Duprey v. State of Conn., Dept. of Motor Vehicles, 3:96-cv-1679 (GLG).

• Decision Date: 17 November 1998
• Docket Number: No. 3:96-cv-1679 (GLG).,3:96-cv-1679 (GLG).
• Citation: 28 F.Supp.2d 702
• Parties: Michelle DUPREY, individually and on behalf of all others similarly situated, Plaintiff, v. STATE of CONNECTICUT, DEPARTMENT OF MOTOR VEHICLES, Defendant.
• Court: U.S. District Court — District of Connecticut

28 F.Supp.2d 702

Michelle DUPREY, individually and on behalf of all others similarly situated, Plaintiff, v. STATE of CONNECTICUT, DEPARTMENT OF MOTOR VEHICLES, Defendant.

No. 3:96-cv-1679 (GLG).

United States District Court, D. Connecticut.

November 17, 1998.

Gary E. Phelan, Garrison, Phelan, Levin-Epstein, Chimes & Richardson, P.C., New Haven, CT, for Plaintiff.

Alan N. Ponanski, Attorney General's Office, Department of Transportation, Contract Litigation & Condemnation, Hartford, CT, for Defendant.

MEMORANDUM DECISION

GOETTEL, District Judge.

Pursuant to Federal Rule of Civil Procedure 56, defendant the State of Connecticut Department of Motor Vehicles ("DMV") moves for summary judgment. Plaintiff Michelle Duprey, individually and on behalf of all others similarly situated, cross-moves for summary judgment. For the following reasons, we DENY defendant's motion (Doc. # 10) and GRANT plaintiff's motion (Doc. # 12).

BACKGROUND

The following facts are not in dispute, and both parties agree this case should be resolved by summary judgment because the complaint raises only legal issues.

Plaintiff has a genetic disability known as osteogenesis imperfecta that causes severe curvature of the spine and long bones, easy bruising, short stature, and multiple fractures. Due to this condition, plaintiff is limited in the major life activity of walking. Although she can drive, she requires a modified vehicle to accommodate her disability. Since childhood, she has purchased removable windshield placards from the DMV to access parking spaces reserved for disabled persons. On August 16, 1996 she paid $5.00 to renew her placard, and she claims that she will renew her placard every five years as required by law.

In Connecticut, a person with a disability impairing or limiting the ability to walk may apply for special license plates or a removable windshield placard to access parking spaces reserved for persons with disabilities.¹ C.G.S.A. § 14-253a (1996). The DMV is authorized to "accept applications and renewal applications for special license plates and removable windshield placards upon receipt of a fee of five dollars...." C.G.S.A. § 14-253a(b) (1996); see Conn. Agencies Regs. § 14-253a-2 (1996). In this case, plaintiff challenges only the provision requiring a $5.00 application fee for placards.

If a person does not have special license plates, he or she may apply for a second removable windshield placard by paying an extra $5.00 application fee. C.G.S.A. § 14-253a(d) (1996); Conn. Agencies Regs. § 14-253a-6(b) (1996). It is also possible to obtain both special license plates and a removable windshield placard, but a person would need to apply for both and therefore would pay $10.00 total in application fees. Removable windshield placards expire five years after the month of issuance. C.G.S.A. § 14-253a(a)(2) (1996); Conn. Agencies Regs. § 14-253a-6(a) (1996). To renew, a person must complete a renewal application and pay a $5.00 application fee. C.G.S.A. § 14-253a(b) (1996); Conn. Agencies Regs. § 14-253a-7 (1996).

Both parties assert that a person is not required to pay a $5.00 fee if he or she wants only special license plates. Indeed, defendant persistently argues that a disabled person has the option of either paying $5.00 for a placard or obtaining special license plates at no extra charge, beyond the cost of obtaining license plates in general. Our reading of the Connecticut statute and regulations is otherwise. Section 14-253a(b) specifically states that the $5.00 fee is collected with applications for "special license plates and removable windshield placards." See Conn. Agencies Regs. § 14-253a-2(c) (1996). Thus, the $5.00 application fee must be paid before a disabled person can receive special license plates or a placard.²

Plaintiff commenced this action individually and on behalf of all others similarly situated claiming that the $5.00 application fee for removable windshield placards violates Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165 (1996). She seeks declaratory and injunctive relief, repayment or reimbursement to each class member of any application fees paid since the ADA's effective date,³ and attorneys' fees and costs. The issue of class certification has not yet been presented to this Court.

DISCUSSION

Title II prohibits a public entity from discriminating against disabled persons, 42 U.S.C. § 12132,⁴ but this provision sets forth only a general definition of discrimination. Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir.1997); see H.R.Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (stating that the "Committee has chosen not to list all the types of actions that are included within the term `discrimination'"). As part of Title II, Congress delegated authority to the Department of Justice to promulgate regulations implementing the ADA ("DOJ regulations"). 42 U.S.C. § 12134(a); see 28 C.F.R. pt. 35 (implementing Title II); see also 28 C.F.R. pt. 36 (implementing Title III). The DOJ regulations expound upon Title II's general prohibition against discrimination on the basis of disability. 28 C.F.R. § 35.130 (1996). The DOJ regulations "are entitled to controlling weight unless they are `arbitrary, capricious, or manifestly contrary to the statute.'" Innovative Health Sys., 117 F.3d at 45 n. 8 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

At issue in this case is one of the bans which provides:

[a] public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the non-discriminatory treatment required by the Act or this part.

28 C.F.R. § 35.130(f) (1996). In a technical assistance manual for Title II, the DOJ further explains that "[a]lthough compliance may result in some additional cost, a pubic entity may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses." DOJ, The Americans With Disabilities Act Title II Technical Assistance Manual § II-3.5400, at 12-13 (1993 & Supp.1994). This manual is "given substantial deference unless another reading is compelled by the regulation's plain language." Innovative Health Sys., 117 F.3d at 45 n. 8.

Plaintiff argues that the $5.00 application fee charged by the DMV to obtain placards is discriminatory because the ADA prohibits states from placing a fee only on disabled persons as a condition to gaining access to designated parking spaces which are required measures under the ADA. Plaintiff relies on several rulings that have addressed the issue of other states' placard programs. All of these courts found that a public entity which imposes a fee to obtain removable windshield placards violates the ADA. Thrope v. Ohio, 19 F.Supp.2d 816, 824-25 (S.D.Ohio 1998); McGarry v. Director, Dep't of Revenue of Missouri, 7 F.Supp.2d 1022, 1026-29 (W.D.Mo.1998); Dare v. California, Dep't of Motor Vehicles, No. 96-cv-5569, slip op. at 1-7 (C.D.Cal. May 30, 1997) (Letts, J.); Miller v. North Dakota Dep't of Transp., No. 96-C-1988, slip. op. at 2-5 (N.D.Dist.Ct. Burleigh County Oct. 10, 1997) (Hagerty, J.).⁵

For example, in Thrope the Ohio Bureau of Motor Vehicles had collected a $5.00 fee from disabled persons who sought to obtain removable windshield placards. The court found that the "ADA regulations clearly prohibit a state from charging disabled persons to pay a user fee to cover the costs of ADA-mandated accommodations." 19 F.Supp.2d at 824. The court reasoned that "[o]nly disabled persons seeking the placard are required to pay the fee, and the funds collected cover the costs of the program." Id. In deciding that the fee was discriminatory, the court relied on the following example given by the DOJ:

A community college provides interpreter services to deaf students, removes a limited number of architectural barriers and relocates inaccessible courses and activities to more accessible locations. The college cannot place a surcharge on either an individual student with a disability (such as a deaf student who benefited from interpreter services) or on groups of students with disabilities (such as students with mobility impairments who benefited from barrier removal). It may, however, adjust its tuition or fees for all students.

Id. at 824 (quoting DOJ, The Americans With Disabilities Act Title II Technical Assistance Manual § 11-3.5400, at 12-13). In conclusion, the Thrope court stated that "Ohio's surcharge on mobility-impaired Ohio residents who seek access to handicapped parking accommodations is clearly akin to this illustration, and this Court finds that the fee violates the ADA." Id.

The Thrope court did not explain how it determined that the fee constituted a surcharge, other than to tersely state that the "$5.00 fee for a permanent handicapped parking placard is an illegal surcharge under the ADA." Id. Similarly, none of the other decisions in McGarry, Dare, or Miller specifically state why the fee for placards is a surcharge. In contrast, we find that the following elements must be established under Title II to strike down Connecticut's application fee to obtain removable windshield placards: (1) that the application fee charged by the DMV constitutes a surcharge; (2) that the fee is imposed only on disabled persons; and (3) that the fee is used to cover the costs of ADA-mandated measures.

I. Definition of Surcharge

To determine whether the $5.00 application fee is a surcharge, plaintiff urges this Court to adopt a functional definition of "surcharge" based on how the term is used in 28 C.F.R. § 35.130(f) (1996). Plaintiff asserts that the "best evidence...