoing harm, must

prove that a subsequent effort on his part to purchase alcoholic

beverages at the Gardiner store would have been "a futile gesture."

Id. § 12188(a)(1). Without this embellishment, Hannaford says,

Dudley is not being subjected to discrimination on a current basis,

as Title III requires.

The proposition that Hannaford advances — that a disabled

person must subject himself to repeated instances of discrimination

in order to invoke the remedial framework of Title III of the ADA

— turns the language of section 12188(a)(1) on its head. The

futile gesture provision is designed to protect a disabled

plaintiff from having to shoulder an undue evidentiary burden.

Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th

Cir. 2002). Yet Hannaford's rendition of the provision converts it

into one that creates just such a burden. We do not believe that

establishing a private right of action under Title III requires a

plaintiff to perform such heroic measures.

Under Title III of the ADA, courts typically have gauged

the discriminatory effect of a policy or practice by the degree to

which that policy or practice denies access to a disabled

individual, not merely by the specific instances in which the

policy or practice frustrates the individual. See, e.g., id. at

1136-37 (holding that a disabled individual suffers an injury once

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he has "become aware of discriminatory conditions existing at a

public accommodation . . . and is thereby deterred from visiting or

patronizing that accommodation"); Steger v. Franco, Inc., 228 F.3d

889, 893 (8th Cir. 2000) (holding that a disabled individual may

invoke Title III to demand that a building be brought into

compliance with the ADA even though he only entered the building

once). In these cases, the existence of a private right of action

under section 12188(a)(1) does not depend upon how many attempts a

plaintiff has made to overcome a discriminatory barrier, but,

rather, upon whether the barrier remains in place.

Our analysis, however, cannot stop there. This is not a

"physical barrier" case and, as Hannaford correctly observes, the

likelihood that Dudley would be denied a future right to purchase

necessarily turns on an informed prophecy about a store clerk's

subjective judgment. Moreover, Hannaford suggests that the evening

in question may have been atypical both because it was a Saturday

night and because it followed a grueling move that may have

exacerbated Dudley's symptoms. Were Dudley to come into the

Gardiner store at a more tranquil time or after a less harrowing

day, this thesis runs, he might not encounter the same

difficulties.

This idiosyncratic fact pattern distinguishes the case at

hand from the mine-run of Title III cases (like the prototypical

"physical barrier" cases). To the extent that those other cases

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enter into a discussion of probabilities, that discussion usually

occurs in the context of determining whether a particular plaintiff

enjoys standing to launch a Title III claim. Consequently, the

court scrutinizes the likelihood that a plaintiff, absent the

barrier, would have frequented the public accommodation in the

future. See, e.g., Pickern, 293 F.3d at 1138; Schroedel v. NYU

Med. Ctr., 885 F. Supp. 594, 598-99 (S.D.N.Y. 1995). Although

those cases do not involve a direct inquiry as to whether the

practice that blocked access once would do so again, they

nonetheless articulate a standard that can be tailored to fit the

unusual dimensions of the instant case.

As a general matter, recent Title III cases have required

plaintiffs to show a real and immediate threat that a particular

(illegal) barrier will cause future harm. See, e.g., Steger, 228

F.3d at 892; Deck v. Am. Haw. Cruises, Inc., 121 F. Supp. 2d 1292,

1299 (D. Haw. 2000); Hoepfl v. Barlow, 906 F. Supp. 317, 321 (E.D.

Va. 1995); Schroedel, 885 F. Supp. at 599; Aikins v. St. Helena

Hosp., 843 F. Supp. 1329, 1333 (N.D. Cal. 1994). This standard has

been adapted from generic Supreme Court precedents discussing

whether a plaintiff has standing to protest a particular injury.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

(holding that "the irreducible constitutional minimum of standing"

includes suffering an "injury in fact" that is "actual or

imminent") (citations omitted); City of Los Angeles v. Lyons, 461

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U.S. 95, 105 (1983) (requiring a plaintiff requesting injunctive

relief to "establish a real and immediate threat" that illegal

conduct will occur); O'Shea v. Littleton, 414 U.S. 488, 494 (1974)

("Abstract injury is not enough. . . . The injury or threat of

injury must be both real and immediate, not conjectural or

hypothetical.") (citations omitted). Even though no court has yet

employed this standard to determine whether a plaintiff has a

private right of action under section 12188(a)(1), we deem it an

appropriate way to answer that inquiry.

Applying that standard, we conclude that Dudley has shown

a real and immediate threat of ongoing harm. After all, the

offending policy remains firmly in place; there is no dispute that

Dudley, having just moved to a small town, would have been likely

to patronize the Gardiner Shop 'n Save; and the symptoms of his

disability continue to mimic the side effects of intoxication.

Moreover, three Hannaford employees (Donnell, Cookson, and Fossett)

all independently concluded that Dudley was inebriated. These

facts suggest that Hannaford is overstating the degree of

randomness involved in a store clerk's perceptions. Notably, even

Hannaford does not venture to predict a different result if the

contributing circumstances of February 27 — when a weary Dudley

entered the store on a Saturday night — were to recur.

We hasten to add that Dudley's experience on that evening

was not wholly unique. The record shows three other incidents that

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are informative (even though none of them involved a Hannaford

store). The first two occurred prior to February 27, 1999. In

each instance, a sales clerk mistook Dudley's disability for

intoxication and, before receiving an explanation, refused to sell

him alcohol. On the third occasion (after the events of February

27, 1999), a sales clerk again rebuffed Dudley in an attempt to

purchase alcoholic beverages. On all three occasions, Dudley

explained the situation and the store relented. If these

establishments adhered to a strict "refusal to reconsider" policy,

similar to Hannaford's, Dudley's efforts to purchase liquor would

have been thwarted. Thus, while there is no absolute certainty

that Dudley would be denied the right to purchase alcoholic

beverages during a future visit to the Gardiner Shop 'n Save, the

likelihood of a denial seems substantial. No more is exigible to

support a Title III right of action.

This conclusion rests, in part, on the background

understanding that section 12188(a)(1) negates any requirement that

a disabled person engage in a futile gesture to establish the

existence of a discriminatory policy or practice. See Pickern, 293

F.3d at 1136-37 (explaining that when a disabled plaintiff has

actual knowledge of an illegal barrier at a public accommodation

and is thereby deterred, he need not engage in the futile gesture

of attempting to gain access to show ongoing harm); Steger, 228

F.3d at 892 (similar). We have scant case law to guide us on how

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futile a gesture must be to satisfy this benchmark,3 but Congress

clearly meant not to overburden Title III claimants. This is

evident from the fact that Title III's remedies mirror those

contained in Title II of the Civil Rights Act of 1964. In enacting

the latter statute, Congress evinced its understanding "that

enforcement would prove difficult and that the Nation would have to

rely in part upon private litigation as a means of securing broad

compliance." Newman, 390 U.S. at 401. It is fair to assume that

Congress had the same understanding when it enacted Title III of

the ADA. See generally H.R. Rep 101-485(II), at 126 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 409 (noting Congress's explicit

intention "to make [section 12188(a)(1)] consistent with title II

of the Civil Rights Act of 1964"). Limiting Title III relief to

instances in which a future violation appears certain to occur

would create a standard far more demanding than that contemplated

by the congressional objectives that influenced the ADA.

To sum up, the question before us is whether Dudley has

proffered enough evidence to establish a real and immediate threat

3
This court has not addressed the meaning of "futile gesture"
as that phrase is used in 42 U.S.C. § 12188(a)(1). We have,
however, spoken to the meaning of the words "futile gesture" in
other contexts. For example, in Portela-Gonzalez v. Sec'y of the
Navy, 109 F.3d 74 (1st Cir. 1997), discussing the proposition that
the prospect of a futile gesture may serve to relax an
administrative exhaustion requirement, we ruled that "futility . .
. must be anchored in demonstrable reality. A pessimistic
prediction or a hunch that further administrative proceedings will
prove unproductive is not enough to sidetrack the exhaustion rule."
Id. at 78.

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that Hannaford's policy will again result in a Title III violation.

Given the remedial purpose underlying the ADA, courts should

resolve doubts about such questions in favor of disabled

individuals. See Arnold v. United Parcel Serv., Inc., 136 F.3d

854, 861 (1st Cir. 1998); see also Tcherepnin v. Knight, 389 U.S.

332, 336 (1967) (recognizing the "familiar canon of statutory

construction that remedial legislation should be construed broadly

to effectuate its purposes"). So viewed, we think that the record

shows a sufficient probability of a repeat occurrence, and, in any

event, Hannaford points to nothing suggesting that Dudley would be

treated differently if the circumstances of February 27 were

replicated today. Although the issue is close, we therefore hold

that section 12188 provides Dudley with a private right of action.

C. The Merits of Dudley's ADA Claim.

To recover under section 12182(b)(2)(A)(ii) in a retail

sale case, a plaintiff must show that he comes within the

protections of the ADA as a person with a disability, 42 U.S.C. §

12102(2), and that the defendant's establishment is subject to the

mandates of Title III as a place of public accommodation, id. §

12181(7). Above and beyond these two abecedarian points, the

plaintiff must show that the defendant has a discriminatory policy

or practice in effect; that he (the plaintiff) requested a

reasonable modification in that policy or practice which, if

granted, would have afforded him access to the desired goods; that

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the requested modification — or a modification like it — was

necessary to afford that access; and that the defendant nonetheless

refused to modify the policy or practice. PGA Tour, Inc. v.

Martin, 532 U.S. 661, 683 n.38 (2001); Amir v. St. Louis Univ., 184

F.3d 1017, 1027 (8th Cir. 1999); Johnson v. Gambrinus Co./Spoetzl

Brewery, 116 F.3d 1052, 1058-60 (5th Cir. 1997). Upon such a six-

part showing, the defendant must make the modification unless it

proves either that doing so would alter the fundamental nature of

its business, see PGA Tour, 532 U.S. at 683 & n.38, or that the

requested modification poses a direct threat to the health or

safety of others, Bragdon v. Abbott, 524 U.S. 624, 648-49 (1998).

In the lower court, Hannaford contested Dudley's claim

that he had a disability within the meaning of 42 U.S.C. §

12102(2)(A). The district court resolved this point in Dudley's

favor. Dudley II, 190 F. Supp. 2d at 74. Because Hannaford does

not renew this challenge on appeal, we deem the argument waived.

See United States v. Slade, 980 F.2d 27, 30 n.3 (1st Cir. 1992);

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Consequently, Dudley meets the first prong of the test. Dudley

also meets the second, as Hannaford concedes that its Gardiner

store is a place of public accommodation within the purview of

Title III.

As to the other elements, it is incontrovertible that

Hannaford had a hard-and-fast "refusal to reconsider" policy in

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place, that Dudley requested Hannaford to deviate from that policy,

that such a deviation was necessary for Dudley to gain access to

the desired goods, and that his request was denied. What remains

are questions concerning the reasonableness of the requested

modification. As to those questions, Hannaford makes four main

points. Its primary argument is that the district court erred in

interpreting section 12182(b)(2)(A)(ii) to prohibit the unbending

implementation of its "refusal to reconsider" policy. The argument

takes two forms. We consider each of them.

First, Hannaford posits that section 12182(b)(2)(A)(ii)

only applies to individuals with known or obvious disabilities. It

says that since Dudley's condition was not of this nature — his

symptoms were ambiguous, and Hannaford's personnel were uncertain

as to whether his behavior stemmed from a disability or from

substance abuse — its adherence to the store's policy did not

violate section 12182(b)(2)(A)(ii).

Hannaford derives this argument from 42 U.S.C. §

12112(b)(5)(A), which prohibits employers from failing to "mak[e]

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a

disability." (Emphasis supplied.) Its reliance on that provision

is mislaid. Section 12112(b)(5)(A) is a part of Title I of the ADA

— and there is no principled basis for importing it into Title III.

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 While Title III imposes certain requirements on operators

of public accommodations vis-à-vis their interactions with the

citizenry at large, Title I places obligations on employers

regarding their relations with employees and prospective employees.

This distinction is significant. In an employment context, where

relationships are personalized and employers typically have a basic

familiarity with their employees, section 12112(b)(5)(A)'s limited

applicability to "known physical or mental" disabilities makes

sense; it takes into account the possibility that an employee or

prospective employee may, for whatever reason, choose not to

disclose a disability. He may, for example, fear that if he

discloses it, he will be disadvantaged (the employer will, say,

refrain from promoting or hiring him). When such a disability is

concealed, it would be mindless to hold the employer liable for

failing to accommodate the (unknown) disability. So viewed, under

Title I obviousness is relevant only as a proxy for actual

knowledge. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934

(7th Cir. 1995) (explaining that the obviousness of symptomatology

makes it "reasonable to infer that an employer actually knew of the

disability").

In contrast, Title III offers no incentive for an

individual to conceal his or her disability. The operative

provision, 42 U.S.C. § 12182(b)(2)(A)(ii), requires a person with

a disability to request a reasonable and necessary modification,

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thereby informing the operator of a public accommodation about the

disability. It would be pointless to impose upon the plaintiff the

burden to inform the public accommodation's operator of his

disability but then exempt the operator, by judicial fiat, from

accommodating disabilities that are not obvious. Congress did not

place a limitation on the reach of Title III based on the

obviousness of an individual's disability, and it would be a

usurpation of congressional authority for us to do so here. See

Bates v. United States, 522 U.S. 23, 29-30 (1997) ("[W]here

Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.") (citations and internal

quotation marks omitted); 229 Main St. Ltd. P'ship v. Mass. Dep't

of Envtl. Prot. (In re 229 Main St. Ltd. P'ship), 262 F.3d 1, 5-6

(1st Cir. 2001) (similar). For these reasons, we hold that the

obviousness vel non of an individual's disability has no relevance

to the mandates of Title III.

Hannaford's next objection posits that Dudley's request

was not reasonable (and, thus, not within the protections of 42

U.S.C. § 12182(b)(2)(A)(ii)). Hannaford claims, variously, that

the requested modification is unworkable and that its

implementation would fundamentally alter the nature of its

business. Joined by the amici, Hannaford envisions a parade of

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horribles. It tells us that prohibiting merchants from following

a strict "refusal to reconsider" policy would force retailers to

sell alcoholic beverages to inebriated individuals who claim to be

disabled, thus jeopardizing their licensure and exposing them to

both civil and criminal liability under Maine law. See, e.g., Me.

Rev. Stat. Ann. tit. 28-A, §§ 705(2-A), 705(3-A), 801(2), 2506.

Hannaford and the amici also note that drunk driving is a salient

public health concern and worry that the district court's ruling

may increase the incidence of such behavior.

These are valid concerns, and the ADA requires us to

weigh them when determining what is reasonable under section

12182(b)(2)(A)(ii). See 42 U.S.C. § 12182(b)(3) ("Nothing in

[Title III] shall require an entity to permit an individual to

participate in or benefit from the goods . . . of such an entity

where such individual poses a direct threat to the health or safety

of others."). That is not unfamiliar ground: striking a

reasonable balance between avoiding health and safety risks, on the

one hand, and protecting persons with disabilities from

discrimination, on the other hand, is an exercise that lies at the

core of Title III determinations. See Sch. Bd. of Nassau County v.

Arline, 480 U.S. 273, 287-88 (1987); Theriault v. Flynn, 162 F.3d

46, 48-49 (1st Cir. 1998). Here, our inquiry must address whether

Hannaford's unbending "refusal to reconsider" policy is

sufficiently essential to its stated goals to justify its

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discriminatory effect. We conclude that the policy, as applied, is

overinclusive, and that a more flexible policy can offer comparable

protections while complying with both the letter and spirit of the

ADA.

We start this phase of our analysis with a frank

appraisal of the doomsday alarms sounded by Hannaford and the

amici: those concerns are overstated. Neither the ADA nor the

district court's ruling guarantees individuals with disabilities

access to alcoholic beverages; thus, the fear that a claim of

disability will become a free pass for intoxicated individuals to

purchase liquor is not well-founded.

Under the district court's holding, a merchant needs to

initiate a reconsideration only when a customer claiming to be

disabled presents some evidence of that disability. Even then, the

obligation to reconsider is not to be confused with an obligation

to sell; the reconsideration may well produce a second refusal

without in any way violating the ADA. Put bluntly, the district

court's ruling does not obligate a merchant to sell when in doubt.

For that reason, Hannaford's (and the amici's) prediction that the

ruling will promote a host of social ills seems farfetched. Cf. W.

Shakespeare, Macbeth, act I, sc. 3, l. 134 (1606) (warning that

"[p]resent fears are less than horrible imaginings").

To be sure, the district court's ruling involves other

costs. The law should leave ample room for Hannaford and other

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similarly situated merchants to adopt prophylactic policies to

ensure that intoxicated individuals will not be able freely to

purchase alcoholic beverages. To this end, a bright-line rule,

such as Hannaford's "refusal to reconsider" policy, offers certain

administrative efficiencies. Moreover, it forecloses potentially

uncomfortable conversations with combative customers and spares

store managers from making difficult decisions. But even though an

individualized inquiry will consume more resources and involve less

logistical ease, such an inquiry is precisely what the ADA

requires. See PGA Tour, 532 U.S. at 690 (noting that the ADA has

a "basic requirement that the need of a disabled person be

evaluated on an individual basis"); Theriault, 162 F.3d at 50

(approving the tailoring of special policies for disabled

individuals as long as there is an "individualized assessment" of

each person's disabilities); see also 28 C.F.R. § 36.208(c). This

makes perfect sense, as Congress, in enacting the ADA, explicitly

warned that "overprotective rules and policies" erect

discriminatory barriers to people with disabilities. 42 U.S.C. §

12101(a)(5). Consequently, when an individual claims to be

disabled and presents some evidence supporting that claim, the

proprietor of a place of public accommodation does not satisfy its

obligations under Title III of the ADA by refusing to consider that

proffer and responding that the clerk already has made her

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decision. We hold, therefore, that the ADA bars Hannaford's

unrelenting "refusal to reconsider" policy.

Hannaford's next contention can be dispatched more

easily. It says that, notwithstanding the district court's factual

finding of an established, albeit unwritten, "refusal to

reconsider" policy, the personnel at its Gardiner store did not

follow that policy on the evening in question, but, rather,

listened to Dudley's plaint, gave it due consideration, and only

then denied him the right to purchase alcoholic beverages.

If we were writing on a pristine page, this

interpretation of the events of February 27 might seem plausible —

but the page is not pristine. The district court found as a fact

that Cookson rejected Dudley's attempted purchase by informing him

that "once [the clerk] had refused to sell him alcohol, the store

policy was not to reverse that decision under any circumstances."

Dudley II, 190 F. Supp. 2d at 72. The court characterized

Fossett's intervention in similar terms, noting that Fossett

"explained to Dudley that he would not reverse" the earlier

position. Id. This meant, the court wrote, that Fossett would

override a cashier's decision only when "a customer had alerted him

to an intoxication-mimicking disability before attempting to

purchase alcohol." Id. at 73 (emphasis in the original).

That ends this aspect of the matter. When a district

court chooses between two plausible but conflicting interpretations

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of the evidence, its choice cannot be clearly erroneous.4 Valentin

v. Hosp. Bella Vista, 254 F.3d 358, 367 (1st Cir. 2001); United

States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

These factual findings also guide us through Hannaford's

remaining two arguments. Its claim that "Dudley failed to prove

that Hannaford's breach of its duty of reconsideration proximately

caused any harm to Dudley," Appellant's Br. at 39, rests on the

surmise that if Hannaford's employees had given Dudley due

reconsideration, they nonetheless would have thought him three

sheets to the wind and refused the sale. This is an interesting

but irrelevant hypothetical. Our focus is on the exclusionary

effect of Hannaford's policy — its unrelenting refusal to

reconsider, come what may — and the only issue before us is whether

a reasonable modification was necessary to afford disabled persons

(like Dudley) access to goods that are available to individuals

without disabilities. See 42 U.S.C. § 12182(b)(2)(A)(ii). Dudley

does not need to prove that a particular modification would have

worked in all cases but only that such a modification was a

necessary and reasonable means of providing disabled persons access

to the goods in question. The district court found that he had

4
Hannaford makes much of Fossett's subsequent conversation
with Dudley, claiming that Fossett at that time independently
evaluated Dudley's cognitive state and used that evaluation to
ground his refusal to reconsider. This argument overlooks the
district court's supportable finding that this later interaction
was not causally connected either to the denial of the sale or to
the refusal to reconsider. Dudley II, 190 F. Supp. 2d at 72-73.

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carried that burden. Dudley II, 190 F. Supp. 2d at 76. That

finding is not clearly erroneous. Carr v. PMS Fishing Corp., 191

F.3d 1, 6 (1st Cir. 1999); Sierra Fria, 127 F.3d at 181.

Finally, Hannaford suggests that if it had a general duty

to reconsider, that duty was superseded by Dudley's aggressive

behavior. Passing over the fact that Dudley's behavior probably is

part and parcel of the symptomatology related to his disabling

condition, the fallacy of this suggestion lies in its construction.

In this situation, the ADA proscribes mechanical resort to an

inflexible "refusal to reconsider" policy. Dudley's behavior

subsequent to the store's decision not to sell is simply irrelevant

to a determination of whether the "refusal to reconsider" policy is

consistent with the ADA.5

We have said enough on this score. All equitable

remedies are, in some sense, discretionary. Rosario-Torres v.

Hernandez-Colon, 889 F.2d 314, 321 & n.6 (1st Cir. 1989) (en banc).

The modest relief granted here — prohibiting Hannaford from

maintaining its "refusal to reconsider" policy at its Gardiner

emporium — was not an abuse of discretion. Given the court's

factual findings, Dudley was entitled to injunctive relief under

Title III of the ADA.

5
We do not gainsay that, had Hannaford's employees given
Dudley fair reconsideration, his behavior would be relevant
(although not necessarily conclusive) in making a judgment as to
whether he was intoxicated. Here, however, the lower court's
factual findings foreclose that analytic path.

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 D. The MHRA Claim.

Hannaford also challenges the district court's ruling

that Hannaford's "refusal to reconsider" policy violated the MHRA.

Dudley II, 190 F. Supp. 2d at 77. This challenge lacks force.

It is settled law that the MHRA should be construed and

applied along the same contours as the ADA. See, e.g, Abbott v.

Bragdon, 107 F.3d 934, 937 n.1 (1st Cir. 1997); Soileau v. Guilford

of Me., Inc., 105 F.3d 12, 14 (1st Cir. 1997); Winston v. Me.

Tech'l Coll. Sys., 631 A.2d 70, 74 (Me. 1993). Thus, our

determination that Hannaford's policy violates the ADA, see supra

Part III(C), means that the policy also violates the MHRA.

There are, however, differences between the two statutory

schemes, and two such differences are material here. Unlike Title

III of the ADA, the enforcement provisions of the MHRA allow the

court both to assess monetary penalties (up to $10,000 against a

first-time offender) and to award reasonable attorneys' fees to a

prevailing plaintiff. See Me. Rev. Stat. Ann. tit. 5, §§

4613(2)(B)(7), 4614.

Here, however, the MHRA complaint was filed out of time.6

In the circumstances of this case, that fact does not place the

6
The record reflects some disagreement as to when Dudley
submitted his complaint to the MHRC. Under either party's
scenario, however, the complaint was not timely. See Me. Rev.
Stat. Ann. tit. 5, § 4611. That being so, the district court
concluded that the disagreement as to the precise filing date did
not need to be resolved. See Dudley II, 190 F. Supp. 2d at 76. On
appeal, neither side questions that conclusion.

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full panoply of statutory remedies out of reach. While an untimely

complaint before the MHRC normally would preclude any award of

civil penalties or attorneys' fees, the MHRA allows those remedies

to be granted if an untimely MHRA claim is joined with a claim that

does not require administrative exhaustion. See id. § 4622(1).

Since Dudley's ADA claim is of that genre, the exception limned in

section 4622(1) applies here. See Dudley II, 190 F. Supp. 2d at

77. Hence, we affirm the imposition of the civil penalty and the

order for payment of reasonable attorneys' fees.

IV. CONCLUSION

The ADA protects disabled individuals against policies

that categorically deny them access to goods that are available to

the general population. Even though Hannaford's offending policy

excludes only a tiny number of disabled individuals, the ADA

demands that the interests of those individuals be protected.

Thus, we affirm the district court's binary conclusion

that Dudley's single visit to the Gardiner store is sufficient, in

the circumstances of this case, to state a claim under 42 U.S.C. §

12188(a)(1); and that the store's rigid "refusal to reconsider"

policy offends Title III of the ADA. Our holding on the second

prong is narrow: we rule only that the ADA proscribes the use by

a place of public accommodation of an inflexible policy that

forecloses any attempt by an individual with an intoxication-

mimicking disability to show that a clerk has mistaken his

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disability for drunkenness (and, thus, mistakenly refused him

access to alcoholic beverages).

At the expense of belaboring what should be obvious, we

emphasize that although we strike down Hannaford's "refusal to

reconsider" policy, we do so believing that the ADA leaves

significant room for merchants to devise alternative, ADA-compliant

strategies to ensure the safe sale of alcoholic beverages. Nothing

in our holding prevents merchants from exercising caution in

determining whether an individual is sufficiently sober to purchase

alcoholic beverages. By the same token, nothing in our holding

guarantees any individual — disabled or not — alcohol on demand.

We need go no further. For the foregoing reasons, we

affirm the lower court's determination that Hannaford's hard-and-

fast "refusal to reconsider" policy is in violation of both the ADA

and the MHRA. Consequently, we uphold the injunction, the civil

penalty, and the award of counsel fees.

Affirmed.

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