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Posted October 23, 2013 | comments Leave a comment

Manager cleared in service dog case

By Joe Beck

WINCHESTER -- A judge ruled Wednesday that a PetSmart, Inc. assistant store manager broke no law when she ordered a customer with a service dog out of the store after the customer had fallen and used the dog to get to her feet.

The case against Michelle Funk collapsed after Winchester General District Judge David Whitacre sustained a motion by defense lawyer Joleen R. Orkun of Washington, D.C. asking that testimony from the customer be struck.

The customer, Sherri Worthington-Waits, contended that Funk violated a law against interfering with a service's dog's performance of its duties in an incident in the store on June 25.

Worthington-Waits testified she entered the store at 2310 Legge Blvd. with the dog to buy dog food and bowls for the dog.

Worthington-Waits testified that she has several disabilities, all of which make it hard for her to stand and keep her balance without help from a person or a service dog.

Worthington-Waits said she went down on one knee after her toe caught in a tile grout. She said the service dog, Zane, was in another part of the store with his trainer, who had accompanied Worthington-Waits into the store.

Worthington-Waits testified that Zane went to her and helped her to her feet after she called out his name. A few moments later, Funk appeared in the aisle, Worthington-Waits said.

"He came straight to me and picked me up," Worthington-Waits said of Zane, "and she [Funk] came to the last aisle in the store and said I was being disruptive."

Worthington-Waits testified that Funk then conferred by telephone with the store's regional and district managers for about five minutes.

"What she told me is that if I wasn't there to socialize the dog, I was to leave the store," Worthington-Waits said of Funk.

Worthington-Waits said she complied and left the store with the dog at her side.

Orkun argued that Funk, who did not speak to Worthington-Waits until she was on her feet again, had never prevented the dog from performing its duties.

"I don't see how this was an intentional violation of the statute," Orkun said.

Ordering Worthington-Waits to leave with her dog did not constitute interference with the dog's ability to perform its duties, Orkun said.

"The store had a concern for the other pets and the other customers in it," Orkun said.

Worthington-Waits said after the hearing that she intended to file a complaint about the incident with the U.S. Justice Department under the federal Americans with Disabilities Act.

Worthington-Waits said she spent two weeks on a Florida vacation with Zane after the PetSmart incident and had no problems with his role as a service dog.

"People don't realize how hard it is when you have a disability to go anywhere or do anything," Worthington-Waits said.

The trainer who accompanied Worthington-Waits into PetSmart was Russell Ebersole, who operates Aberdeen Acres in Stephenson. He recently pleaded guilty to several counts of animal cruelty linked to his dog training practices.

Ebersole appeared in court as one of several witnesses prepared to testify had the trial continued after Worthington-Waits testified.

Ebersole said he trains many service dogs for disabled people and has heard many of them tell of experiences similar to those of Worthington-Waits. Many businesses simply do not know that the Americans with Disabilities Act requires them to allow people with service dogs easy access to their properties.

"That's the travesty and that's why people with disabilities, wherever they go, keep bumping up against this," Ebersole said.

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com


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