Bodley v. Macayo Restaurants, LLC, CV07-0876-PHX-DGC.

• Decision Date: 04 March 2008
• Docket Number: No. CV07-0876-PHX-DGC.,CV07-0876-PHX-DGC.
• Citation: 546 F.Supp.2d 696
• Parties: David BODLEY, an individual, Plaintiff, v. MACAYO RESTAURANTS, LLC, an Arizona limited liability company, Defendant.
• Court: U.S. District Court — District of Arizona

Page 696

546 F.Supp.2d 696

David BODLEY, an individual, Plaintiff, v. MACAYO RESTAURANTS, LLC, an Arizona limited liability company, Defendant.

No. CV07-0876-PHX-DGC.

United States District Court, D. Arizona.

March 4, 2008.

David J. Don, Law Offices of David J. Don PLLC, Phoenix, AZ, for Plaintiff.

Julio Medina Zapata, Fennemore Craig PC, Phoenix, AZ, for Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendant has filed a motion for summary judgment. Dkt. # 32. Plaintiff has filed a motion to strike. Dkt. # 36. For the reasons set forth below, the Court will grant in part and deny in part Defendant's motion and will grant Plaintiffs motion.¹

I. Background.

Macayo's Mexican Kitchen is a two-story restaurant located in Mesa, Arizona. On weekdays during "happy hour," Macayo's offers discounted drink prices and complimentary appetizers. The drinks and food are made available on the upstairs level of the restaurant, which contains a bar and small seating area. The restaurant does not have an elevator. Plaintiff David Bodley, a regular patron of Macayo's, uses a wheelchair and is unable to access the upstairs floor.

In August of 2006, Plaintiff and his wife visited Macayo's hoping to receive the happy hour items and prices. According to Plaintiff, the restaurant permitted Plaintiffs wife to obtain the happy hour food and drinks from the upstairs area, but required them to be seated in the first-floor outdoor patio section of the restaurant even though it was hot outside and other customers were eating in the first floor's inside dining section. Plaintiff also alleges that his access within the restaurant is impeded by several architectural barriers.²

Plaintiff filed suit against Defendant, alleging that he was discriminated against during the August 2006 happy hour service and that the restaurant is inaccessible in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq., and the Arizonans with Disabilities Act ("AzDA"), A.R.S. § 41-1492, et seq. Dkt. # 1.³

II. Legal Standard.

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is 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). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment may be entered 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Discussion.

The ADA and AzDA prohibit places of public accommodation from discriminating against individuals with disabilities. See 28 C.F.R. § 36.201(a); A.R.S. § 41-4192.02. The parties do not dispute that Plaintiff is a qualified individual with a disability or that Macayo's is a place of public accommodation.

A. Happy Hour Service.

Plaintiff claims that the treatment he received during his August 2006 visit amounted to unlawful discrimination. See Dkt. # 1. Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation[.]" 42 U.S.C. § 12182(a).

In evaluating Plaintiffs discrimination claim, it is first important to understand what Plaintiff does not argue. Plaintiff does not contend that Macayo's violated the ADA by failing to install an elevator that would transport him to the second floor bar where happy hour drinks and food were available. Nor does Plaintiff contend that he was denied happy hour benefits on the day in question; he admits that he received the drinks and food at happy hour prices. Finally, Plaintiff does not contend that Macayo's discriminated against him by requiring his wife to go to the second floor bar to retrieve the drinks and food. He testified that this "is normal anyway. You self-serve." Dkt. # 35, Ex. 1, p. 53:8.

The crux of Plaintiffs grievance is that he and his wife were seated in the first floor's outside patio, rather than the first floor's inside dining section. Id. at p. 53:9-11. With respect to this claim, the parties present directly conflicting versions of Macayo's policy.

Defendant contends that it has a ten-year-old policy of accommodating requests from disabled patrons to be seated on the first floor during happy hour, inside or outside. Dkt. # 33 ¶¶ 12-15, Exs. 3, 4. Defendant asserts that all of its employees are trained in this policy and that a written version of the policy is now placed throughout the restaurant. Id. Defendant attaches a copy of the written policy to its statement of facts. Id. Ex. 4.

Plaintiff provides two responses to these assertions. First, Plaintiff asks the Court to strike Defendant's written policy because it was not produced during discovery (Dkt.# 36), a request the Court will grant. Second, Plaintiff asserts that Defendant's policy — even if it was in place-has never been followed. To support this assertion, Plaintiff presents his own experience: Plaintiff testified in his deposition that "[n]obody is permitted to sit inside for happy hour unless you go upstairs." Id. at p. 54:13-15 (emphasis added). Although he has been to Macayo's many times over the past twelve years, Plaintiff testified that he has "never observed anybody have happy hour inside" on the first floor. Id. at pp. 54:17-18, 58:14-20 (emphasis added).

The Court is thus presented with two contrasting versions of the policy — either patrons who request happy hour on the first floor are accommodated, including inside seating, or no patron is allowed to receive happy hour specials inside on the first floor. If Plaintiffs version of the policy is accepted, as it must be at this summary judgment stage, then discrimination "on the basis of disability" did not occur at the restaurant. See 42 U.S.C. § 12182(a). Plaintiffs only complaint is that he was required to sit outside while drinking and eating the happy hour specials. Under Plaintiffs version of Defendant's policy, however, this rule applies to all patrons receiving happy hour specials on the first floor, disabled and non-disabled. Plaintiff therefore was provided the same happy hour option afforded any other patron unwilling or unable to visit the upstairs bar — to get the food upstairs and sit on the first-floor patio. While Plaintiff states that other customers were eating inside in August of 2006, he does not contend that they were enjoying happy hour food, drinks, and prices inside. Nor does Plaintiff claim that disabled individuals generally must eat outside. To the contrary, Plaintiff asserts that he has eaten inside on the first floor on many occasions.

Thus, if the Court accepts Plaintiffs description of Defendant's happy hour policy, Plaintiffs request to be seated inside was not a request for a modification that would enable him to enjoy a good or service on equal terms with those who are not disabled. It was a request for preferential treatment — to be seated inside despite the fact that others receiving happy hour drinks and food on the first floor must eat outside. The ADA mandates only equal enjoyment of goods and services offered by a place of public accommodation. See 28 C.F.R. § 36.201(a); 28 C.F.R. § 36.202(b).⁴

In addition, Plaintiff has failed to present evidence that he affirmatively requested an accommodation that was tied to his disability. He testified that he made no such request. Dkt. # 35 Ex. 1 at p. 64:3-5. Although he asserted that his wife made clear she was not happy, he provides no evidence that she made a disability-related request on behalf of her husband to be seated inside. See id. at p. 64:5-7; Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir.2004) ("An individual alleging discrimination under Title III must show that ... the defendant discriminated against the plaintiff based upon the plaintiffs disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiffs disability.") (emphasis added).

Plaintiffs argument that seating outside violates the ADA integration requirement found in 42 U.S.C. § 12182(b)(1)(B) also falls short. This provision ensures that individuals with disabilities are not isolated by places of public accommodation. See Townsend v. Quasim, 328 F.3d 511, 518-19 (9th Cir.2003). If Plaintiffs testimony is credited, any separation was based on whether a customer wished to receive happy hour specials on the first floor, not on disability. That there were no other customers at the time Plaintiff and his wife were seated on the patio does not transform the first floor seating policy into one that is premised on disability-based segregation. Plaintiff has provided no evidence that individuals with disabilities were seated outside regardless of whether they are taking part in the happy hour specials, or that non-disabled persons were permitted to receive happy hour specials inside on the first floor.

B. Accessibility of the Restaurant.

Defendant asserts that Plaintiffs claim regarding the architectural barriers at Macayo's is barred by a two-year statute of limitations. See Dkt. # 32. In support of its argument, Defendant cites Garcia v. Brockway, 503 F.3d 1092 (9th Cir.2007), which held that the statute of limitations in a Fair Housing Act challenge to a building's design and construction begins to run when the design and construction are completed. Id. Even if Garcia could be viewed as...