Opinion
No. CV-00-303-HU.
January 15, 2002
Megan E. Glor, SWANSON, THOMAS COON, Portland, Oregon, Attorney for Plaintiffs.
Karen O'Kasey, Nathan A. Sykes, SCHWABE, WILLIAMSON WYATT, P.C., Portland, Oregon, Attorneys for Defendants.
OPINION ORDER
This is a case under the Americans with Disabilities Act, 42 U.S.C. § 12101-12213 (ADA), regarding architectural barriers. 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").
As a result of previous motions for summary judgment, the original claims have been significantly narrowed. Additionally, one plaintiff, Robert Alford, has died since litigation was initiated. Two other plaintiffs have settled their claims. Furthermore, all plaintiffs have settled all of their claims against the City of Cannon Beach. Thus, what remains are certain ADA claims by four plaintiffs against the Bistro and the Wine Shop.
The Bistro and the Wine Shop jointly move for summary judgment. I grant the motion. The Bistro and the Wine Shop also move to strike various affidavits submitted by plaintiffs in opposition to the Bistro's and the Wine Shop's motion. I deny the motion to strike. Additionally, the Wine Shop and the Bistro previously moved for a court view of the premises. With no objection from plaintiffs, I granted the motion. Before I traveled to the property, the parties submitted a joint list of particular items to view. I personally viewed the premises, with attention to those items, on October 26, 2001.
BACKGROUND
The background is sufficiently explained in the previously issued Opinion and Order regarding the prior summary judgment motions. Alford v. City of Cannon Beach, No. CV-00-303-HU, Opinion Order at pp. 2-3 (D. Or. Jan. 17, 2001) ("the January 17, 2001 Opinion Order"). In addition, plaintiffs Audrey Harris and Lisbeth Neuman failed to respond to the motion for summary judgment. As a result, the facts asserted by the Bistro and the Wine Shop in their concise statement of material facts, are deemed admitted as to those two plaintiffs. L.R. 56(f). Additional facts as necessary are incorporated into the discussion 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. ADA Standards Regarding Architectural Barriers
A full discussion of the relevant legal standards is contained in the January 17, 2001 Opinion and Order and I incorporate that discussion by reference herein. It is worth repeating here, however, that 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). 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.
To prevail on a claim of discrimination based on an architectural barrier, plaintiffs must prove that 1) the existing facility presents an architectural barrier prohibited under the ADA, and 2) the removal of the barrier is readily achievable. Parr v. L L Drive-Inn Restaurant, 96 F. Supp.2d 1065, 1085 (D. Haw. 2000)
Remaining at issue following the January 17, 2001 Opinion and Order are plaintiffs' claims that the Bistro and the Wine Shop are obligated under the ADA to install ramps to their entrances, and that the Wine Shop must reconfigure its shelving to allow wheelchair accessability once inside the store.
II. Description of the Property
Both businesses are located at 263 N. Hemlock, in Cannon Beach, Oregon. Hemlock Street runs north and south, parallel to, and a short distance from, the ocean. The businesses are on the east side of the street. A public sidewalk runs north and south along the street.
To access either business, one must walk on a brick path which runs east from, and perpendicular to, the sidewalk. The brick path slopes slightly downward as it travels towards the businesses. The Wine Shop is located only a few feet from the sidewalk. While walking east on the brick path, the Wine Shop is on one's left, or on the north side of the brick path. It is accessed by steps from the brick path to the entry of the Wine Shop.
To access the Bistro, one must walk on the brick path past the Wine Shop and continue heading east. Although the businesses share the same address and are in the same "complex," the Bistro is in a separate building which is perpendicular to the building housing the Wine Shop. While walking east on the brick path, the Bistro is on one's right, or on the south side of the brick path, several yards past the Wine Shop's entrance. It is accessed by steps from the brick path to the entry.
East of the Wine Shop and across the brick path from the Bistro, there is a flower shop. It is part of the same structure as the Wine Shop although it is a separate entity. Like the Wine Shop, it is on the north side of the brick path.
The businesses share a "common area." The brick path which, as described above, provides the primary access to the businesses, is the northern part of the common area. The common area includes a secondary access path which starts at the public sidewalk, several yards south of where the primary brick path meets the sidewalk, and runs diagonally northeast through the common area to join the primary brick path a few feet from the entrances to the Bistro and the flower shop. About halfway between where this secondary path starts and ends, there is a small sitting area with a bench. Other parts of the common area are either grass or brick.
III. The Bistro
In support of its argument that a permanent or portable ramp to the Bistro is not readily achievable, the Bistro relies on the affidavit of contractor Mike Elliott, who states that he physically inspected the premises at the Bistro for the purposes of evaluating the cost and feasibility of remodeling the Bistro to comply with the ADA. Elliott Affid. at ¶ 5. Based on his estimate, the Bistro contends that the cost to install a permanent ramp would be $8,343 and would require 1) rebuilding the main entry deck landing; 2) building a deck canopy; 3) installing a new door and sill; 4) installing safety railings adjacent to the ramp; 5) removal and relaying of courtyard bricks to accommodate the new ramp; and 6) rewiring of exterior lighting to illuminate the new, larger entry deck and ramp. Id.
The proposal would require three days to complete and the restaurant would have to be closed during that time. Id. at ¶ 7. The Bistro states that the cost of installing a ramp is equal to over seventy-four percent of its approximately $11,200 in annual net profits. Additionally, the Bistro will lose approximately $4,392.57 in gross profits for the three days it must close during the installation, and its employees will lose three days of wages. Thus, the Bistro argues, installation of a permanent ramp is not readily achievable given the expense and impact on its operations.
At oral argument, counsel for the Bistro indicated that the restaurant was open seven nights per week during the summer, and five or six nights per week from October through March. Additionally, the Bistro closes for two weeks in January. Thus, it may be possible to perform any required construction in the January closure period, or alternatively, to fashion the work such that it is completed before the restaurant opens each evening with some temporary steps or other access during the estimated three days of construction. As a result, while it is undisputed that three days of gross profits equals $4,392.57, I do not consider this to be an accurate representation of what might be lost during construction.
Elliott's cost estimate is approximately $1,500 more than the one he proposed at the first round of summary judgment motions. The difference in the two is that his current proposal adds certain electrical and brick work to improve aesthetics after the ramp is constructed. Id. at ¶ 6.
Plaintiffs do not dispute that the Bistro relies on its outside appeal to obtain business. Plaintiffs argue, however, that aesthetics are not part of the readily achievable analysis. The Bistro admits that there are no cases directly on point. My research also found none. The Bistro notes that the statute provides that in assessing whether an accommodation is "readily achievable," "the impact otherwise of such action upon the operation of the facility" is to be considered. 42 U.S.C. § 12181(9)(B). Additionally, the Bistro cites a 1993 publication of the United States Department of Justice for the proposition that the "readily achievable" determination must consider the potential impact of any modification, not just the initial cost. Defts' Memo. at p. 4 (citing U.S. Dept. of Justice, III-4. 4200, The American With Disabilities Title III Technical Assistance Manual 1993).
In response, plaintiffs argue that access takes precedence over aesthetics under the ADA. They cite to regulations that allow public accommodations to use non-complying readily achievable measures of architectural barrier removal when measures required to remove the barrier are not readily achievable. See 28 C.F.R. § 36. 304(d)(2) (where the measures to remove a barrier are not readily achievable, "a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements."). Based on that regulation, plaintiffs argue that given the effort to ensure accessability to a disabled person even where the method used to remove an architectural barrier is not ideal, the Department of Labor did not intend to allow a covered entity to avoid installing a ramp because in the opinion of the business, the ramp would not be sufficiently pleasing to the eye.
While I appreciate plaintiffs' argument, the additional $1,500 in costs related to aesthetics for the Bistro will not be the determinative factor here. In the instant case, the additional aesthetic-related cost, by itself, is not significant enough to be a shield behind which the Bistro may avoid building a ramp if it is otherwise readily achievable. As such, in the context of the facts of this case, I conclude that the statutory language indicating that "the impact otherwise" should be considered in the analysis, allows me to consider such costs.
Plaintiffs next argue that I should consider the financial impact upon the Bistro by comparing the estimated cost of Elliott's proposed ramp to the Bistro's cumulative profits since 1993, the effective date of Title III of the ADA. Plaintiffs contend that the Bistro could have been setting money aside every year since 1993 to pay for a permanent ramp. With no citations to any authority, plaintiffs argue that the "only reasonable way for the court to account for many years of noncompliance by the Bistro is for the court to consider the Bistro's earnings over the entire period of noncompliance." Pltfs Hillestads' Opp. at pp. 5-6.
I reject this argument. The whole point of assessing whether a ramp is "readily achievable" is to determine whether the Bistro is in fact noncompliant or compliant with the ADA. Plaintiffs' reasoning turns the statute on its head. Plaintiffs' argument presumes that the Bistro has been in violation of the ADA since 1993. But, the Bistro's noncompliance or compliance cannot be determined without looking at the financial, and other, impact of the proposed accommodation on the business. I cannot make the Bistro "account for years of noncompliance" until it is determined that it is indeed noncompliant.
Furthermore, given that a corporation is designed to last in perpetuity, eventually every corporation could afford to be compliant by setting aside a certain amount of money each year. Such an interpretation defeats the purpose of the "readily achievable" analysis.
I agree with the Bistro that plaintiffs' argument is illogical. Furthermore, the statute provides that the court must consider the "overall financial resources of the facility." 42 U.S.C. § 12181(9)(B). I agree with the Bistro that its profits from past years are not part of its current "overall financial resources."
Finally, plaintiffs rely on the affidavits of contractors Paul Steiner and Lynn Knavel who provide alternatives to Elliott's proposed ramp. Steiner states that he could construct a wooden ramp with a non-slip material for the Bistro for $1,200 for both materials and labor. Id. at ¶ 4. The ramp would have a thirty-six inch wide walking/rolling area and a five-foot platform (e.g. it is five feet long). Id. at ¶ 6. He also states that he could construct a ramp for the Bistro out of brick as represented in a sketch in Exhibit D to his affidavit. Id. at ¶ 8. He states that the brick ramp would have a five-foot square platform extending into the common area and then the ramp would extend westward toward the public sidewalk. Id. The walking/rolling surface would be thirty-six inches wide. Id. The cost of that ramp would be $3,100. Id.
He further states that construction of the wood ramp would take less than one day and would require no material modification or electrical work to any part of the structure or patio of the Bistro. Id. at ¶ 5. He states the brick ramp would take three days to construct, but it also would require no material modification or electrical work to any part of the structure of the Bistro. Id. at ¶ 9.
Knavel states that a wooden ramp built from pressure-treated lumber could be built for the Bistro for $700, including materials and labor, and would take less than one day to construct. Id. at ¶ 4. He provides no specifics on the width or length of the ramp or its precise location. Id. He also estimates that a concrete ramp for the Bistro would cost $950 for both materials and labor, and would take three to four days to construct. Id. Again, he provides no specifics regarding size or location. He states that neither ramp would require any material modification to any part of the structure or patio of the Bistro. Id. at ¶ 5. He concludes by stating that the costs could vary up or down by twenty percent, depending on the conditions and minor modifications that may be required at the time of installation. Id. at ¶ 6. Thus, Knavel's estimate for the wood ramp ranges from $560 to $840, and from $760 to $1140 for the concrete ramp.
The Bistro and the Wine Shop move to strike the Steiner and Knavel affidavits because neither Steiner nor Knavel has studied plans of the building layout or spoken with the owners about the building layout. As a result, the Wine Shop and the Bistro argue, because neither expert reviewed plans, entered either facility, or spoke with the owners, their testimony lacks foundation and is speculative.
I reject the motion to strike these affidavits. For these exterior modifications, I see no reason for plaintiffs' experts to have reviewed plans, toured the interiors of the facilities, or spoken with the owners. Any lack of familiarity goes to the weight of their testimony, not the admissibility. The affidavits are properly before me.
The testimony from these affidavits, plaintiffs argue, creates a material issue of fact as to whether installation of a ramp is readily achievable because the cost estimates range from $700 to $3,100 which, in relation to the Bistro's net annual income, is not exorbitant. Furthermore, plaintiffs argue, plaintiffs' experts opine that installation of a compliant wooden ramp would take no more than one day to complete, not the three days Elliott contends, and thus, there is no unreasonable hardship.
In reply, the Bistro contends that Steiner's proposed five-foot ramp is unacceptable because the rise allowed by a five-foot ramp is insufficient for safe travel and there is no room to extend a wooden ramp.
It is undisputed that the steps into the Bistro rise a total of thirteen inches. The ADA Standards require a one foot run per one inch of rise in ramps. Standard 4.8.2 (least possible slope shall be used for any ramp; maximum slope of a ramp in new construction is 1:12; maximum rise for any run is thirty inches); see also Jan. 17, 2001 Opinion Order at pp. 8-9 for discussion of ADA "Standards" or "ADAAGs". Section 1109.7.2 of the Uniform Building Code also provides that the maximum slope of a ramp is one unit vertical to twelve units horizontal, with a maximum rise for any run of thirty inches.
The cited Standard provides the slope for new construction. It states, however, that "ramps to be constructed on existing sites or in existing buildings or facilities may have slopes and rises as allowed in 4.1.6(3)(a) if space limitations prohibit the use of a 1:12 slope or less." Standard 4.8.2. Standard 4.1.6(3)(a) provides:
(a) Ramps: . . . exterior ramps to be constructed on sites or in existing buildings or facilities where space limitations prohibit the use of a 1:12 slope or less may have slopes and rises as follows:
(i)A slope between 1:10 and 1:12 is allowed for a maximum rise of 6 inches.
(ii)A slope between 1:8 and 1:10 is allowed for a maximum rise of 3 inches. A slope steeper than 1:8 is not allowed.
Standard 4.1.6(3)(ii). With an undisputed rise of thirteen inches, neither of the exceptions in Standard 4.1.6(3) (1:10 — 1:12 for a maximum of six inch rise, or 1:08 — 1:10 for a maximum of three inch rise) applies to plaintiffs' proposed five-foot ramps for the Bistro.
Plaintiffs contend that because I previously determined, in the January 17, 2001 Opinion and Order, that the facility at issue here was not altered after January 26, 1992, the Standards do not apply. I disagree.
As explained in the January 17, 2001 Opinion and Order, the Standards are mandatory for new construction, or for existing construction receiving certain alterations after January 26, 1992. Jan. 17 Opinion Order at pp. 8-13. The Wine Shop and the Bistro are not new construction and were not altered in any way requiring mandatory compliance with the Standards. Id.
However, even if a ramp is not mandatory because of the lack of new or sufficiently altered construction, the Standards govern the specifics of a modification if a ramp is put in under the "readily achievable" analysis. With a reference in Standard 4. 8. 2 to the exceptions to the 1:12 rise for existing structures, it was intended that the 1:12 rise apply to all ramps, those which are mandatory under the Standards and those that are added to existing structures under the "readily achievable" requirement.
To conclude that the 1:12 requirement did not apply would have grave ramifications. First, requiring the Bistro and the Wine Shop to install ramps with steeper slopes would be in violation of the Uniform Building Code. Second, a uniform ramp slope is more desirable than an ad hoc approach with each business, or court in contested situations, determining for itself what degree of slope is safe. Third, requiring the Bistro and the Wine Shop to install ramps with greater slopes, and in particular a slope in violation of the Uniform Building Code, could expose them to lawsuits based on injuries allegedly caused by slopes too steep. Thus, I apply the rise to run requirements of the Standards in assessing what is readily achievable under section 12181(9).
Additionally, the Bistro contends, the distance between a wooden lattice fence belonging to the neighboring flower shop and the top edge of the top step to the Bistro is seven feet, five inches, and thus, there is no feasible way to install a thirteen-foot ramp. Plaintiffs contest that figure and state that the distance between the Bistro's top edge of the top step and the lattice fence is actually ten feet. The lattice separates the entry path to the Bistro from the flower shop. It is undisputed that the lattice fence encloses retail space for the flower shop and that cement steps block any possible placement of a ramp behind the fence. In the end, the discrepancy between plaintiffs' ten foot figure and the Bistro's seven and one-half foot figure is immaterial because both are less than the required thirteen feet. Because there is not thirteen feet of room for a ramp heading due north from the entry of the Bistro, any proposed ramp of that type is simply not feasible.
Plaintiffs argue that a five-foot ramp would comfortably extend north and would be safe. They rely on the affidavit of Ann Hillestad who states that "[a] 12:1 slope is ideal for my circumstances and equipment, but I have happily and safely used am [sic] ramps with slopes 5:1 with no problems whatsoever." Ann Hillestad Affid. at ¶ 1. I assume that Ann Hillestad meant to state that a 1:12 slope, e.g. a 1 inch rise per 12 inches of run, is ideal. With that assumption, I read her affidavit to state that she is comfortable with slopes that rise 1 inch every 5 inches of run, or for comparison, she is comfortable with a slope of 2.4 inches of rise per 12 inches of run. While such a slope would appear to allow for a rise of 12 inches in a 5 foot ramp, it is still not enough of a rise to get to 13 inches. To rise 13 inches over 5 feet, one would need 2.6 inches of rise per foot.
The Bistro and the Wine Shop move to strike Ann Hillestad's testimony as irrelevant. While I do not agree that the testimony is irrelevant, I do conclude that it is insufficient to raise a question of fact here.
First, Ann Hillestad fails to address her comfort level with the slope required for a 13 inch rise over 5 feet, and thus, her testimony is insufficient to support a claim that a 5 foot ramp with that rise is acceptable for the Bistro.
Second, while the regulations allow a public accommodation to take "other readily achievable measures" that do not fully comply with the Standards when the Standards would otherwise make the measures required to remove the barrier not readily achievable, the regulations prohibit any such measure if it poses a significant risk to the health or safety of individuals with disabilities or others. 28 C.F.R. § 36. 304(d)(2). Ann Hillestad's affidavit does it address the general safety to disabled or other persons of any ramp that is less than the 1:12 required slope. Without such evidence, plaintiffs fail to show that a steeper sloped ramp could comply with section 36.304(d)(2).
Because Ann Hillestad's testimony is not irrelevant to the "readily achievable" analysis, it is unnecessary to strike it. Nonetheless, as explained, plaintiffs' reliance on her testimony fails to create a material issue of fact on the relevant issue.
The other option proposed by plaintiffs is an alternative brick ramp proposed by Steiner with a $3,100 price tag. Steiner Affid. at ¶ 8. He suggests constructing a five-foot square platform at the entry to the restaurant and then extending a ramp west toward the sidewalk and Hemlock Street. Id. ; see also Exh. D to Corrected Steiner Affid.
Both Elliott's proposal and this proposal by Steiner have the ramp to the Bistro traveling west from the Bistro's door. A thirteen-foot ramp traveling in that direction will run into the common area space. Assuming arguendo that the interference with the common area is not an obstacle to awarding plaintiffs the relief they seek, an issue addressed below, the issue is whether a $3,100 proposal (Steiner's), or an $8,344 proposal (Elliott's) is readily achievable for the Bistro.
This estimate by Steiner may be low. The Bistro's front door swings open to the west. To implement Steiner's $3,100 proposal would mean re-hinging the door to open the other way. Also, currently there is a railing as part of the porch which would need to be removed. Additionally, it is likely the ramp would need to have safety rails. See Standard 4.8.5 (if a ramp run's rise is greater then six inches, or has a horizontal projection greater than seventy-two inches, it must have handrails on both sides). Additional lighting may also be required. Steiner's affidavit does not indicate whether the $3,100 estimated cost of this brick ramp includes these items. If it does not, the estimate is incomplete.
According to the Bistro, the $3,100 proposal is equal to twenty-seven percent of its annual net profits. The $8,344 proposal is equal to approximately seventy-four percent of its annual net profits. The Bistro argues that forcing it to spend even twenty-seven percent of its already small profits, with no guarantee for much return on those profits, is not "readily achievable" as a matter of law. The same argument is urged with even greater force for the seventy-four percent of net profits that Elliott's proposal requires.
Plaintiffs contend that either option is financially readily achievable for the Bistro when the costs are compared to the Bistro's gross profits. Evidence submitted in support of the Bistro's first summary judgment motion shows that in the year ending March 2000, the Bistro's gross profits were approximately $308,000. Exh. A to Dueber Affid. at p. 1.
In the earlier summary judgment motions, the Bistro argued that a District of Minnesota case supported its argument that net income was the appropriate comparator. In Roberts v. KinderCare Learning Centers, Inc., 896 F. Supp. 921 (D. Minn. 1995), aff'd, 86 F.3d 844 (8th Cir. 1996), the plaintiffs argued that given the defendant corporation's $2.4 million first quarter net income, it would not be an undue burden for the corporation to provide a personal care assistant for their child. The district court noted that the plaintiffs had not challenged the assertion that the particular childcare center where their child was enrolled operated on a "shoestring budget." Id. at 926. There was also no dispute that the $95 per week in additional cost for the needed care for the child would have meant a "substantial financial detriment to the site."Id. As a result, the court held that the requested accommodation was an undue financial burden on the defendant and thus, was not a reasonable accommodation within the meaning of the ADA. Id. at 927.
On appeal, the Eighth Circuit affirmed the holding and noted that the $95 per week loss to the defendant was a "substantial financial burden when considered in the light of the Center's $9,600 per month operating income." 86 F.3d at 846. The Eighth Circuit also held that the district court had appropriately analyzed only the particular center's financial resources because it was responsible for remaining independently profitable and could not rely on any resources from KinderCare or from any other KinderCare center. Id. at 847.
KinderCare is not on point and does not help the Bistro. First, even the figure presented by the plaintiffs in that case was a "net income" figure. The argument the plaintiffs made was that the parent corporation's net income should be the relevant financial resource, not just that of the local center. There was no argument that gross income rather than net income should be used. Second, because the Eighth Circuit compared the cost of the accommodation relative to the center's "operating income," it is clear that the court concluded that something other than net income was the correct measuring stick.
In a general sense, the difference between the Bistro's gross profits and its net profits is the cost of doing business. One such cost is complying with federal, or other, law. I see no reason why the cost of doing business should not be examined as part of the Bistro's gross profits. The proposed $3,100 expense is approximately 1.0 percent of the Bistro's $308,000 annual gross profits while the Bistro's own $8,344 proposed expense is approximately 2.7 percent of the restaurant's annual gross profits. On the record before me, I conclude that regardless of whether the permanent ramp expense is $3,100 or $8,344, there is a question of fact as to whether the proposals are financially readily achievable when compared with the Bistro's $308,000 annual gross profits. Nonetheless, for the reasons explained below, I conclude that summary judgment for the Bistro is appropriate.
IV. The Wine Shop
A. Interior Shelving
At oral argument, counsel for plaintiffs Ann and Charles Hillestad indicated that they no longer intended to pursue their claim regarding the interior shelving at the Wine Shop. This part of the Wine Shop's motion is granted as to the Hillestads.
As to plaintiffs Harris and Neuman, I must analyze the facts deemed admitted to determine if reconfiguring the interior shelving at the Wine Shop is readily achievable.
The facts demonstrate that all of the 450 square feet of available space in the Wine Shop is used either as retail space or storage of inventory. Deliveries are placed in the front left portion of the Wine Shop because there is no other available storage space. The Wine Shop has two aisles separated by a two-sided line of shelves in the middle. There is a total of eight feet, eleven inches between the shelves on the north wall and the shelves on the south wall. There is an eighteen-inch aisle between the north wall and the centerpiece and another between the south wall and the centerpiece. The centerpiece is five feet, one inch wide, and seven feet, one inch in length. It holds thirty-nine cases of wine, as well as accessories and wine glasses.
In the back area of the Wine Shop, there are storage bins and a display area. The bins hold twenty cases of wine, including fifty-five different selections. The display area holds twenty-one cases of wine, including sixty-two different selections.
To create accessible aisles for wheelchairs or scooters, the centerpiece, the back bins, and the display would have to be removed. The Wine Shop currently has an inventory of 296.5 cases of wine totaling 877 different wine selections. If the centerpiece, the back bins, and the back display were removed, 122 cases, or 227 selections, would have to be removed from the Wine Shop's inventory, amounting to a loss of over forty-one percent of the Wine Shop's inventory and retail space.
The "rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space." 28 C.F.R. § 36.304(f); see also Guzman v. Denny's Inc., 40 F. Supp.2d 930, 935 (S.D. Ohio 1999). Because the demanded modifications will result in a significant loss of retail space that will adversely affect the Wine Shop's business operations by decreasing its inventory, the Wine Shop argues it is not required to modify the interior space. Based on the undisputed facts recited above, I agree with the Wine Shop.
B. Ramp
Given the concession by the represented plaintiffs that they no longer contest the issue regarding the Wine Shop's interior, and the conclusion in the previous section as to Harris and Neuman that it is not readily achievable to reconfigure the interior of the store, the issue regarding the ramp boils down to whether access which places disabled plaintiffs outside of the Wine Shop, but at the same level as the store's interior, instead of outside of the Wine Shop but eleven inches below the level of the store, is an accommodation that the ADA requires and is readily achievable.
In support of its argument that a permanent or portable ramp to the Wine Shop is not readily achievable, the Wine Shop relies on Elliott's affidavit. He states that he physically inspected the premises at the Wine Shop for the purposes of evaluating the cost and feasibility of remodeling the Wine Shop to comply with the ADA. Elliott Affid. at ¶ 4. He states that the front entrance to the Wine Shop would have to be completely rebuilt to accommodate a permanent ramp. Id. at ¶ 10. The project would include:1) removing and reframing the entry doorway with new hardware and a handicap threshold; 2) rebuilding the exterior entry landing to be flush with the existing concrete public sidewalk; 3) removing a 4x4 post for wheelchair access and inserting a larger beam to achieve removal of the 4x4 post; and 4) adding concrete foundation piers at the foundation line for point loads to support new beam and posts.Id. His estimated cost for the project is $8,900. Id. He also estimates that the project will take approximately two days to complete and the Wine Shop would have to be closed during that time. Id. at ¶ 11.
The record does not appear to show what days and hours the Wine Shop is open. If it is closed certain days, the required work could arguably overlap with those days, decreasing the impact.
As noted in the January 17, 2001 Opinion and Order, the Wine Shop's net profits for the period between April 1998 and March 1999 was $14,391.19. Because the renovation to install the ramp would equal more than sixty percent of the Wine Shop's profits, the Wine Shop argues that as a matter of law, installing such a ramp is not readily achievable.
In opposition, plaintiffs rely on the affidavits of Steiner and Knavel. Steiner states that he has visited the Wine Shop and the cost for building a safe, ADA-compliant wooden ramp for the Wine Shop is $800 with an additional $120 for a non-slip surface. The cost includes materials and labor. Steiner Affid. at ¶ 4. It has a thirty-six inch wide walking/rolling area and a five-foot platform. Id. at ¶ 6. He estimates that construction would take less than one day and would require no material modification or electrical work to any part of the structure of the Wine Shop. Id. at ¶ 5.
Alternatively, Steiner states, an ADA-compliant ramp could be constructed from brick and begin at the threshold of the Wine Shop, go south approximately five feet, then bend westward and connect with the public sidewalk on Hemlock Street. Id. at ¶ 7. A sketch of this ramp is Exhibit C to Steiner's affidavit. The walking/rolling surface would be thirty-six inches wide. Id. He estimates that the cost would be $1,985 and the project would take three days to complete. Id. at ¶¶ 7, 9. He states it will not require any material modification to any part of the structure or electrical work. Id. at ¶ 9.
Knavel states that he has visited the Wine Shop and has determined that the cost of building a safe, ADA-compliant ramp from pressure treated lumber would be $300 for the Wine Shop. Knavel Affid. at ¶ 4. He states that even using concrete, it would only cost $500 to build a safe, ADA-compliant ramp for the Wine Shop. Id. Knavel states the final cost could vary up or down by twenty-percent so the range for the wood ramp would be $240 — $360, and the range for the concrete ramp would be $400 — $600. These cost estimates include materials and labor. Id. He estimates that it would take less than one day to construct the wooden ramp and three to four days for the concrete ramp. Id. He further states that neither ramp would require any material modification to any part of the structure of the Wine Shop. Id. at ¶ 5.
Other than the specifics cited above, Steiner's and Knavel's affidavits do not refer to the intended slope of their proposed ramps, their direction, or whether they require a handrailing. From their descriptions, it is difficult to ascertainexactly why they believe their proposed ramps are ADA-compliant. Nonetheless, based on their descriptions, I assume Steiner's wooden ramp proposal and both of Knavel's proposals envision a ramp leading directly south from the entry of the Wine Shop.
It is undisputed that there is an eleven-inch rise to the Wine Shop. Accordingly, because, as discussed above, I conclude that the rise to run requirements of the Standards apply here, any ramp proposed by plaintiffs which travels straight south from the entry of the Wine Shop, must be eleven feet in length to comply with the 1:12 rise to run requirement.
As with the rise to the Bistro, because this is an eleven inch rise, the exceptions to the 1:12 ratio provided in Standard 4.1.6(3)(a) for existing buildings do not apply. See footnote 2.
Additionally, there is no evidence in this record regarding the safety of a ramp with a steeper slope. See discussion regarding Ann Hillestad's affidavit at pp. 15-16.
The Wine Shop represents that the distance between the edge of the top step to its entrance and the near edge of the brick path leading east from the public sidewalk, is thirty-seven inches. Laurel Hood Affid. at ¶ 20. The Wine Shop further represents that the distance between the top step to its entrance and the far edge of that brick path is nine feet, two inches. Id.
Although plaintiffs deny these measurements, the only evidence they provide in opposition is a statement by Charles Hillestad that there is sufficient physical space for ramps of eighteen feet or more in total distance at each site. Charles Hillestad Affid. at 6 3. While this may be Mr. Hillestad's belief, it does not contradict the measurement of the distance from the entry to the edges of the brick path cited by Hood. Thus, I accept that the distance from the top step to the Wine Shop's entrance to the far edge of the brick path is nine feet, two inches.
Obviously, an eleven-foot ramp would extend over and onto the primary brick path and then beyond the far edge of the brick path onto what is presently either a grass area or additional brickwork. As such, it would obstruct the path for patrons, or deliveries, headed to the Bistro, or to the flower shop sharing the path. To accommodate those patrons, and to allow wheelchair bound persons to access the ramp, the brick path would most likely need to be extended beyond its current configuration. Steiner's and Knavel's affidavits do not address the feasability of such an alteration or the cost involved. Clearly, it would cost more than the amounts they currently cite.
Alternatively, plaintiffs rely on Steiner's brick ramp proposal for the Wine Shop. Plaintiffs contend that this proposal is sufficient because it will allow sufficient space for others to use the main path to the Bistro and the flower shop.
However, the information contained in Steiner's brick ramp proposal, and the drawing accompanying his description, is somewhat sparse. He fails to indicate the slope of the proposed ramp. There is no mention of a railing. Additionally, he fails to address what appears to be a lack of room for a wheelchair to turn around at the top of the ramp. Because of the lack of accessible space in the interior of the Wine Shop, without sufficient turnaround space at the top of the ramp the person in a wheelchair or a scooter is left to back down the ramp. This is obviously unacceptable.
Looking at the "nature and cost of the action needed" to remove the architectural barrier leading to the Wine Shop, and the overall financial resources of the Wine Shop, I conclude that the ramp proposals for the Wine Shop are not readily achievable.
First, there are serious problems with the proposals submitted by plaintiffs. Their primary proposals, those envisioning a ramp heading straight south from the entry, create access problems for other business entities. Plaintiffs fail to fully address the costs required to eliminate those access problems. Additionally, even with the access problems aside, for an eleven-foot ramp to provide access to wheelchair patrons, additional brickwork is required. Plaintiffs' proposal does not address that issue.
Second, plaintiffs' alternative brick ramp proposal is so lacking in detail that it fails to demonstrate its feasability. As such, it fails to create a material issue of fact on the issue of the nature of the action required to eliminate the barrier.
As a result of the problems with plaintiffs' proposals, the only competent evidence regarding the ramp to the Wine Shop is Elliott's proposal, costing $8,900. As noted above, the undisputed evidence is that the Wine Shop's net profits for the year ending in March 1999, were $14,391. 19. Plaintiffs fail to introduce any evidence of the Wine Shop's gross profits and thus, they fail to create a material issue of fact that the $8,900 proposal is readily achievable when compared with the gross profits. Given the small net profit margin earned by the Wine Shop, the only feasible ramp proposal is not "readily achievable" within the meaning of the ADA.
I reach this conclusion assuming that I could order the Wine Shop to construct a ramp into the common area, which, as explained below, I conclude that I cannot do.
As for a portable ramp, the same issues arise regarding the slope. Although the regulation regarding the portable ramp does not expressly state that such ramps must comply with the Standards' specifications, the regulation does provide that safety considerations must be evaluated. 28 C.F.R. § 36. 304(e) (providing 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).
The Standards provide the best measure of the safety of the slope of any ramp, even a portable one. Thus, even a portable ramp for the Wine Shop must be eleven feet long. Because the evidence indicates that an eleven-foot ramp would obstruct the main path for other patrons and deliveries to the Bistro and the flower shop, it is not a readily achievable remedy.
V. Common Area Issues
Thus far, I have not addressed the impact on the common area for any of the ramp proposals. All of the proposed ramps, even those designs submitted by the Bistro and the Wine Shop, intrude upon the shared primary access brick path. Some of the proposals, such as any of the ramps heading directly south from the Wine Shop, would likely run past the brick path and onto grass or onto other brickwork in the common area. Elliott's proposed ramp for the Bistro, and Steiner's proposed brick ramp for the Bistro, both head west from the entry toward the public sidewalk. They both extend beyond the west wall of the building housing the Bistro and onto the shared primary access brick path. Additionally, because of the need to extend thirteen feet, these proposed ramps would necessarily pose a barrier to those using other brick paths in the common area.
For the reasons explained below, I conclude that even for those proposals that are feasible and financially readily achievable, plaintiffs are not entitled to the relief they seek without having brought this action against the landlord and anyone else with rights to the common area such as the flower shop, as well as against the Bistro and the Wine Shop.
Both the Bistro and the Wine Shop lease their premises from H. Paul Dueber III, dba Dueber Management Company. Exh. A, Exh. B to Pltfs Hillestads' Supp'l Brief at pp. 1. The leases are virtually identical save for certain particulars such as the premises leased and the rent. Relevant differences are noted below.
The Bistro leases "certain premises" defined as "UNIT # 2, WEIGHING STATION COMPLEX (South unit)[,] 263 N. Hemlock[,] Cannon Beach, OR." Exh. A to Pltfs Hillestads' Supp'l Brief at p. 1. The Wine Shop leases "certain premises" defined as "UNIT # 1, WEIGHING STATION COMPLEX (West unit)[,] 263 N. Hemlock[,] Cannon Beach[,] OR." Exh. B to Pltfs Hillestads' Supp'l Brief t p. 1.
As part of their leases, both the Bistro and the Wine Shop agreed to "comply with all statutes of the United States . . . regarding the maintenance, upkeep, operation and use of said premises and appliances therein," at their own expense. Exh. A, Exh B. to Pltfs Hillestads' Supp'l Brief at pp. 2. The Bistro and the Wine Shop agreed to accept the premises in their present condition and agreed that they would pay for any alterations, additions, improvements, or repairs thereto during the lease. Id. at pp. 4. They also agreed that the landlord would not be liable for any accident or injury to any person occurring in or about the premises which is caused by the Wine Shop's or the Bistro's failure to observe any statute. Id.
In addition, the Bistro and the Wine Shop agreed [n]ot to make any changes in or additions to said premises without the prior written consent of the Lessor. Any and all new construction, alterations and additions to or upon said leased premises (if any such construction, alteration or additions be duly authorized in writing by the Lessor) shall be made at the sole cost and expense of the Lessee;. . . .Id. at pp. 3.
The only explicit mention of the common area is as follows: Lessee shall pay to Lessor _____% of the common area charges which are defined as Lessor's direct, out-of-pocket costs incurred for maintenance and operation of the common areas included but not limited to lighting, cleaning, landscaping and landscape maintenance, snow and ice removal, line painting, policing and maintenance, including but not limited to such repair and installation of curbs, paving, walkways, driveways, landscaping, drainage, and lighting and sign facilities as may be from time to time necessary to keep the same in good condition and repair plus 25% of such sum to cover Lessor's indirect costs. Such costs and expenses shall not include real property taxes. The term "common area" means all areas on the real property described above and subject to this lease used or intended to be used from time to time in common or by tenants of said property or by customers or invitees of such tenants including but not limited to parking lots, roads, walkways, curbs, landscape areas, and all fixtures, improvements, and equipment pertinent thereto and constituting a part thereof.Id. at pp. 2. Under this provision, the Bistro is to pay 100% of the common area charges while the Wine Shop is obligated to pay only 25% of those charges.
Both a landlord and a tenant are responsible for complying with the ADA. 42 U.S.C. § 12182(a); see also Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000) (quoting section 12182(a) and noting that owners of buildings housing a public accommodation and operators of the public accommodation itself both have obligations under the ADA). In addition, as noted above, both leases state that as between the landlord and the tenants, the Bistro and the Wine Shop as tenants have the obligation to comply with federal and state statutes regarding the maintenance, upkeep, operation, and use of the leased premises. Further, as between landlord and tenants, the Bistro and the Wine Shop are liable for any "accident or injury" for failure to "observe" a statute, and must pay, at their own expense, for any alterations, additions, or improvements to the premises. Given these provisions, it certainly was not improper for plaintiffs to sue the Bistro and the Wine Shop.
The problem arises because all of the proposed ramps go beyond the leased premises and intrude into the common area. Thus, while the landlord, technically speaking, may not be an indispensable party to this suit, see Federal Rule of Civil Procedure 19, I cannot order the Bistro and the Wine Shop to embark upon construction which could potentially violate the terms of their leases.
First, the common area is defined as the parking lots, roads, curbs, paving, walkways, driveways, landscaping, draining, lighting, and sign facilities, including all fixtures and improvements, which are used or intended to be used in common, or by the tenants of the real property or their customers or invitees.
Thus, the primary brick path providing access to the Wine Shop, the Bistro, and the flower shop, is part of the common area. The other bricked areas and the grass and landscaped areas are also part of the common area. As a result, it is clear that all of the proposed ramps intrude into the common area.
Second, the provisions governing allowable alterations are restricted to the "premises." The Bistro and the Wine Shop agreed to make no changes to the premises without permission of the lessor. The premises for each business is defined as the physical structural unit, not inclusive of the common area. The meaning is clear — the leases do not allow the tenants to alter the common area.
No other provisions in the leases address improvements to the common area. The provisions regarding charges for common area upkeep relate to maintenance and repair of the common area but do not provide for new construction or alteration.
Even if the allowable alteration provisions were read to include alterations to the common area, the Bistro and the Wine Shop could not proceed without the landlord's permission. While it is generally accepted that a landlord cannot unreasonably withhold permission under such a term, see, e. g., Vice v. Leigh, 670 So.2d 6, 11 (Miss. 1995) (where tenant was obligated under lease to secure prior approval of landlord before subletting, landlord was "likewise obligated not to unreasonably refuse permission to do so."); Newman v. Hinky Dinky Omaha-Lincoln, Inc., 2 Neb. App. 555, 559, 512 N.W.2d 410, 444 (1994) (when commercial lease contains approval clause such as no assignment without lessor's prior consent, the lessor may withhold consent only when the lessor has a good faith objection to that assignment), the lessor in these leases is not here to argue that it may reasonably withhold permission for these alterations.
Without the lessor's presence, the issues surrounding the reasonableness or unreasonableness of the required permission remain unaddressed. As such, plaintiffsfail to show that any of the proposed ramps, even those that are feasible and financially readily achievable, are otherwise readily achievable. For that reason, I grant the Bistro's and the Wine Shop's joint motion for summary judgment.
VI. Motion to Strike
I have already addressed the parts of the motion to strike addressed to Steiner's, Knavel's, and Ann Hillestad's affidavits. What remains is the motion to strike portions of Charles Hillestad's affidavit.
First, the Wine Shop and the Bistro move to strike the portion of Charles Hillestad's affidavit which states that "[t]here is sufficient physical space for ramps of 18 feet or more in total distance at each site." Charles Hillestad Affid. at ¶ 3. The Wine Shop and the Bistro argue that this paragraph should be stricken because it is conclusory, immaterial, and not supported by competent evidence. They state that Hillestad is not a contractor or an expert in construction of ramps nor is he an expert on ADA compliance or rampage.
As indicated earlier in regard to this testimony, Charles Hillestad's opinion that there is space for ramps of eighteen feet or more in total distance at each site does not address the pertinent issue of the impact on the common area. Thus, while I understand this to be his testimony as to the available footage, it is not probative of whether the placement of the proposed ramps is readily achievable. The testimony is admissible but it is not sufficient to raise a material issue of fact on the legal issue presented.
Next, the Bistro and the Wine Shop move to strike paragraph four of Charles Hillestad's affidavit. In pertinent part, this paragraph describes Exhibits A through O to his affidavit which are photographs of wheelchair ramps at various businesses in Cannon Beach. Plaintiffs suggest that these are relevant to show that since other businesses have managed to build ramps in tight spaces, the Wine Shop and the Bistro can too. Charles Hillestad states that most of the ramps are at buildings of similar size and equal or superior aesthetics and or quality of appearance to the Bistro.
The Wine Shop and the Bistro argue that paragraph four should be stricken because it is conclusory, immaterial, and not supported by competent evidence. They contend that Charles Hillestad's personal opinions regarding the "equal or superior aesthetics and or quality of the appearance of the Bistro" are not relevant to any determination regarding whether aesthetics are an allowable cost under the ADA. They also contend that the pictures of ramps do not contain any evidence regarding whether the ramps are new construction, compliant with the ADA Standards, an alteration, based on a "readily achievable" standard, or something else.
I deny the motion to strike. The photographs are marginally relevant to the aesthetics issue because they tend to show that there are various ways to construct a ramp to make it more aesthetically pleasing. Other than that, the testimony and the photographs bear little relevance to the ultimate determination of whether the proposed ramps at the Wine Shop and the Bistro are readily achievable under the ADA.
VII. Attorney's Fees
The Wine Shop and the Bistro move for an award of attorney's fees for their defense of this action. The Wine Shop and the Bistro acknowledge that the standard for fees for a prevailing defendant on the ADA claims, as well as for the claim under Oregon Revised Statute (O.R.S.) 659 on which the Wine Shop and the Bistro previously succeeded, is that plaintiffs' claims must be frivolous, unreasonable, vexatious, or groundless from the beginning, or if plaintiffs continue to litigate after the case becomes clearly so. See 42 U.S.C. § 12205 (allowing attorney's fees to prevailing party in ADA action); O.R.S. 659. 121(2) (same for actions under O.R.S. Chapter 659); Adkins v. Briggs Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998) (describing standard for prevailing defendants in ADA attorney's fee award); Schutts v. Bentley Nev. Corp, 966 F. Supp. 1549, 1556 (D. Nev. 1997) (same); Robinson v. School Dist. No. 1, 92 Or. App. 627, 632, 759 P.2d 1116, 1119 (1988) (describing standard for prevailing defendants in O.R.S. Chapter 659 action).
The Wine Shop and the Bistro note that plaintiffs brought nine different ADA claims against them and that seven of those claims were resolved in the Wine Shop's and the Bistro's favor on the first round of summary judgment motions. The Wine Shop and the Bistro also argue that they successfully opposed plaintiffs' motion to certify this case as a class action against them. The Wine Shop and the Bistro contend there was no valid reason for plaintiffs to have brought this case as a class action against the individual defendants.
The Wine Shop and the Bistro assert that it was clear, based on already established Oregon law, that plaintiffs' O.R.S. 659 claim did not apply to structural deficiencies. The Wine Shop and the Bistro note that they are small businesses with small profit margins and were forced to defend against numerous frivolous claims under the ADA and O.R.S. Chapter 659, as well as against baseless claims of negligence and under O.R.S. Chapter 447. They further contend that based on the uncontroverted facts, it is apparent that plaintiffs made no effort to determine the validity of their specific factual claims before filing their complaint.
Plaintiffs argue that the Wine Shop and the Bistro are not entitled to fees because first, it was appropriate to bring the case as a class action inasmuch as the architectural barriers affect all people in wheelchairs or scooters. They also argue that under the O.R.S. 659 claim, while two district judges may have already ruled that the statute did not apply to structural deficiencies, the statute itself logically applies in a structural case and it was reasonable for plaintiffs to seek a judicial opinion to the contrary, especially when district judges are not bound by the decisions of other district judges. Plaintiffs argue that because their claims were well-founded, are not frivolous, and are not being pursued unreasonably, the Bistro and the Wine Shop are not entitled to fees.
I reject the request for attorney's fees. Although plaintiffs could have perhaps done a better job of researching the facts underlying some of their claims before filing the Complaint, the matters they conceded during the first summary judgment motions were relatively small and did not require extensive factual development by the Wine Shop and the Bistro. I also note that because of the accessability problems at issue in this lawsuit, it is challenging for the wheelchair bound plaintiffs to gain physical access to the Wine Shop or the Bistro to research their claims.
As for the class action allegations, while plaintiffs were ultimately not successful in obtaining class action status vis a vis the Wine Shop and the Bistro, I cannot conclude that their attempt at certification was frivolous or unreasonable. Furthermore, advocating for a change in the law under the O.R.S. Chapter 659 claim does not warrant an award of attorney's fees against plaintiffs.
Finally, while some parts of this case were decided against them, plaintiffs' claims were not, overall, frivolous, groundless, or unreasonable. As such, the Wine Shop and the Bistro are not entitled to an award of attorney's fees.
VIII. Non-Appearing Plaintiffs
Given my conclusion that the Wine Shop and the Bistro are entitled to summary judgment based on the record before me, there is no reason that this conclusion should not equally apply to non-appearing plaintiffs Audrey Harris and Lisbeth Newman.
CONCLUSION
The Wine Shop's and the Bistro's joint motion for summary judgment (#135) is granted. The Wine Shop's and the Bistro's motion to strike (#173) is denied.
IT IS SO ORDERED.