A local San Luis Obispo County resident is alleging that a Smart & Final in Arroyo Grande discriminated against her and her medical condition when the assistant manager wouldn’t let her complete her purchase without wearing a mask.
A complaint filed on July 29 against Smart & Final Stores LLC and Assistant Manager Marti Buentiempo of Store No. 358—1464 E. Grand Ave. in Arroyo Grande—alleges the local store violated the Unruh Act, the California Disabled Persons Act, and discriminated against Sandra Prager Balsamo.
The Unruh Act guarantees all people within California, no matter their disability, full and equal accommodations, advantages, facilities, privileges, and services of all business establishments of every kind.
According to the complaint, Balsamo is a disabled individual with severe back and respiratory health issues, including but not limited to asthma, which prevents her from wearing a face covering.
On June 9, Balsamo entered the Smart & Final to shop for groceries without a face covering due to her medical conditions, the complaint states. An unknown male employee told her that she was required to wear a mask. The complaint states that Balsamo informed the employee she had a health condition preventing her from wearing one, and he allowed her to continue shopping.
Face coverings weren’t mandated at the time but were encouraged and recommended by the San Luis Obispo County Public Health Department. Gov. Gavin Newsom’s statewide mandate and guidance on wearing face coverings, exempting those with medical conditions that prevent them from wearing a covering, didn’t go into effect until June 18.
Balsamo finished shopping and was waiting in line to check out, the complaint alleges, when Assistant Manager Buentiempo approached Balsamo and politely asked her to wear a face mask in order to check out.
Balsamo told Buentiempo of her medical condition preventing her from wearing a face covering.
“It doesn’t matter. You must wear a face mask to stay here,” the complaint alleges Buentiempo told Balsamo.
Balsamo informed the assistant manager that she was violating the Americans with Disabilities Act by challenging her health issues and disability, the complaint claims. Buentiempo accused Balsamo of lying about her health issue, the complaint alleges, embarrassing Balsamo in front of other customers.
Buentiempo said that the store was private property and could “make the rules,” according to the complaint, refusing to check her out and insisting that if Balsamo wouldn’t wear a face covering she would have to leave.
Dennis Balsamo, who is representing Balsamo, told New Times that the complaint isn’t about wearing a mask, it’s about discrimination. He said he reached out to Smart & Final about the incident, but the company brushed it off.
“What the manager should have done to accommodate my client is say, ‘We understand. I will take your groceries, why don’t you wait outside, I will come out to you with the receipt and you can pay me. I’ll take the money, go back inside, and get you your change.’ That’s what should have been done to accommodate my client,” Dennis said.
Smart & Final stated that it does not comment on pending litigation.
The Smart & Final website states that face coverings are required for all customers inside Smart & Final stores.
According to The National Law Review, the Americans with Disabilities Act permits retailers to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others. But only when the threat can’t be eliminated by modifying existing policies, practices, or procedures, or permitting another type of accommodation.
Dennis said his client posted about her experience on Facebook and several people have commented about having similar experiences at stores in the county. Four people with medical conditions who had similar experiences have reached out to him, he said. Δ
Update: The article has been updated to reflect Smart & Final’s recent statement as it previously stated that the corporation did not respond to New Times before press time.Â
This article appears in Education Today 2020.
Theres alway some idiot that thinks they deserve special treatment. So that means that all the people with Asthma are therefore ALLOWED to spread to a deadly virus. I’ve had asthma, severe, You can still breath with a mask. You are not being required to wear a plastic bag over your head! And now our courts have to deal with this rediculous nonsense. Get a life!!
I have leprocy and my ears have fallen off so I can’t wear a mask. I can still shop at your store, right? I like to shop at busy grocery stores during the busiest time of day. I have a note from my chiropractor saying it’s okay.
I feel sorry that store employees have to deal with people who don’t want to wear face masks. And I applaud the Smart and Final manager for insisting that the woman leave the store immediately.
If she doesnt want to wear a mask she can order online and have Vons deliver her groceries. I hope Smart and Final fights this with all the legal resources they have.
If you don’t wear a mask on an airplane you don’t fly. Whether you have asthma or not. Why should grocery stores should be any different?
The ADA is a law enacted to protect truly handicapped individuals and it is disgusting to see someone trying to pervert its intentions for their own selfish political agenda. The assistant store manager was correct and I think a sign stating that should be displayed at the entrance to all businesses that they are private property and that during this national crisis to stop the spread of this deadly disease you MUST wear a mask or stay out. It appears her ambulance-chasing relative who is representing her thinks he can scam Smart & Final our of some money. I would hope the court will make the Balsamo’s wear masks at their trial before the judge sends them walking.
So many self righteous mask nazis! If you are wearing a mask, you should be protected so why not let this person shop as she feels she must? When did you all become such frightened sheep? Keep your distance from one not wearing a mask, that’s common sense. But this has gotten so far out of control. I wear a mask when in stores so don’t go attacking me on that front. But I’ll be damned if I’d ever go all mask nazi on anyone. Stay home if you’re that afraid.
I will say that Instacart will deliver smart and final right to your door so that would have been the best option for her. Good recommendation from Steve Bachman.
The masks that most of us have available…cloth masks and disposable surgical face masks… protect the OTHER person, but while they may help a little to protect the person wearing them, they’re mostly effective at stopping moisture-laden air coughed, sneezed, or breathed out, which could infect other persons. So regardless of whether a person is disabled or not, if infected they will be breathing that infected air out where it can be breathed in by others through those masks, or perhaps even absorbed through eye fluids. The best solution is that BOTH wear masks.
There is also a militant “freedom” contingency that will claim a “disability” to get out of wearing a mask, and unless the ADA wants to issue permits to those with genuine medical issues, there is no way for a store employee to tell whether the claim is genuine or not.
A much better solution has been suggested…curbside pickup of items ordered, home delivery, all are easily available, to where it seems a bit suspicious that someone would just go past the “masks required” signs and expect special treatment on just their say-so. Why should a person, disabled or not, be able to endanger others, particularly when there are many other options? I guess the first question should be, can she produce a LEGITIMATE doctor’s certificate that explains why she cannot wear a mask (I expect not), and even if she can, next question is “why didn’t you just order online instead of making such a big deal of it? Do you feel you have the right to endanger others due to your disability?”
If you all want to give into
Communism then go ahead a wear a mask.
Did you wear a mask for the SARS or H1 N1
Your all tools for this country to be taken over. Hope you all have firearms cause when the true threat comes. Nobody is gonna come to save you. Oh yea hydroxy chloroquine Which was available OTC is not anymore yet it has eradicated this weak virus for doctors standing up against political recommendations. It has been used safely for 65 years. Stop being a tool and actually start doing your own investigation.
Mask less for freedom