This is a case under the Americans with Disabilities Act, 42 U.S.C. § 12101-12213 (ADA), and other laws as discussed below, regarding architectural barriers and reasonable accommodation. Plaintiffs are five individuals who use either a wheelchair or motorized scooter, and two of their spouses who "associate" with a disabled person. Defendants are the City of Cannon Beach and two businesses located there — Venture III, Inc., dba the Bistro Restaurant ("the Bistro"), and Laurel's Cannon Beach Wine Shop ("the Wine Shop").

Plaintiffs move to certify this case as a class action. By agreement of the parties, I have deferred ruling on the class action motion until after resolution of the summary judgment motions.

Presently, the business defendants move for summary judgment and the City moves for partial summary judgment. All three defendants have also moved to strike some of plaintiffs' evidence submitted in opposition to the summary judgment motions. I grant in part and deny in part the motions for summary judgment and I grant in part, deny in part, and deny as moot in part, the motions to strike.

BACKGROUND

Plaintiffs bring eight claims. Claim One is a claim against the City under Title II of the ADA regarding the City's services, programs, activities, buildings and facilities, bus system, issuance of permits and authorization of use of public facilities, and its provision of police, public sanitation, and other services. This claim also challenges the City's failure to correct certain alleged ADA violations identified in a 1995 Compliance Review. In Claim Two, plaintiffs bring a claim against the City under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, raising the same allegations as in Claim One.

In Claim Three, plaintiffs contend that the Bistro violates Title III of the ADA by failing to eliminate certain architectural barriers. Additionally, two of the plaintiffs contend that certain allegedly abusive remarks made to them by the Bistro's owner also violate the ADA. In Claim Four, plaintiffs allege that the Wine Shop violates Title III of the ADA by failing to eliminate certain architectural barriers.

In Claim Five, five of the plaintiffs allege that all defendants have violated Oregon Revised Statute (O.R.S.) Chapter 447. In Claim Six, five of the plaintiffs contend that the Bistro and the Wine Shop have violated O.R.S. Chapter 659. In Claim Seven, plaintiffs bring a negligence claim against the City for failure to train regarding disability issues, failure to supervise those who work for the City regarding the ADA, and other allegations. Finally, in Claim Eight, plaintiffs allege that the Bistro and the Wine Shop have been negligent.

Facts particular to the individual claims are discussed below. STANDARDS

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).

"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.

The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.

If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).

DISCUSSION

I. The Bistro's and the Wine Shop's Motions for Summary Judgment

Because the legal issues raised in these motions are identical in almost all respects, I will address them together. The Bistro is a restaurant in Cannon Beach and has been at its current location at 263 N. Hemlock for over fourteen years. The building in which it is located was constructed in 1946. The Bistro alleges that its premises has not been renovated or altered at any time after January 26, 1992. It further states that it has twenty-eight seats and provides dinner service only. It employs eleven people. Plaintiffs allege that the Bistro is not wheelchair accessible in the following ways: (1) the front entrance has two stairs and no ramp; (2) the entrance is not wide enough to fit a wheelchair; (3) the aisles between tables are not wide enough to maneuver a wheelchair; (4) the restrooms are not wheelchair accessible; and (5) the pay telephone is not at an accessible height. Compl. at ¶ 72.

At summary judgment, plaintiffs conceded that a wheelchair can pass through the front door of the Bistro and that there is no pay phone there. Plaintiffs also conceded that a person in a wheelchair can access some of the tables and aisles in the Bistro once inside. Thus, remaining at issue are the allegations concerning the steps and the restroom.

The Wine Shop is at the same location as the Bistro, 263. N. Hemlock, and has been there for eighteen years. It also was constructed in 1946. The Wine Shop represents that it has not been renovated or altered any time after January 26, 1992. The Wine Shop has one employee.

Plaintiffs contend that the Wine Shop is inaccessible to wheelchairs because it (1) has two stairs and no ramp; (2) the entrance is not wide enough to fit a wheelchair; (3) the aisles between shelves and racks are not wide enough to maneuver a wheelchair; (4) the bathrooms are not wheelchair accessible; (5) the pay telephone is not at an accessible height; and (6) the counter is not at an accessible height.

At summary judgment, plaintiffs conceded that a wheelchair can pass through the front door of the Bistro, there is no public restroom, and there is no pay telephone. Thus, at issue is the stairs, the aisles between shelves and racks, and the counter.

Plaintiffs allege that despite their requests for modification, the Bistro and the Wine Shop have failed to remove these architectural barriers and have failed to take alternate measures to make their facilities, goods, and services available to plaintiffs when such alternate measures are readily achievable. As a result, plaintiffs contend that the Bistro and the Wine Shop deny plaintiffs full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations on the basis of their disabilities or their known association with disabled persons.

A. ADA Claim — Barrier Removal

Plaintiffs' ADA claims against the Bistro and the Wine Shop arise under Title III of the ADA which prohibits discrimination against disabled individuals in any place of public accommodation. 42 U.S.C. § 12182(a). Liability is imposed upon "any person who owns, leases (or leases to), or operates a place of public accommodation" that discriminates against an individual on the basis of disability. Id.

Discrimination includes the failure to remove "architectural barriers" in existing facilities where such removal is "readily achievable." 42 U.S.C. § 12182 (b)(2)(A)(iv). The term "readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). Where an entity can demonstrate that the removal of a barrier is not readily achievable, discrimination also includes failure to make such facilities available through alternative methods if such methods are readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v).

As described in a recent District of Hawaii case, Congress considered the importance of ensuring that small businesses and the ADA were compatible. Parr v. L L Drive-Inn Restaurant, 96 F. Supp.2d 1065, 1070 (D.Haw. 2000) (citing Hearing on S. 933 Before Committee on Small Business, 101st Legis., 2d Reg. Sess. (1990)). "To strike a balance between the interests of the disabled and the legitimate concerns of private businesses, the ADA delayed its effective date to `permit adequate time for businesses to become acquainted with the ADA's requirements and to take the necessary steps to achieve compliance.'" Id. (quoting Statement on Signing the Americans with Disabilities Act of 1990 at 2 (July 26, 1990) ("Statement on Signing")). Thus, for example, the provisions of Title III went into effect eighteen months after the date of enactment. Id. (citing 56 Fed. Reg. 35,544 (1991)).

"Further, the ADA was crafted to `give the business community the flexibility to meet the requirements of the Act without incurring undue costs.'" Id. (quoting Statement on Signing at 1-2). The requirement of "readily achievable" barrier removal on existing facilities "`allows for minimal investment with a potential return of profit from use of disabled patrons, often more than justifying the small expense.'" Id. (quoting S. Rep. No. 101-116, at 66 (1989)).

To set forth a prima facie case under Title III of the ADA, a plaintiff must prove that (1) he or she has a disability; (2) the business is a "public accommodation," and (3) that the plaintiff was denied full and equal treatment because of his or her disability. Id. at 1085. To prevail in a claim of discrimination based on an architectural barrier, plaintiffs must also prove that (1) the existing facility presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable. Id.

There is no dispute here that plaintiffs are disabled and that the Bistro and the Wine Shop are places of public accommodation.

1. Application of the "ADAAGs" or Standards

Plaintiffs contend that the challenged architectural barriers are prohibited by the ADA because they violate certain provisions of the Americans with Disabilities Act Accessibility Guidelines (ADAAG). As explained by Judge Ashmanskas:

"ADAAG" is an abbreviation for the Americans with Disabilities Act Accessibility Guidelines, published at 56 Fed. Reg. 35,455 (July 26, 1991). The ADAAGS, per se, are (with some limited exceptions) not a legally binding regulation for purposes of Title III of the ADA. The Department of Justice ("DOJ") adopted those guidelines and renamed them "standards for accessible design." 56 Fed. Reg. 35605 (July 26, 1991); 28 C.F.R. § 36.406(a). It is the "Standards," which are codified at 28 C.F.R. Part 36, App. A, that constitute the legally binding regulation. Nevertheless, the term ADAAG continues to be widely used within the industry. That is not a problem so long as the two are identical, but could be confusing if a discrepancy develops between the ADAAGs and the Standards, e.g., if the Architectural and Transportation Barriers Compliance Board ("Access Board") enacts additional ADAAGs that DOJ declines to endorse, or if DOJ unilaterally amends the Standards. (I express no opinion on whether either event is legally permissible). To avoid confusion, this opinion uses the term "Standard" rather than "ADAAG" unless the context otherwise requires.

Independent Living Res. v. Oregon Arena Corp, 1 F. Supp.2d 1124, 1130 n. 2 (D.Or. 1998); see also Parr, 96 F. Supp.2d at 1086 (as a consequence of the ADA's statutory sections providing only broad principles for elimination of discrimination, Congress charged the Attorney General with the issuance of more specific standards for compliance with Title III; standards set out in 28 C.F.R. Part 36, App. A are the legally binding regulations).

Like Judge Ashmanskas, I will use the term "Standard" rather than "ADAAG" to ensure that my reference is to the legally binding regulations.

Section 4 of the Standards is entitled "Accessible Elements and Spaces: Scope and Technical Requirements." Plaintiffs contend that the architectural barriers at the Bistro and the Wine Shop violate various standards in section 4. Compl. at ¶¶ 72, 90. In particular, plaintiffs contend that (1) the presence of stairs with no ramp violates Standard 4.3.2; (2) aisles between shelves and racks at the Wine Shop that are not wide enough to maneuver a wheelchair violate Standards 4.2 and 4.3.3.; (3) non-wheelchair accessible bathrooms at the Bistro violate Standards 4.16-4.19, 4.22-4.24, and 4.26; and (4) the counter at the Wine Shop violates Standard 4.2.

Standard 4.1.1 provides that

All . . . altered portions of existing buildings and facilities required to be accessible by 4.1.6 shall comply with these guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section.

Standard 4.1.1(1). The relevant date for alterations to existing construction is January 26, 1992. 28 C.F.R. § 36.402(a). Thus, the Standards do not apply unless there has been an alteration of the existing structure which is required to be accessible under Standard 4.1.6. If no alterations are undertaken, compliance with the Standards is not required. The Bistro and the Wine Shop argue that because their facilities have not been altered since January 26, 1992, they are not subject to section 4 of the Standards.

The Standards apply to new construction after January 26, 1993. 28 C.F.R. § 36.401(a). There is no dispute here that the Bistro and the Wine Shop were not newly constructed after that date.

Plaintiffs do not dispute that there have been no alterations to the interiors of the Bistro or the Wine Shop since January 26, 1992. Although not alleged in the Complaint, at summary judgment plaintiffs presented evidence that a private path on the Bistro and Wine Shop property, which was previously constructed of wood, had been replaced with brick sometime after January 26, 1992. The evidence showed that there were at least two steps built into the private path, making it inaccessible to those in wheelchairs. Plaintiffs contend that this is an alteration triggering compliance with the Standards in section 4.

An alteration is "a change to a place of public accommodation . . . that affects or could affect the usability of the building or facility or any part thereof." 28 C.F.R. § 36.402(b). Alterations include

but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

28 C.F.R. § 36.402(b)(1). Under the regulations, an alteration must affect the usability of the building or facility. See Kinney v. Yerusalim, 9 F.3d 1067, 1072 (3d Cir. 1993) (regulations lead to the conclusion that "alteration" is a change that affects the usability of the facility involved).

Additionally, based on the legislative history of Title III, the "usability" of a facility relates to its "primary function." As noted in Kinney, "Congress'[s] discussion of `affecting usability' focused on the `primary function' of a facility." Id. at 1073. "`Areas containing primary functions refer to those portions of a place of public accommodation where significant goods, services, facilities, privileges, advantages or accommodations are provided.'" Id. (quoting H. Rep. No. 485, 101st Cong.2d Sess., pt. 2, at 112 (1990)). Thus, the "path of travel," as well as bathrooms, telephones, and drinking fountains, must be "`readily accessible to and usable by individuals with disabilities.'" Id. (quoting H. Rep. No. 485, 101st Cong.2d Sess., pt. 2, at 394 (1990)). A path of travel is a continuous unobstructed way to approach, enter, and exit a facility. 28 C.F.R. § 36.403(e)(1).

Based on the regulations and the legislative history, to be subject to the Standards, an alteration must have been made after January 26, 1992, and it must affect the usability of, including access to, a primary function. The Bistro and the Wine Shop do not contest that a certain portion of the wooden path was replaced with brick after January 22, 1992. They do argue, however, that the replacement was not an alteration within the meaning of the regulations and the legislative history. I agree with the Bistro and the Wine Shop.

In supplemental briefing, the Wine Shop and the Bistro submitted photographs of the area with the private path and the entrances to both businesses. At oral argument, counsel for the businesses drew a diagram of the existing path and indicated where the replacement with brick had occurred. See Court Exh. 1. It is clear from the photographs and the diagram that the changes to the path at issue were made to an alternate path that allows access to the Wine Shop and the Bistro. The photographs and diagram show that the primary path to the businesses intersects with the public sidewalk at a right angle and remains perpendicular to the public sidewalk. The entry steps to each business connect to this primary path. Both parties agree that no changes have been made to this primary entry path since January 26, 1992.

The alternate path also connects to the public sidewalk, several feet south of the primary path. By taking the alternate path, patrons of the businesses, or others, may access a "common area" with one or more benches. The alternate path then allows access from the common area to the primary path which one can then follow to the entries to the businesses.

Because it is an alternate path, it does not affect the usability of the Wine Shop or the Bistro as that term is understood under the ADA. Wheelchair bound patrons may still access either business by the primary path. Additionally, the common area is not a primary function of the Bistro or the Wine Shop because it is not a provision of a significant good, service, facility, privilege, advantage, or accommodation.

In summary, the replacement of the wood portions of the alternate path is not an "alteration" under 28 C.F.R. § 36.402(b). There is no evidence that any other portion of either the Wine Shop or the Bistro has been altered since January 26, 1992. Therefore, because there have been no alterations since that date, and because it is not new construction, Section 4 of the Standards does not apply to the Wine Shop or the Bistro.

2. "Readily Achievable"

For those structures not newly constructed after January 26, 1993, or not altered after January 26, 1992, the ADA requires the removal of "architectural barriers" where such removal is "readily achievable." 42 U.S.C. § 12182 (b)(2)(A)(iv). As noted above, "readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). The following factors are to be considered in determining if the removal is "readily achievable":

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources or the impact otherwise of such action upon the operation of the facility;

(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

Id.

The Bistro and the Wine Shop argue that removing the architectural barriers identified by plaintiffs is not readily achievable under the ADA.

a. The Bistro

The Bistro relies on an affidavit by contractor Mike Elliott, who has sixteen years of experience, to assert that installation of a ramp in lieu of the two existing steps would cost $6,844. Mike Elliott Affid. at ¶ 5. Elliott also states that the cost of making the Bistro's restroom accessible would be $25,918. Id. at ¶ 6. Additionally, the restroom alteration would result in the loss of ten seats from what the Bistro says is a twenty-eight-seat dining room, and all dry storage space. Id. While it is unclear, even from the affidavits of one of the Bistro's owners, exactly how many tables and chairs are in the restaurant, and while there appears to be some discrepancy between Dueber's affidavits and Charles Hillestad's affidavits regarding the seating and tables, the lack of clarity and the differences are not substantial enough to constitute a material dispute. Compare Anita Dueber Affid. at ¶ 4 and Reply Dueber Affid. at ¶ 6 (Bistro has twenty-eight seats for restaurant patrons with thirty-six chairs plus seven stools at the bar, and eleven tables in the dining room and three tables in the bar) with Charles Hillestad Affid. at ¶ 16 (Bistro has fourteen tables, forty chairs, and seven stools).

In opposition to the Bistro's evidence of entry remodel costs, plaintiffs rely on the affidavit of contractor Paul Steiner, a contractor with fifteen years of experience, who states that a concrete ramp can be built over the existing stairs for $3,082. Paul Steiner Affid. at ¶ 6. Plaintiffs also submit retail prices of a steel ramp at $1,347, and a modular aluminum ramp at $1,622. Exhs. A and B to Dennis Steinman Affid. Steiner also states that the restroom renovation would cost $19,251 and would not interfere with any table or storage space. Steiner Affid. at ¶ 4.

Plaintiffs also submit evidence regarding the cost of a portable ramp. Because the regulations indicate that a portable ramp should be considered only if the installation of a permanent ramp is not readily achievable, 28 C.F.R. § 36.304(e), it is premature to consider the portable ramp evidence at this point.

The Bistro argues that the renovations impose too great a financial impact and result in too great of a loss of business and storage space to be considered "readily achievable." In opposition, plaintiffs point to Steiner's cost estimates and also note that there are certain tax incentives for barrier removal.

According to plaintiffs, small businesses with gross receipts under $1 million may take a tax credit of $5,000 annually, or can take up to $15,000 in tax deductions for removing barriers and increasing accessibility. The problem with relying on the tax incentives to analyze the financial impact to the Bistro, is that there is no evidence in the record of any of the Bistro's tax returns. Therefore, I cannot assess first, whether the Bistro has sufficient income upon which to take these deductions, and second, the actual dollars, if any, to be saved by the Bistro as a result of a tax deduction. On this record, the existence of the tax incentives is not probative of whether the barrier removals at issue for the Bistro are "readily achievable."

Similarly, there is no evidence of the Wine Shop's tax returns and thus, the tax incentives are also not probative of the "readily achievable" issue as it relates to Wine Shop.

Given the differing cost estimates by the parties' contractors, issues of fact precluding summary judgment remain unless, assuming the accuracy of plaintiffs' evidence (the lower estimates), I can conclude as a matter of law that removal of the challenged barriers is not "readily achievable." For the reasons explained below, I reach that conclusion as to the restroom renovation, but not as to the ramp.

Accepting plaintiffs' evidence as to the restroom, the cost of renovation is $19,251. The Bistro's net income from April 1999, through March 2000, was $11,246.73. Even assuming that the renovation would not affect table or storage space, the restroom remodel would require expenditures exceeding the business's net income for the previous year. Given the nature and cost of the restroom remodel, the fact that this is a very small business with only eleven employees, and that the cost of the remodel would exceed the business's net annual income, the restroom remodel is not, as a matter of law, readily achievable within the meaning of 42 U.S.C. § 12181(9).

As to the ramp, the parties' estimates range from $1,347 (plaintiffs' figure for installation of permanent steel ramp), to $6,844 (the Bistro's figure for remodeling entry to include ramp). The low end figure represents approximately ten percent of the Bistro's annual net income. Assuming the validity of that figure, I cannot conclude, as a matter of law, that the installation of a permanent ramp is not "readily achievable." Thus, I deny summary judgment to the Bistro on the issue of the ramp.

I also note that should it be determined that the installation of a permanent ramp is not readily achievable, the issue of whether a portable ramp would be so remains. Plaintiffs' evidence is that it would cost approximately $337 to provide a portable ramp. The pertinent regulation indicates that along with cost, reducing the risk to the safety and health considerations of persons using the portable ramp, disabled or not, by addressing safety features such as nonslip surfaces, railings, anchoring, and strength of materials, is a relevant consideration. 28 C.F.R. § 36.304(e). Plaintiffs rely on the affidavit of Charles Hillestad in support of the $337 figure for the portable ramp. Charles Hillestad Affid. at ¶¶ 11-14. The Bistro moves to strike this evidence. Because I do not address whether a portable ramp is "readily achievable" in this motion, I have not relied on this evidence, and therefore deny the motion to strike it as moot. I do note, however, that Charles Hillestad's affidavit fails to address the relevant safety concerns mentioned in section 36.304(e), fails to indicate why the ramp he described is ADA compliant, and fails to indicate any ADA expertise he possesses. I also note that the $337 figure accounts only for materials and not for labor.

b. The Wine Shop

First, I grant summary judgment to the Wine Shop on the issue of the counter. Plaintiffs conceded at oral argument that a counter height of twenty-nine inches was wheelchair accessible. Plaintiffs produce no evidence opposing the Wine Shop's evidence that the counter is twenty-nine inches. Thus, summary judgment to the Wine Shop is appropriate.

The Wine Shop, relying on the same contractor as the Bistro, asserts that removing the steps to allow for a barrier-free entry would cost $8,900. Elliott Affid. at ¶ 5. The cost is more than that for the Bistro because more extensive work is required. See id. (describing reframing of doorway, rebuilding the exterior landing, removal of 4x4 post, insertion of larger beam, and addition of concrete piers). In contrast, plaintiffs assert that a concrete ramp can be built for $1,985. Steiner Affid. at ¶ 7. Additionally, plaintiffs quote a $1,347 cost for a steel ramp and a $1,622 cost for an aluminum ramp. Exhs. A and B to Steinman Affid.

I conclude that material issues of fact exist as to whether provision of a permanent ramp is "readily achievable" for the Wine Shop. While the Wine Shop employs only one person and netted a profit of only $14,319.91 between April 1998 and March 1999, the $1,347 figure for the steel ramp is less than ten-percent of the Wine Shop's annual income. As with the Bistro, assuming the validity of that figure, I cannot conclude as a matter of law that provision of a permanent ramp is not "readily achievable."

As with the Bistro, because this issue is unresolved, it is premature to consider whether provision of a portable ramp is readily achievable.

As to the width of the aisles in the interior of the business, the Wine Shop asserts that changing the interior is not "readily achievable" because with less than 450 square feet of retail space, the Wine Shop would lose over thirty-percent of that space if the interior is altered to allow for wheelchair accessibility to all shelves and aisles. See Wine Shop's Memo. in Support of Mtn. for Sum. Jdgmt at p. 6.

The Wine Shop cites Elliott's affidavit in support of this statement. But, the affidavit does not state that alteration of the interior aisles will cause the thirty-percent reduction in retail selling space. Rather, it states that the reconstruction of the entry will cause the loss of space. Elliott Affid. at ¶ 7. Thus, there appears to be no evidence in the record to support the Wine Shop's assertion that rearranging the aisles to allow for wheelchair accessability is not "readily achievable." Furthermore, while the ADA regulations provide that "[t]he rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent it results in a significant loss of selling or serving space[,]" 28 C.F.R. § 36.304(f), that limitation does not apply to renovations to permanent fixtures such as entry steps. Thus, Elliot's affidavit testimony that the provision of a permanent ramp will result in a thirty-percent loss of selling space does not, under the regulations, mandate a conclusion that the renovation of the entry is not "readily achievable." While his testimony is a relevant factor in the overall "readily achievable" analysis, it is not a determinative fact.

Because genuine issues of fact remain as to whether providing a permanent ramp and rearranging interior aisles are "readily achievable," I deny summary judgment to the Wine Shop on these issues.

3. Alternative Methods

When a public accommodation demonstrates that a particular barrier removal is not "readily achievable," discrimination nonetheless includes "a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v); see also 28 C.F.R. § 36.305(a) ("Where a public accommodation can demonstrate that barrier removal is not readily achievable, the public accommodation shall not fail to make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable.").

The regulations further provide that Examples of alternatives to barrier removal include, but are not limited to, the following actions —

(1) Providing curb service or home delivery;

(2) Retrieving merchandise from inaccessible shelves or racks;

(3) Relocating activities to accessible locations.

28 U.S.C. § 36.305(b).

This section applies only if removal of barriers is not readily achievable. Because issues of fact remain as to whether the removal of the challenged barriers is "readily achievable," my discussion of the "alternative methods" issue assumes that such removal is not readily achievable under 42 U.S.C. § 12182 (b)(2)(A)(iv).

The Bistro contends that it uses alternative methods to make its services and facility available to wheelchair patrons. As indicated above, there is no dispute that the Bistro provides full dining service to wheelchair patrons at some of its tables and that some of its aisles are maneuverable. Wheelchair patrons gain entry into the restaurant when the Bistro assists them up the steps.

The Wine Shop also assists wheelchair patrons up the steps and through the entry into the business. It provides assistance with retrieving goods from shelves. It also provides curbside delivery, home delivery, and telephone consultation on wine selection.

Plaintiffs challenge whether assisting wheelchair patrons up the steps is an adequate alternative. Plaintiffs represent that scooters and motorized wheelchairs cannot be tilted and pulled backwards up steps. See Ann Hillestad Affid. at ¶ 4 (impossible to tilt scooter and lift up steps). Plaintiffs also argue that the regulations make clear that carrying a disabled individual is not acceptable as an alternative measure. 28 C.F.R. Part 35, App. A, § 35.150 ("carrying an individual with a disability is considered an ineffective and therefore an unacceptable method for achieving program accessibility[,] . . . [and is] permitted only in manifestly exceptional cases[.]").

The Bistro and the Wine Shop move to strike paragraph 4 of Ann Hillestad's affidavit because "subjective perceptions of a particular plaintiff are not the relevant standard under the ADA." Venture III's Mtn to Strike at ¶ 2; The Wine Shop's Mtn to Strike at ¶ 2. Ann Hillestad's statement that her scooter cannot be tilted back and lifted up steps is distinguished from the other statement in paragraph 4 of her affidavit which describes her feelings in certain situations, and is properly admitted.

While carrying a disabled individual is highly disfavored, the evidence here is not that the businesses carry the patron him or herself up the steps, independent of their wheelchair, but that the wheelchair itself, with the patron seated in it, is lifted up the steps. Thus, plaintiffs' argument against carrying is misplaced.

Additionally, although the policy against carrying would likely carry over to public accommodations, the provision cited by plaintiffs is found in regulations pertaining to Title II of the ADA, not Title III which is the governing law for the Bistro and the Wine Shop.

Assuming that the provision of a permanent or portable ramp to either business and that the reconfiguration of aisles inside the Wine Shop, are not "readily achievable" barrier removals under section 12182(b)(2)(A)(iv), provision of such ramps or reconfiguration of shelves would also not be "readily achievable" alternative methods under section 12182(b)(2)(A)(v). Plaintiffs present no evidence or argument in the present record identifying any "alternative methods" other than the previously discussed barrier removals such as ramps and reconfiguration of shelving, or what the business defendants presently provide. While I accept plaintiffs' representations that scooters and motorized wheelchairs cannot be lifted up the steps, plaintiffs have failed to create an issue of material fact as to what other alternative measures (again, assuming that a permanent or portable ramp or different shelving, are not readily achievable), exist.

B. ADA Claim — Discrimination by The Bistro

As part of their ADA claim against the Bistro, plaintiffs allege that in June 1999, plaintiffs Ann and Charles Hillestad were demonstrating the general inaccessibility of Cannon Beach to a newspaper photographer, in an effort to assist the reporter in encouraging mobility-impaired individuals to exercise their ADA rights. Compl. at ¶ 79. Plaintiffs allege that while in front of the entrance to the Wine Shop, Anita Dueber, part owner of the Bistro, told the Hillestads that they should "get a life" and that if Ann Hillestad wanted to use a wheelchair, she should get out of town. Id.

Plaintiffs argue that the verbal abuse suffered by Ann Hillestad amounts to coercion, intimidation, threats against, or interference with, Ann Hillestad's exercise and enjoyment of her rights under the ADA, and with her encouragement of other disabled individuals to claim those same rights, in violation of 28 C.F.R. § 36.206. Under that regulation,

No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part.

28 C.F.R. § 36.206(b).

Conduct prohibited under section 36.206(b) includes "[i]ntimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by the Act or this part to exercise those rights[.]" 28 C.F.R. § 36.206(c)(3). The regulations are based on 42 U.S.C. § 12203(b), which provides that

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

42 U.S.C. § 12203(b).

Generally, to establish a violation of section 12203, plaintiffs must show that when the challenged action took place, they were exercising or enjoying a right protected by the ADA. Wray v. National R.R. Passenger Corp., 10 F. Supp.2d 1036, 1040 (E.D. Wisc. 1998); see also Champagne v. Servistar Corp., 138 F.3d 7, 14 (1st Cir. 1998) (summary judgment granted to defendant on retaliation claim when there was no evidence that plaintiff was exercising a right granted or protected by the ADA).

The Bistro argues that even assuming the truth of plaintiffs' allegations, demonstrating to a reporter or photographer that a building is not accessible does not fall within the rights protected by the ADA. According to plaintiffs' own allegations, the Hillestads were not trying to use the restaurant and its services, but were showing a photographer the entrance. Therefore, the Bistro argues that it is entitled to summary judgment.

I agree with the Bistro. The Hillestads' actions in showing a photographer or a reporter an inaccessible entrance is not an exercise of any right protected by the ADA. It is also not assistance or encouragement to other individuals entitled to claim rights protected by the ADA. Perhaps if the record showed that an article was actually published and that disabled readers acted in response to it, or perhaps if the record showed that disabled persons were present at the time, or that this demonstration occurred as part of the preparation for a claim or a meeting, there might be an issue as to encouragement. Without such evidence, the claim cannot be sustained.

C. O.R.S. Chapter 447 Claim

In this claim, plaintiffs allege that because the Bistro and the Wine Shop are not accessible to those in wheelchairs, the businesses violate O.R.S. Chapter 447. The relevant provisions of the statute are found at O.R.S. 447.210 through O.R.S. 447.280, and are entitled "Standards and Specifications for Access by Disabled Persons." The purpose of the section is to "make affected buildings, . . . in the state accessible to and usable by persons with disabilities, as provided in the [ADA],. . . ." O.R.S. 447.220. "Affected buildings" include "any place of public accommodation . . . designed, constructed, and altered in compliance with the accessibility standards established by the [ADA]. O.R.S. 447.210(1).

Pursuant to O.R.S. 447.230, the Director of the state Department of Consumer and Business Services ("the Director"), is to establish standards and specifications in the state structural code necessary to eliminate architectural barriers to entry to, and use of, affected buildings and their related facilities, by persons who have disabilities. O.R.S. 447.230. The Director is to adopt rules to conform the state building code to the ADA. O.R.S. 447.231(1).

The law further provides that

[e]very project for renovation, alteration, or modification to affected buildings and related facilities, that affects or could affect the usability of or access to an area containing a primary function, shall be made to insure that, to the maximum extent feasible, the paths of travel to the altered area and the rest rooms, telephones and drinking fountains serving the altered area are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope.

O.R.S. 447.241(1). A "related facility" is a "building site improvement including, but not limited to, parking lots, passageways, roads or any other real or personal property located on the site." O.R.S. 447.210(12).

The Bistro and the Wine Shop argue that their facilities are not "affected buildings" or "related facilities" as those are defined in the statute. I agree. An affected building under the Oregon statute is a public accommodation designed, constructed, and altered in compliance with the ADA. Because neither the Wine Shop nor the Bistro was constructed after January 26, 1993, or altered after January 26, 1992, as discussed earlier at pages 11-14, they do not meet the definition of "affected building" in O.R.S. 447.210(1). Additionally, neither business is a "building site improvement," and thus, is not a "related facility."

Alternatively, even if the Wine Shop or the Bistro were an affected building or a related facility, I agree with the businesses that there is no private right of action under O.R.S. Chapter 447. Under the statute, the provisions of O.R.S. 447.210 through O.R.S. 447.280 are to be considered "part of the state building code and violations shall be subject to the provisions of ORS 455.450." O.R.S. 447.280. O.R.S. 455.450 prohibits certain acts including violating any order of the Director, or taking any action for which a permit is required, without a permit.

Under the state building code, private enforcement is governed by O.R.S. 455.070, which gives a private citizen the right to report a suspected violation of the code that poses an "imminent threat to public health and safety," to the local building official or to the Director. Rights of appeal, up to an appeal to the applicable state advisory board, are also granted. O.R.S. 455.070.

Plaintiffs acknowledge that there is no express private right of action in O.R.S. Chapter 447. Plaintiffs argue, however, that there is an implied private right of action because the statutory scheme is patterned after the ADA which has one. Plaintiffs argue that because the legislature indicated that requirements on places of public accommodation under Oregon law could be even greater than those imposed by the ADA, see O.R.S. 447.220 (Director may provide greater protection to individuals with disabilities by adopting more stringent standards than prescribed by the ADA), it makes no sense not to imply a private right of action because without one, the law would have no teeth.

Plaintiffs' argument is unpersuasive. First, O.R.S. Chapter 447 is not a wholesale adoption of the ADA. Rather, it is designed to bring the state's building code into compliance with the ADA to ensure greater accessability by disabled Oregon citizens. The legislature clearly did not adopt all of the ADA's provisions into O.R.S. Chapter 447.

Second, the legislature obviously was well aware of the ADA when it adopted O.R.S. Chapter 447. The fact that it knew of the ADA with its express private right of action, but did not create an express private right of action in the Oregon law, and then referred to the enforcement mechanism under the building code provisions, strongly counsels against implying a private right of action.

Third, while the legislature indicated that the Director could adopt more stringent building standards than those required by the ADA, the legislature itself did not require that the Director do so. Even if it did, the legislature's failure to create an express private right of action when it knew that one exists in the ADA is reason enough to reject plaintiffs' argument. I grant summary judgment to the Bistro and the Wine Shop on plaintiffs' O.R.S. Chapter 447 claim.

D. O.R.S. Chapter 659 Claim

In their fifth claim for relief, the five disabled plaintiffs contend that the Bistro and the Wine Shop violate O.R.S. 659.425(3) which provides that it is "an unlawful practice for any place of public accommodation, . . ., to make any distinction, discrimination or restriction because a customer or patron is a disabled person." Plaintiffs contend that the Bistro's and the Wine Shop's failure to eliminate architectural barriers constitutes an act of distinction, discrimination, or restriction against the five disabled plaintiffs because they are disabled persons, in violation of O.R.S. 659.425(3).

The Bistro and the Wine Shop argue that O.R.S. 659.425(3) creates no "reasonable accommodation" standard akin to Title III of the ADA. Both Judge Jones and Judge Ashmanskas have previously agreed with the businesses.

In Sellick v. Denny's Inc., 884 F. Supp. 388, 393 (D.Or. 1995), the plaintiff argued that the defendants violated O.R.S. 659.425(3) (then codified at O.R.S. 659.425(4)), by refusing to accommodate his disability by providing different seating. Judge Jones held that the statute did not mandate a "reasonable accommodation" requirement. Id. He noted that the "fact that ORS 659.425(1) requires employers to provide `reasonable accommodation' to disabled employees, shows that the legislature did not mistakenly omit a `reasonable accommodation' requirement from ORS 659.425(4) for public accommodations." Id. He refused to imply such a requirement because the statute was clear and unambiguous. Id.

In Independent Resources, Judge Ashmanskas held that then — O.R.S. 659.425(4) provided no right to recover for deficiencies in the design or construction of a structure. Independent Living Res. v. Oregon Arena Corp., 982 F. Supp. 698, 773 (D.Or. 1997). Judge Ashmanskas noted that the plain language of the statute "suggests active conduct of some sort, especially conduct that is targeted at a specific individual." Id. The Bistro and the Wine Shop argue that because plaintiffs here assert only structural deficiencies/architectural barriers, there is no actionable claim under O.R.S. 659.425(3).

Plaintiffs do not dispute the holdings of Sellick and Independent Resources. Rather, in response to the Bistro's and the Wine Shop's argument, plaintiffs argue that the Bistro and the Wine Shop purposely excluded them by refusing to remove architectural barriers and that this conduct is distinct from the fact of the existence of the architectural barriers. Plaintiffs argue that their cause of action in this claim is based upon the businesses' conduct, not upon the actual architectural barriers.

I reject this theory. Almost every refusal to remove an architectural barrier is the product of a conscious choice to not do so and thus, is based upon some "conduct" by the public accommodation. To accept plaintiffs' argument would allow reasonable accommodation claims to be asserted under O.R.S. 659.425(3) which, as explained by Judge Jones and Judge Ashmanskas, would be contrary to the legislature's intent. Despite plaintiffs' articulation of a "conduct" argument, the claims do not amount to something other than the reasonable accommodation claims previously rejected by this Court.

Plaintiffs also argue that Dueber's alleged comments to the Hillestads violate O.R.S. 659.425(3), independent of the architectural barriers/reasonable accommodation claims. Even assuming the truth of plaintiffs' allegations, this claim cannot be sustained.

First, under the statute, the plaintiff has to be a patron or customer of the public accommodation. At the time of the alleged comments, the Hillestads were showing a reporter or photographer the steps of the business. Ann Hillestad was not a patron or customer. Second, even if she were, and assuming arguendo Dueber's act was an act of distinction, discrimination, or restriction because Hillestad is disabled, in most circumstances a stray comment cannot be the basis for a discrimination claim. See Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (under Title VII, stray comments insufficient to establish discrimination); Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (9th Cir. 1989) (under federal age discrimination act, solitary remarks insufficient to create question of fact regarding discrimination claim). In this case, the alleged comment, without any other comments or action, amounts to a stray remark directed to a non-patron and as such, it is not actionable under O.R.S. Chapter 659.

I grant summary judgment to the Bistro and the Wine Shop on plaintiffs' O.R.S. Chapter 659 claims.

E. Negligence Claim

In their Eighth Claim, plaintiffs allege that the Bistro and the Wine Shop were negligent in several particulars: (1) the businesses failed to be aware of their obligations under the ADA, O.R.S. Chapter 447, and O.R.S. Chapter 659; (2) the businesses failed to adequately monitor and fulfill their obligations under the ADA, O.R.S. Chapter 447, and O.R.S. Chapter 659; (3) the businesses failed to adequately respond to requests for modifications and requests to make facilities accessible; (4) the businesses failed to remove architectural barriers, the removal of which were readily achievable; (5) the businesses failed to take alternate measures to make their goods and services available to plaintiffs, when such alternate measures were readily achievable; (6) the businesses denied the disabled plaintiffs the full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations based on their disabilities; (7) the businesses excluded or otherwise denied the two plaintiffs who are spouses of disabled plaintiffs, equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities on the basis of their known association with disabled persons; and (8) the businesses made a distinction, discrimination, or restriction on the disabled plaintiffs because they are disabled persons. Compl. at ¶ 129.

As is clear from reading the allegations, plaintiffs reallege all of their previously alleged claims under the ADA, O.R.S. Chapter 447, and O.R.S. Chapter 659, as negligence claims. Because I have determined that plaintiffs' claims under the two Oregon statutes must be dismissed, the negligence allegations based on violations of those two statutes are untenable.

The Bistro and the Wine Shop make two arguments in support of their motions against the negligence claims. First, they argue that plaintiffs' negligence claim is preempted by Oregon's disability statutes. Second, they contend that plaintiffs cannot sustain a negligence claim based on the alleged emotional injury allegations.

1. Preemption

The businesses argue that plaintiffs' claims are actually disability discrimination claims governed by O.R.S. 659.425 and that because the remedy for such violations, provided in O.R.S. 659.121(2), provides for injunctive relief, compensatory damages, punitive damages, jury trial, and attorney's fees, plaintiffs cannot sustain a common-law disability discrimination claim against the Bistro and the Wine Shop.

The businesses' argument is premised on cases arising in the employment context. See Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 351-52, 563 P.2d 1208-09 (1977) (the availability of an adequate statutory remedy precludes an otherwise sufficient common law wrongful discharge claim). Assuming arguendo that it applies to non-employment claims, the argument is unavailing. As discussed above, I have concluded that plaintiffs' claims cannot be brought under O.R.S. 659.425(3). Thus, without that claim being available to plaintiffs, there is no adequate statutory remedy to preclude a common law negligence claim.

2. Emotional Injury

In a 1991 case, the Oregon Supreme Court held that common law liability for psychic injury alone, was allowable in three situations: (1) where there was intentional infliction of emotional distress; (2) where the defendant intended to do the painful act with knowledge that it will cause grave distress and when the defendant's position in relation to the plaintiff involves some responsibility to the plaintiff aside from the tort itself; and (3) where the defendant's conduct infringed on some legally protected interest apart from causing the claimed distress, even when that conduct was only negligent. Hammond v. Central Lane Communications Ctr., 312 Or. 17, 22-23, 816 P.2d 593, 596 (1991); see also Rustvold v. Taylor, 171 Or. App. 128, ___ P.3d ___, 2000 WL 1728429, at *6 (Or.Ct.App. Nov. 22, 2000) (en banc) ("Oregon courts generally do not permit the recovery of damages for negligent infliction of emotional distress in the absence of physical injury."). The Bistro and the Wine Shop contend that since plaintiffs have not alleged any physical injury, intentional act, special relationship, or legally protected interest, their negligence claims cannot be sustained.

In response, plaintiffs argue that "[b]ecause Defendant's conduct was intentional, Plaintiffs can recover on their claim for negligence." Pltfs' Memo in Opp. to Bistro's Motion at pp. 25-26; Pltfs' Memo. in Opp. to the Wine Shop's Motion at p. 20. Plaintiffs contend that here, the businesses acted intentionally by failing to provide goods and services in a way which did not discriminate against plaintiffs and which infringed on plaintiffs' rights under federal and state anti-discrimination laws. Thus, plaintiffs maintain, because Hammond allows recovery for psychic injuries alone when the conduct is intentional, plaintiffs can recover on their negligence claims.

Plaintiffs' argument misses the mark. Hammond does not hold that when the conduct is intentional, a plaintiff can sustain a negligence claim for psychic injuries only. Rather, as noted above, Hammond confines the availability of such claims to three narrow circumstances: intentional infliction of emotional distress, intentional conduct in the course of a relationship between the parties in which the defendant's position in relation to the plaintiff involves some responsibility to the plaintiff aside from the tort itself, and negligent conduct which infringes on some legally protected interest apart from causing the harm.

Here, plaintiffs do not bring an intentional infliction of emotional distress claim. Because plaintiffs contend that the businesses' conduct was intentional, it appears that plaintiffs are trying to argue that the second Hammond exception applies. But, plaintiffs fail to articulate any "special relationship" or facts demonstrating that the businesses' position in relation to plaintiffs involves some responsibility aside from the tort itself.

That leaves the third Hammond exception which plaintiffs did not assert in response to the Bistro's or the Wine Shop's motion, but which they did assert in response to the City's motion. For the sake of efficiency, I will address the argument here.

Under the third Hammond exception, the Oregon Court of Appeals has explained that the term "legally protected interest," refers

to a sort of "duty" that is distinct from Fazzolari-like foreseeability. . . . The identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury. See Hammond, 312 Or. at 25, 816 P.2d 593 (rejecting liability for emotional distress damages where the plaintiff identified "no legal source of liability for her emotional injury other than its foreseeability").

Curtis v. MRS Imaging Servs. II, 148 Or. App. 607, 617, 941 P.2d 602, 608 (1997) (citations and footnote omitted) (citing Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987)), aff'd, 327 Or. 9, 956 P.2d 960 (1998); see also Rustvold, 2000 WL 1728429, at *6 (quoting same passage from Curtis and noting that a claim under the "legally protected interest" category must be "predicated on a duty independent of the duty to avoid foreseeable risk of harm.").

To "recover for an infringement of a legally protected interest, [plaintiffs'] claim must meet three conditions." Stevens v. First Interstate Bank of Or., 167 Or. App. 280, 292, 999 P.2d 551, 557 (2000) (Wollheim, J. dissenting). "First, the interest infringed must be a `legally protected interest' . . . which arises `independently of the ordinary tort elements of a negligence claim.'" Id. (quoting Nearing v. Weaver, 295 Or. 702, 707, 670 P.2d 137, 140 (1983)); see also Rustvold, 2000 WL 1728429, at * 6 (existence of physician-patient relationship not sufficient, in and of itself, to satisfy "legally protected interest" test; rather, that relationship must include a "specific duty the violation of which may support a claim for negligent infliction of emotional distress.").

Although these quoted sections of Stevens are from Judge Wollheim's dissent, the majority and the dissent were not in disagreement regarding these standards as to a "legally protected interest."

"Second, the interest must be `of sufficient importance as a matter of policy to merit protection from emotional impact.'" Id. (quoting Hilt v. Bernstein, 75 Or. App. 502, 515, 707 P.2d 88, 95 (1985)). "Third, the plaintiff must have been directly injured by the defendant's actions. The defendant's liability is limited to only those parties immediately injured by the defendant's negligent actions and does not extend to individuals indirectly injured." Id.

Oregon courts have classified cases arising under this third Hammond exception into four categories: "(1) certain intentional torts such as trespass to land, conversion, racial discrimination and intentional interference with contractual relations; (2) private nuisance; (3) invasion of privacy; and (4) miscellaneous cases that include unlawful disinterment of spouse's remains and infringement of the right to child custody." Id.; see also Meyer v. 4-D Insulation Co., 60 Or. App. 70, 73-74, 652 P.2d 852, 854 (1982) (noting four categories and citing cases).

Here, the legally protected interest is not a private nuisance or an invasion of privacy. Plaintiffs do not assert that it falls into the miscellaneous category. Thus, the question is whether the alleged violation of the ADA falls into the first category of intentional torts.

As indicated, Meyer lists "race discrimination" under the category of intentional torts supporting recovery of emotional distress damages without physical injury. Meyer, 60 Or. App. at 74, 652 P.2d at 854. Meyer cites William v. Joyce, 4. Or. App. 482, 479 P.2d 513 (1971) in support of that statement. There, the court held that an award of compensatory damages was allowable in a claim brought under O.R.S. Chapter 659. Williams, 4 Or. App. at 494-505, 479 P.2d at 519-24.

Williams does not help plaintiffs because it stands for the proposition that an award of compensatory damages for emotional injury only is allowable under O.R.S. Chapter 659. It does not recognize a common law negligence claim for emotional distress damages without physical injury based on acts of discrimination.

Plaintiffs have cited no Oregon case holding that violation of a state or federal anti-discrimination law is a legally protected interest sufficient to allow a negligence claim with no physical injury, and I have found none. To accept plaintiffs' argument would mean that every violation of any state or federal anti-discrimination law would result in a negligence claim for emotional damages. This interpretation of the law appears unprecedented. The argument is further undercut by the 1991 amendments to Title VII which allowed compensatory damages in such cases. If a Title VII plaintiff was able to recover emotional distress damages under a negligence claim, there would have been no need for the compensatory damages amendments. I decline to broaden the exceptions noted in Hammond.

At oral argument, defense counsel also noted that plaintiffs had failed to demonstrate any injuries actually caused by the businesses's alleged negligence and summary judgment on the negligence claims was warranted for this reason as well.

In their Complaint, plaintiffs allege that as a direct and proximate result of the Bistro's and the Wine Shop's negligence, they "have suffered and continue to suffer injuries, including mental anguish, stress, anxiety, humiliation, shame and violation of their civil rights." Id. at ¶ 130. On summary judgment, plaintiffs must come forward with more than the allegations in their Complaint to demonstrate an issue of fact. Celotex, 477 U.S. at 322-23.

Plaintiffs Ann Hillestad, Charles Hillestad, Neil Gorter, and Barbara Gorter submit affidavits in response to the businesses' motions. Only one of those affidavits cites a specific instance of conduct by either business. In the affidavit submitted by Charles Hillestad in opposition to the Bistro's motion, he states that in the fall of 1997, he made a dinner reservation at the Bistro, but canceled the reservation after learning of the entry steps. Charles Hillestad Affid. at ¶¶ 3-7. Charles Hillestad does not, however, state that the cancellation caused him any harm. Thus, plaintiffs fail to create an issue of fact regarding whether the businesses' alleged negligence caused them any injury.

F. Attorney's Fees

In their motions, the businesses request attorney's fees under 42 U.S.C. § 12205 and O.R.S. 659.121(2), both of which allow attorney's fees to a prevailing party. Because I am denying summary judgment to the businesses on portions of the ADA claim, an award of attorney's fees under section 12205 is premature. Furthermore, while the businesses have prevailed on the O.R.S. Chapter 659 claim, I decline to award attorney's fees to the businesses at this point. The businesses may move for an award of fees at the conclusion of the case if they choose to do so.

In summary, as to the Bistro's and the Wine Shop's motions for summary judgment, I grant summary judgment to the businesses on the O.R.S. Chapter 447 claims, on the O.R.S. Chapter 659 claims, and on the negligence claims. I conclude that the Section 4 Standards on accessibility under the ADA do not apply to the Bistro and the Wine Shop and that if removal of the challenged barriers is not readily achievable, the Bistro and the Wine Shop offer adequate alternative measures under the statute. I deny summary judgment to the Bistro and the Wine Shop on whether the elimination of the entry steps to each business by provision of a ramp is "readily achievable" and whether the rearrangement of aisles in the Wine Shop is also "readily achievable."

II. The City's Motion for Partial Summary Judgment

The City moves for partial summary judgment, making three different arguments against the ADA claim, as well as arguments against the Rehabilitation Act and Oregon claims.

A. ADA Claim

1. Actions of Third Parties

Plaintiffs allege that the City violates the ADA by discriminating against disabled individuals in regard to an annual dog show, an annual kite festival, and an annual sand castle building contest. See Compl. at ¶¶ 29f-29h, 30f-30h. The City moves for summary judgment against those claims.

The ADA prohibits a public entity such as the City, from discriminating against a qualified individual with a disability, or excluding such an individual from participation in, or denying the individual the benefits of, any of the entity's services, programs, or activities. 42 U.S.C. § 12132. The City's undisputed evidence is that the dog show, the kite festival, and the sand castle building contest are not City-sponsored activities. All three events are sponsored by private entities. The City issues a permit to a non-profit group to sell food during the sand castle event.

Plaintiffs maintain that the City provides increased police patrols during the events and additional lifeguards at the beach during the sand castle building contest. They also maintain that the City controls the flow of traffic and parking during the festivals. For example, they state that access to the beach during sand castle day is restricted, directed, and controlled by City personnel.

All of these representations are contained in the affidavit of Charles Hillestad and are the subject of a motion to strike by the City. Because, as discussed herein, even considering the statements, I grant summary judgment to the City on these claims as a matter of law, the motion to strike these claims is denied as moot.

Additionally, plaintiffs state that the City promotes and distributes information on these events at the Visitors' Information Center and through the Cannon Beach Magazine, which plaintiffs allege are both funded by the City. Plaintiffs' evidence shows that Cannon Beach Magazine is published annually by the Cannon Beach Chamber of Commerce. Pltf's Exh. B. There is no evidence that the Chamber of Commerce receives any City funding. There is evidence that the "Information Center" received $72,345 in City funds in 1999, and $74,515 in 2000. The City argues that because it does not sponsor any of the three events, they are not "services, programs, or activities" of the public entity. The City further maintains that increased police presence is not sponsorship of a service, program, or activity.

See footnote 9. These statements are also made by Hillestad and are the subject of the City's motion to strike. For the reasons explained in the prior footnote, I deny the motion to strike these allegations as moot.

Neither the City nor plaintiffs cited any case precisely on point. In one case cited by the city, the court held that a city's licensing or permitting of a private enterprise, in that case issuing liquor licenses and building permits, did not make the enterprise a "service, program, or activit[y] of a public entity" under the ADA. Tyler v. City of Manhattan, 849 F. Supp. 1429, 1441-42 (D.Kan. 1994). There, the court cited 28 C.F.R. § 35.130(b)(6) which states that "[t]he programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part." The court explained that while Title II of the ADA and its implementing regulations prohibit discrimination against qualified individuals by public entities, "[i]t simply does not go so far as to require public entities to impose on private establishments, as a condition of licensure, a requirement that they make their facilities physically accessible to persons with disabilities." Id. at 1442.

In a 1998 Colorado case, the court held that the Colorado Public Utilities Commission's issuance of a certificate of public necessity and convenience to a private company providing public transportation between a city and various ski and gambling resorts, did not violate Title II, even if the private company subsequently engaged in unlawful discrimination. Reeves v. Queen City Transp., 10 F. Supp.2d 1181, 1185 (D. Col. 1998). The court noted that the language in section 12132, "services, programs, or activities of a public entity," and the language in the implementing regulations of 28 C.F.R. § 35.130(b)(1), "aid, benefit, or service," and "program," "limit Title II's application to programs inherent to the public entity." Id.

Plaintiffs cite no cases in support of their argument that the City's provision of extra police during the activities or assistance in directing traffic, both on and off the beach, make the events a City service, program, or activity. Plaintiffs cite no cases in support of their argument that the City's provision of money to the Information Center, and the Center's subsequent advertising of these events, makes any of them City services, programs, or activities within the meaning of the ADA.

The reasoning of Tyler and Reeves, while not precisely on point, is instructive and indicates the limits to Title II's applicability. I fail to see how any of these three events is a City service, activity, or program when the City itself is not the actual sponsor, even if the City is indirectly involved with the events. I grant summary judgment to the City on these claims.

2. Approval of Building Permits

Plaintiffs contend that the City violates 28 C.F.R. § 35.130(b)(6) by approving building permits for structures that are not ADA compliant. Compl. at ¶ 38. Section 35.130(b)(6) provides that

A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the program or activities of licenses or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not themselves, covered by this part.

28 C.F.R. § 35.130(b)(6); see also 28 C.F.R. Part 35, App. A, § 35.130 (noting that "[t]he programs or activities of licensees or certified entities are not themselves programs or activities of the public entity merely by virtue of the license or certificate."). Relying on Tyler, the City argues that its approval of permits for allegedly non-compliant structures does not make the structure a City service, activity, or program.

In response, plaintiffs argue that "the activities of approving non-ADA compliant building construction through Defendant's permitting program is a violation of the ADA. Plaintiffs' claim is that the activity of approving construction in violation of state and federal laws is itself a violation of the law." Pltfs' Memo. in Opp. at p. 8. Plaintiffs further maintain that they "are not claiming that Defendant is responsible for making these third-party constructions ADA compliant. Rather, Plaintiffs claim that Defendant is forbidden from promoting non-ADA construction and approving permits for structures that are not ADA compliant." Id.

In supplemental briefing, plaintiffs added to this argument by contending that the City's conduct violates O.R.S. Chapter 447 and by virtue thereof, the City violates section 35.130(b)(6). Plaintiffs maintain that the City has a duty under O.R.S. Chapter 447 to verify that every proposed new construction conforms to ADA accessibility guidelines. While there is no express provision in the statutes in support of that argument, other relevant statutes suggest that such a duty can arguably be implied.

O.R.S. Chapter 447 requires the state to adopt a state building code incorporating ADA accessibility guidelines. O.R.S. 447.231(1) (Director of Department of Consumer and Business Services shall adopt rules to conform the state building code to the ADA); O.R.S. 447.230(1) (Director of Department of Consumer and Business Services shall establish standards and specifications in the structural code necessary to eliminate architectural barriers). No part of O.R.S. Chapter 447 addresses a municipality's obligations in this regard.

Under O.R.S. 455.040(1), however, a municipality is prohibited from adopting any ordinance, rule, or regulation differing from the state building code. In addition, municipalities may administer building inspection programs if the building program includes the state building code. See O.R.S. 455.150(1)(a)(A). A municipality must also appoint a building official who is responsible for administering and enforcing the building inspection program. O.R.S. 455.150(3).

While there is no discussion of the City's operation of its own building inspection program, I assume from the discussion of the City's issuance of building permits, that the City has a building department and a building official, and that the City's building ordinances incorporate the state building code as required. Notwithstanding this assumption, however, plaintiffs' argument that the City's alleged discriminatory administration of its building inspection program constitutes a violation of the ADA, is without merit. The remedy for such alleged discrimination appears to lie in O.R.S. 455.070, which as previously explained, provides an administrative complaint, review, and appeal process for violations of O.R.S. Chapter 447 and violations of the state building code.

Plaintiffs fail to demonstrate that the City's alleged actions amount to an ADA violation. The ADA claim remains, in essence, an argument that the City must force third party licensees or permittees to build compliant structures. Under the regulations, and as explained in Tyler, this argument cannot be sustained.

Additionally, this claim fails on an evidentiary basis as well. The allegations in support of this claim are supported by the affidavit of plaintiff Charles Hillestad, the spouse of disabled plaintiff Ann Hillestad. In pertinent part, he states that

Since 1992, various buildings in Cannon Beach have been constructed or have been substantially renovated, which has required building permits from the City and/or approval from the City Planning Department's Design Review Committee. Many of these buildings do not comply with the ADA. My wife cannot access most of these buildings because they are inaccessible to scooters and/or wheelchairs. For example, the buildings occupied by the Golden Whale store and Pacific Rim Gallery have no disabled access into the front of the stores; the building occupied by the Kalypso Restaurant and the Cannon Beach Bakery underwent major remodeling, but the disabled cannot enter either store because each have two steps at the front doors; the building occupied by Bill's Tavern is a totally replaced building where disabled could once enter the front door but now must travel a block and a half to enter the rear of the building; the building occupied by the Bald Eagle Cafe and Jay Raskin Architect offices engaged in major remodeling, but has no designated parking or door access; and the Marie Marshall House, an assisted living facility, underwent major remodeling but the disabled cannot access the facility because only a gravel walkway leads to the front door. Numerous other examples exist of buildings that the City has allowed to be constructed that are not compliant with the ADA.

Charles Hillestad Affid. at ¶ 2. For a number of reasons, these statements fail to create an issue of fact regarding whether the City has approved of construction which is not compliant with the ADA.

First, there is no attestation to any personal knowledge of the recited facts by Charles Hillestad. Second, even if there were, Charles Hillestad's affidavit reveals no education, training, or experience in identifying ADA-compliant structures giving him the expertise to determine whether these structures are ADA compliant. Furthermore, no permits or plans for any of structures Charles Hillestad identifies as non-compliant, have been submitted, rendering the court unable to attempt its own independent analysis. Thus, while Charles Hillestad is competent to testify as to what he has observed, for example that there are or are not steps as part of an entry, he does not have demonstrated competence to testify as to whether the identified structures are ADA compliant. Accordingly, even if plaintiffs' allegations amounted to an ADA claim, which as explained above they do not, they could not sustain the claim given that they have failed to create an issue of fact as to whether the City has issued permits for non-ADA-compliant structures. Accordingly, the City's motion to strike paragraph 2 of Charles Hillestad's affidavit is granted.

In their Concise Statement of Material Facts, plaintiffs assert that the City has issued permits to structures that are non-ADA compliant. The City did not deny this assertion in a reply fact statement. Although the local rules of this district indicates that uncontroverted facts will be deemed admitted, it is unclear if this applies to facts asserted by the non-moving party. See Local Rule 56.1(f) (material facts set forth by the moving party will be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement). Furthermore, even if the rule applied to facts asserted by the non-moving party, the rule presumes that the asserted fact is supported by competent evidence in the record. As Charles Hillestad's affidavit is not competent evidence regarding whether the identified structures comply with the ADA, the City's failure to specifically controvert plaintiffs' assertion is immaterial.

I grant summary judgment to the City on the allegations in paragraph 38 of the Complaint, alleging that the City violates the ADA by approving building permits for structures that are not ADA compliant.

3. Sidewalks

The City moves against the allegations in the Complaint concerning the City's failure to provide sidewalks. See Compl. at ¶¶ 31a, 32g-32i. Plaintiffs contend that the City builds and maintains sidewalks. Id. at ¶ 31a. Then, plaintiffs allege that "[m]ultiple streets do not have sidewalks, forcing wheelchair or scooter users to travel in automobile or bicycle traffic lanes, in violation of ADAAG 4.3.2[.]" Id. at ¶ 32g. Plaintiffs also allege that "[t]here are no sidewalks along Ocean Street, which is used by the public as a viewpoint for the beach and seascape[.]" Id. at ¶ 32i. Finally, plaintiffs contend that

In its motion, the City states it moves against the paragraphs in the Complaint challenging a lack of sidewalks and then cites paragraphs 31c, and 32g-32i. Paragraph 31c relates to pathways and 31a relates to sidewalks. I assume, because the argument and other cited paragraphs all concern sidewalks, that the City meant to cite paragraph 31a and not paragraph 31c.

There are no sidewalks on sections of the East side of Hemlock Street, which is the main thoroughfare and bus route through Cannon Beach. Some portions of Hemlock Street have no sidewalks at all. This lack of sidewalks makes it impossible for wheelchair or scooter users to travel to certain parts of Cannon Beach without the use of an automobile[.]

Id. at ¶ 32h.

The City argues that the ADA and its regulations do not require the building of sidewalks. While the City's argument is somewhat broad, I agree with the City that as to the allegations raised in paragraphs 32g, 32h, and 32i of the Complaint, there is no ADA violation.

In support of their allegations, plaintiffs contend that the City is required to build sidewalks under the following provision:

If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

28 C.F.R. § 35.150(d)(2). Clearly, this regulation does not support plaintiffs' claim that construction of new sidewalks is required. While the regulation mandates a transition plan for the installation of curb cuts, it does not require construction of new sidewalks in the first instance. See also Standard 4.7 (requiring curb ramps wherever an accessible route crosses a curb).

Next, plaintiffs cite Standard 4.3.2 which provides that (1) At least one accessible route within the boundary of the site shall be provided from public transportation stops, accessible parking, and accessible passenger loading zones, and public streets or sidewalks to the accessible building entrance they serve. The accessible route shall, to the maximum extent feasible, coincide with the route for the general public.

(2) At least one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site.

(3) At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements and with all accessible dwelling units within the building or facility.

(4) An accessible route shall connect at least one accessible entrance of each accessible dwelling unit with those exterior and interior spaces and facilities that serve the accessible dwelling unit.

Standard 4.3.2. A "site" is "[a] parcel of land bounded by a property line or a designated portion of a public right-of-way." Standard 3.5. An "accessible route" is "[a] continuous unobstructed path connecting all accessible elements and spaces of a building or facility." Id.

These standards do not support plaintiffs' argument. Standard 4.3.2.(1), read with the proper definitions of "accessible route" and "site," requires the provision of a continuous, unobstructed path, within the boundary of a parcel of land, from such places as a public transportation stop, accessible parking, or a public street or sidewalk, to the accessible building entrance. "Site" does not include city streets. The regulation does not require blanket construction of new sidewalks along city streets.

The Standards are appended to Part 36 of the Code of Federal Regulations which governs nondiscrimination on the basis of disability by public accommodations and in commercial facilities. Part 35 applies to state and local government services. Thus, for the purposes of this motion, I assume without deciding that the Standards found at Appendix A to Part 36, apply to the City even though they are not appended to the regulations governing municipalities.

Having failed to point to a general obligation to build new sidewalks, plaintiffs also argue that many of the City's bus stops are not paved and have no paved pathways leading to the stops. At oral argument, plaintiffs additionally argued that the City violates the ADA by failing to provide access from bus stops to at least two parks, the "RV park" and Les Shirley park. I do not consider these arguments at this time because the City's motion was limited to the allegations in paragraphs 32g, 32h, and 32i of the Complaint. Plaintiffs' allegations regarding the alleged failures at the bus stop are found in paragraph 32j, while paragraph 30c addresses the alleged inaccessibility of public parks. The City did not move against the allegations in either of those paragraphs. My ruling at this point is limited to the allegations that the ADA requires the City to construct new sidewalks on all City streets regardless of whether a public facility is located there. Issues regarding accessible bus stops and City facilities are not addressed here. I grant summary judgment to the City on paragraphs 32g, 32h, and 32i of the Complaint.

B. Rehabilitation Act Claim

The City argues that plaintiffs cannot sustain their Rehabilitation Act claims because the programs, services, and activities challenged by plaintiffs receive no federal funds. Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). In this case, the Rehabilitation Act claims are distinguished from the ADA claims by the added element of receiving federal funds.

"Program or activity" is further defined as all of the operations of —

(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government[.]

29 U.S.C. § 794(b)(1).

The record regarding the federal funding is not well developed. In the Complaint, plaintiffs allege that the City is a recipient of federal financial assistance. Compl. at ¶ 3. To sustain the Rehabilitation Act claim, plaintiffs have the burden to prove that the City receives such assistance. Duffy v. Riveland, 98 F.3d 447, 454 (9th Cir. 1996).

In its Concise Statement of Material Fact, the City states that it has received two grants for a total of $10,000 for certain police activities related to seat belts and drunk driving. Deft's Concise Stmt of Mat. Fact at ¶ 3. It further represents that the City receives the grants by applying to the Oregon Association of Police Chiefs. Id. It states that the money is distributed by the Oregon Department of State Police for the two programs. Id. It also states that it has "received a grant for $3,000 for work relating to boundary issues of jurisdictions." Id.

In support of these statements, the City relies on the affidavit of current City Manager Helen Westbrook. Her affidavit is almost verbatim of what is in the fact statement with a few exceptions. First, she indicates that the City's receipt of the $10,000 for the police activities is through a federal Law Enforcement Block Grant. Helen Westbrook Affid. at ¶ 7. Next, she states that the funds received by the law enforcement grant are not used for any other purpose. Id. Finally, she adds that the $3,000 in other federal funds is for work "in the boundaries of jurisdictions which have adopted comprehensive plans and land use regulations both acknowledged by the commission and incorporated within the Oregon Coastal Management Program through either program implementation or program amendment." Id.

The documents offered in support of these statements show that from October 1, 1999, through September 30, 2000, the City was the grantee of a $1,004 federal grant from the Oregon Department of State Police, Criminal Justice Services Division. Exh. 1 to Karen O'Kasey Affid. at p. 1. The documents further show that the City Manager was the agency administrator, and that the Chief of Police was the program and fiscal contact. Exh. 1 to O'Kasey Affid. at p. 1. The City Manager also signed the acceptance of the award on behalf of the grantee. Id. at p. 6.

Plaintiffs' documents show that the Cannon Beach Police Department received a $4,000 grant for the period of October 1, 1999 through September 30, 2000, from the Traffic Safety Division of the Oregon Association of Chiefs of Police. Exh. C. to Steinman Affid. at p. 1. The grant was for funds to increase drunk driving arrests, conduct saturation patrols, and increase the number of citations for seatbelt law violations. Id. The documents make no reference to any federal funds, although as above, the City does not appear to dispute that such funds were part of the grant. The Chief of Police signed the contract as the grantee. Id.

No documents support the $10,000 figure, although it does not appear that the sum is disputed. There are no documents in the record regarding the coastal management program grant although defense counsel represented at oral argument that the funds go to the city planner and are used for land use planning specific to coastal issues.

Courts are split as to whether a state or local government itself is a proper defendant in a section 504 Rehabilitation Act claim. See James Lockhart, Annotation, Who is Recipient Of, and What Constitutes Program or Activity Receiving, Federal Financial Assistance for Purposes of § 504 of Rehabilitation Act ( 29 U.S.C. § 794), Which Prohibits Any Program or Activity Receiving Financial Assistance From Discriminating on Basis of Disability, 160 A.L.R. Fed. 297, § 16 (2000) (discussing cases holding that section 504 may apply to states or local governments and those holding that section 504 does not apply to state or local governments); compare Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 234 (S.D.N Y 1996) (allegation that City received federal financial assistance was sufficient to sustain claim that the zoning and planning boards discriminated under Rehabilitation Act), aff'd, 117 F.3d 37 (2d Cir. 1997); with Schroeder v. City of Chicago, 715 F. Supp. 222, 225 (N.D.Ill. 1989) (allegation that City received federal financial assistance insufficient to sustain Rehabilitation Act claim because City does not meet statutory definition of "program or activity"), aff'd, 927 F.2d 957 (7th Cir. 1991) (amendments to Rehabilitation Act's "program or activity" not intended to "sweep in the whole state or local government[.]").

While the Ninth Circuit has not definitively resolved the issue, a 1999 case interpreting an identical statute suggests it would follow Schroeder. Association of Mexican-American Educators v. California, 183 F.3d 1055, 1067-68 (9th Cir. 1999) ("AMAE"), rev'd in part on other grounds en banc, 231 F.3d 572 (9th Cir. 2000) ("AMAE"). In AMAE, the plaintiffs challenged the use of the California Basic Educational Skills Test as a requirement for certification to teach in California public schools, as a violation of Title VI and Title VII of the Civil Rights Act of 1964. Title VI prohibits the use of federal dollars to subsidize racial discrimination. 42 U.S.C. § 2000d. Like the Rehabilitation Act, it prohibits discrimination in any "program or activity receiving Federal financial assistance." Id.

For purposes of Title VI, "program or activity" carries the same definition as in the Rehabilitation Act. Compare 42 U.S.C. § 2000d-4a with 29 U.S.C. § 794(b)(1). Thus, cases interpreting Title VI's definition of "program or activity" should be directly applicable to Rehabilitation Act cases on that issue by analogy.

In AMAE, the plaintiffs named the State of California as a defendant. The plaintiffs argued that the State was subject to Title VI because it received federal funds. The court rejected this argument. Id. at 1067-68.

The court explained that the "State itself cannot be considered a `program or activity' under [the statute.]" Id. at 1067. Rather, "only subsections of the State and not the State as a whole can be subject to Title VI." Id. The court reasoned that

[the statute] applies to any department or agency of the State which has received federal funds, whether the State entity receives such funds directly from the government or via another State entity.

At the same time, however, nothing in [the statute] would include the State, as such, in the enumeration of entities listed in the definition of "program or activity." This omission cannot be accidental. Although we could begin with the interpretative cannon, expressio unius, the structure of the statute is direct and conclusive proof that Congress did not mean to subject an entire State to Title VI. Congress went to great lengths in subsection (1)(B) to detail the fact that each department or agency of a State which received federal funds would be subject to Title VI, even if they received such funds via another agency. Subsection (1)(B) would be superfluous if receipt by one agency of the State subjected the entire State to Title VI, and we strive to avoid any construction that would render some of the statute superfluous. . . . Congress simply could not have meant to extend Title VI to the entire State government because one department or agency received aid (even aid intended for the State).

Again, the legislative history supports our conclusion. The Congressional Report explicitly concluded that "[f]or State and local governments, only the department or agency which receives the aid is covered." S. Rep. 100-64 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 6. Although this is an issue of first impression in our Circuit, other Circuits interpreting the Civil Rights Restoration Act have also come to this conclusion. Schroeder v. City of Chicago, 927 F.2d 957, 961 (7th Cir. 1991); Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 427 (5th Cir. 1997). In sum, we hold that while Title VI may apply to any subsection of the State which receives federal funds, Title VI will not apply to the State as a whole simply because one subsection receives such funds.

Id. at 1068 (citation omitted).

Although other courts have reached differing conclusions, see, e.g., Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.3d 600, 603 (10th Cir. 1994) (distinguishing Schroeder and holding that "the inquiry should focus on whether there is a sufficient nexus between the federal funds and the discriminatory practice as outlined in the Restoration Act and its legislative history"), I must follow Ninth Circuit precedent and base my decision on what it appears the Ninth Circuit would hold. Based on the reasoning in AMAE and its favorable citation to Schroeder, I conclude that the City is not a proper defendant in this Rehabilitation Act claim because it is not a "program or activity" as that has been defined in 29 U.S.C. § 794(b)(1).

The AMAE court recognized that if a State agency or department violated Title VI and relevant law provided that suit could not be brought against the particular agency or department but only against the State itself, then the State would be the proper defendant. AMAE, 183 F.3d 1067 n. 11. Thus, here, if under state law plaintiffs could not sue the City's police department or planning department as separate entities, the City might be a proper defendant, but only for discrimination occurring in those departments. Plaintiffs fail to demonstrate that these departments are not proper defendants in their own right.

C. O.R.S. Chapter 447 Claim

For the reasons explained in connection with the Bistro's and the Wine Shop's motions for summary judgment, I grant summary judgment to the City on plaintiffs' O.R.S. Chapter 447 claim.

D. Negligence

For the reasons explained in connection with the Bistro's and the Wine Shop's motions for summary judgment, I grant summary judgment to the City on plaintiffs' negligence claims.

III. Motions to Strike

Each defendant has filed a separate motion to strike specific parts of certain affidavits filed by plaintiffs in opposition to the motions.

A. The Bistro's and the Wine Shop's Motions to Strike

1. Charles Hillestad's Affidavits

Although the businesses move to strike several parts of these affidavits, the only portions of the affidavits relevant to the resolution of the businesses' motions have been addressed in the previous part of this Opinion. If a portion of the affidavits moved against has not been previously mentioned, any motion to strike such portion is denied as moot because the testimony was not used to resolve the motions.

2. Ann Hillestad's Affidavits

As with the previous affidavits, any portion of these affidavits subject to the motion to strike that have relevance to the resolution of the Bistro's and the Wine Shop's motions, has been previously addressed. If a portion of the affidavits moved against has not been previously mentioned, any motion to strike such portion is denied as moot because the testimony was not used to resolve the motions.

3. Barbara Gorter Affidavits

The motion to strike these affidavits is denied as moot because no part of the affidavits was used to resolve the motions.

4. Paul Steiner Affidavit

Although the Bistro's motion to strike Steiner's testimony is well founded in at least one respect because of the failure to Steiner to attest to any personal knowledge regarding the assertions in his affidavit, I deny the motion as moot because first, as to the restroom, I grant summary judgment to the Bistro on that issue even considering Steiner's statements. Second, the issue of fact regarding the ramp is created by the exhibits showing the prices for the aluminum or steel ramps, not by Steiner's testimony. As to the Wine Shop's motion, there is a personal knowledge attestation statement in Steiner's affidavit but, again, I deny the motion as moot because the issue of fact is created by the exhibits showing the prices for the aluminum or steel ramps, not by Steiner's testimony.

5. Neil Gorter Affidavit

This affidavit was submitted only in opposition to the Wine Shop's motion. I deny the motion to strike this affidavit as moot because no part of the affidavit was used to resolve the motion.

B. The City's Motion to Strike

The City moves against portions of Charles Hillestad's affidavit. Relevant portions of the affidavit have been previously discussed in the Opinion. To the extent portions of the affidavit moved against have not been previously discussed, any motion to strike such portion is denied as moot because the testimony was not used to resolve the motion.

CONCLUSION

The Bistro's motion for summary judgment (#24) and the Wine Shop's motion for summary judgment (#49) are granted as to the O.R.S. Chapter 447 claims, the O.R.S. Chapter 659 claims, and the negligence claims, and are granted in part and denied in part as to the ADA claims. The City's motion for partial summary judgment (#44) is granted as to those specific portions of the ADA claims moved against, the Rehabilitation Act claims, the O.R.S. Chapter 447 claims, and the negligence claims.

The Bistro's motion to strike (#39) and the Wine Shop's motion to strike (#63) are denied in part and denied as moot in part. The City's motion to strike (#70) is granted in part and denied as moot in part.

IT IS SO ORDERED.

Alford v. City of Cannon Beach

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Opinion

OPINION ORDER

BACKGROUND

Facts particular to the individual claims are discussed below. STANDARDS

CONCLUSION

Alford v. City of Cannon Beach

Alford v. City of Cannon Beach

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Alford v. City of Cannon Beach

Summary

Opinion

OPINION ORDER

BACKGROUND

Facts particular to the individual claims are discussed below. STANDARDS

CONCLUSION

Alford v. City of Cannon Beach

Alford v. City of Cannon Beach

Case Details

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Citing Cases

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