Parr v. L & L Drive-Inn Restaurant

Citation96 F.Supp.2d 1065
Decision Date16 May 2000
Docket NumberNo. 97-00729 FIY.,97-00729 FIY.
PartiesEric PARR, Plaintiff, v. L & L DRIVE-INN RESTAURANT, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)

Lunsford D. Phillips, Honolulu, HI, for plaintiffs Eric Parr and Hank Emerick.

Ken T. Kuniyuki, Honolulu, HI, for defendant L & L Drive Inn.


YAMASHITA, United States Magistrate Judge.

A. Background and Procedural History

On June 5, 1997, Plaintiff Eric Parr ("Plaintiff"), a disabled individual who requires a wheelchair to gain mobility, filed an action against Defendant L & L Drive-Inn Restaurant, d/b/a L & L Drive-Inn. ("Defendant" or "L & L"). In his Complaint, Plaintiff alleged that Defendant violated the provisions of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., by failing to remove architectural barriers to access. (See Complaint).

Plaintiff's counsel retained the services of USA Accessibility Consulting, Inc. ("UAC"). UAC's president, Brent Beals, conducted on-site surveys of Defendant's facility. Mr. Beals reported his findings in a written report containing photographs, measurements, and alleged ADA violations.

Defendant L & L is a public accommodation within the purview of the ADA. The facility is a fast food franchised restaurant. Similar franchised L & L restaurants are located around the island of Oahu. Defendant is the owner/franchisee of the L & L restaurant at issue.

Eddie Flores, Jr., is the president of L & L Franchise, Inc., officer of the Defendant corporation and the designated "ADA compliance officer" for all the L & L franchisees. Mr. Flores retained the services of Accessibility Planning & Consulting, Inc. ("APC"). APC conducted on-site surveys of Defendant's facility and submitted barrier removal recommendations to Mr. Flores. Specifically, Mr. Flores worked closely with APC's president, Bruce Clark, and APC project manager, Robert Askew. Defendant asserts that it has complied with all the requirements of the ADA.

On October 23, 1998, Plaintiff filed a First Amended Complaint ("Amended Complaint"). The Amended Complaint added Defendants Irwin W.L. Tom and Dora T. Cheng and specifically alleged that, in violation of the ADA and 28 C.F.R. Part 36, Defendants failed to remove architectural barriers, including but not limited to: (1) no accessible entrances; (2) no accessible routes; (3) no accessible signage; (4) no accessible tables; and (5) no accessible parking. (Amended Complaint ¶ 6).

Pursuing this action as an individual, Plaintiff seeks injunctive relief, in the form of an order requiring full compliance with the ADA within 90 days; litigation costs, including reasonable expert and attorneys' fees; and other relief this Court deems proper. Id.

On July 6, 1999, the parties filed a Consent to Exercise Jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Pursuant to this Consent and the Order of Reference filed by the United States District Judge Susan Oki Mollway, this Court has jurisdiction to adjudicate this case.

In the interests of judicial economy and by the agreement of the parties, this case was set for trial with six other ADA cases.1 This Court heard the seven trials concurrently. The trials commenced on November 3, 1999 and concluded on November 23, 1999. Lunsford D. Phillips represented Plaintiff and Ken T. Kuniyuki represented Defendant. At trial, the parties were instructed to indicate to the Court when evidence proffered was to be considered for an individual case rather than be considered for all seven cases. For the most part, the parties failed to so designate. Accordingly, this Court considers much of the presented evidence as evidence in each of the seven cases. Pursuant to this Court's order, the parties submitted their proposed Findings of Fact and Conclusions of Law and Final Written Arguments on January 14, 2000.2 (Tr. 11/23/99 at 45).3

B. The Americans with Disabilities Act
1. Legislative History

The Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101 et seq., was enacted on July 26, 1990. At the time of its enactment, some 43,000,000 Americans suffered from physical or mental disabilities. 42 U.S.C. § 12101(a)(1) (1995). Congress determined that society had isolated and segregated individuals with disabilities. 42 U.S.C. § 12101(a)(2). Discrimination against individuals with disabilities persisted in critical areas such as employment, housing, public accommodations, transportation, communication, education, recreation, institutionalization, health services, voting, and access to public services. 42 U.S.C. § 12101(a)(3).

The primary purpose of the ADA was to provide a "clear and comprehensive national mandate for the elimination of discrimination" with "clear, strong, consistent, enforceable standards" to address such discrimination. 42 U.S.C. § 12101(b)(1), (2).

The ADA provides individuals with disabilities "civil rights protections with respect to discrimination that are parallel to those provided to individuals on the basis of race, color, national origin, sex, and religion." 56 Fed.Reg. 35,545 (1991). Its principal elements were drawn from two key civil rights statutes, the Civil Rights Act of 1964 and Title V of the Rehabilitation Act of 1973. Id. The ADA employs the framework of both Acts for issues of coverage, enforcement, and terms and concepts for what constitutes discrimination. Id.

The scope of the Act covers not only intentional discrimination, but also the discriminatory effects of "benign neglect, apathy, and indifference." Helen L. v. DiDario, 46 F.3d 325, 335 (3rd Cir.1995) (internal quotations omitted). Discrimination could involve the active preclusion of employment based on one's disability; or passive limited access for wheelchair bound individuals. See Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir.1996) (Congress intended ADA to cover discriminatory impact of facially neutral barriers).

2. Title III of the Americans with Disabilities Act

Congress divided the ADA into five sections: private sector employment under Title I; public programs and activities under Title II; public accommodations under Title III; telecommunications under Title IV; and miscellaneous provisions under Title V. Americans with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327 (1990).

The provisions of Title III are at issue in this case. Title III of the ADA prohibits discrimination against disabled4 individuals in any place of public accommodation.5 42 U.S.C. § 12182. Here, "[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). Liability is imposed upon "any person who owns, leases (or leases to), or operates a place of public accommodation" that discriminates against an individual on the basis of disability. Id.

Discrimination includes the failure to remove "architectural barriers" in existing facilities where such removal is "readily achievable."6 42 U.S.C. § 12182(b)(2)(A)(iv). Where an entity can demonstrate that the removal of a barrier is not readily achievable, discrimination also includes failure to make such facilities available through alternative methods if such methods are readily available. 42 U.S.C. § 12182(b)(2)(A)(v). However, no entity shall be required to permit disabled individuals to participate in or benefit from public accommodations where such an individual poses a direct threat to the health and safety of others. 42 U.S.C. § 12182(b)(3).

3. Causes of Action for Architectural Barriers in Public Accommodations

Congress considered the importance of ensuring that small businesses and the ADA were compatible. See Hearing on S. 933 Before Committee on Small Business, 101st Legis., 2d Reg.Sess. (1990). To strike a balance between the interests of the disabled and the legitimate concerns of private businesses, the ADA delayed its effective date to "permit adequate time for businesses to become acquainted with the ADA's requirements and to take the necessary steps to achieve compliance."7 Statement on Signing the Americans with Disabilities Act of 1990 at 2 (July 26, 1990) ("Statement on Signing"). Further, the ADA was crafted to "give the business community the flexibility to meet the requirements of the Act without incurring undue costs." Id. at 1-2. The modest requirement of "readily achievable" barrier removal on existing facilities "allows for minimal investment with a potential return of profit from use of disabled patrons, often more than justifying the small expense." S.Rep. No. 101-116, at 66 (1989).8

If a place of public accommodation fails to remove architectural barriers, the enforcement provisions of the ADA provides a private right of action. 42 U.S.C. § 12188(a)(1). A private action under Title III is available to any person who is "being subjected to discrimination on the basis of disability" or who has "reasonable grounds for believing that such person is about to be subjected to discrimination...."9 42 U.S.C. § 12188(a)(1). The ADA does not require "a person with a disability to engage in a futile gesture if such [a] person has actual notice that a person or organization ... does not intend to comply" with the ADA. Id.

Title III incorporates the remedies and procedures of Title II of the Civil Rights Act of 1964. See 42 U.S.C. § 12188(a)(1). The court may order injunctive relief which includes an order to make a facility "readily accessible." 42 U.S.C. § 12188(a)(2). Or, where appropriate, injunctive relief may include "requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods...." Id.

A civil action under Title III could also be brought by the Attorney General....

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