Opinion
No. CIV. S-04-1339 LKK CMK.
June 16, 2006
ORDER
Plaintiff, Byron Chapman, a disabled and wheelchair bound man, sues defendant, Pier 1 Imports store in Vacaville, California, pursuant to the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"). He also asserts several state law claims. The matter is before the court on the parties' cross-motions for summary judgment.
Plaintiff also brings claims pursuant to The Unruh Act (Cal. Civ. Code §§ 51 et seq.), and The Disabled Persons Act (Cal. Civ. Code §§ 54 et seq.). (Other claims raised in the complaint have since been abandoned by plaintiff).
I. FACTS
Facts are undisputed unless otherwise noted.
On July 6, 2004, plaintiff filed a complaint, which alleged that he encountered "architectural barriers that denied him full and equal access." Compl. at 4. Plaintiff attached a list of barriers to his complaint, which he claimed were the barriers "known by [him]." Ex. A to Compl. This list of barriers is referred to as the "accessibility survey."
The accessibility survey identified fifteen "barriers." However, since the complaint was filed, plaintiff and defendant jointly stipulated to dismissing all claims relating to the exterior of the building. The remaining barriers identified in the complaint are:
(1) Improper posting of the ISA signage on the entrance doors to the store. (Violations identified as 4a b in the accessibility survey.)
(2) Improper or missing signs designating permanent rooms and spaces. (6a in the accessibility survey.)
(3) Improper sign on emergency exit door. (6b in the accessibility survey.)
(4) Routes of travel to restroom and emergency exits are blocked. (6c 7a in the accessibility survey.)
(5) No sign for accessible restroom. (8a in the accessibility survey.)
(6) Within the men's restroom, the seat cover dispenser is located over the back grab bar in the accessible stall. (9a in the accessibility survey.)
(7) Within the men's restroom, the back grab bar is improperly located in the accessible stall. (10a in the accessibility survey.)
(8) Within the men's restroom, the toilet tissue dispenser is improperly located in the accessible stall. (11a b in the accessibility survey.)
(9) There is insufficient floor space around the water closet within the men's restroom. (12a in the accessibility survey.)
(10) A waste receptacle is located in an area that is required to be clear floor space. (13a in the accessibility survey.)
(11) The P-trap leading edge is noncompliant with ADAAG regulations. (13b in the accessibility survey.)
A p-trap is part of the plumbing that is below a sink.
(12) The accessible checkout aisles lack the required ISA signage. (14a in the accessibility survey.)
(13) Check stands lack required California Building Code signage. (14a in the accessibility survey.)
After the complaint was filed, plaintiff's expert, Joe Card, inspected the store on May 13, 2005 and prepared a report on August 25, 2005. This report identified thirty (30) violations. Some of these violations pertained to violations raised in the complaint and other violations were new. Additionally, some of the barriers listed in the accessibility survey are not addressed at all in Card's report.
On November 14, 2005, defendant filed a motion for summary judgment, or in the alternative, summary adjudication, on all or some of the claims raised in the complaint. Plaintiff filed an opposition and cross-motion for summary judgment in which plaintiff listed a new and separate list of eleven barriers that were identified by Joe Card in his August report. See Pl.'s Opp'n. and Cross-Mot. for Sum. J. at 2:22-321. Several of these newly-identified barriers related to barriers identified in the complaint, whereas the other barriers were unrelated to violations raised in the complaint.
The new violations identified by Card and listed in the Oppo/Cross Mot. are: (1) the ISA signage at the entrance door is improper; (2) entrance door requires 9 pounds of pressure to operate; (3) the checkout counters lack ISA signage; (4) the height of the service counter is improper; (5) the store's aisles do not provide the proper width clearance; (6) the drinking fountain stream is too low; (7) the signage for the men's restroom is improper; (8) the men's restroom door improperly requires 12 pounds of pressure to operate; (9) in the men's restroom, the mirror is at an improper height; (10) in the men's restroom, the water closet is improperly centered from the sidewalls; (11) clear floor space is not provided for the paper towel dispenser because a trash can is located in the area.
Although plaintiff attached the August Card report to his cross-motion for summary judgment, only eleven barriers were identified in the actual brief. Plaintiff fails to clarify if he is moving on all thirty violations raised in the Card report, or only the eleven identified in the cross-motion brief. The court concludes that since plaintiff identified only eleven barriers in his actual brief, he is moving only as to those eleven barriers.
II. STANDARDS
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); See also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Sicor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995).Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the 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). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Sicor Limited, 51 F.3d at 853.
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; See also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see also Cline v. Industrial Maintenance Engineering Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to, 04-1993 resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also International Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curium)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
III. PRELIMINARY QUESTIONS
Pending before the court are cross-motions for partial summary judgment filed by both parties. Defendant moves for summary judgment on the grounds that plaintiff lacks standing and that plaintiff's claims are either not barriers as a matter of law, or have been remedied. See Def.'s Mot. for Sum. J. at 2. Plaintiff cross-moves on the grounds that there remain barriers which were identified by plaintiff's expert, and which relate to plaintiff's disability. Pl.'s Opp'n and Cross-Mot. at 5. Plaintiff moves for summary judgment on his ADA and Unruh Act claims.
Although defendant appears to move for summary judgment as to all claims raised in the complaint, defendant and plaintiff only brief the ADA and Unruh claims. The court will only adjudicate those claims which are clearly being moved on. For that reason, the court declines to adjudicate the related state law claims which have not been briefed by either party.
Plaintiff has filed one brief which contains his motion for summary judgment as well as his opposition brief to defendant's motion for summary judgment.
As explained in note 6, the court will only adjudicate those claims that are briefed by the parties. Plaintiff is silent as to his claim under the Disabled Persons Act. The court concludes, therefore, that plaintiff is only moving on his Unruh and ADA claims.
Before addressing the merits of the case, however, I address several threshold issues.
A. WHICH CLAIMS ARE ACTIONABLE?
Before resolving the motions, the court must first determine which architectural barriers are properly before the court. Plaintiff asserts claims based upon the barriers alleged in his complaint and on those identified in the August Card report. Defendant argues that plaintiff only has standing to bring suit with respect to the barriers he personally encountered and that plaintiff lacks standing as to the violations discovered by Card.
The court recently had the opportunity to address this exact issue in two prior cases, Eiden v. Home Depot, No. CIV. S-04-977 LKK/CMK (E.D. Cal. 2004) and Wilson v. Pier 1 Imports, 413 F.Supp.2d 1130 (E.D. Cal. 2006). As in Wilson and Eiden, defendant in the case-at-bar relies on a standard offered inWhite/Martinez that this court believes is "unduly restrictive," and thus, the court cannot adhere to it. No purpose would be served by repeating the analysis articulated in Wilson and Eiden. With respect to the Card report and the accessibility survey, nothing in the ADA requires plaintiff to have personally encountered all barriers in order to seek an injunction to remove those barriers. See Eiden v. Home Depot, No. CIV. S-04-977 LKK/CMK (E.D. Cal. 2004); Wilson v. Pier 1 Imports, 413 F.Supp.2d 1130 (E.D. Cal. 2006).
Nor is plaintiff's suit limited to the barriers that he alleged in his complaint. As this court previously explained, "[o]nce plaintiff either encountered discrimination or learned of the alleged violations through expert findings or personal observation, he had 'actual notice' that defendant did not intend to comply with the ADA." See Wilson, 413 F.Supp.2d at 1134. As the court further noted,
"the injury-in-fact requirement of Article III standing is easily satisfied by liberally construing it in this context. All that is required is to recognize that the injury suffered relative to later-discovered barriers is the threat of being subjected to discrimination suffered by virtue of the existence of barriers, whether or not initially encountered."Id.
Having explained that, as a general matter, plaintiff is not bound by the specific ADA claims asserted in his complaint under Constitutional standing principles, the court addresses defendant's argument that plaintiff should not be permitted to incorporate new factual allegations that are not contained within the complaint. Def.'s Reply at 9:16-17. Indeed, although plaintiff's complaint need only state a "short and plain statement of the claim showing that the pleader is entitled to relief," see Fed.R.Civ.P. 8(a)(2), plaintiff must still provide "fair notice" for specific claims not asserted in his complaint.
The court finds that, under the circumstances, the barriers alleged in the Card report are actionable. The Card report was served on defendant on August 26, 2005, two months before the close of discovery. Defendant became aware of the Card report at that time.
As with the issue of standing, the court recently addressed the issue of notice in Eiden. Rather than repeat the analysis here, the court adopts by reference the notice analysis as set forth inEiden. Where, as here, plaintiff discovered new alleged violations during the discovery period that were not pled in the complaint, but disclosed to defendant in sufficient time to permit defendant to address them in discovery and by way of law and motion, the court concludes plaintiff is not precluded from raising these allegations on a motion for summary judgment or at trial.
That is not to say that amendment of the complaint is not the better practice — clearly it is.
For the reasons explained above, the court holds that the claims asserted in the accessibility survey and Card report are actionable and shall be adjudicated by this court. The court now turns to Unruh Civil Rights Act and ADA violations alleged by plaintiff.
B. THE UNRUH ACT
Plaintiff seeks summary judgment pursuant to the Unruh Act because his claim is predicated upon defendant's violation of the ADA. Pl.'s Cross-Mot. and Opp'n at 6. He asserts that "a violation of his rights under the ADA is a per se violation of his rights under the Unruh Act." Id. (italics in original). Defendant maintains that the Unruh claim should be dismissed because it is based solely on the alleged violations of the ADA and plaintiff cannot establish any ADAAG violations. Def.'s Reply at 15. Alternatively, defendant argues that the court should decline to exercise jurisdiction over the Unruh claim. Def.'s Reply at 16.
Plaintiff pleads in his complaint that his Unruh Act claim is predicated upon the ADA claim. See ¶ 63 of Compl. ("The Unruh Act also specifically incorporates (by reference) an individual's rights under the ADA.").
Because there remain disputed issues as to a number of the ADA claims, there remains a live controversy as to the federal claims. Thus, the court may still exercise supplemental jurisdiction over plaintiff's state law claims. I now turn to the provisions of the Unruh Act.
The Unruh Civil Rights Act, codified in California Civil Code § 51, provides that "[a]ll persons . . . are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). The purpose of the Unruh Act "is to compel a recognition of the equality of citizens in the right to the peculiar service offered" by the entities covered by the acts. Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 737 (1982) (quotation omitted); see also Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996).
Prior to 1992, to prove a claim under the Unruh Act plaintiff was required to demonstrate that the facility was in violation of Title 24 and that the discrimination he experienced was intentional. See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 (1991) ("[W]e hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act"); Lentini v. California Center for the Arts, 970 F.3d 837, 847 (9th Cir. 2004).
To effectuate its long-stated policy of ridding the state of discrimination, see Warfield v. Peninsula Golf Country Club, 10 Cal.4th 594 (1995), the California legislature amended the Unruh Act in 1992 to broaden the scope of its protection. As amended, § 51 provides that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section." Cal. Civ. Code § 51(f).
It is pursuant to this subsection that plaintiff seeks to recover. See Pl.'s Compl. at 11. Plaintiff maintains that the violations complained of in his complaint and in the Card report violated both the ADA and California law. Indeed, both Card's report and the accessibility survey note how each alleged barrier violates the ADAAG and the CBC.
While, as a general matter, a plaintiff may rely on both the ADAAG and CBC when pursuing an Unruh claim, the question is whether he may do so where his Unruh claim is based solely on purported violations of the ADA. This issue raises two different questions: Is plaintiff's Unruh claim proceeding only on the amendment allowing recovery under state law for violation of the federal statute? If so, may plaintiff rely on the CBC in doing so?
As in Eiden, the court concludes that nowhere in plaintiff's filings is there any suggestion of intentional discrimination. Accordingly, the only legal theory available to plaintiff on his Unruh claim is that architectural barriers at Pier 1 violate the ADA. See Eiden, No. CIV. S-04-977 LKK/CMK (E.D. Cal. 2006). It does not follow, however, that where relief is barred under the ADA, relief is also barred under the Unruh Act.
Again, as explained previously in Eiden, the state legislature, unlike Congress, has provided that an individual may recover damages for a violation of the Unruh Act. As in Eiden, I conclude that plaintiff may recover under the Unruh Act, even absent relief under the ADA. The second question seems equally straight-forward. See id.
C. The CBC and the ADA
At various places throughout plaintiff's brief and the Card report, reliance is placed on the California Building Code to assert violations of the ADA. As the parties note, it is clear that the federal statute does not preempt state law where the state law provides "greater or equal protection." 42 U.S.C. § 12201(b). The question here, however, is not whether state law is more protective, but whether a violation of state regulations establishes a barrier for purposes of the ADA.
This exact issue was also addressed in Eiden. Rather than repeat the analysis, the court adopts by reference the analysis articulated in Eiden with respect to the ADAAG and the CBC. As in Eiden, I conclude that compliance with the ADAAG, and not another standard, constitutes compliance with the ADA requirements for new construction.
Finally, the court notes that because Congress directed that the Department of Justice, in conjunction with the Architectural and Transportation Barriers Compliance Board ("Access Board"), issue the ADAAG, and that these standards constitute binding regulation, the court is not authorized to evaluate Title III disability discrimination claims under any other standard, and to determine what engineering or architectural modifications are necessary, or whether such modifications would be feasible and desirable.
For all of the reasons set forth above, the court concludes that the ADAAG constitutes the exclusive standards under Title III of the ADA. I now turn to plaintiff's ADA claims, since his Unruh Act claims turn on ADA liability.
IV. THE MERITS
Title III of the ADA prohibits discrimination against individuals on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. See 42 U.S.C. § 12182(a). Title III defines "discrimination" as, among other things, a failure to remove "barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002). Plaintiff avers that defendant discriminated against him when it failed to remove certain architectural barriers at the Pier 1 location at issue in this litigation.
Under Title III of the ADA, a plaintiff must prove that (1) he has a disability, (2) defendant's facility is a place of public accommodation, (3) and plaintiff was denied full and equal treatment because of his disability. To succeed on an ADA claim of discrimination on account of an architectural barrier, the plaintiff must also prove that (1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable. See 42 U.S.C. § 12182(b)(2)(A)(iv); see also Pascuiti v. New York Yankees, No. 98 CIV. 8186 (SAS) , 1999 WL 1102748, at * 5 (S.D.N.Y. Dec. 6, 1999) (plaintiff bears the initial burden of proving that barrier removal is readily achievable). If plaintiff satisfies his burdens, the burden shifts to the defendant to show that removal of the barriers is not readily achievable.
It is undisputed that Pier 1 Imports is a place of public accommodation and that plaintiff is disabled. Plaintiff thus meets the first two elements of an ADA prima facie case. What remains in dispute is whether plaintiff was discriminated against on account of his disability based on an architectural barrier.
A. ARCHITECTURAL BARRIERS AND STANDARDS GOVERNING NEW CONSTRUCTION
Plaintiff contends that defendant violated the ADA by failing to abide by the Department of Justice's Regulations implementing the ADA's public accommodation provisions and the corresponding ADA Accessibility Guidelines ("ADAAG"). These regulations are divided into three categories. The first category requires that newly-constructed public accommodations must comply with specific accessibility requirements set forth in the ADAAG. See 28 C.F.R. Pt. 36.401; 28 C.F.R. Pt. 36.406. The second category concerns the accessibility requirements imposed on public accommodations altered after January 26, 1992. See id. The third category requires the removal of architectural barriers in preexisting public accommodations (those designed and constructed for occupancy before January 26, 1993). See 28 C.F.R. Pt. 36.304. Under the ADA's continuing barrier removal obligation, it is discriminatory for owners, operators, lessors or lessees to fail to remove architectural barriers that deny disabled persons the goods and services offered to the general public. See Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 930 (E.D. Cal. 2004) (citing Parr v. L L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1086 (D. Haw. 2000)).
For purposes of the ADA, the Pier 1 facility at issue falls within the first category described, as the building was constructed in 2002. The ADA requires that newly-constructed facilities be "readily accessible and usable by individuals with disabilities." See 42 U.S.C. § 12183(a)(1). This command to build accessible facilities is excepted only if meeting the requirements of the Act would be "structurally impracticable."Id.; See also Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001) ("We need not decide whether the ADA forecloses the possibility that a court might exercise its equitable discretion in fashioning relief for violations of § 1283(a) . . . because there is no room for discretion even if it exists") (citation omitted)).
See also 28 C.F.R. Pt. 36.401(c) (structural impracticability means "those rare circumstances where the unique characteristics of the terrain prevent the incorporation of accessibility features.").
Below, the court addresses the ADA violations alleged in the complaint, which plaintiff moves on in his summary judgment motion, as well as the violations identified by Joe Card in the expert report.
B. BARRIERS RAISED IN COMPLAINT
Defendant moves as to all the barriers alleged in plaintiff's complaint. The court quickly disposes of ten of the thirteen barriers raised in the complaint.
The following barriers all raise similar issues and so the court disposes of these barriers first and as a group: Exit door signage missing (barrier 6b in the accessibility survey); no directional signage for accessible restrooms (barrier 8a); within the men's restroom, the seat cover dispenser is improperly located (barrier 9a); within the men's restroom, the back grab bar is improperly located in the accessible stall (barrier 10a); within the men's restroom, the toilet tissue dispenser is improperly located (11a b); there is inadequate clear floor space in the men's restroom (barrier 12a); within the men's restroom, the P-trap leading edge is noncompliant (barrier 13b); accessible checkout aisles lack ISA signage (barrier 14a); and check stands lack CBC signage (barrier 15a).
With respect to these ten barriers, defendant's motion for summary judgment must be granted. First, plaintiff fails to supply any legal basis for several of the alleged barriers. Often, the ADAAG section cited to by plaintiff is not applicable (because it does not address that specific barrier) or plaintiff does not explain how the alleged barrier actually violates the ADAAG. The court will not search for which section of the ADAAG, if any, is applicable to the alleged barriers raised by plaintiff.
Specifically, plaintiff fails to cite a relevant ADAAG standard with respect to the following alleged violations: Exit door signage missing (barrier 6b in the accessibility survey); no directional signage for accessible restrooms (barrier 8a); within the men's restroom, the seat cover dispenser is located over the back grab bar (barrier 9a); the back grab bar is improperly located (10a); accessible checkout aisles lack ISA signage (barrier 14a); and check stands lack CBC signage (barrier 15a).
Second, even when plaintiff has cited to the proper ADAAG standard, defendant has established that there are no violations with respect to these alleged barriers. Specifically, defendant explains that plaintiff's own expert, Joe Card, did not address any of these alleged barriers in his August report. This is significant for two reasons. One, Card testified that he was aware of no other additional barriers that were not listed in his report. Therefore, he did not identify any of these barriers (which were raised in the complaint) as "violations". Two, Card inspected the store over a year after the accessibility survey was completed and during that year, the store may have remedied the violation. In short, defendant put forth facts that these ten alleged violations do not, in fact, exist. Plaintiff, in turn, has failed to tender any evidence to suggest that a factual dispute remains as to these alleged violations.
Finally, plaintiff fails to mention, much less discuss, any of these ten alleged violations in his opposition, cross-motion and reply brief.
Given plaintiff's lack of diligence in assisting the court with the adjudication of each of these ten alleged barrier, it is worth noting that "'[j]udges are not like pigs, hunting for truffles buried in' the record." Albrechtsen v. Board of Regents of University of Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). For this reason, defendant's motion with respect to all ten of these barriers is GRANTED.
The court next addresses barriers that require more discussion.
1. Improper Posting of the ISA Signage on the Entrance Doors to the Store
This alleged barrier was identified as "4a b" in the accessibility survey. This alleged barrier was raised in both the complaint and in plaintiff's cross-motion for summary judgment.
Plaintiff alleged in the accessibility survey that there was no ISA sign mounted on the right side of the entrance door (it was on the left) and that the ISA symbol was not mounted at the required height of 60 inches. However, by the time Joe Card surveyed the building, an ISA sign had been placed to the right side of the door. See Card Report at 1. Even so, plaintiff maintains in his cross-motion that the sign's height remains in violation of the ADAAG standards. Pl.'s Opp'n. at 2. Defendant moves for summary judgment on the grounds that as a matter of law, there is no violation of ADAAG as the ADAAG does not discuss entry door signs.
Section 4.30.6 of ADAAG specifies that, "where permanent identification is provided for rooms and spaces, signs shall be installed on the wall adjacent to the latch side of the door . . . the mounting height "shall be 60 inches (1525 mm) above the finish floor to the centerline of the sign. Mounting location for such signage shall be so that a person may approach within 3 in (76 mm) of signage without encountering protruding objects or standing within the swing of a door."
The ADAAG standards clearly requires that if there are ISA signs, they must be posted 60 inches from the ground. Here, plaintiff's expert asserts that there is sign and it is posted 63 1/2 inches from the ground. Since defendant produces no factual evidence to dispute plaintiff's measurements, summary judgment is GRANTED for plaintiff and DENIED as to defendant.
2. Improper or Missing Signs Designating Permanent Rooms and Spaces
Violation identified as 6a in the accessibility survey.
In the accessibility survey, plaintiff maintains that "signs designating permanent rooms and spaces (men's and women's rooms; room numbers; exit signs) must have raised and brailled letters; and must comply with finish and contrast standards." Accessibility Survey at 1.
It is undisputed that plaintiff is not visually impaired and thus, he has not suffered an "injury in fact" due to the absence of braille. See Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1364 (S.D. Fla. 2001) ("To the extent that Plaintiffs complain about violations that would discriminate against blind or deaf persons, or any disabilities other than that suffered by Plaintiff Resnick, they lack standing to pursue such claims."); Martinez v. Longs Drug Stores, Inc., 2005 WL 2072013, *2 (E.D. Cal. 2005).
Standing is limited to claims for which the plaintiff is "among the injured." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Allowing plaintiff to sue on behalf of all the disabled would extend beyond the limitations of Article III because plaintiff cannot ultimately prove "injury in fact" as to a barrier which does not affect him. A plaintiff must have a "personal stake in the outcome" sufficient to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr, 369 U.S. 186, 204 (1962). Accordingly, the court holds that this claim must be DISMISSED due to lack of standing. 3. Routes of Travel to Restroom and Emergency Exits are Blocked
The court also notes that plaintiff did not address this barrier in his opposition and cross-motion for summary judgment.
Violations identified as 6c 7a in the accessibility survey.
Plaintiff claims that there was a ladder obstructing the emergency exit door and merchandise obstructed an accessible route of travel to the restroom. Defendant maintains that, "the ladder and merchandise allegedly located in the store's circulation aisles constituted temporary obstructions that are not barriers as a matter of law." Def.'s Mot. at 14. Moreover, plaintiff's own expert, Joe Card, testified that most of the alleged obstructions in the store's aisles were temporary obstructions.
Neither the ADA nor the ADAAG addresses movable objects. The statute's implementing regulations explicitly require, however, that "[p]ublic accommodations are required to maintain those features of their facilities that need to be readily accessible to people with disabilities." See 28 C.F.R. Pt. 36.211(a). The regulations also state that "[i]solated or temporary interruptions in access due to maintenance or repairs are not prohibited." See 28 C.F.R. Pt. 36.211(b). The regulations appear to suggest that although defendant is required to maintain ready accessibility, it would not be liable for "isolated" or movable objects which temporarily restrict access where the barrier is caused by maintenance or repair.
The Justice Department has also determined that regular use of an accessible route for storage of supplies would violate Title III, but an isolated instance of placement of an object in an accessible route is not a violation if the object is promptly removed. See United States Department of Justice, Civil Rights Division, The Americans with Disabilities Act: Title III Technical Assistance Manual § III-3.7000 (1993); see also Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (citing Technical Assistance Manual and noting that Justice Department's views entitled to deference).
Two cases which have addressed this issue, a Colorado Court of Appeals case and an unpublished New Hampshire District Court case, have both held that isolated failures to maintain access routes or parking spaces, without more, are not covered by the ADA. See Tanner v. Wal-Mart Stores, Inc., 2000 DNH 34 (D.N.H. 2000) (isolated incident of failure to remove shopping carts does not constitute a Title III violation); Pack v. Arkansas Valley Correctional Facility, 849 P.2d 34, 38 (Colo.Ct.App. 1995) (isolated instance of negligence regarding failure to remove ice and snow from handicapped parking zone not an ADA violation).
Here, defendant asserts that any obstruction was only temporary in nature. Plaintiff fails to tender any evidence to the contrary and fails to address this alleged barrier in either his cross-motion for summary judgment or his reply brief.
For these reasons, defendant's motion for summary judgment as to this barrier is GRANTED.
4. A Waste Receptacle is Located in an Area that is Required to be Clear Floor Space
Violation identified as 13a in the accessibility survey.
Plaintiff claims that within the men's restroom, a waste receptacle was placed in the required clear floor space and was a barrier to people in wheelchairs attempting to reach the paper towel dispenser. See Accessibility Survey at 3. This alleged violation is also raised in plaintiff's cross motion for summary judgment. See Pl.'s Cross-Mot. at 3. Plaintiff's expert also asserts in his report that a trash can is blocking the clear space below the paper towel dispenser. See Card Report at "Mens Page # 07."
Defendant argues that the trash basket is a temporary obstacle that can be moved and thus does not constitute a barrier. Def.'s Mot. at 18. This argument is unavailing. Plaintiff has put forth factual allegations that the trash basket is an on-going barrier, and defendant has failed to tender any evidence that the trash basket is in fact a temporary object that does not violate the ADAAG. For this reason and with respect to this barrier, defendant's motion is DENIED and plaintiff's motion is GRANTED.
C. ALLEGED BARRIERS RAISED IN PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff moves for summary judgment with respect to eleven barriers which were identified in the August 2005 Card report. The court addresses each in turn. 1. Violations involving "dimensional tolerances"
The court has already disposed of two of the eleven barriers as they were raised in the initial complaint. Specifically, the court already addressed the alleged violation regarding the sign by the entrance door and the trash can in the men's restroom.
Three of the violations moved on by plaintiff involve very small deviations in measurement. Specifically, plaintiff alleges the following violations:
(I) The lowered section of the service counter is 34-3/16 inches from the floor, citing ADAAG 4.32.4.
Section 4.32.4 of ADAAG states that the "tops of accessible tables and counters shall be from 28 in to 34 in . . . above the finish floor or ground."
(ii) The men's restroom mirror is mounted with the bottom edge at 40¾ inches above the floor, citing to ADAAG § 4.19.6.
Section 4.19.6 states that "[m]irrors shall be mounted with the bottom edge of the reflecting surface no higher than 40 in (1015 mm) above the finish floor."
(iii) In the men's restroom, the water closet is centered at 19 inches from the sidewall, citing to ADAAG 4.17.3.
Section 4.17.3 (Fig. 30(a)) states that "the centerline of the water closet shall be 18 inches (455 mm) from the side wall."
Defendant maintains that all three of these alleged violations involve very small deviations from the measurements required by ADAAG. Defendant argues that the differences (3/16 of an inch with respect to the service counter, 3/4 of an inch with respect to the mirror and 1 inch with respect to the floor space) are within dimensional tolerances, as provided for by ADAAG section 3.2.
Section 3.2 of ADAAG states that "[a]ll dimensions are subject to conventional building industry tolerances for field conditions." Although defendant attempts to catagorize these small differences in measurements as being within "dimensional tolerance," defendant has failed to provide evidence regarding applicable conventional building industry tolerances. See United States v. AMC Entertainment, Inc., 245 F.Supp.2d 1094, 1100 (C.D. Cal. 2003). "[M]any standards set forth in the ADAAG speak in terms of minimums that must be provided," and defendant's argument suggests that the court should "shave half an inch or an inch off these articulated minimums." Id. See also Independent Living Resources v. Oregon Arena Corp., 1 F.Supp.2d 1124, 1135 (D. Or. 1998) ("defendant has not furnished this court with evidence of what those conventional tolerances are for the particular construction work in question."). Since defendant has failed to show that there is a remaining dispute as to these barriers, plaintiff's motion for summary judgment as to these three barriers is GRANTED.
2. The Entrance Door Requires 9 pounds of Pressure to Operate, which Violates CBC § 1133B.2.5 (1998 version)
Plaintiff only cites to the California Building Code in support of this alleged barrier. Plaintiff fails to cite to any section of ADAAG. For the reasons discussed in section III C of this order, the court need not address the CBC violations. For this reason, as to this barrier, defendant's motion is GRANTED. 3. The Counter Lacks International Symbol of Accessibility Signage to Direct Disabled Customers to the Lowered Section of the Counter (the Lowered Section of the Counter is Not Visible from the Front of the Store), which Violates ADAAG § 4.30.7
Plaintiff alleges that the counter lacks ISA signage to direct disabled customers to the lowered section of the checkout counter (citing ADAAG 4.30.7) Defendant maintains that there is no requirement for this type of signage.
Section 4.30.7 of the ADAAG states that "[f]acilities and elements required to be identified as accessible by 4.1 shall use the international symbol of accessibility." Section 4.1 states that:
Elements and spaces of accessible facilities which shall be identified by the International Symbol of Accessibility and which shall comply with 4.30.7 are:
(a) Parking spaces designated as reserved for individuals with disabilities;
(b) Accessible passenger loading zones;
(c) Accessible entrances when not all are accessible (inaccessible entrances shall have directional signage to indicate the route to the nearest accessible entrance);
(d) Accessible toilet and bathing facilities when not all are accessible.
ADAAG, Sec. 4.2.1(7). Defendant maintains that read together, these provisions establish that ISA signs are only required for these specific locations. Def.'s Opp'n. at 15. Plaintiff, on the other hand, argues that this list is not exhaustive and "common sense" dictates that there should be a sign placed over the counter. See Pl.'s Reply at 13. The court is bound by law, which, for better or worse, does not always comport with common sense. The ADAAG standards do not mandate that a sign be placed over an accessible checkout counter, and thus the court cannot expect defendant to comply with a standard that does not exist. For this reason, plaintiff's motion for summary judgment as to this barrier is DENIED.
4. The Store's Aisles Do Not Provide the Proper Width Clearance of 44 Inches
Plaintiff asserts that the "the store's aisles do not provide the proper width clearance of 44 inches, the aisles widths are 39 1/2, 38 1/2, 41, 42 1/2, 40 1/2, 41 1/2, 27 1/4, 36, 38 inches, which violates ADAAG 4.3.3." Pl. Opp'n. at 3.
Plaintiff misreads the ADAAG section. Section 4.3.3 of ADAAG specifically states that "the minimum clear width of an accessible route shall be 36 in (915 mm) except at doors." That said, plaintiff asserts that one of the aisles measures only 27 1/4 inches, which does not comply with the ADAAG requirement. Defendants fail to present any evidence that disputes this fact. Given that at least one aisle is non-compliant with the ADAAG, plaintiff's motion for summary judgment is GRANTED.
5. The Drinking Fountain Stream is only 2½ Inches High
Plaintiff alleges that the drinking fountain stream is only 2½ inches high, citing ADAAG section 4.15.3. Section 4.15.3 provides that the "spout shall provide a flow of water at least 4 in (100 mm) high so as to allow the insertion of a cup or glass under the flow of water."
Defendant argues that plaintiff's expert made unreliable measurement and that the expert did not clarify which fountain he purportedly measured. This argument is unavailing.
Plaintiff puts forth evidence in the form of expert testimony that the water stream is lower than the ADAAG requirement. Defendant fails to present any evidence that disputes this fact. In short, defendant does not present any evidence which would establish that a disputed fact remains with respect to the height of the water stream. For this reason, the court GRANTS plaintiff's motion with respect to this barrier.
6. On the Men's Restroom Wall, the Pictogram is only 4 Inches High
Plaintiff alleges that the men's restroom wall signage has a pictogram that is only 4 inches high, citing ADAAG 4.30.4. Section 4.30.4 states that "the border dimension of the pictogram shall be 6 in (152 mm) minimum in height." Defendant's expert, however, measured the boarder at 8 inches. Given that there is a factual dispute, summary judgment is inapplicable and therefore, plaintiff's motion as to this barrier is DENIED.
7. The Men's Restroom Door Requires 12 Pounds of Pressure to Operate
Plaintiff alleges that the men's restroom door requires 12 pounds to operate, which violates ADAAG § 4.13.11. Section 4.13.11 states that the maximum force for pushing or pulling open an interior door is five pounds. Defendant contends that plaintiff's measurements are inaccurate and that defendant's expert measured the restroom doors at "completely compliant pressures." Def.'s Opp'n. at 17. It is clear that a genuine issue of material fact remains and plaintiff's motion as to this barrier must therefore be DENIED.
V. CONCLUSION
The parties' cross-motions for summary judgment and/or summary adjudication are GRANTED in part and DENIED in part as consistent with this order.
Plaintiff requests from the court statutory damages in the amount of $8,000.00 pursuant to the Unruh Act. See Pl.'s Cross-Mot. and Opp'n at 7. However, because there remain disputed facts as to the ADA violations upon which plaintiff predicates his Unruh Act claims, it is inappropriate at this time to determine the award of damages.
IT IS SO ORDERED.