Thompson v. Colorado, 96-S-1791.

• Citation: 29 F.Supp.2d 1226
• Decision Date: 22 December 1998
• Docket Number: No. 96-S-1791.,96-S-1791.
• Parties: Phoebe THOMPSON, Dean Ecoff, and Marcia E. Wade, on behalf of themselves and all others similarly situated, Plaintiffs, v. State of COLORADO, Defendant.
• Court: U.S. District Court — District of Colorado

29 F.Supp.2d 1226

Phoebe THOMPSON, Dean Ecoff, and Marcia E. Wade, on behalf of themselves and all others similarly situated, Plaintiffs, v. State of COLORADO, Defendant.

No. 96-S-1791.

United States District Court, D. Colorado.

December 22, 1998.

Glen F. Gordon, John A. Purvis, William R. Gray, Boulder, CO.

J. Davis Connor, Stephen R. Senn, Peterson & Myers, PA, Lakeland, FL.

Robert Joseph Antonello, Robert G. Fegers, Antonello, Fegers & CEA, Winter Haven, FL.

Paul Farley, Deputy Attorney General, State Services Section.

ORDER

SPARR, District Judge.

THIS MATTER comes before the court on the Recommendation of United States Magistrate Judge Coan that Plaintiffs' Motion for Summary Judgment be granted and Defendant's Motion for Summary Judgment be denied. Defendant has filed timely objections to the Recommendation. The court must make a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

The court has conducted a de novo review of the motions (filed December 2, 1996), the Responses (filed December 30, 1996), the Supplements and Supplemental Responses (filed March 27, 1997, April 23, 1997, April 25, 1997, May 9, 1997, August 1, 1997, August 20, 1997, and August 29, 1997), the Recommendation (filed November 25, 1997), Defendant's Objections (filed December 9, 1997), Plaintiffs' Response (filed December 22, 1997), the Supplements and Supplemental Authority (filed April 10, 1998, April 13, 1998, June 15, 1998, July 23, 1998, September 8, 1998, and November 5, 1998), the entire case file, the exhibits, the extensive applicable law, and the excellent arguments presented at the hearing held December 18, 1998, and is sufficiently advised in the premises. The court hereby incorporates by reference the record of the hearing held December 18, 1998. After conducting such de novo review, the court agrees with the Magistrate Judge's Recommendation that Plaintiffs' motion must be granted and Defendant's motion must be denied. Accordingly, IT IS ORDERED:

1. Defendant's Motion for Summary Judgment (filed December 2, 1996) is DENIED.

2. Plaintiffs' Motion for Summary Judgment (filed December 2, 1996) is GRANTED. Summary judgment shall hereby enter in favor of Plaintiffs and against Defendant on the First Claim for Relief. Defendant is hereby enjoined from implementing Colo. Rev.Stat. § 42-3-121(2)(d) (1998) to require payment of a fee for removable parking placards described in Colo.Rev.Stat. § 42-3-121(2)(a)(II) and issued pursuant to Colo. Rev.Stat. § 42-3-121(2)(b).

3. Because the Plaintiffs' Motion for Class Certification (filed September 18, 1998) is unopposed, the parties shall, as soon as practicable, submit a stipulated proposed order for class certification.

4. The parties shall, as soon as practicable, submit a stipulated schedule for the filing of briefs regarding the Second Claim for Relief for reimbursement of past fees collected, prejudgment interest, attorneys' fees, and costs.

5. The court will set a further hearing on the remaining matters upon notice to the parties.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

COAN, United States Magistrate Judge.

This matter is before the court on cross motions for summary judgment. Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Summary Judgment were both filed December 2, 1996. On February 6, 1997 an Order of Reference under 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72 referred the motions to the undersigned United States Magistrate Judge for a recommendation. The motions have been fully briefed. The court has determined that oral argument would not assist the recommendation. For the reasons set forth below, the court recommends that Plaintiffs' Motion for Summary Judgment be granted and that Defendant's Motion for Summary Judgment be denied.

I. Background

Plaintiffs' complaint seeks relief on behalf of a putative class of individuals who qualify for disability parking placards purchased from the State of Colorado. Plaintiffs claim that the fee charged by the State for the parking placards under COLO.REV.STAT. § 42-3-121, "Parking Privileges for Persons with Disabilities", violates Title II of the Americans with Disabilities Act of 1990 ("Act"). The parties have stipulated that the plaintiffs qualify for disabled parking privileges under COLO.REV.STAT. § 42-3-121. See Stipulations filed November 22, 1996, ¶ 7. Defendant does not dispute that the plaintiffs are qualified individuals with disabilities under 42 U.S.C. § 12131(2).

II. Standard of Review

The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary judgment is proper under Fed.R.Civ.P. 56(c) when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The parties agree that there are no genuine issues of material fact in dispute for purposes of resolving the motions for summary judgment. Accordingly, the court will determine, as a matter of law, whether the fee charged by the State of Colorado for disabled parking placards violates Title II of the ADA.

III. Legal Analysis

The Colorado General Assembly has adopted provisions which authorize certain parking privileges for persons with disabilities. COLO.REV.STAT. § 42-3-121 (1996 Cum.Supp.). A disabled person may apply to the Department of Motor Vehicles ("DMV") for distinguishing license plates to be displayed on a motor vehicle owned by that person, and may also apply for a removable parking placard which can be placed in any motor vehicle used to transport the disabled person. § 42-3-121(2)(a)(I) and (II). The statute directs the DMV to provide the distinguishing license plates at the same cost as standard plates. § 42-3-121(2)(a)(I). The statute further authorizes the DMV to assess a fee for a removable parking placard to cover the State's cost in issuing the placard. § 42-3-121(2)(d).

Defendant moves for summary judgment on the grounds that regulations promulgated by the Department of Transportation ("DOT"), rather than Title II of the ADA and its implementing regulations, govern parking for the disabled and that the nominal fee charged by the State for the parking placards is in accordance with DOT regulations. Defendant argues that under principles of statutory construction, the DOT regulations govern parking for the disabled as those regulations pertain specifically to handicap parking while Title II more generally prohibits disability discrimination by public entities. Defendant contends that because the DOT regulations do not expressly require the State to assume the cost of the parking placards, the fees charged by the State under COLO.REV.STAT. § 42-3-121, to compensate the State for the cost of each parking placard, are lawful.

Defendant alternatively argues that if the court finds that the fee charged by the State for parking placards violates Title II of the ADA, summary judgment for defendant is appropriate because Colorado is immune from suit under the Eleventh Amendment, and, because applying the mandates of Title II against the State is a violation of the Tenth Amendment.

Plaintiffs move for summary judgment on the ground that the parking placard fee charged by the State clearly violates the Department of Justice ("DOJ") regulations implementing Title II of the ADA which prohibit the State from charging disabled persons for the cost of ADA compliance measures. Plaintiff argues that Title II of the ADA is a comprehensive statute covering all areas of disability discrimination; thus, to the extent that the DOT regulations are not consistent with the mandates of Title II of the ADA and its implementing regulations, the ADA is the controlling law. Plaintiff further maintains that the States do not enjoy Eleventh or Tenth Amendment immunity from suit under Title II of the ADA as Congress has unequivocally and properly waived those immunities in the statute.

A. Does the Colorado Statute Violate Title II of the ADA

1. Does Title II of the ADA govern parking for the disabled?

The parties disagree about whether the DOT regulations setting forth a "Uniform System for Parking for Persons with Disabilities", 23 C.F.R. § 1235 (March 11, 1991), or Title II and its implementing regulations published by the DOJ, 28 C.F.R. § 35.130 (July 26, 1991), govern the issuance of parking placards for the disabled.

Title II of the ADA and its implementing regulations

The ADA became effective on January 26, 1992. Title II of the ADA, at 42 U.S.C. § 12132, states:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Congress directed the DOJ to promulgate regulations for the implementation of Title II which are contained in 28 C.F.R. § 35.130. 42 U.S.C. § 12134(a). The Title II implementing regulations state, in relevant part:

A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability —

Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level as achievement as that provided to others;

28 C.F.R. § 35.130(b)(1)(iii).

A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to...