by Richard W. Millar, Jr.

I don’t know a lot about monkeys. Besides family expeditions to the Griffith Park Zoo my only other early monkey education was from watching Tarzan serials at the early bird Saturday morning showings at the Uptown Theater in Pasadena. I have also read the adventures of Curious George to my children and grandchildren, but somehow I suspect that doesn’t count.
   

A number of years ago whilst on a safari in Kenya we came across a baboon sitting on a fence post. Our driver slowed so that all of us could get a good view since this particular baboon was notable for his brilliant turquoise testicles which resembled medium sized Christmas ornaments. I don’t remember whether the men or the women spent more time staring, but I will never forget our tour guide with his wonderfully proper British accent saying, “one wonders why they call him the white-faced baboon.”
   

Monkeys are quite dirty, carry a variety of diseases, and seem to spend an inordinate amount of time picking vermin out of their hair. For these and other reasons, I have never considered having one for a pet. Nor in my wildest imaginings would I have considered them therapeutic.
   

That is, of course, until now. As always, a case in point.
   

Debby Rose and Richard went to a Wal-Mart. Apparently, she didn’t get beyond the greeter. She was not allowed to enter the store with Richard. Richard, as I am sure you suspect, was a monkey. Not just any monkey, but a ten-year-old Bonnet Macaque monkey trained to, and I am not making this up, “break the spell,” “break[ing] off the focus,” “crowd control,” “chang[ing] the mood,” and “keeping control of what she [Debby] was doing.” Debby’s physician testified that the monkey’s primary task was to sit with her and comfort her.
   

Richard, in short, was a “service monkey,” registered with something called the Service Animal Registry of America which is accomplished by filling out a form and, more importantly, paying a fee. (I think these people may be on to something, but I digress.)
   

Debby Rose was also not permitted to attend classes at Cox College with Richard. It seems that Cox College and Wal-Mart had both received “anti-monkey” (my phrase not theirs) letters from the Springfield-Greene County Health Department of Missouri (SGCHD), stating, in effect, monkeys were not qualified to be service animals and were a public health threat. To come to this less than remarkable conclusion, the health department, being a public agency, did not rely on common sense but conducted an “investigation” contacting among other agencies, the Department of Justice, the Food and Drug Administration, the Missouri Department of Health and Senior Services, and the Missouri state veterinarian. The cost of this effort which led to the determination that monkeys were, well, monkeys was not disclosed.
   

In any event, the agency, affectionately referred to as SGCHD (don’t you love acronyms), sent its letters out to Cox and Wal-Mart among others and those establishments cited those letters along with additional reasons for disallowing Richard entry. Thus, Debby Rose did whatever any red-blooded American monkey owner would do, she sued. In this case she sued the SGCHD, Wal-Mart, and Cox in Federal Court. I am not sure that Ms. Rose, as opposed to Richard, had standing, but that did not seem to be a pivotal issue. She sued under the Americans with Disabilities Act contending that she, not Richard, was disabled. The Act defines disability as either a physical or mental impairment that substantially limits a person’s major life activities.
   

The defendants moved for summary judgment claiming she suffered from neither. The Court neatly sidestepped the question of whether someone who tries to go to Wal-Mart with a “service” monkey was nuts, stating: “Whether or not she suffers from a mental impairment raises a number of factual issues and is ill-suited to resolution at the summary judgment stage in this case. However, even assuming Plaintiff does suffer from a qualifying mental impairment, the evidence is clear that her impairments” (note use of plural) “do not substantially limit any of her major life activities.”
   

Ms. Rose’s claimed disabilities were agoraphobia and social anxiety disorder which, without her monkey, causes her to be barely able to function limiting her ability to get out of bed. By contrast, the record reflected that during the time she purportedly suffered from these disorders, she “married three times, successfully raised six children, held many different jobs, took vacations across the country,” and moved around a lot without medication or the aid of a “service monkey.”
   

After determining that Ms. Rose was not “disabled,” the Court continued with the “even if” decision, stating that even if she were disabled, a monkey is not a service animal. I am not sure that the Court’s analysis was correct because it noted that among Richard’s tasks was to bring her the television’s remote control when she was apparently recumbent. I think any animal that will bring you the remote and a Bud Light is definitely a service animal. In fact rather than suing, Ms. Rose ought to be contacting the ad agencies as the commercial possibilities sound far more lucrative than shopping at Wal-Mart.
   

At any rate, the fact that Richard was adept at fetching was not enough to qualify him as a service animal within the meaning of the disabilities act. Therefore, the defendants did not violate the act by denying him entry.
   

I thought of trying to train our dog, but both the remote and a beer bottle are larger than she is. However, I think she should be allowed to accompany me to court. It will be me and Tootsie, the service Shih Tzu.

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Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.