United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3387

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Marilyn Pona, *

*

Appellant, *

*

v. *

*

Cecil Whittaker's, Inc., *

*

Appellee, and *

*

C. W. Central Westend, Inc.; *

Eye's Enterprises, Inc.; Paul *

Lia, as Trustee of Eye Enterprises, * Appeal from the United States

Inc.; Ralph Lia, as Trustee of Eye * District Court for the Eastern

Enterprises, Inc.; Jim Craddock, * District of Missouri.

as Trustee of Eye's Enterprises, Inc.; *

Paul Lia, In His Individual Capacity; *

Ralph Lia, In His Individual Capacity; *

Jim Craddock, In His Individual *

Capacity, *

*

Defendants, and *

*

St. Louis Board of Police *

Commissioners; Ann Marie Clarke, *

Member of the City of St. Louis *

Board of Police Commissioners; *

Mathew J. Padberg, Member of the *

City of St. Louis Board of Police *

Commissioners; Robert Haar, *

Member of the City of St. Louis *
The Honorable Owen M. Panner, United States District Judge for the District 1

of Oregon, sitting by designation.

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Board of Police Commissioners; *

Freeman Bosley, Jr., Member of *

the City of St. Louis Board of *

Police Commissioners; Charles *

Mischeaux, Member of the City *

of St. Louis Board of Police *

Commissioners; Michael *

Calcaterra, In His Individual *

Capacity and as a Police Officer *

for the City of St. Louis; Matthew *

Rodden, In His Individual Capacity *

and as a Police Officer for the City *

of St. Louis; and Joseph W. Robinson, *

In His Individual Capacity and as a *

Police Officer for the City of *

St. Louis, *

*

Appellees. *

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Submitted: June 10, 1998

Filed: September 18, 1998

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Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit

Judges, and PANNER, District Judge. 1

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

After the employees of a Cecil Whittaker's Pizzeria asked Marilyn Pona to leave

their premises because she had a service dog with her, Ms. Pona, who suffers from
The Honorable Donald J. Stohr, United States District Judge for the Eastern

2

District of Missouri.

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degenerative spine and joint disease, filed suit, laying claims under the Americans with

Disabilities Act (ADA), see 42 U.S.C. §§ 12101-12213, 42 U.S.C. § 1983, and the

Missouri Human Rights Act (MHRA), see Mo. Rev. Stat. §§ 213.010-213.137. The

district court granted summary judgment in favor of two of the sets of defendants, and

Ms. Pona appeals. We affirm the judgment of the district court.2

I.

One of Ms. Pona's complaints against Cecil Whittaker's, Inc. (CW), was that it

violated Title III of the ADA, see 42 U.S.C. § 12182(a), which provides that no one

"who owns, leases (or leases to), or operates a place of public accommodation" may

discriminate against anyone "on the basis of disability in the full and equal enjoyment

of ... any place of public accommodation." CW maintains that, as the franchisor of the

pizzeria, it did not own, lease, or operate the pizzeria, and therefore cannot be liable

under the ADA. The district court agreed with CW, and so do I. 

It is undisputed that CW was only a franchisor, and that under its franchise

agreement it reserved no right to control entry to the pizzeria. Ms. Pona produced

evidence in the district court, however, that the pizzeria's manager telephoned Donald

Glenn, the president of CW, and asked him whether Ms. Pona's dog should be allowed

on the premises, and that Mr. Glenn told the manager that he "wouldn't have any

animals in [his] restaurant" because it "doesn't look good for the franchise." Ms. Pona

asserts that in making this statement Mr. Glenn sufficiently insinuated himself into the

matter to make CW liable for her exclusion from the restaurant. Mr. Glenn denies that

he made any such statement, but, for summary judgment purposes, we are of course

obligated to assume that he did.
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Even assuming that Mr. Glenn did what Ms. Pona alleged, I believe that

summary judgment in CW's favor was appropriate. The fact, if it is one, that Mr. Glenn

gave advice to the pizzeria manager and that the manager took it does not establish that

CW owned, leased, or operated the pizzeria within the meaning of the ADA. The fact

that Mr. Glenn influenced the manager's action is not, to my mind, enough. He had no

right to control the manager's actions in any relevant respect, and, absent any such

right, no violation of the ADA appears. Cf. Neff v. American Dairy Queen Corp., 58

F.3d 1063, 1066-69 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).

Ms. Pona also argues that the pizzeria had apparent authority to act on behalf of

CW, and therefore that the law of agency imputes the manager's act to CW. As the

district court recognized, this argument is entirely without merit. The question of CW's

liability under Title III of the ADA depends on its actual connection to the premises,

not on Ms. Pona's belief about that relationship. Besides, the mere fact that a

franchisor's sign appears on a building and the employees within that building wear

uniforms bearing the franchisor's logo and insignia does not clothe a franchisee with the

apparent power to act on the franchisor's behalf in anything approaching a general way.

Nothing in the record, moreover, would indicate that CW did anything to give

customers the impression that it controlled access to the building. Nor can Ms. Pona

show that she relied on any such impression. See Wilson v. United States, 989 F.2d

953, 959 (8th Cir. 1993).

Ms. Pona's Title III claim against the St. Louis police officers, based on the fact

that they asked her to leave the pizzeria, is even more obviously infirm, because there

is not a colorable claim that the officers owned, leased, or operated the pizzeria in

question. The claim therefore necessarily fails on its face.

II.

Ms. Pona contends that the Board of Police Commissioners of the City of

St. Louis (Board) has in place a policy that denies a right secured to her by Title II of
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the ADA, see 42 U.S.C. § 12132, which makes it illegal for a public entity to exclude

a qualified person with a disability "from participation in ... the services ... of a public

entity." She bases her claim on her assertion that when St. Louis police officers arrived

to mediate the dispute between her and the pizzeria employees, they refused to explain

to the employees that Mo. Rev. Stat. § 209.150 gave Ms. Pona the right "to be

accompanied by ... a service dog" in "places of public accommodation"; instead,

Ms. Pona alleges, the officers simply informed her of her civil remedies and asked her

to leave. They did so, Ms. Pona maintains, pursuant to what she characterizes as a

Board policy, namely, Special Order 86-S-31, which, she asserts, prohibits members

of the St. Louis Police Department from "tak[ing] any enforcement action" with respect

to § 209.150. This policy, Ms. Pona claims, violates the ADA because it denies her

"the services ... of a public entity," see 42 U.S.C. § 12132.

I leave to another day the question of whether such a policy might violate the

ADA, because I believe that the district court correctly held that the Board did not

promulgate the policy that Ms. Pona says offends the ADA. The policy is, on its face,

not an order of the Board. The Board has the authority to issue General Orders, but

Special Orders are the exclusive province of the Chief of Police. See St. Louis Police

Manual § 1.030, § 1.031(a), § 1.503. As the district court pointed out in its opinion,

"it is undisputed that the individuals comprising the Board of Police Commissioners did

not draft, issue, approve or otherwise authorize the Special Order." Ms. Pona states

in her brief that "the evidence clearly shows that the Board has at least approved

Special Order 86-S-31," but she directs our attention to no such evidence, and,

moreover, she cites no authority that would undermine the Board's position that it does

not issue Special Orders. The Board's witnesses did opine that the Special Order

applied to § 209.150 violations (more on this later), but this has no bearing on the

question of the source of the Order.

Even if the Board could be liable for Special Orders issued by the police chief,

on the ground, for instance, that with respect to these the chief is in some respects the
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Board's delegated policy-maker (an argument that Ms. Pona does not advance), her

argument would nevertheless fail. Her claim is that the policy denied her the protection

of § 209.150, when, on its face, the Special Order speaks only of violations of § 3.44

of the Revised Code of the City of St. Louis, which prohibits discrimination on account

of "disability ... with respect to the uses, services and enjoyment of a place of public

accommodation." The Order nowhere mentions the similar provisions of § 209.150.

The Order, therefore, does not apply to those provisions as a matter of law, and the

testimony alluded to above cannot undo that legal fact. That testimony is nothing more

nor less than a mistaken statement of law and cannot, despite Ms. Pona's vigorous

argument to the contrary, be made somehow to bind the Board. 

If there had been testimony that the Order was customarily understood as

applying to § 209.150, or if there had been evidence that there were other occasions on

which the Order had actually been applied to § 209.150, then perhaps there would have

been proof of a policy, practice, or custom sufficient to survive summary judgment.

But that is not the state of the record. The absence of such evidence is, on reflection,

hardly surprising. Complaints about the exclusion of service dogs from places of public

accommodation must surely, as a practical matter, not be numerous, both because

service dogs are comparatively rare and because proprietors will hardly ever be so

callous as to exclude them. Evidence of the kind of custom that would give rise to a

claim like the one that Ms. Pona makes here would therefore be virtually impossible

to come by.

Ms. Pona's arguments with respect to Title II of the ADA and the Board

therefore fail, and I would affirm the district court's grant of summary judgment on that

claim.
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III.

Ms. Pona's complaint contained a count against the Board seeking a remedy

under 42 U.S.C. § 1983 for the violation of the ADA that I have just disposed of.

Because the ADA claim fails, the § 1983 claim based on it necessarily falls with it.

I believe, moreover, that even if the ADA claim had survived, we would have

been obligated to affirm the district court's summary judgment against Ms. Pona on the

§ 1983 claim, because an ADA violation is not actionable under § 1983 in any case.

While that provision, of course, can, in proper circumstances, be used to vindicate the

denial of rights secured by statutes of the United States, we must be mindful of the

principle that if the statutory right that a plaintiff seeks to vindicate comes outfitted with

its own comprehensive remedial apparatus, a § 1983 action based on a violation of that

statutory right will not lie. That is because we are to presume that Congress intended

that the enforcement mechanism provided in the statute be exclusive. See, e.g.,

DeYoung v. Patten, 898 F.2d 628, 634-35 (8th Cir. 1990).

I note that while the EEOC plays no role in the enforcement of Title II of the

ADA, Congress has provided that title with detailed means of enforcement that it

imported from Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 12133, 29

U.S.C. § 794a(a)(1), see also 42 U.S.C. § 2000e-5, § 2000e-16, including giving a right

to the person aggrieved, see 42 U.S.C. § 2000e-5(f)(1), § 2000e-16(c), or, in

appropriate cases, to the Attorney General of the United States, see 42 U.S.C. § 2000e5(f)(1), to bring a civil action. The ADA, moreover, directs the Attorney General to

promulgate regulations implementing Title II. See 42 U.S.C. § 12134(a). 

In these circumstances, I think that Congress has, under the applicable legal

principles, rather clearly indicated an intention to make the remedies that Title II itself

gives the exclusive ones for the enforcement of that subchapter. Indeed, we have

already so held. See Davis v. Francis Howell School District, 104 F.3d 204, 206 (8th

Cir. 1997). The Eleventh Circuit subsequently reached the same conclusion in
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Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1530-31 (11th Cir. 1997), and

I believe correctly so.

Ms. Pona also seeks redress under § 1983 for the acts that she laid as a Title III

violation against the St. Louis police officers. Since, as I have said, that claim failed

as a matter of law, its restatement as a § 1983 claim necessarily fails also. I intimate

no view on the question of whether Title III violations can ever form the basis for a

cause of action under § 1983. 

IV.

Ms. Pona's final claim is that CW, the Board, and the St. Louis police officers

violated the MHRA, which makes it unlawful to "deny any ... person ... any of the

accommodations ... made available in any place of public accommodation ... on the

grounds of ... handicap." See Mo. Rev. Stat. § 213.065.2. In the first place, I doubt

that the facts would support a finding that Ms. Pona was denied service at the pizzeria

"on the grounds of ... handicap." It was her dog, not Ms. Pona herself, to which the

pizzeria employees raised objection. Passing over that point, however, I believe, for

the reasons already indicated, that CW did not deny Ms. Pona anything, because, as I

have said, it had no right to control the premises under the franchise arrangement.

Ms. Pona asserts in her brief that the gravamen of her complaint against the

Board and the police officers is that it was the Board's policy of refusing to force

compliance with § 209.150 that denied her the services of a place of public

accommodation and thus violated § 213.065.2. Since I have already held that there

was no such policy, I would affirm the judgment of the district court on this count

without addressing the specific reasons that the district court advanced in support of

that judgment.

V.

For the reasons given, I would affirm the judgment of the district court.
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OWEN M. PANNER, District Judge, concurring in part and concurring in the

judgment.

I agree that plaintiff's claims against the franchisor and the individual police

officers under Title III of the Americans with Disabilities Act ("ADA") must be

dismissed for the reasons cited by Judge Morris Arnold. In addition, I note that in a

civil action under Title III of the ADA, a private plaintiff can obtain only injunctive

relief, not the compensatory and punitive damages that plaintiff seeks. See 42 U.S.C.

§ 12188(a).

I also agree that plaintiff has failed to state a claim under 42 U.S.C. § 1983. In

my view, violations of Title II and Title III of the ADA are not cognizable as § 1983

claims. To hold otherwise would disrupt the statutory scheme enacted by Congress

which explicitly limits the remedies available for violations of the ADA.

I would affirm the dismissal of plaintiff's claims against the members of the

Board of Police Commissioners under Title II of the ADA, though not for the reasons

stated by the district court. The police officers who asked plaintiff to leave the

restaurant, and Major Pollihan, who was designated to represent the Board of Police

Commissioners, all testified that they understood Special Order 86-S-31 applied not

only to violations of the city ordinance but also to enforcement of the state law. For

purposes of opposing a motion for summary judgment, that is sufficient to carry the

day. Although the challenged Special Order was issued by the Police Chief, while the

defendants are members of the Board of Police Commissioners, the defendants are the

Chief's bosses and they have the power to alter the challenged policy. That is sufficient

since, as I read Title II of the ADA and its cross-references to 29 U.S.C. § 794a, the

only remedy available to plaintiff in this circumstance is equitable relief. Therefore, I

agree with Judge Richard Arnold that we must address the merits.
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Unlike Judge Richard Arnold, however, I would hold that this policy does not

violate Title II of the ADA. The policy does not refuse service to persons with

disabilities. If a disabled individual calls to report a burglary, stolen car, or loud party,

the police handle the call no differently than they would handle a call from any other

citizen. What the police do have is a policy of not taking sides in disputes concerning

discrimination in public accommodations, preferring to let those matters be handled

through civil proceedings. This is not a policy targeted solely at persons with

disabilities, but includes all incidents concerning these laws, including race, religion,

and gender. There is a civil enforcement mechanism available, and the police advise

individuals of their right to initiate such action.

The police did not discriminate against plaintiff because she has a disability.

They treated her precisely the same as they treat all persons in that situation, disabled

or not. Nor is this a case where the police denied plaintiff a reasonable accommodation

that would let her enjoy the same public services as other citizens. Summary judgment

should be granted for defendants on this claim, albeit not for the reasons articulated by

the trial court.

Finally, I respectfully disagree with the suggestion that denial of services on

account of plaintiff's service dog was not denial of services on account of her disability.

Nevertheless, I agree that the state law claim should be dismissed.

I concur in the judgment affirming the dismissal of this action.

RICHARD S. ARNOLD, Circuit Judge, concurring in part and dissenting in part. 

As to the defendant Cecil Whittaker's, Inc., I agree entirely with the Court, and

I join Part I of the Court's opinion. Cecil Whittaker's, Inc., was only a franchisor. It

did not own, lease, or operate the place of business in question. Accordingly, it cannot

be liable under the Americans with Disabilities Act.
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As to the claim against the Board of Police Commissioners, however, I

respectfully dissent. Special Orders, issued by the Chief of Police of the City of St.

Louis, are contained in a booklet called the St. Louis Police Manual. This booklet is

distributed to police officers and is intended to govern their conduct. The Board does

not contend that it did not know about the booklet. The Chief of Police is the executive

and administrative head of the Police Department. To say that a Special Order issued

by the Chief in written and published form is not a policy of the Police Department

seems untenable to me. All policy-making power does not have to reside in the Board.

The Board is allowing the Chief, at least in practice, to make policy. 

But what about the content of the policy? As the lead opinion says, the Special

Order speaks only of violations of the Revised Code of the City of St. Louis. It says

nothing about the Missouri Human Rights Act. But witnesses for the Board, as the lead

opinion acknowledges, took the position that the Special Order did apply to violations

of the statute having to do with the admission of disabled persons to places of public

accommodation. It seems to me that this testimony, coming from witnesses who should

know what they are talking about, is sufficient, at least for purposes of summary

judgment, to establish that the Board had a policy of the sort of which the plaintiff

complains. Or, if there was no policy, at least there was a custom, and municipal

agencies are liable if either a policy or a custom causes an injury. See, e.g.,

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.

163-166 (1993). Whatever the Special Order says on its face, however we choose to

construe it as a legal document, the fact remains that it was applied in practice as

though it affected enforcement of the state statute, and not merely of the City Code.

Such a policy, which denies to disabled citizens a state-law right, and withholds

from them, in that respect, law-enforcement services available to citizens generally, is

inimical to the letter and spirit of federal law. Therefore, with respect to the ADA

claim against the Board of Police Commissioners, I respectfully dissent.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.