Burkhart v. Asean Shopping Center, Inc., Civ 98-1745-PHX-ROS.

• Decision Date: 01 July 1999
• Docket Number: No. Civ 98-1745-PHX-ROS.,Civ 98-1745-PHX-ROS.
• Citation: 55 F.Supp.2d 1013
• Parties: Lloyd BURKHART, Plaintiff, v. ASEAN SHOPPING CENTER, INC., Dayton-Hudson Corporation, Defendants.
• Court: U.S. District Court — District of Arizona

55 F.Supp.2d 1013

Lloyd BURKHART, Plaintiff, v. ASEAN SHOPPING CENTER, INC., Dayton-Hudson Corporation, Defendants.

No. Civ 98-1745-PHX-ROS.

United States District Court, D. Arizona.

July 1, 1999.

Lunsford Dole Phillips, Law Offices of Lunsford Dole Phillips, Honolulu, HI, for Lloyd Burkhart, plaintiff.

Richard K Mahrle, Gammage & Burnham PLC, Phoenix, AZ, for Asean Shopping Center, Inc., defendant.

Linda Stephanie Husar, Timothy L Pierce, Nicole Marie Duckett, Thelen Reid & Priest LLP, Los Angeles, CA, for Dayton-Hudson Corporation, defendant.

ORDER

SILVER, District Judge.

FACTUAL BACKGROUND

On September 28, 1998, Plaintiff, a disabled man, brought this suit pursuant to 42 U.S.C. § 2000a-3(a), alleging that Defendants failed to comply with portions of Title III of the Americans with Disabilities Act of 1990(ADA). 42 U.S.C. § 12101 et seq. Specifically, Plaintiff alleges that Defendants' retail establishments contain barriers which limit accessibility by the disabled in violation of the "specific prohibitions" section of Title III of the ADA. 42 U.S.C. § 12182(b)(2). In pertinent part, this section of the ADA dictates that architectural barriers preventing equal access to public facilities be removed to ensure that no individual with a disability is denied equal access. See 42 U.S.C. § 12182(b)(2)(A)(iv).

Plaintiff argues that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because the claim involves a federal question. (Pl.'s Compl. at 1). Defendant Asean Shopping Center, Inc. contests the Court's subject matter jurisdiction in this matter and moves to dismiss the claim. (Def. Asean's Mot. to Dismiss at 1). Defendant Dayton-Hudson Corporation, the owner of Target stores, also challenges the Court's subject matter jurisdiction, in a separate motion, and moves to dismiss or stay the case.¹ (Def. Dayton-Hudson's Mot. to Dismiss at 1). Both Motions contain the argument that Plaintiff was required by 42 U.S.C. § 2000a-3(c) to give written notice of the alleged violations to the "appropriate state or local authority," in this case the Arizona Attorney General, at least thirty days before the filing of this action.² Defendants contend that, absent notification, the Court lacks subject matter jurisdiction over the case. Dayton-Hudson further argues that Plaintiff has to not only file notice, but also exhaust the state administrative process that begins when notice is filed. (Id. at 2)

On June 9, 1999, over five months after Asean filed its Motion to Dismiss and almost three months after Dayton Hudson filed its Motion to Dismiss, Plaintiff filed a response in which he established that he filed notice with the Civil Rights Division of the Arizona Attorney General's office on April 14, 1999. (Pl.'s Mem. in Opp'n to Def. Dayton-Hudson's Mot. to Dismiss at 2-3). Plaintiff continues to argue that no such notification is required.³ (Id. at 2). Because Defendant Dayton-Hudson has raised the issue of exhaustion, the Court will determine whether the statute requires notice and, if so, whether exhaustion also is required.

LEGAL DISCUSSION

42 U.S.C. § 2000a-3(a) is incorporated into Title III of the ADA by 42 U.S.C. § 12188(a)(1) which reads:

The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter ... Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.

The relevant portion of § 2000a-3(a) states that:

Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventative relief, including an application for a permanent or temporary injunction, restraining order, or other order may be instituted by the person aggrieved.

Defendants argue that § 2000a-3(a) is limited by 42 U.S.C. § 2000a-3(c) which provides that:

In the case of an alleged act or practice prohibited by this subchapter which occurs in a State ... which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice ... no civil action may be brought under subsection (a) of this section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority ... provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.

Applying § 2000a-3(c), the state of Arizona has laws that prohibit discrimination against disabled people. See A.R.S. § 41-1492. Specifically, A.R.S. § 41-1492.02, ¶ F(4)-F(5) contains provisions which require the removal of architectural barriers and ensure equal access to the disabled. The Arizona Attorney General is authorized to grant or seek relief from discriminatory practices against disabled people. See A.R.S. § 41-1492.09(A). Therefore, if § 2000a-3(c) applies to this action, as Defendants argue, then Plaintiff should have complied with § 2000a-3(c) by providing the required thirty days notice to the Arizona Attorney General's office before bringing the instant civil enforcement action pursuant to § 2000a-3(a).

There is no controlling law in the Ninth Circuit on this issue. Some federal courts have held that plaintiffs are required to comply with § 2000a-3(c), while others have not. In holding that Congress did not intend for § 2000a-3(c) to be incorporated into Title III of the ADA, four district courts have relied on the plain language of § 12188(a)(1) and the doctrine of expressio unius est exclusio alterius. This doctrine provides that, when a statute enumerates particular subjects, the court should assume that all those not mentioned are excluded. Doukas v. Metropolitan Life Insurance Company, No. CIV. 4-478-SD, 1997 WL 833134, at *3 (D.N.H. Oct.21, 1997). Applying the doctrine, these courts have concluded that, because Congress explicitly referred to § 2000a-3(a) in the text of the ADA, had Congress intended that § 2000a-3(c) apply, it would have included the latter explicitly as well. See Bercovitch v. Baldwin School, 964 F.Supp. 597, 605 (D.P.R.1997); See also Botosan v. Fitzhugh, 13 F.Supp.2d 1047, 1050 (S.D.Cal.1998) (interpreting the plain language of § 12188(a)(1) to exclude § 2000a-3(c)); Guzman v. Denny's, Inc., 40 F.Supp.2d 930, 934-35 (S.D.Ohio 1999) (basing its holding that § 2000a-3(c) does not apply to Title III of the ADA on the doctrine expressio unius est exclusio alterius); Doukas, 1997 WL 833134, at *3 (assuming that Congress's reference to § 2000a-3(a) excludes § 2000a-3(c)).⁴

The Court finds the portion of the plain language of § 12188(a)(1) relied upon by the decisions set forth above to be inconclusive on the issue of whether § 2000a-3(c) applies to Title III of the ADA. Plaintiff's argument that explicit inclusion of § 2000a-3(a) in § 12188(a)(1) excludes other sections of § 2000a-3 from the ADA has merit. However, this interpretation fails to consider the second sentence of § 12188(a)(1) which states that "[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions." This additional provision of Title III will be examined below.

Other district courts addressing this issue have based their holdings on the legislative history of the ADA. When the language of a statute is unclear the court may look to legislative history in order to interpret the statute. United States v. Lewis, 67 F.3d 225, 228 (9th Cir.1995). In Mayes v. Allison, 983 F.Supp. 923, 924 (D.Nev.1997), the district court in Nevada found the House of Representatives' "Joint Explanatory Statement of the Committee of Conference" ("Joint Explanatory Statement") to be dispositive. The Mayes court focused on a portion of the Joint Explanatory Statement which stated that the "House amendment specifies that the remedies and procedures of Title II of the 1964 Civil Rights Act shall be the powers, remedies, and procedures Title III [of the ADA] provides." Id. Because Title II of the Civil Rights Act of 1964 contains the text of 42 U.S.C. § 2000a-d, a district court in Nevada interpreted this portion of the Joint Explanatory statement to mean that Congress intended § 2000a-3(c) to be incorporated into Title III of the ADA. Id. In Botosan, however, the Southern District of California interpreted the same provision quoted above to exclude any procedure or remedy not specifically mentioned in the Joint Explanatory Statement. Botosan, 13 F.Supp.2d at 1050. Thus, because the Joint Explanatory Statement does not specifically mention § 2000a-3(c), the district court concluded that Congress did not intend to include this section in the ADA. Id. District courts have also come to differing conclusions regarding the Senate floor debate on the ADA. Compare id. (indicating that statements by Senator Harkin signified that Title III of the ADA does not implicitly include § 2000a-3(c)), with Snyder v. San Diego Flowers, 21 F.Supp.2d 1207, 1210 (S.D.Cal.1998) (stating that the Senate floor debate "did not shed light on the issue" of whether § 2000a-3(c) is implicitly included in Title III).

The Court concludes that the legislative history preceding the adoption of the ADA is not determinative of whether the ADA incorporates the notice requirement of § 2000a-3(c). The Joint Explanatory Statement can be used to support either position. The language cited above and relied on in Mayes seems to indicate that all remedies and...