Braille Monitor December 1985
October 14, 1985
Roger Baccigaluppi, President
California Almond Growers Exchange
Dear Mr. Baccigaluppi:
I am in receipt of an exchange of correspondence between Sharon Gold, President of the National Federation of the Blind of California, and you. The letter from Sharon Gold describes an incident which took place at a food processing plant which you operate. A blind woman with a dog guide was refused the opportunity to participate in a tour of your food processing plant. The letter from Ms. Gold points out that the refusal of your company to permit this blind lady to participate in the tour is a violation of California law. Ms. Gold could have threatened you with legal action. She might have demanded that the blind lady receive monetary compensation for her injuries. She could have informed you that this matter would be brought to the attention of the public through public demonstrations. She could have subjected your behavior to public examination through the newspaper. Rather than take any of these actions, Ms. Gold requested an apology. Her letter is both stern and understanding. Let me remind you of what it says:
August 20, 1985
Roger Baccigaluppi, President
California Almond Growers Exchange
Dear Mr. Baccigaluppi:
It has come to my attention that on Friday, August 1, 1985, at approximately 10:30 a.m., a blind lady using a dog guide, Marjorie Rupple of Sacramento, was excluded from participating in your plant tour. According to a large sign posted in your foyer and your brochure "Sacramento's Newest Historical Landmark: International Visitors Center and Almond Plaza," "Blue Diamond Welcomes Everyone to Tour Our Plant."
Exclusion of a blind person from a tour of your plant solely because she is blind and is accompanied by a dog guide is discriminatory and is in violation of the California Statutes. Please be advised that Section 54.1 of the California Civil Code provides that all blind persons "shall be entitled to full and equal access, as other members of the general public, to all...places to which the public is invited...," and that Section 54.2 of this same Code guarantees such blind persons "shall have the right to be accompanied by a guide dog...." Failure to allow blind persons accompanied by a dog guide on your plant tours is a violation of California law. I enclose herewith a copy of the California White Cane Law, which sets forth these and other statutes relevant to the blind and disabled.
Mrs. Rupple came to your plant as an adult supervisor for a group of young school children who were taking an educational field trip as arranged by the Sacramento City Schools and its Freeport Elementary School. Mrs. Rupple was to participate in the field trip by supervising the children throughout the tour. Your interference with Mrs. Rupple's duties caused a disruption to the entire field trip. Further, the confrontation of Mrs. Rupple by your employees before the children she was to supervise and her immediate supervisor, Larry Lee from the Fruitridge Elementary School, was outrageous and demeaning and caused Mrs. Rupple much embarrassment and humiliation. Such behavior on the part of your employees toward a member of the public, who happens to be blind and uses a dog guide, is both unfortunate and unwarranted.
Since Blue Diamond is a part of the National Register of Historical Places and thus expects to and does serve the public by means of active invitation and recruitment, the National Federation of the Blind of California respectfully requests that you instruct your employees that blind persons who use dog guides should be welcome as other members of the public and afforded equal treatment and courtesy while in the International Visitors Center and Almond Plaza. As evidence of your intention to exercise a good faith effort to operate within the California law, I hereby request that you send a letter of apology to Marjorie Rupple, c/o National Federation of the Blind of California, at the above address.
The National Federation of the Blind of California wishes to resolve this matter amicably. Therefore, your attention to the above described situation and your prompt reply will be appreciated. Thank you.
Very truly yours,
Sharon Gold, President
National Federation of the Blind of California
Mr. Baccigaluppi, your letter of response to Sharon Gold is truly an astonishing piece of writing. Rather than honestly admit your mistake and make some effort to assure that future discrimination will not occur, you reply that you regret the incident. However, you state that you are proud of the behavior of your employees and that you have commended them for their action. You then make an attempt to justify your behavior by referring to certain laws and administrative regulations. According to your letter, these laws and regulations prohibit you from permitting any animals in your food processing plant. Therefore, again according to your letter, the blind lady with the dog guide could not accompany the tour. Compare the tone of your remarks to those of Sharon Gold's. Under date of September 9, 1985, you say:
This will acknowledge your letter of August 20, 1985...requesting that I send a letter of apology to Mrs. Marjorie Rupple in connection with the incident that occurred on Friday, August 16, 1985. While I am sorry this whole incident occurred, I am not in a position to apologize for the actions of any of our employees. As a matter of fact, I have complimented the employees involved because of the care, consideration, and concern they used in speaking with Mrs. Rupple and in trying to do what was right for Mrs. Rupple but at the same time not violating any laws under which we. operate. Mrs. Rupple was offered a private tour of our plant and was dealt with in a most courteous and considerate manner. Your letter relies on the California Civil Code Section 54.1(a) which generally provides that "blind persons, visually handicapped persons, deaf persons, and other physically disabled persons" are entitled to "full and equal access as other members of the general public" to public facilities and accommodations including "places to which the general public is invited." Assuming, without concluding, the exchange plant is such a place to which the public is invited...Ms. Gold and Mrs. Rupple are apparently unaware of the statutory limitations under Section 54.1(a) which provides that such equal access s "subject...to the conditions and limitations established by law or state or federal regulations and applicable alike to all persons."
In the case of Mrs. Rupple, the limitations referred to in Section 54.1(a) are found under both California Health and Safety Code Section 28282.5 (approved sanitation provision under Chapter 7 Division 22) and 21 C.F.R. 110.37 (a federal food and drug administration regulation relating to current good manufacturing practice in manufacturing, processing, packing, or holding human food). Both prohibit the Exchange from allowing animals in its processing plants and are applicable to all persons. Copies of the applicable sections of these laws are attached. If I might briefly digress into philosophy of the law, I believe it is important for people to understand that there are few if any rights which are absolute in the sense that they are not subject to some limitations. Thus, even with regard to the most legally protected areas of personal freedom, such as that of free speech founded in the First Amendment, Justice Holmes, in one of his opinions, concisely and eloquently observed that no person has the right to shout fire in a crowded theater. Similarly, the California legislature in enacting California Civil Code Section 54.1 qualified the equal access right by limitations under other California or federal law.
There is no question that blind persons that use guide dogs are as welcome as other members of the public and treated courteously while they are in our International Visitors Center and our Almond Plaza. With regard to touring portions of our facilities where food is being processed, we must abide by local, state, and federal laws dealing with the handling and preparation of foods.
I sincerely hope that everyone involved in this incident has learned something from it. I know we have.
Let me begin with the end of your letter. You say that you hope all involved have learned from this incident. You add that you know you have. Either this sentiment is included in your letter because you are of an open mind and willing to learn from this situation, or it is merely a pious platitude. If it is merely a pious platitude, then your purpose for including it in the letter must have been to convey the impression that you are reasonable, but Sharon Gold and the blind person with the dog guide who wished to tour your plant are not. I shall not speculate on your motive. I accept your letter at face value. In search of learning and new understanding, I have read Sharon Gold's letter, your response, the rules and regulations you included in your letter, and other pertinent material. Again, in the spirit of learning and understanding, I offer you the following analysis.
A well known doctrine of American jurisprudence is the "four corners rule." This rule asserts that all statements in a document should be given effect if this can be done without violating the spirit of the document. Another rubric of legislative interpretation states that the general is modified by the specific. Furthermore, laws which are adopted today modify laws which have been adopted previously unless they contain specific language which states that they are not intended to modify earlier legislation. Therefore, the law enacted in 1985 will modify a law enacted in 1981 unless it states that it does not.
What do these rules of statutory construction have to do with the present case? Sharon Gold told you that your behavior in denying a blind person the opportunity to tour your facility violated Section 54.1 of the California Civil Code. You responded that she was mistaken. You assert that there is a statutory limitation under California Civil Code Section 54.1(a) which authorizes you to deny blind persons accompanied by dog guides the opportunity to visit your plant on the same terms and conditions as others. This statutory limitation says that equal access is subject...to conditions and limitations established by law or state or federal regulations and applicable alike to all persons. You then include a portion of the California Health and Safety Code and certain federal regulations. These materials state that food processing facilities may not permit animals inside the plant except those necessary for the completion of the processing of the food. The meaning of these regulations is made clear by the context. It is intended that processing plants shall be operated in such a way that food is not contaminated by animals or vermin. The regulations that you sent contain only one exception to the rule, that no animal may be permitted in a food processing plant except those essential for the processing of the food. This exception is dogs--specifically, dogs used by uniformed employees of private patrol operators and private patrolmen. You say that this literally means that you are prohibited by law from permitting a blind person accompanied by a dog guide from entering your plant.
Consider the literal meaning of the statute you yourself use. No animals shall be permitted to enter a food processing plant except those essential to the manufacture of the food. What animals are essential to that process? If meat is to be included in the prepared food, then the animals which supply that meat are essential. The only other animals which might be permitted in the plant are those needed to operate the machinery inside the plant. Human creatures are animals. The definition in the Webster's dictionary makes this clear. Those persons essential to the operation of the plant are permitted to enter it, but no others. You have violated the rule by permitting the tour of your plant which Ms. Rupple intended to accompany. You have violated this rule again when you offered Ms. Rupple a private tour. She was not essential to the preparation of the food in your food processing plant. Yet, you do not object to her on a private tour. Indeed, you take hundreds of people per year through your food processing facility. Apparently, you do not mean to take the law literally. You intend to interpret it to permit human beings (animals) to enter your plant at any time which is convenient to you.
Clearly, it is reasonable to interpret this law to permit certain animals to go through the plant.
The section of the Health and Safety Code upon which you have placed such faith was adopted in 1951 and amended in 1971. It is a general statute intended to insure that food preparation plants are operated in a hygienic manner. Section 54.1 of the Civil Code (one of the provisions of the White Cane Law) was adopted in 1968--seventeen years later. The Health and Safety Code is a general law. The White Cane Law is specific. The provisions of the White Cane Law must be understood as an addition to and an interpretation of the Health and Safety Code and the federal regulations. This is made abundantly clear by California Code Section 27802(g) (2)-a section of the code with which you are apparently unfamiliar. Paragraph 1 of subsection g provides that animals may not be permitted in food processing areas. Paragraph 2 states: "paragraph 1 does not prohibit the presence in any room where food is served to the public, guests, or patrons of a guide dog, signal dog, or service dog as defined by Section 54.1 of the Civil Code accompanied by a totally or partially blind person, deaf person, person whose hearing is impaired, or handicapped persons, or persons licensed to train guide dogs for the blind...." Paragraph 5 of this section further states "(5) the dogs described in paragraphs 2 and 3 shall be excluded from food preparation and utensil washing areas." This section of the law was added in 1984. The general prohibition against having animals in food preparation areas must then be interpreted in the light of the 1984 amendments to the Health and Safety Code. In other words, animals are prohibited from contaminating food. They are not prohibited from being in areas used by the public for public tours. Because the specific modifies the general, because laws adopted earlier are modified by amendment, and because the "four corners rule" requires all sections of the code to be interpreted together, Section 54.1 requires you to permit blind persons accompanied by dog guides to tour your facility along with the sighted. For a more detailed discussion of statutory interpretation I refer you to SUTHERLAND ON STATUTORY INTERPRETATION.
Finally, I should point out that the federal government has considered the question of blind persons accompanied by dog guides in circumstances far more likely to involve the public health than public tour areas of a food processing plant. Should blind persons accompanied by dog guides be permitted to take them into hospitals? This is the question considered and decided by the Office of Civil Rights of the Federal Department of Health and Human Services. In a ruling issued on May 6, 1983, that agency found "we have concluded that St. Francis Hospital has discriminated against blind and visually impaired persons on the basis of their handicap by establishing criteria or procedures which limit blind or visually-impaired persons from enjoying the same rights and privileges as others because they have chosen dog guides as auxiliary aids, a violation of 45 C.F.R. Section 84.4(b)(4)(i)....
"Our office's policy which interprets 45 C.F.R. Section 84.4(b) (4) (i) of the regulation is quoted below:
"'The basic assumption is that blind or visually-impaired persons must be permitted to use dog guides in all situations except where it can be clearly shown that the presence or use of a dog guide would pose a significant health risk or where a dog's behavior is disruptive. A finding of violation can be made where a recipient has a blanket policy of exclusion, or excludes any individual dog guide, without a clear showing that the presence of the dog guide poses a significant health risk or disruption to the recipient's program.' "A dog guide is an auxiliary aid that many blind or visually-impaired persons use to permit them independent mobility. Any refusal to admit a visually impaired person to a facility because that person is using a dog guide is, in effect, prohibiting the use of an auxiliary aid.... What is at issue is the establishment of criteria or procedures that limit blind or visually-impaired persons from enjoying the same rights and privileges as others because they have chosen dog guides as auxiliary aids. "Hospitals, nursing homes, or any other health or human services agencies that permit, invite, and regularly encourage visitors to their programs may not establish a policy that, in general, prohibits the use of auxiliary aids by handicapped visitors unless it can be shown that the use of the auxiliary aid would endanger others or prevent them from benefiting from the recipient's program.
"Unless there is evidence that the presence or use of a dog guide would pose a significant health risk or that the dog's behavior would be disruptive to the recipient's program, the assumption should be made that the groomed and well-behaved dog guide should be permitted to accompany its owner wherever that person goes." The Department of Health and Human Services and California Law are in accord that blind persons must be permitted to use dog guides in traveling to places where the public is generally invited. Unless you were planning to have the tour go to places where the dog guide might handle the food or place its paws on the food preparation surfaces, it is most unlikely that you will be able to demonstrate a significant health risk. Therefore, your exclusion of Mrs. Rupple with her dog guide is discriminatory. If the dog guide used by Mrs. Rupple would have the opportunity to lick the food, or otherwise get its paws on some of the substances you plan to sell, then it is highly questionable whether the tour members themselves maintain a sanitary distance from the food. Mrs. Rupple was accompanying a tour of children. She intended to help insure that the children remain orderly. Children (often as frequently as adults) are tempted to touch and handle food. If the dog guide could get at it, so could the children--not to mention the adults.
In your letter, you say that you hope you have learned something. Discrimination comes with all kinds of packaging. It is rare that a person says to himself "today I plan to discriminate against the blind." There is always some reason, some purpose. In the minds of those who are discriminating, the purposes are always important and the reasons are always valid. When the hotel operator says that he only has rooms on the second floor and cannot rent one to a blind person, he thinks his reason for discriminating is valid.
Nevertheless, regardless of the good intentions, the blind person doesn't get the room. In the situation at hand, Mrs. Rupple is denied an opportunity. She cannot accompany the tour and discharge her responsibility. She cannot provide the assistance which she went to provide. She is limited and unreasonably kept out. Such treatment is discrimination. Surely the Almond Plaza will not continue this discriminatory practice.
Very truly yours,