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Local Smart & Final sued for alleged discrimination over a face mask 

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.

click to enlarge MASKLESS A SLO County resident sues a local Smart & Final, claiming discrimination over health conditions that prevented her from wearing a face mask inside the store. - FILE PHOTO BY JAYSON MELLOM
  • File Photo By Jayson Mellom
  • MASKLESS A SLO County resident sues a local Smart & Final, claiming discrimination over health conditions that prevented her from wearing a face mask inside the store.

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. 

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