116 F.3d 1052 (5th Cir. 1997), 95-40780, Johnson v. Gambrinus Company/Spoetzl Brewery

Docket Nº:95-40780.
Citation:116 F.3d 1052
Party Name:Franklin JOHNSON, Plaintiff-Appellee, v. GAMBRINUS COMPANY/SPOETZL BREWERY, Defendant-Appellant.
Case Date:June 25, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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116 F.3d 1052 (5th Cir. 1997)

Franklin JOHNSON, Plaintiff-Appellee,



No. 95-40780.

United States Court of Appeals, Fifth Circuit

June 25, 1997

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James C. Harrington, Maryann Overath, Peter Thomas Hofer, Texas Civil Rights Project, Austin, TX, for Plaintiff-Appellee.

Robert E. Bettac, Robert A. Stevenson, Mark Jeffrey Levine, Akin, Gump, Strauss, Hauer & Feld, San Antonio, TX, for Defendant-Appellant.

Geoffrey N. Courtney, Jay L. Winckler, Bob Denton Gibbins, Jay Patrick Harvey, Gibbons, Winckler & Harvey, Austin, TX, for Amicus Curiae, Guide Dogs for the Blind, Guide Dogs of America, The Guide Dog Foundation, Guiding Eyes for the Blind, Leader Dogs, National Association of Guide Dog Users, Randolph Sheppard Vendors of Texas and The Seeing Eye and Advocacy, Incorporated.

Appeal from the United States District Court for the Southern District of Texas.

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The opinion entered in this cause on March 27, 1997, reprinted at 109 F.3d 1040, is withdrawn, and the following opinion is substituted therefor.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.


The Gambrinus Company ("Gambrinus") owns the Spoetzl Brewery (the "brewery") in Shiner, Texas. The brewery offers free daily public tours. A brief description of the tour is necessary to understand the issues in this case. The tour begins at the gift shop where tourists watch a video about the brewery. After seeing the video, the tour group is guided through a long hallway and up a flight of metal stairs that leads to the brewhouse. The tour then roughly traces the production process for Shiner Beer.

Tourists are not shown the beginning part of the brewing process where grain is mixed with water and then converted to wort. Tourists first see the grant, which is a copper collecting vessel located in the brewhouse. Wort passes through the grant on the way to the brewkettle. At various times in the production process, the lid to the grant is open. In the brewkettle, hops are added and the wort is brought to a boil. Tourists are frequently permitted to look into the brewkettle with their faces directly over the surface of the wort. When the boiling is finished, the wort is transferred to a settling tank and then moved through a cooler. The liquid is then pumped into the cellars where yeast is added, and the wort is fermented for ten to twelve days. Visitors are not permitted in this area. After fermentation, the beer is cooled further and then filtered to remove the yeast. The beer is then carbonated, and some of it is pasteurized.

After the tour group leaves the brewhouse, it enters a door leading to the bottling and canning line. The tourists pass within a few feet of both the bottling and canning lines. From the can-filling area, the tourists are led to the keg room. In the keg room, kegs are debunged (the plug is removed) and 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

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room, visitors exit the brewery and are invited to sample beer in the hospitality room.

On July 8, 1993, Franklin Johnson and his guide dog visited the brewery, along with Johnson's friend Scott Bowman and Bowman's son, to take the tour. During the video presentation at the gift shop, the tour guide, Bernadette Fikac, noticed that Johnson had a dog and called the brewmaster, John Hybner, to confirm the brewery's policy that no animals were allowed on the tour or in the brewery. Hybner confirmed that the brewery had a blanket "no animals" policy, based on its interpretation of applicable Food and Drug Administration ("FDA") regulations. Fikac then informed Johnson that he would not be allowed to take the tour with his dog, but that he could take the tour with a personal human guide such as herself. Johnson informed Fikac that he had a legal right to take the tour with his guide dog, but the brewery would not budge on its blanket no animals policy. Johnson declined to take the tour without his dog, and he waited outside while Bowman and his son took the tour. Although Hybner instructed Fikac to inform Johnson that he could visit the hospitality room, Fikac forgot to do so. However, the brewery's blanket no animals policy at that time applied to the hospitality room also.

On July 1, 1994, Johnson filed suit against Gambrinus, seeking relief under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, and Texas law. A bench trial was held on July 18 and 19, 1995. In its findings of fact and conclusions of law, the district court determined that Gambrinus's blanket no animals policy, which included service animals, 1 was not compelled by any law and violated the ADA. The court ordered Gambrinus "to modify or establish policies, practices, or procedures to ensure that disabled persons with guide dogs or other service animals have the broadest feasible access to the public tour of the Spoetzl Brewery consistent with the brewery's safe operation," to seek guidance from the Justice Department, and to submit to the court a written policy carrying out its order. Gambrinus timely appealed.

On appeal, Gambrinus makes several arguments. It asserts that the district court improperly placed upon it the burden of proving that allowing the dog on the tour was unreasonable, thereby refusing to consider its argument that allowing service animals on the brewery tour would fundamentally alter the nature of the tour. Gambrinus also claims that "broadest feasible 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.


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.


After this case was fully briefed, Johnson filed a motion to dismiss the appeal for lack of jurisdiction. Johnson contends that we have no jurisdiction over this appeal because there is no final judgment or final order, the order was not an appealable collateral order, and the district court did not fully adjudicate the rights and obligations of the parties. Before oral argument, we denied that motion, and upon reconsideration we have determined that our initial decision was correct. We make no comment on Johnson's

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specific arguments, instead concluding that we have jurisdiction under 28 U.S.C. § 1292 because the district court's order granted an injunction. 2

The district court's order reads as follows:

Defendant is ORDERED to modify or establish policies, practices, and procedures to ensure that disabled persons with guide dogs or other service animals have the broadest feasible access to the public tour of the Spoetzl Brewery consistent with the brewery's safe operation. As Defendant establishes or modifies its policies, practices, or procedures, it is hereby ORDERED to seek guidance from the United States Department of Justice in the form of a letter opinion or, if necessary, a formal or informal rulemaking. In seeking guidance from the Justice Department, Defendant may request that the Justice Department consult with the United States Food and Drug Administration and the Occupational Safety and Health Administration. Defendant is further ORDERED to submit to the Court, as soon as practicable, a written policy governing support animal access to its public tour, incorporating whatever guidance the Justice Department provides. The Court shall maintain continuing jurisdiction over Defendant to ensure that this policy is carried out and that disabled persons with support animals are afforded the broadest feasible access consistent with the safe operation of the Spoetzl Brewery.

The order, in effect, requires Gambrinus to make modifications to allow individuals with service animals the broadest feasible access to the tour, to consult with the Department of Justice in formulating these changes, and to submit a written policy to the 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, 84 S.Ct. 1223, 12 L.Ed.2d 216 (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...

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