As is my practice, I have divided this blog entry into four parts: the facts of the case; the issues; the court’s reasoning; and the takeaways. Feel free to read some or all of the blog entry.

Consider the following:


Person has a favorite restaurant. Subsequently, he is involved in an accident and becomes paralyzed. He then desires to go back to that restaurant since he has fond memories of it. Since he is mobility impaired, the person he is with goes into the restaurant to check it out to see if it is accessible to him. That person comes back with a report that the restaurant is not accessible in many different ways, many of which relate to his disability and some which don’t. The mobility impaired person sues alleging violations of both the architectural standards of the ADA and the architectural accessibility rules of California. Other facts include: building was constructed in 1908 as a residence and remained a residence until 1985 when the San Jose building department reclassified it as an office space; significant modifications pursuant to the 1985 change in occupancy occurred in 1986 but those modifications did not include making the front entrance accessible; the prior owners of the restaurant back in 1986 requested an exception from compliance with the handicapped accessibility laws from the city of San Jose; the city apparently granted the owners request with respect to 1985 change in occupancy and the 1986 remodeling; the current owners of the restaurant were unaware of any such activity and never made an attempt to figure out if the restaurant was compliant with federal and state disability access obligations; at least three different restaurants have operated within the building before the current restaurant that the plaintiff wanted to get into was in existence; and in 2007, a fire broke out costing the owners $100,000-$110,000 to repair the resulting damage. Finally, subsequent to the lawsuits, some of the violations, though not all, were remediated by the defendant. The facts are taken from the case of Rodriguez v. Barrita Inc., _ F. Supp. 2d_, 2014 WL 31739 (N.D. Cal. January 3, 2014).


The issues before the court included (in no particular order):

1) Were the repairs made subsequent to the fire such that the architectural guidelines required by the ADA were activated? Does California law reach a different conclusion?

2) If not, did the restaurant still have the obligation to make repairs to the restaurant so as to improve the restaurant’s accessibility to persons with disabilities and who has the burden of proof with respect to showing that such repairs cannot be done? Also, if such repairs cannot be done consistent with architectural guidelines, is the defendant obligated to put in a solution that works for persons with disabilities even though such repairs are not fully compliant with the architectural guidelines?

3) To show standing, is intent to return the key or is deterring people with disabilities from using the facility the key?

4) Can the plaintiff sue for violations of architectural guidelines that have nothing to do with his disability?

5) With respect to the numerous violations of the architectural standards, does the plaintiff under California law get damages for each one or is it is it a single violation based on the visit?

6) Can the accessibility waiver granted in 1986 by the city of San Jose be used by the current owners as a, “get out of jail free card?”

Reasoning of the Court

1. For the ADA architectural guidelines to come into effect when an existing facility is being worked on in some respect, that alteration must be one that affects or could affect the usability of the building or facility or any part of that building or facility. While the Department of Justice regulations talk about what an alteration might be, they do not talk about what “usability,” means. In determining what “usability,” means the court looked to a decision from the Second Circuit ( Robert v. Royal Atlantic Corporation, 542 F.3d 363 (2nd Cir. 2008), where that court said that alteration with respect to the ADA would seem generally to include modification that render the facility materially new in some sense rather than modifications that essentially preserve the status and condition of the facility. When the court reviewed the evidence, if found that the repairs made after the fire essentially preserved the status and condition of the building and that the remaining changes appear to have been mostly superficial nature. Therefore, the court concluded that the post-fire repairs did not constitute an, “alteration” for purposes of the ADA.

With respect to the front entrance, California law took the court to a different place than where the ADA would take it. The California regulatory code applies to all alterations made in places of public accommodations after January 31, 1981. It specifically requires that any altered portion of a place of public accommodation, including entranceways, path of travel, and public restroom, be brought into compliance with the applicable accessibility standards at the time. Further, an alteration is any change, addition or modification in construction or occupancy. Accordingly, since the 1985 change in occupancy and the 1986 modifications were an alteration under the California statute, the buildings owners were obligated to comply with the applicable disabled access standards existing at the time. Therefore, the buildings prior owners were required in 1985 and 1986 to make the building’s primary entrance accessible to and usable by persons with disabilities.

2. While the repairs as the result of the fire did not activate the architectural guidelines of the Americans with Disabilities Act, nevertheless, as a title III facility the defendant was obligated to make modification to the extent those modifications were readily achievable. Where a defendant claim that modifications are not readily achievable, it is the defendant that bears the burden of production as well as the burden of persuasion to establish that. Further, that burden applies with respect to each identified barrier to access in the facility. With respect to the restroom, an automatic door opener would make the restroom accessible. An automatic door opener could easily be accomplished and carried out with minimal difficulty or expense and would directly solve the problem posed by the inaccessible restroom. Finally, the Department of Justice recognizes that where compliance with federal accessibility standards is not readily achievable, it is certainly permissible to take barrier removal measures that do not fully comply with the standards so long as those measures do not pose a significant risk to the health our safety of persons with disabilities or others. Also, until the front entrance to be made accessible as required by California law, the restaurant was required to engage in readily achievable measures that would allow accessibility to persons with disabilities with respect to the restaurant. Such a readily achievable measure would include providing curbside takeout service.

3-4. The court without much explanation adopts the standard that intent to return isn’t the key, but rather the key question is whether a person is deterred from entering the facility for purposes of establishing standing. That is, did the encountered barrier interfere with the particular plaintiff’s full and equal enjoyment of the facility thereby making use of the facility more difficult for him or her than it would be for a person without a disability. To the court, that means that standing can only be established with respect to barriers that go to the plaintiff’s particular disabilities. Such a conclusion is also supported because the ADA doesn’t permit private plaintiffs to act as a private attorney general to redress the rights of other people.

With respect to the deterrence v. the intent to return debate, a case that explores why deterrence is meant to be preferred over the intent to return is Kramer v. Lake Hills South, LP 2014 WL 51153 (W.D. Tex. January 7, 2014). That particular court rejected the intent to return theory in favor of the deterrence theory on several grounds. First, allowing standing in most title III cases makes sense since the odds of the injury occurring again are certain where the building is not in compliance with the ADA and the plaintiff and every other person with the same disability is going to confront the same barrier on every future visit. Second, a plaintiff with a disability shouldn’t have to establish imminent future injury because they have an actual and present injury i.e. being deterred from visiting the building. Third, a plaintiff who is deterred from patronizing the store suffers the ongoing actual injury of not being able to access that store. Finally, in a title III case the risk of injury in fact is not speculative so long as the discriminatory barriers remain in place, the plaintiff remains disabled, and the plaintiff is able and ready to visit the facility once it is made compliant.

5. With respect to damages for violating the California accessibility rules, the statute was such that it grants damages per visit and not for each violation.

6. The owners of the restaurant argued that since an exemption was issued in 1985 and 1986 by the City of San Jose, they had a right to rely on that exemption and therefore were simply given a, “get out of jail free card.” Such a defense raises the question of whether the occupant or an owner can avoid state statutory liability by relying upon a municipal building department’s approval of a prior owner’s undue hardship application. However, the court said it wasn’t necessary to address the issue because the evidence established that no defendant actually relied on the city of San Jose’s building department’s 1986 approval. In fact, it wasn’t until after the plaintiff filed a lawsuit, that the defendants even became aware of the application. The fact that the restaurant continued to operate in an out of compliance manner is not enough to use compliance according to the court.


1. We now have some indication as to what usability means. In particular, you need to evaluate whether the modifications render the facility materially new in some sense.

2. Be aware that state statute and state regulations may go beyond the ADA or they may not. Each state is going to have a different perspective on that.

3. There are two lines of thought with respect to standing (intent to return and deterrence). Check out your jurisdiction as to which standard is being used. Also with respect to what barriers a person has a right to sue under for violating the ADA, my colleague and friend Richard Hunt, who has a blog focusing on title III and the fair housing act that you can find in my blog roll, has long argued that a person only has standing with respect to barriers that specifically relates to his or her disability. This decision gives support to that argument.

4. If a company is going to claim that remediation of certain barriers is not readily achievable, then that company bears the burden of production and the burden of persuasion as to each barrier claimed not to be readily achievable to remediate.

5. Finally, ignorance of the law is no excuse even where you have a situation of multiple owners and where the non-accessible nature of the facility was allowed to go on for some time. This raises the question of whether the risk can be allocated be an indemnity clause, which is an issue we have visited before.