Ross v. City of Gatlinburg, Tenn.

Decision Date08 July 2003
Docket NumberNo. 3:02-CV-707.,3:02-CV-707.
Citation327 F.Supp.2d 834
PartiesJames ROSS, Marcella Broglin, and Jim Kidwell, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF GATLINBURG, TENNESSEE, Defendant.
CourtU.S. District Court — Eastern District of Tennessee

J. Todd Faulkner, Butler, Kohl & Faulkner, K. Cody Allison, Joe Dughman & Associates, Nashville, TN, for Plaintiffs.

Nathan D. Rowell, Watson & Hollow, PLC, Robert H. Watson, Jr, Watson & Hollow, PLC, Knoxville, TN, for City of Gatlinburg.

MEMORANDUM OPINION

VARLAN, District Judge.

Plaintiffs James Ross, Marcella Broglin, and Jim Kidwell bring this action for declaratory judgment and injunctive relief against defendant City of Gatlinburg, Tennessee (the "City"). Plaintiffs claim violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, for discrimination against individuals with disabilities by a public entity in providing equal access to facilities, services, policies and practices. [Doc. 1, Complaint ¶ 1.]

This matter is before the Court on the following motions: Plaintiffs' Motion for Class Certification [Doc. 5], and defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment [Doc. 13]. These motions have been thoroughly briefed by the parties [Docs. 6, 12, 14, 20] and are ripe for determination. The Court has carefully considered the pleadings filed by the parties, as well as the arguments of counsel at the motion hearing on June 19, 2003. For the reasons set forth herein, the Court will GRANT defendant's motion for summary judgment. Plaintiffs' motion for class certification will therefore be DENIED as moot.

I. Facts

Defendant has styled its motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12, or alternatively as a motion for summary judgment under Fed.R.Civ.P. 56. Because the parties have presented material outside the pleadings for consideration on this motion, the Court will treat the motion as a motion for summary judgment. See Fed.R.Civ.P.12(b). As the Court is obliged to do in reviewing a motion for summary judgment, the facts of this case will be viewed in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The facts as developed at this stage are those set forth in the Complaint [Doc. 1] and the plaintiffs' affidavits. [Doc. 18, Exs. 2, 3, 4.] The Complaint is sub-divided into three "counts"(1) Existing Structures, Policies, and Procedures [Doc. 1, ¶¶ 8-44]; (2) New Construction and Alteration [¶¶ 45-58]; and (3) Failure to Make Reasonable Modifications in Policies and Procedures [¶¶ 59-67].1 Despite this demarcation, the allegations of all three counts relate to plaintiffs' ADA and Rehabilitation Act claims. Further, the factual subjects of plaintiffs' claims are addressed in all three counts. The Court will attempt to separate the factual allegations from legal argument, again viewing the facts in the light most favorable to the plaintiffs.

Plaintiffs claim that they are mobility-impaired individuals and that they are aggrieved by various deficiencies in services provided by the City, such as lack of accessible parking; lack of accessible bathrooms; failure to keep sidewalks clear; inadequate grievance procedure for violations; failure to provide program access; inadequate transition plan for City; path of travel barriers to and/or within some of defendant's facilities; and lack of curb cuts at some intersections. [Doc. 1, Complaint ¶ 1.]

Plaintiff James Ross is a resident of Halls, Tennessee, who has visited the City of Gatlinburg.2 [Doc. 18, Ross Aff. ¶¶ 1-3.] Ross suffers from periffial vascular disease and has lost both legs. Id. at ¶ 2. Ross is confined to a wheelchair and claims that, during his visit to the City, he encountered "difficulties such as finding handicapped parking, specifically Van Accessible spaces." Id. at ¶ 3. Ross also states he "had difficulty managing the sidewalks with curb cuts partially blocked" which "made it difficult to enter and exits sidewalks." Id. Ross contacted the City's Chamber of Commerce for assistance with accommodations and was advised they could not help him. Id. at ¶ 4. Ross would like to visit the City again and would like the City to improve accessibility with handicap parking and sidewalks. Id. at ¶ 5.

Plaintiff Marcella Broglin is also a resident of Halls, Tennessee, who has visited the City "recently" and "many times on vacations." [Doc. 18, Broglin Aff. ¶¶ 1, 3, 5.] Broglin suffers from arthritis, congestive heart failure and very high blood pressure and uses "various walking assistance devices to get around." Id. at ¶ 2. She is limited in the distance she can walk due to her health problems. Id. at ¶ 3. Broglin states that she "had problems with handicap parking spaces and the one [sic] I could find were not close to the main tourist area" during a recent visit to the City. Id. at ¶ 3. Broglin also states that the City's "sidewalks were narrow and curb cuts [sic] outs were blocked in some places making it hard to maneuver around the city." Id. at ¶ 4. Broglin states that she would like to visit the City in the future, but she would like to see the City improve its handicap accessibility. Id. at ¶ 5.

Plaintiff Jim Kidwell is a resident of Watertown, Tennessee, who visits the City "on an annual basis during the Fall season and some years in the summertime." [Doc. 18, Kidwell Aff. ¶¶ 1,3.] Kidwell is permanently confined to a wheelchair due to an L1 level spinal injury and has "difficulty navigating the City due to various problems with sidewalks, curb cuts, city owned public restrooms, and parking." Id. at ¶¶ 2-3. Kidwell claims that these issues have existed at the City "for sometime" and that he has not seen any changes. Id. at ¶ 3. Kidwell has corresponded with Cindy Ogle, City Manager, concerning issues of accessibility in the City as well as commercial concerns. Id. at ¶ 4. Kidwell has spoken to the City's Mass Transit Director regarding ADA issue with the mass transit system. Id. at ¶ 5. Kidwell has also spoken to the City by telephone on at least one other occasion regarding problems with the City's sidewalks, curb cuts, parking, buildings, and ADA compliance in general. Id. at ¶ 6. Kidwell states that he "was never informed by anyone with the City that they had an ADA coordinator or that a grievance procedure existed." Id. at ¶ 7.

In further support of their opposition to defendant's motion, plaintiffs submitted a copy of a letter to Kidwell from Cindy Ogle, City Manager.3 [Doc. 18, Ex. 6.] The substance of Ms. Ogle's letter to Kidwell is as follows:

Please accept this letter as a response to your correspondence to the Mayor regarding the Americans with Disabilities Act (ADA) and Gatlinburg.

As it relates to your comments regarding hotels and motels being aware of ADA requirements, this matter is basically an individual business concern. The City does require that ADA standards be met for all new construction of buildings and facilities for public use. Further, the City does require that ADA standards be met for all new construction of buildings and facilities for public use. Further, the City also requires the North Carolina State Building Code Volume 1-C, Accessibility Code, be met for all new construction of buildings and facilities for public use.

Relating to existing facilities, the City is not responsible under the guidelines of the ADA for enforcement of the provisions of the ADA in privately owned facilities such as motels, restaurants or retail establishments. This enforcement is under the direction of the federal government and the court systems. While the City certainly encourages all businesses in Gatlinburg to comply with the ADA, the City does not have the ability to compel their compliance.

Regarding the concerns you expressed about the City trolleys, it is my understanding that you have had a discussion with the Mass Transit Director, Mr. Buddy Parton, about this matter. As explained by Mr. Parton, all City Trolley Routes have at least one handicap vehicle on the route. The twenty four hour notice that you reference is for service outside the fixed routes. At this time, the City does have ten vehicles that are handicap equipped and we make every effort to comply with ADA regulations.

Id.

Defendant submitted copies of complaints filed by plaintiffs' counsel against other cities in Tennessee in which the allegations are virtually identical to those in the present case. [Doc. 14, Exs. 1, 2, 3.] Roger Trentham served as the City's ADA Coordinator from 1990 until December 2001 and states that the City employed consultants who conducted studies and self-evaluations regarding ADA compliance which totaled six volumes. [Doc. 18, Ex. 7 at ¶ 3.] Trentham also states that the City adopted a formal grievance procedure regarding its ADA compliance. Id. at ¶ 4. The City's Rule 26(a)(1) Disclosures, attached to plaintiffs' brief, state that the City's Title II Survey is available for inspection and copying at the offices of the City's attorneys. [Doc. 18, Ex. 1 at p. 2.]

II. Standard of Review

Under Fed.R.Civ.P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Burchett v. Kiefer, ...

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