     11-1263-cv
     Krist v. Kolombos Rest. Inc.


 1                       UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                   - - - - - -

 4                                August Term, 2011

 5   (Argued:    May 18, 2012                      Decided:   July 24, 2012)

 6                              Docket No. 11-1263-cv

 7   _________________________________________________________

 8   CHERYL KRIST,

 9                                      Plaintiff-Appellant,

10                                 - v. -

11   KOLOMBOS REST. INC.,

12                                 Defendant-Appellee.
13   _________________________________________________________

14   Before:    KEARSE, CARNEY, and WALLACE*, Circuit Judges.

15               Appeal from a judgment following bench trial before the

16   United States District Court for the Southern District of New York,

17   George B. Daniels, Judge, dismissing discrimination claims brought

18   against restaurant under, inter alia, Title III of the Americans

19   with Disabilities Act, 42 U.S.C. § 12181 et seq., for inhospitable

20   treatment with regard to health-service dog.

21               Affirmed.

22                           MARTIN J. COLEMAN, Woodbury, New
23                                York, for Plaintiff-Appellant.

24                           ARTHUR H. FORMAN, Forest Hills, New York,
25                                for Defendant-Appellee.


     *    Honorable J. Clifford Wallace, Judge, of the United States
          Court of Appeals for the Ninth Circuit, sitting by
          designation.
 1   KEARSE, Circuit Judge:

 2                Plaintiff Cheryl Krist appeals from a judgment entered in

 3   the United States District Court for the Southern District of New

 4   York following a bench trial before George B. Daniels, Judge,

 5   dismissing her complaint alleging that defendant Kolombos Rest. Inc.

 6   ("Kolombos"),     a    New    York   City    restaurant   doing   business   as

 7   Coopertown Diner ("Coopertown" or the "restaurant"), discriminated

 8   against her on the basis of her disabilities in violation of Title

 9   III of the Americans with Disabilities Act ("ADA" or the "Act"), 42

10   U.S.C. §§ 12181-12189; New York State Executive Law §§ 290-301

11   ("State Human Rights Law"); and New York City Administrative Code

12   §§ 8-101 to 8-703 ("City Human Rights Code" or "City Code"). Krist,

13   who has been disabled since at least 2003, complained that beginning

14   in    late   2008,     when   she    acquired    a   service   dog,   Kolombos

15   discriminated against her by, inter alia, attempting to restrict her

16   access and that of the dog to the restaurant and by verbally

17   harassing her on account of her disability and use of the service

18   dog. The district court entered judgment in favor of Kolombos after

19   finding that Kolombos had not denied Krist full and equal access to

20   and use of the restaurant, either with or without her service dog,

21   and   ruling    that    restaurant    employees'     comments,    which   Krist

22   considered to be rude or insensitive, did not constitute a violation

23   of the ADA. On appeal, Krist contends principally that the district


                                            -2-
 1   court erred (1) by basing its decision on the premise that a

 2   plaintiff complaining of a violation of Title III of the ADA is

 3   required to establish that discrimination was intended, (2) by

 4   failing   to    find   that   Krist    was   actually     excluded   from   the

 5   restaurant, and (3) by failing to construe the ADA as imposing a

 6   code of civility and to rule that Kolombos violated the ADA by

 7   constructively excluding Krist from the restaurant. Concluding that

 8   there is no error of law or clear error of fact in the district

 9   court's decision, we affirm the judgment.



10                                  I.     BACKGROUND



11                The following description of the facts is drawn from the

12   district court's findings as to the course of events, made on the

13   record at the end of the three-day bench trial (see Trial Transcript

14   ("Tr.") at 299-307), most of which have not been challenged by

15   Krist, and from testimony of Krist and Kolombos' owners, most of

16   which is consistent with the court's findings.

17                Krist, who suffers from several afflictions, including

18   hereditary     essential   tremor,     arthritis,   and    asthma,   has    been

19   manifestly disabled since at least 2003, causing her to require the

20   assistance of walking aids or a wheelchair.          She was a customer of

21   Coopertown for some 20 years, beginning in approximately 1988,


                                            -3-
 1   frequenting the restaurant several times a week.               Between 2003 and

 2   December 2008, Krist went to Coopertown nearly every day for

 3   breakfast and lunch.         She usually arrived around 9:00 a.m. and

 4   remained there until around 2:30 p.m. Coopertown became her primary

 5   social    community,    in   which   her    friends    were    other   customers,

 6   Coopertown employees, and the restaurant's current owners, Michael

 7   Kolombos and his cousin Fotios Batas.              During this period, Krist

 8   would    arrive   at   the   restaurant    using   a   cane,    crutches,   or   a

 9   wheelchair, and she experienced no discrimination.

10               In or about December 2008, Krist obtained a medically-

11   prescribed service dog that accompanied her to the restaurant.

12   Batas testified that when Krist told him in late November that she

13   was about to acquire a service dog and would be bringing it to the

14   restaurant, he told her that that was permissible as long as the dog

15   was licensed and was truly a service dog; otherwise, he indicated,

16   the dog would be excluded in order to avoid the restaurant's being

17   penalized by the health department.           However, Krist testified that

18   on December 11, 2008, on her first trip to Coopertown with the dog,

19   her treatment by the Kolombos employees, and by the friends with

20   whom she normally congregated at the restaurant, changed radically.

21               Coopertown, for Krist, had been "like . . . Cheers, . . .

22   you went in and you knew people and people knew you and you were

23   friendly and everything was fine."            (Tr. 88-89.)        But after she


                                           -4-
 1   began bringing the dog, "it all went right out the window."      (Id.

 2   at 89.)   The employees' dealings with her "all became very cool.   It

 3   was just take my order, give me my food, give me my receipt and hope

 4   I leave."     (Id. at 67.)    The first time she took the dog to the

 5   restaurant, Joe Mugno, a waiter with whom she frequently had had

 6   lunch, asked her if her dog was a service dog, using a tone of

 7   skepticism.    Krist responded that it was a service dog, and she and

 8   Mugno had no further conversations about the dog; but Mugno never

 9   had lunch with her again.      Krist testified that on this occasion,

10   none of the other employees of the restaurant spoke to her, even to

11   exchange pleasantries.    In addition, one of the customers, who had

12   sat with Krist every day she was at Coopertown for 10 years, refused

13   to sit with her, never sat with her again, and stopped speaking to

14   her.   (See id. at 101-02.)

15               Krist also testified that there were incidents in which

16   Batas or Michael Kolombos "yelled" at her.       Thus, on her second

17   visit to Coopertown with the dog, a few days after the first, Batas,

18   from behind the counter on the opposite side of the restaurant,

19   stared at the dog and made growling sounds.      Krist testified that

20   when the dog then made a sound that Krist said was not a bark but

21   sounded like "boof," Batas yelled at her that the dog was barking

22   and he ordered her to leave the restaurant.          (Tr. 55.)      She

23   testified that on another occasion in December 2008, after she took


                                       -5-
 1   the dog out from under her table to show it to another customer,

 2   Batas yelled at her, complaining that she was playing with the dog.

 3   (See id. at 68-69.)

 4                 After   Batas    yelled     at    her    on     her    second   visit   to

 5   Coopertown with the dog, Krist had complained to Michael Kolombos.

 6   Krist testified that Michael Kolombos said "[t]hat I was welcome" to

 7   have the dog in the restaurant but that "I should sit in the front

 8   of the store" and should "[e]at my breakfast and go."                      (Tr. 63-64.)

 9   Thereafter, Krist began going to the restaurant less frequently; she

10   went approximately every other day.                   She sat at a front table

11   perhaps three times but then resumed sitting in the back in her

12   favorite booth.       She would arrive at about 9 a.m. and stay until

13   around noon (see id. at 117); but, she testified, "I didn't [stay

14   to] eat lunch because no one"--meaning "Joe [Mugno] or any of his

15   sons or any of the other waiters or anybody"--"would eat lunch with

16   me so there was no sense in staying" (id. at 67).

17                 Krist   also    testified    that       there    was    an   incident   in

18   February 2009 and another in the summer of 2009 in which Batas and

19   Michael Kolombos, respectively, yelled at her for having the dog lie

20   beside her chair or her booth, rather than under the table, and

21   potentially imperil customers and waiters.                  (See Tr. 70-73, 85-86.)

22   Batas   and    Michael   Kolombos       similarly      testified       that   on   those




                                               -6-
 1   occasions, when they asked Krist to move the dog, Krist had put the

 2   dog in the aisle.   (See id. at 190, 246.)

 3              In September 2009, Krist stopped going to Coopertown.          In

 4   December 2009 she filed the present action seeking injunctive relief

 5   and compensatory and punitive damages, alleging that on various

 6   occasions in 2008 and 2009, the restaurant's owners yelled at her

 7   and discriminated against her on the basis of her disability and use

 8   of the service dog, in violation of federal, New York State, and New

 9   York City laws.   Krist's attorney argued that punitive damages were

10   warranted because the Kolombos owners knew the law; "and, having

11   read the law at an early stage, they went on to do things that drove

12   a person to tears and drove them [sic] ultimately to, after seven or

13   eight months or nine months, to exclude herself from her only real

14   significant social community."        (Id. at 298.)

15              Following   the   trial,    at   which   the   court   had   heard

16   testimony principally from Krist, Michael Kolombos, and Batas, the

17   court made findings of fact generally consistent with the above--

18   except that it rejected Krist's testimony that either Kolombos owner

19   had ever ordered her to leave the restaurant:         It found that Krist

20   "was never forced to leave the restaurant" (id. at 302; see also id.

21   at 301).

22              The court ruled that Krist had failed to prove that

23   Kolombos "did not attempt to reasonably accommodate her use of a


                                       -7-
 1   service dog" (id. at 302); that there was "no evidence that these

 2   owners either attempted to deny [Krist] access to the restaurant,

 3   provide[d] less or different services, [or] exclude[d] her or the

 4   dog from the restaurant" (id. at 303); and that there was

 5             no evidence that any of these owners of this
 6             restaurant or employees of this restaurant treated
 7             plaintiff any differently because she was disabled.
 8             There is no evidence of that from the 20 years
 9             before she had the dog, and there is no evidence of
10             that when she got the dog

11   (id. at 304; see also id. ("I cannot say that they didn't reasonably

12   accommodate the use of the service dog, even though it created

13   additional issues that, obviously, are relevant in the context of a

14   restaurant and places where people come to have their meals.")).

15             The court found that Krist had continued to patronize the

16   restaurant with the service dog for some 10 months in virtually the

17   same manner as she had before acquiring the dog.   (See Tr. 306.)   It

18   found that she "went to the restaurant with the dog dozens and

19   dozens of times" (id. at 301-02); that although there were some

20   discussions between Krist and Michael Kolombos as to whether Krist

21   could sit at various tables, "she continued to sit exactly where she

22   wanted to sit" (id. at 302); that she stayed for "hours and hours"

23   (id. at 303); and that "whatever conversations there were about her

24   leaving the restaurant on a particular day . . . , it was clear that

25   she was never forced to leave the restaurant . . . ."   (id. at 302).

26   Krist decided when to arrive and when to leave, and "despite her

                                     -8-
 1   difficulties and disagreements with the owners," she "quickly and

2    continuously came back to the restaurant" (id.).            The court found

3    that Krist had not proven that Coopertown's owners or employees

4    "made her feel that she was not welcome [at the restaurant] because

 5   she had a disability."     (Id. at 306.)

 6               The court accepted Krist's testimony that after she began

 7   bringing the dog to Coopertown "[m]any of her friends were no longer

 8   as friendly" and that her "circle of friends" changed; and it found

 9   that on "approximately two or three occasions one of the owners

10   yelled at her about the dog and the dog's handling or the dog's

11   conduct."    (Tr. 299.)   However, the court found that although

12               she was not treated as friendly as she had been
13               treated before[,] . . . . the ADA doesn't prohibit
14               the conduct at issue here, complaining about the
15               dog's handling and the dog's behavior, even if done
16               in a rude and insensitive manner--if I could even
17               characterize it as that[. That] is not what the ADA
18               is intended to reach. This may have been thought of
19               like Cheers, but the ADA does not guarantee that
20               kind   of    atmosphere.      The   ADA   prohibits
21               discrimination and denial of use and enjoyment of
22               public facilities.

23   (Id. at 299-300.)

24               Without   making   a   finding   as   to   whether   the   owners'

25   comments or shouts of which Krist complained actually were rude or

26   insensitive, the court found that "on this record I cannot conclude

27   that she was in any way, regardless of what the statements were,

28   excluded from this restaurant, [or] that she in any way did not have


                                          -9-
 1   full access to all of the facilities that she had access to before

 2   and utilized . . . ."        (Id. at 301.)

 3               The district court also noted that there was "absolutely

 4   no evidence of any discriminatory intent" on the part of the

5    restaurant's owners and employees.          (Tr. 300; see, e.g., id. at 302

6    ("I   cannot    reasonably    determine     on   these    facts   as     they   are

7    presented, even accepting them in the light most favorable to the

8    plaintiff, that these individuals intended to discriminate against

 9   her and in fact discriminated against her"); id. at 303 ("there is

10   no evidence that these individuals had any animosity toward the

11   plaintiff   .   .   .   personally   and    clearly      not   because    she   was

12   disabled").)

13               The court found that the occasions on which one of the

14   Kolombos owners yelled or shouted across the restaurant about the

15   dog's behavior were "isolated" and that their conduct was neither

16   "outrageous" nor "demeaning" so as to constitute a "constructive

17   denial of access" to the restaurant or its services.              (Tr. 301.)    It

18   ruled that the ADA "does not require" that owners of a public

19   restaurant "not complain, not ask the dog's owner to control the

20   dog's behavior in a way that is not inconsistent with everyone

21   else's use of the restaurant."       (Id. at 306.)

22               Although the court noted that Krist ceased frequenting

23   Coopertown in the fall of 2009, it was not persuaded that the


                                          -10-
 1   decision to do so was forced upon her by Kolombos.                  Rather, the

 2   court stated that Krist's decision may have been motivated by her

3    "frustration [at] the breakdown of her social network" (id.) as well

4    as by the fact that she was about to bring suit against Kolombos and

 5   desired to "protect[] the viability of the lawsuit" (id. at 301).

 6                 Judgment was entered in favor of Kolombos on all of

 7   Krist's claims.



 8                                    II.    DISCUSSION



 9                 On appeal, Krist argues principally that the judgment

10   should   be    reversed     on    the   grounds   that   the    district      court

11   erroneously interpreted Title III of the ADA (or "Title III") as

12   requiring a plaintiff to prove discriminatory intent, and that the

13   court erred in failing to find that she was actually excluded from

14   Coopertown      or   that   the     Coopertown    owners'      yelling   at     her

15   constructively excluded her from the restaurant.               She contends that

16   Title III imposes on public restaurants a requirement of civility.

17   We reject Krist's contention that Title III imposes a civility code,

18   and we see no error in the findings or conclusion of the district

19   court.

20                 Title III of the ADA prohibits, as a "[g]eneral rule,"

21   discrimination against an individual "on the basis of disability in


                                              -11-
 1   the full and equal enjoyment of the goods, services, facilities,

 2   privileges, advantages, or accommodations of any place of public

 3   accommodation by any person who owns, leases . . . or operates a

4    place of public accommodation," 42 U.S.C. § 12182(a), e.g., a

 5   "restaurant . . . serving food or drink," id. § 12181(7)(B).                      The

 6   Act defines discrimination to include, to the extent pertinent in

 7   this action,

 8                a failure to make reasonable modifications in
 9                policies, practices, or procedures, when such
10                modifications   are   necessary  to   afford   such
11                goods[ and] services . . . to individuals with
12                disabilities, unless . . . such modifications would
13                fundamentally alter the nature of such goods[ and]
14                services.

15   42 U.S.C. § 12182(b)(2)(A)(ii).             Regulations issued under Title III

16   by the Department of Justice shortly after the ADA was enacted,

17   which    were   effective          until    March   15,   2011,    provided      that

18   "[g]enerally,     a       public    accommodation      shall     modify   policies,

19   practices, or procedures to permit the use of a service animal by an

20   individual with a disability." 28 C.F.R. § 36.302(c)(1) (1992); see

21   also    28   C.F.R.   §    36.302(c)       (2011)   (effective    Mar.    15,   2011)

22   (elaborating on accommodation requirements for individuals with

23   disabilities aided by service animals).

24                In order to state a claim for violation of Title III,

25   which authorizes private actions only for injunctive relief, not

26   monetary damages, see, e.g., Powell v. National Board of Medical


                                                -12-
 1   Examiners,   364   F.3d   79,   86   (2d     Cir.   2004),   a   plaintiff   must

 2   "establish that (1) he or she is disabled within the meaning of the

 3   ADA; (2) that the defendants own, lease, or operate a place of

 4   public accommodation; and (3) that the defendants discriminated

 5   against the plaintiff within the meaning of the ADA," Roberts v.

 6   Royal Atlantic Corp., 542 F.3d 363, 368 (2d Cir. 2008), cert.

7    denied, 129 S. Ct. 1581 (2009); see Camarillo v. Carrols Corp., 518

 8   F.3d 153, 156 (2d Cir. 2008) ("Camarillo").            Only the third element

 9   is at issue here.

10              In reviewing a judgment entered after a bench trial, we

11   "must not . . . set aside" the district court's findings of fact

12   "unless [they are] clearly erroneous."              Fed. R. Civ. P. 52(a)(6);

13   see, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985);

14   Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 870 (2d Cir.

15   1994).   "Where there are two permissible views of the evidence, the

16   factfinder's choice between them cannot be clearly erroneous."

17   Anderson, 470 U.S. at 574.

18              Further, in determining whether factual findings are

19   clearly erroneous, we are required to "give due regard to the trial

20   court's opportunity to judge the witnesses' credibility."               Fed. R.

21   Civ. P. 52(a)(6).    It is within the province of the district court

22   as the trier of fact to decide whose testimony should be credited.

23   See, e.g., Anderson, 470 U.S. at 574.               And as trier of fact, the


                                           -13-
 1   judge is "entitled, just as a jury would be, see, e.g., Robinson v.

 2   Cattaraugus County, 147 F.3d 153, 160 (2d Cir.1998); Fiacco v. City

3    of Rensselaer, 783 F.2d 319, 325 (2d Cir.1986), cert. denied, 480

4    U.S. 922 . . . (1987), to believe some parts and disbelieve other

 5   parts of the testimony of any given witness."         Diesel Props S.r.l.

 6   v. Greystone Business Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011).

 7   We   are   not   allowed   to    second-guess   the   bench-trial   court's

 8   credibility assessments.        See, e.g., Anderson, 470 U.S. at 573-74.

 9               We review the district court's conclusions of law, and its

10   application of the law to the facts, de novo.          See, e.g., Henry v.

11   Champlain Enterprises, Inc., 445 F.3d 610, 617-18, 623 (2d Cir.

12   2006); FDIC v. Providence College, 115 F.3d 136, 140 (2d Cir. 1997).

13   "[M]ixed questions of law and fact are reviewed either de novo or

14   under the clearly erroneous standard[,] depending on whether the

15   question is predominantly legal or [predominantly] factual." United

16   States v. Skys, 637 F.3d 146, 152 (2d Cir. 2011) (internal quotation

17   marks omitted).

18               Given these principles, we see no basis for disturbing the

19   decision of the district court.       Preliminarily, we note that we are

20   inclined to agree with Krist that a Title III plaintiff who proves

21   that she is disabled within the meaning of the ADA and that the

22   defendant operates a place of public accommodation that failed to

23   make reasonable modifications in its policies, etc., as necessary to


                                          -14-
 1   provide her with the goods and services afforded by the defendant

 2   need not also prove that discrimination was intended.                      The Act,

 3   which is designed "to provide a clear and comprehensive national

 4   mandate for the elimination of discrimination against individuals

 5   with disabilities," 42 U.S.C. § 12101(b)(1), noted, among Congress's

 6   findings,    that   individuals       with     disabilities      had    "continually

7    encounter[ed] various forms of discrimination, including outright

 8   intentional exclusion . . . and . . . failure to make modifications

 9   to existing facilities and practices" id. § 12101(a)(5) (emphases

10   added). This language itself is antithetical to any suggestion that

11   the   ADA   was   intended   to   allow        recovery   only    for   intentional

12   discrimination.     See generally PGA Tour, Inc. v. Martin, 532 U.S.

13   661, 675 (2001).

14               However, we do not see that the district court viewed

15   intent to discriminate as an element of a Title III claim.                    Krist

16   also asserted a claim for punitive damages under the City Human

17   Rights Code (see Complaint ¶ 35), under which an award of punitive

18   damages may be available upon a showing of intent to discriminate in

19   violation    of   that   law,   see    generally     Farias      v.    Instructional

20   Systems, Inc., 259 F.3d 91, 101-02 (2d Cir. 2001) (discussing City

21   Code § 8-502(a)). Given Krist's attorney's emphasis on the Kolombos

22   owners' knowledge of the law and on Krist's desire for an award of

23   punitive damages, the district court's references to intent were


                                             -15-
 1   relevant to her City Code claim and were responsive to Krist's

 2   testimony suggesting, inter alia, that Batas had growled at the dog

 3   in a manner calculated to bait the dog into barking and that the

 4   Kolombos owners "hope[d]" she would leave and not return.

 5              Nor do we see that the absence of evidence of intent was

 6   a linchpin of the court's decision to dismiss Krist's ADA claim.

 7   Rather,   the   court   found   that    Krist   failed   to   establish   by   a

 8   preponderance of the evidence that she was excluded from Coopertown

 9   after she acquired her service dog (the only period of which she

10   complains); or that her service dog was excluded; or that her access

11   to Coopertown, with or without the dog, was restricted.              Although

12   Krist states that the court erred "in rejecting [her] proof that she

13   was actually excluded by [Kolombos] from the diner based on her use

14   of a service dog" (Krist brief on appeal at 31 (emphasis added)),

15   the district court as trier of fact was not required to credit her

16   testimony to that effect.       The court's contrary finding that Krist

17   frequented the restaurant with the dog in a manner that was "not

18   significantly different" from her prior custom was supported by its

19   findings that, over a period of some 10 months, Krist went to the

20   restaurant with the dog "dozens and dozens" of times.            This finding

21   was supported by the testimony of Batas and Michael Kolombos that

22   Krist had come to the restaurant with her dog some 90-100 times (see

23   Tr. 222, 243), and by the testimony of Krist herself that during


                                            -16-
 1   that 10-month period, except in January, March, and April, she went

 2   to Coopertown every other day (see, e.g., id. at 70, 78, 114).                   The

 3   district court's finding that Krist was neither ordered to leave

 4   Coopertown nor asked not to return cannot, on this record, be termed

 5   clearly erroneous.

 6                 Further, although Krist also argues that the district

 7   court erred in failing to find that she was the victim of a

 8   "constructive exclusion" (Krist brief on appeal at 31 (emphasis

 9   added)), there is no clear error in the court's finding that any

10   shouts   by    the    owners     were      isolated   and   that    the   restaurant

11   employees'      behavior       was   not     outrageous     or    demeaning   verbal

12   harassment. The court found that there were only "approximately two

13   or three occasions" in the 10-month period when one of the owners

14   yelled at her, and that the yelling concerned the dog's conduct or

15   Krist's handling of the dog.            (Tr. 299.)    The court was not required

16   to accept Krist's suggestion that the instances were numerous.

17                 The    court's    finding      that   there   was    no   constructive

18   exclusion is also supported by the record that Krist continued to

19   frequent the restaurant, with the dog, some 3-4 times a week; that

20   she continued to sit in her preferred booth when it was available;

21   and that she and the dog normally stayed at the restaurant for

22   several hours on each visit.




                                                 -17-
 1                Nor was the court required to accept Krist's assertion

 2   that shouted criticisms of her handling of the dog or its conduct

 3   were unjustified or any suggestion that they were designed to drive

 4   her   from   the   premises.   For   example,    the   last   two   "yelling"

 5   incidents described by Krist occurred in February and September 2009

 6   when Batas and Michael Kolombos, respectively, yelled at her across

 7   the restaurant for having put the dog in the aisle, potentially

 8   impeding customer traffic and waiter movements. One was an occasion

 9   when Krist was sitting at a table under which the dog could not

10   comfortably lie because of the configuration of the base of the

11   table. Krist had sat at the table despite the availability of seven

12   booths (i.e., all but her favorite) at which she could have sat and

13   put the dog under a booth table.            The other occasion was one in

14   which she was sitting in her favorite booth but put the dog in the

15   aisle because of a previous incident in which the dog had found and

16   eaten some indigestible food on the floor under the booth's table;

17   Krist offered no evidence that there was still--or again--food under

18   the table.     Thus, with respect to two of the four occasions as to

19   which she complained of yelling, Krist's own testimony supported an

20   inference that she had placed the dog in the aisle unnecessarily and

21   that the shouted requests concerned her creation of a safety hazard,

22   because someone passing by could trip on the dog either as it lay

23   there or because it might suddenly move.


                                          -18-
 1                In sum, we see no basis for overturning the district

 2   court's findings that Krist was neither actually nor constructively

 3   excluded from Coopertown and that she was not denied any of its

 4   goods or services.

 5                Finally, we reject Krist's contention that "in effect,

 6   . . . Title III of the ADA imposes a civility code" (Transcript of

 7   oral argument of the present appeal at 4 (statement of Krist's

 8   counsel)).    Although Krist complains that her friends at Coopertown

 9   became less friendly after she began bringing the dog, and that the

10   owners shouted at her when she did not properly place the dog in a

11   position where it could not suffer or cause harm, "careful attention

12   to the requirements of the statute," Oncale v. Sundowner Offshore

13   Services, Inc., 523 U.S. 75, 80 (1998), reveals that Title III is

14   designed to prevent a facility offering public accommodation from

15   denying individuals with disabilities "goods[ and] services," e.g.,

16   42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(ii).        We agree with the

17   district court that the ADA does not impose a civility code.    See,

18   e.g., Camarillo, 518 F.3d at 157 (vacating Fed. R. Civ. P. 12(b)(6)

19   dismissal of a plausible Title III denial-of-service claim, while

20   "not disagree[ing] . . . that legislation such as the ADA cannot

21   regulate individuals' conduct so as to ensure that they will never

22   be rude or insensitive to persons with disabilities" (internal

23   quotation marks omitted)); cf. Cannice v. Norwest Bank Iowa N.A.,


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 1   189 F.3d 723, 726 (8th Cir. 1999) ("Insensitivity alone does not

 2   amount to harassment; [Title I of] the ADA, like Title VII [of the

 3   Civil Rights Act of 1964], is not in effect a 'general civility

 4   code.'"   (quoting Oncale, 523 U.S. at 81)).

 5                Krist also complains that the district court, in its

 6   findings, made no mention of her claims under the State Human Rights

 7   Law or the City Human Rights Code. The judgment expressly dismissed

 8   all three of Krist's claims, and there is no basis for reversal.

 9   The State-law claim is coextensive with Krist's Title III claim,

10   see, e.g., Camarillo, 518 F.3d at 158, and her challenge to the

11   dismissal of the State-law claim thus lacks merit for the reasons

12   discussed above with respect to Title III.     The City Code provides

13   somewhat broader rights and is to be "given an independent liberal

14   construction," see, e.g., Loeffler v. Staten Island University

15   Hospital, 582 F.3d 268, 278 (2d Cir. 2009) (internal quotation marks

16   omitted); but we can hardly doubt that the district court considered

17   Krist's claim under the City Code independently, for the court's

18   findings with regard to discriminatory intent were pertinent to

19   punitive damages, which could not have been awarded except under the

20   City Code.    In any event, aside from the arguments with respect to

21   her ADA claim, Krist's brief on appeal contains no authority or

22   argument as to how the court erred in dealing with her City-law

23   claim, and we consider any independent challenge to the dismissal of


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1   that claim to be abandoned, see Hobbs v. County of Westchester, 397

2   F.3d 133, 147 (2d Cir.), cert. denied, 546 U.S. 815 (2005); Norton

3   v. Sam's Club, 145 F.3d 114, 117 (2d Cir.), cert. denied, 525 U.S.

4   1001 (1998).



5                                 CONCLUSION



6             We have considered all of Krist's arguments on this appeal

7   and have found them to be without merit.       The judgment of the

8   district court is affirmed.




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