Before getting started on our blog entry of the week, good luck to the Houston Astros and the Washington Nationals in the World Series starting tonight. Turning to the blog entry of the week, I really really struggled with what to blog on this week. It wasn’t for lack of cases in my pipeline, I have about a dozen, I just couldn’t figure out what to blog on. Ultimately, I decided on a case my colleague, Richard Hunt, has previously talked about in his blog, which you can find in my blog roll. I decided there was something in that case I wanted to address specifically, and so here goes. The case is Smith v. Golden China of Red Wing, Inc., which can be found here, a decision from the District Court of Minnesota decided on July 22, 2019. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff is a Minnesota resident suffering from arthrogryposis and uses a wheelchair for mobility. On May 25, 2017, plaintiff along with a paralegal from a law firm drove around testing businesses in the Red Wing area for ADA compliance. He visited Golden China during this trip and noted there were no fully compliant accessible parking spaces. Plaintiff requires fully compliant accessible parking spaces to safely transfer between his car and wheelchair. He did not attempt to exit the vehicle and use the ramp to enter the restaurant building. Rather, he determined based upon his experience, he would not have been able to enter the premises and dine or order on an independent basis and was deterred from attempting what would have been an unsafe and futile act.

As far as being able to return to the restaurant, he did allege he was in the area often and would go to the restaurant if family or friends patronized it. His brother lives in Winona, and he also is in the area when he visits Treasure Island Casino.

Also, it turns out that while the facility predates the ADA, the parking lot had been resurfaced in 2001-2002. In particular, the parking lot was constructed in the 1970s. In 2001 or 2002, the restaurant resurfaced the parking lot. That resurfacing cost about $7000 or $8000 and did not involve regrading the parking lot. The old surface was scratched up to create a better bonding surface, and a new layer was put on top. They also restriped the parking lot every few years when the paint faded away. During the summer they filled potholes in the parking lot.

Plaintiff brought suit with respect to several ADA violation, including: 1) signage indicating accessible space was posted too low to the ground; 2) an insufficient number of accessible parking spaces; 3) insufficient striping for accessible spaces; 4) the accessible space lacked an adjacent access aisle; and 5) the ramp near the reserved parking space had impermissible slopes and landing. The court decided that only one accessible parking space was needed per the applicable standards. Also, Golden China fixed everything except for the ramp having impermissible slopes and landing. So, the court dismissed all of those claims as moot. With respect to the ramp having an impermissible slope and landing, Golden China argued fixing it would put it out of business. Further, it had no obligation to undertake such repairs (it had put out for bid what it would take to repair the slope), because such repairs, which would require $29,000-$39,000 worth of construction, was not readily achievable and would put them out of business.

II

Court’s Reasoning

 

  1. Plaintiff has standing to bring the suit because he has shown an intent to return. In particular, his brother lives in Winona. He also visits the Treasure Island Casino, which is nearby. Both of those allegations sufficiently show a threat of future harm.
  2. Title III of the ADA, 42 U.S.C. §12182(b)(2)(A)(iv)-(v), defines discrimination as a failure to remove architectural barriers in existing facilities where such removal is readily achievable. Further, if removal is not readily achievable, failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable is also discrimination.
  3. The resurfacing of the parking lot was an alteration. An alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility or any part thereof. Normal maintenance are not alterations unless it affects the usability of the building or the facility. 28 C.F.R. §36.402(b)(1).
  4. The 2010 ADAAG specifically defines alteration as including the resurfacing of circulation paths or vehicular ways and is persuasive authority.
  5. While the resurfacing has not been done in nearly two decades, the resurfacing nevertheless was an alteration.
  6. 28 C.F.R. §36.304(d)(3) requiring any noncomplying facilities in existence before March 15, 2012, to comply with the ADA where readily achievable was initially published and approved on September 15, 2010.
  7. 28 C.F.R. §36.402(a), which requires noncomplying facilities altered after January 26, 1992, to comply to the maximum extent feasible was published and approved on July 26, 1991.
  8. §36.304 and 36.402 contradict each other. Since they contradict each other with respect to facilities in existence before March 15, 2012 and altered after January 26, 1992, the regulation issued and approved at the later date, allowing for a readily achievable defense, prevails.
  9. It is up to the plaintiff to present a sufficient showing barrier removal is readily achievable. Plaintiff does that by presenting evidence of: 1) a specific design to remove the barriers allege; 2) the cost of removal or the proposed remedy; and 3) the effect on the finances and operation of the facility.
  10. Under 28 C.F.R. §36.304(a), readily achievable is something that is easily accomplished and able to be carried out without much difficulty or expense.
  11. Considerations of whether something is readily achievable are stated in 42 U.S.C. §12181(9), and include: 1) the nature and cost of the action needed; 2) the overall financial resources of the facility, the number of persons employed there, and the impact of such action on the operation of the facility; 3) the overall financial resources of the facility and its size (including number of employees, and number type and location of facility); and 4) the type of operation of the covered entity.
  12. Since the start of litigation in 2017, Golden China has suffered a net loss even despite a decrease in rent.
  13. Defendants have provided significant evidence that bringing the ramp into compliance with the applicable ADAAG standard would cost between $29,000 and $39,000, which is money they do not have.

III

Thoughts/Takeaways

 

  1. This court adopts the deterrence theory of standing. As we know from this blog entry, standing is a bit all over the place. Some courts are less flexible than others, particularly with respect to the intent to return.
  2. I am a bit surprised that an appeal was not filed for two reasons. First, the court holds that readily achievable is something that the plaintiff has to prove up. Other courts, such as here, take a very different approach. Second, it is just not obvious a readily achievable defense exist even after alterations are done. I get that the two regulatory provisions are in apparent contradiction with each other, but one wonders if it necessarily follows that readily achievable is a defense after alterations are done. As mentioned below, it would be very interesting to research how DOJ has looked at this over the years and what position they took on the matter.
  3. With respect to the current status of the case, the parties are fighting over whether the defendant should be awarded attorney fees. It is really hard for a defendant to get attorney fees. Seems to me that this case was never a slam dunk case for the defendant. Accordingly, an attorney fees petition may well prove unsuccessful. If it does prove successful, certainly worth an appeal.
  4. Resurfacing a parking lot is an alteration. We have previously discussed when an alteration occurs in this blog entry.
  5. This decision opens up another avenue of defense for title III entities with existing facilities and alterations made prior to March 15, 2012. Those entities may be able to argue that even if the alterations were not done right or the path of travel to those alterations were not done the way they were supposed to be, they still may have a readily achievable defense.
  6. It would be interesting to research what DOJ guidances, technical assistant memorandums, etc. over the years with respect to the contradiction between 28 C.F.R. §36.304(a) and 28 C.F.R. §36.402. If there is discussion by DOJ over the years on this, then the question will become whether that discussion, assuming they took a definitive position, would be given credibility by the courts per this blog entry.
  7. Title III entities should be aware that readily achievable is a moving target. It very much depends upon the financial resources of the entity involved. Sometimes, places of public accommodation with considerable resources will have significant repairs deemed readily achievable. So, it just depends.
  8. The allegations of inaccessibility made by the plaintiff in this case are quite typical for drive-by plaintiffs. Another typical allegation would be if the plaintiff had gone inside, you likely would have seen an allegation that the pipes underneath the bathroom sink were not insulated. At any rate, because these allegations are so typical, places of public accommodation may want to focus on the particular items and monitor them accordingly.
  9. The case did not deal with standing for testers.
  10. Case illustrate the point that if you fix the allegations, those claims become moot.
  11. Does the restaurant now have an obligation to post signage saying that the slope of the ramp is not to ADAAG standards if they don’t want to run the risk of a personal injury suit?
  12. Why would a person with a disability do this kind of work if they are not getting paid? Well, if not supposed to happen this way, but in Florida and in Georgia there are allegations that attorneys in those two States did pay the person with the disability a fee for what they did. That action is not ethical, but the allegations are that it happens. More charitably, the ADA went into effect in 1990, and people have had 30 years to comply. It just doesn’t seem to be happening. So, a person with a disability may make it their mission.

Lastly, one more week to vote for my blog in the lexblog contest here.

One Response to Readily Achievable Defense Even After Alteration?

I’m not sure there is any conflict between 36.306(d)(2)(ii)(B) and 36.402. The former is creating a safe harbor for application of the readily achievable standard. The barrier removal obligation applies to all structures, whether or not they are altered. and 36.306(d)(2)(ii) just tells you whether you have to remove barriers to reach the 1991 ADAAG or the 2010 Standards. Since they address the absolute obligation to remove barriers that is, according to the statute, subject to the readily achievable limitation they naturally say that changes are required only if readily achievable. This is explicitly recognized by this language in both 36.306(d)(2)(ii)(A) and (B) – “Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).” If you are just removing barriers you have the readily achievable limit. If you are altering or newly construction you flip over to the regulations on alterations and new construction. 36.406(a)(5) itself incorporates 36.402, which is the alteration part of the alternation/new construction regulation.

This gets us to resurfacing parking lots. No matter what DOJ thinks, resurfacing a parking lot is a maintenance item, especially in northern states with extreme weather. Just as you have to replace a roof or paint a building you have to resurface your parking lot from time to time. But even if we consider it an alteration it is only the altered portion of a facility that must be brought up to ADA standards. A ramp from a parking lot to an adjacent sidewalk is not part of of the parking lot any more than the sidewalk is part of the parking lot. The same would be true of the accessible parking sign even if it were mounted on a pole set in the parking lot. In my view the Court and perhaps litigants lost sight of the easy explanation while mired in looking for a conflict that doesn’t exist between the two regulatory provisions. The ramp was subject to the readily achievable standard because it wasn’t altered at all, and thus only the general barrier removal obligation applied.

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