UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) DAVID C. SHARP, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2035 (RCL) ) CAPITOL CITY BREWING ) COMPANY, LLC, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff David C. Sharp brings this action against defendant Capitol City Brewing
Company (“Restaurant”), alleging violations of Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189. Before the Court are defendant’s
motion for summary judgment and plaintiff’s cross-motion for summary judgment. Upon
consideration of the motions, the replies, the oral arguments of counsel, the record of this
case, and the applicable law, the Court concludes that each motion should be granted in
part and denied in part, and that two of plaintiff’s claims should be dismissed for lack of
standing.
I. Background
Plaintiff is quadriplegic with very limited use of one of his arms and uses a
wheelchair for mobility. 1 (Pl.’s Aff. [28-2] ¶ 2.) In October 2007, plaintiff visited
defendant’s restaurant at 1100 New York Avenue, NW in Washington, D.C. (Id.) On
1 At the motions hearing of September 22, 2009, counsel represented that plaintiff could raise his right arm several inches and had no use of his left arm except for the fingers on that hand. October 19, 2007, plaintiff sent a letter to the Restaurant to complain about architectural
barriers to wheelchair access in the men’s restroom of that restaurant. In the letter, he
gave the Restaurant fifteen days to sign and return an agreement drafted by his attorney.
(Letter of Oct. 19, 2007 [25-3].) Under the agreement, plaintiff would decline to sue the
Restaurant under the ADA in exchange for the Restaurant’s acknowledging architectural
barriers, creating a plan to remedy the barriers, and sharing the plan with plaintiff. (Id.)
The Restaurant responded nineteen days later with a note of apology and an explanation
that it was planning to renovate the restroom anyway and would be sure to make it ADA
compliant in the process. (Letter of Nov. 6, 2007 [25-3].) Plaintiff responded that the
Restaurant did not comply with his demand, and he filed suit on November 6, 2007.
(Letter of Nov. 8, 2007 [25-3].)
The Restaurant drafted architectural plans to renovate its restroom and provided
plaintiff with those plans in January 2008. (Pl.’s Cross Mot. for Summ. J. [29] at 2.)
However, plaintiff determined that these plans were not ADA-compliant and informed
the Restaurant. (Id.) The Restaurant then commissioned new plans that, in plaintiff’s
opinion, would have rendered the restroom ADA-compliant if the Restaurant followed
them exactly. (Pl.’s Cross Mot. for Summ. J. [29] at 2.)
Both parties moved for summary judgment, and the Court ruled on the motions
after renovations to the restroom were completed in March 2009. (Pl.’s Cross Mot. for
Summ. J. [29] at 2–3.) The Court denied the motions because neither party had provided
evidence of compliance or non-compliance. (Order [24] at 1–2.) On April 6, 2009, the
Restaurant filed a Renewed Motion for Summary Judgment [25], including photos of the
newly renovated restroom. After visiting the restroom on April 21, plaintiff determined
2 that it still presented barriers to access and filed an opposition and cross-motion for
summary judgment. (Pl.’s Cross Mot. for Summ. J. [29] at 3.)
Plaintiff claims five barriers to access:
(1) The grab rail next to the toilet (“water closet” 2 ) is mounted above the
maximum height allowed under the ADA Accessibility Guidelines
(“ADAAG”). (Pl.’s Cross Mot. for Summ. J. [29] at 8.)
(2) A portable trash can is located next to the water closet, but this space must
be clear of any obstructions to ease transfer from a wheelchair onto the
water closet. (Id. at 5, 8.)
(3) The ADA-compliant toilet paper dispenser was empty during plaintiff’s
visit, whereas a second, non-ADA compliant dispenser mounted too far
away for plaintiff to reach was full. (Id. at 4, 8.)
(4) The non-ADA compliant toilet paper dispenser mounted directly in front
of the toilet juts out 6” from the wall. This dispenser reduces the depth of
the stall to 52”, which is 4” less than the required minimum depth and
which inhibits the maneuverability of plaintiff’s wheelchair. (Id.)
(5) A curtain mounted below the sink (“lavatory”) violates the minimum
required clearance from the floor to the lavatory. (Id. at 8 & n.2.)
Plaintiff asks the Court to order the removal of the alleged barriers and to order
the Restaurant to provide ADA awareness training to its employees. (Id. at 9.)
2 The ADA Accessibility Guidelines refer to toilets as “water closets” and sinks as “lavatories.” See 28 C.F.R. pt. 36, App. A, 4.16, 4.19. This opinion continues that practice for the sake of consistency.
3 II. Legal Standard
A court considering a motion for summary judgment should render judgment if
the evidence shows no genuine issue of material fact. FED. R. CIV. P. 56(c). The court
must take the facts in the light most favorable to the non-moving party, granting it “all
justifiable inferences,” and then determine if there remains a genuine issue of material
fact upon which a jury could hold either way. Anderson v. Liberty Lobby, Inc. 477 U.S.
242, 255 (1986). In determining whether or not such an issue exists which could
determine the outcome of the suit, the primary consideration is the substantive law on the
claim. Id. at 248. However, mere unsupported allegations or denials will not create a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Under the ADA, no owner or operator of a place of public accommodation may,
on the basis of a disability, discriminate against a person by denying him “full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations”
of that place of public accommodation. 42 U.S.C. § 12182(a). “Discrimination” includes
“a failure to remove architectural barriers . . . where such removal is readily achievable.”
Id. § 12182(b)(2)(A)(4). The ADAAG sets forth architectural specifications and other
requirements for restrooms in places of public accommodation. See 28 C.F.R. pt. 36,
App. A.
Though neither party has raised the issue of standing in the motions under
consideration, “the [C]ourt has an independent obligation to assure that standing exists.”
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1152 (2009) (citing Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Plaintiff, as the party invoking
the Court’s jurisdiction, has the burden to show standing. Lujan v. Defenders of Wildlife,
4 504 U.S. 555, 561 (1992). In order to have standing, a plaintiff must have suffered actual
or imminent “injury in fact.” See id. at 560 (citing Whitmore v. Arkansas, 495 U.S. 149,
155 (1990)). “Injury in fact” requires the plaintiff himself to be “among the injured.”
Lujan, 504 U.S. at 563. To establish such injury on a motion for summary judgment,
“[the plaintiff] must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for
purposes of the summary judgment motion will be taken to be true.” Id. at 561.
Therefore, for his claims to survive a motion for summary judgment, the plaintiff must
present to the Court “specific facts” that demonstrate injury to the plaintiff. Defendant’s
alleged violation of the ADA is, by itself, not enough to aver “injury in fact.” Cf. Allen v.
Wright, 468 U.S. 737, 754 (1984) (Government’s violation of the law, by itself, does not
confer standing on adverse parties).
III. Discussion
A. Standing
The Court finds that plaintiff lacks standing for his claims related to the grab rails
and the portable trash can next to the water closet. After addressing standing, the Court
will consider plaintiff’s remaining claims and his requested relief.
In order to have standing, plaintiff must have suffered actual or imminent “injury
in fact.” See Lujan, 504 U.S. at 560. He cannot claim injury on behalf of another person.
See id. at 563. Because plaintiff’s quadriplegia causes him to have only very limited use
of his arms and hands, he cannot point to an “injury in fact” arising out of the height of
the grab rail or the placement of a portable trash can next to the water closet. The Court
will address standing for each of the five claims.
5 1. Grab Rail
Plaintiff claims that the grab rail next to the water closet is too high off the ground
and thus violates the ADAAG. Consideration of the goals of the ADAAG’s technical
specifications and of the nature of plaintiff’s disability reveals that he cannot show
“injury in fact” from grab rails that violate the height standards. The technical
requirements that the ADAAG imposes on the placement of grab rails are meant to help
disabled persons maintain their balance and to facilitate a wheelchair user’s transfer from
his wheelchair to the water closet. See 28 C.F.R. pt. 36, App. A, A4.16.4 & fig. A6; id.
pt. 36, App. A, A4.26.1. Plaintiff cannot use the grab rail for these purposes. He has no
use of his legs and uses a wheelchair, so the grab rail is unnecessary to maintain his
balance, and he does not claim that the grab rail’s height keeps him from using it for this
purpose. Furthermore, based upon counsel’s representations of plaintiff’s disabilities at
the motions hearing, plaintiff has such limited use of his arms and legs that he could not
transfer himself to the water closet even with a compliant grab rail. To do this, he
requires an assistant, in which case it is unclear how the grab rail would assist transfer.
Plaintiff has failed to set forth specific facts showing that the height of the grab rail
causes him “injury in fact”, thus he does not have standing for this claim.
2. Trash Can
Plaintiff claims that a portable trash can next to the water closet violates the
ADAAG because the space next to the water closet must be clear for wheelchair users to
transfer themselves to the water closet. (Pl.’s Cross Mot. for Summ. J. [29] at 5.) See 28
C.F.R. pt. 36, App. A, A4.16.4 fig. A6(b) (showing mechanics of side transfer). As
6 established above, plaintiff’s disability is such that he cannot transfer himself to a water
closet whether a trash can is in his way or not. As plaintiff’s counsel admitted, if an
assistant is with him, there is no reason the assistant cannot move this portable trash can
to facilitate plaintiff’s transfer. The trash can does not prevent plaintiff from engaging in
any activity that he could otherwise perform, therefore he has shown no “injury in fact.”
3. Side Toilet Paper Dispenser
Plaintiff alleges that the ADA-compliant toilet paper dispenser to the right of the
water closet was empty during his visit of April 21, 2009, whereas a non-compliant
dispenser too far away for him to reach was full. (Pl.’s Cross Mot. for Summ. J. [29] at
4.) Plaintiff’s disability raises the question of whether he is unable to reach the ADA-
compliant dispenser without any assistance, which would prevent him from having
standing for this claim. However, based on counsel’s representation of plaintiff’s use of
his arms, plaintiff has standing for this claim because the Court will grant him the
reasonable inference that he can reach the dispenser. See Wasco v. T Corp., No. 04-0099,
2008 WL 53707, at *2 (D.D.C. Jan. 3, 2008) (plaintiff has burden to point to facts that
“create at least a genuine dispute” about elements of constitutional standing).
4. Front Toilet Paper Dispenser
Plaintiff complains that the dispenser directly in front of the water closet
protrudes 6” from the wall, which reduces the depth of the stall to 52”, or 4” less than
what the ADAAG requires. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) His counsel
clarified at the motions hearing that he must be able to situate his wheelchair directly in
7 front of the toilet in order to empty a urinal container into the water closet, and that the
protruding dispenser prevents him from doing so. Plaintiff sufficiently alleges an “injury
in fact,” thus he has standing for this claim.
5. Curtain Below the Lavatory
Plaintiff complains that the space below the front lip of the lavatory must be clear
for a distance of 29”, but defendant has placed a curtain in that space. Plaintiff argues
that this curtain could get caught in the wheels or power controls of his wheelchair. (Pl.’s
Cross Mot. for Summ. J. [29] at 5 n.1). The Restaurant pointed out at the hearing that
plaintiff never alleged that the curtain ever did get caught in his wheelchair, but this is not
the injury on which standing is based in this case. A plaintiff may base standing on a
“reasonable concern about the effects” of the defendant’s actions if those actions directly
affect the plaintiff’s interests. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.
528 U.S. 167, 183–84 (2000). Here, plaintiff is reasonably concerned that the curtain
could damage his wheelchair or that something lying behind the curtain would injure him
if he rolled his wheelchair under the lavatory. This apprehension prevents plaintiff from
attempting to use the lavatory, which constitutes the “injury in fact” that serves as the
basis for standing for this claim.
6. Conclusion
Plaintiff failed to sufficiently allege “injury in fact” for two of his five claims,
therefore the Court has jurisdiction to review only the remaining three. Plaintiff confirms
his lack of standing when he states that two of the alleged barriers in the Restaurant will
8 prevent “many people with disabilities” from being able to use the water closet, but does
not state that they inhibit his own access. (Pl.’s Aff. [28-2] ¶ 12.) Despite plaintiff’s
leadership position in a national association for disabled persons (Id. ¶ 3), he may resort
to federal courts only to redress his own injuries when suing in his personal capacity. See
Wasco, 2008 WL 53707, at *2 (“The ADA does not transform every disabled person into
a roving paladin.”). The Court now turns to the three remaining claims and plaintiff’s
requested relief.
B. Side Toilet Paper Dispenser
Plaintiff claims that when he visited the Restaurant on April 21, 2009, the ADA-
compliant toilet paper dispenser to the right of the water closet was empty, but the toilet
paper dispenser directly in front of the water closet, which was too far away for him to
reach, was full. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) The Restaurant argues that if
the ADA-compliant dispenser is empty, then plaintiff can simply request toilet paper
from the Restaurant’s staff. (Def.’s Reply [30] at 2.) Plaintiff responds that forcing him
to ask for assistance when non-disabled people need not do so is not “equal access” under
the ADA. (Pl.’s Reply [33] at 4.)
The ADAAG requires that “[i]f controls, dispensers, receptacles, or other
equipment are provided, then at least one of each shall be on an accessible route and shall
comply with 4.27.” 28 C.F.R. pt. 36, App. A, 4.22.7. The ADAAG also sets
requirements for a dispenser’s accessibility to disabled persons. Id. pt. 36, App. A, 4.27.
As far as the Court can tell, the side toilet paper dispenser meets these requirements, and
plaintiff does not dispute that it is ADA-compliant. The implementing regulations of the
9 ADA state that a public accommodation must “maintain in operable working condition
those features of facilities and equipment that are required to be readily accessible to and
usable by persons with disabilities by the Act . . . .” Id. § 36.211(a). However, the
regulations do not prohibit “isolated or temporary interruptions in service or access due to
maintenance or repairs.” Id. § 36.211(b). The regulations therefore grant the Restaurant
a reasonable amount of time to “maintain” the ADA-compliant toilet paper dispenser,
which in this case means to ensure it is loaded with toilet paper. The Restaurant has
provided an accessible dispenser, and plaintiff has failed to show that this one instance of
the dispenser being empty was anything more than an “isolated or temporary
interruption[] in . . . access,” so his claim must be denied.
C. Front Toilet Paper Dispenser
Plaintiff claims that the toilet paper dispenser directly in front of the water closet
protrudes 6” from the wall, which reduces the depth of the toilet stall to less than the
minimum of 56”. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) See 28 C.F.R. pt. 36, App.
A, 4.17.3 & fig. 30(a). Due to plaintiff’s limited use of his arms and hands, he must be
able to situate himself directly in front of a water closet in order to empty a urine
container. (Pl.’s Aff. [34-1] ¶ 4.) The dispenser, he argues, prevents him from doing so
because it juts into his shoulder when he tries to maneuver into position. The Restaurant
argues that the ADAAG refers to unobstructed floor or ground space, and because the
toilet paper dispenser is mounted well above the floor, it does not violate the guidelines.
(Def.’s Reply [30] at 2.)
10 The Restaurant’s argument ignores the language from the ADAAG that the
Restaurant quoted to the Court: “Clear Floor Space” is defined as “[t]he minimum
unobstructed floor or ground space required to accommodate a single, stationary
wheelchair and occupant.” (Id. (quoting 28 C.F.R. pt. 36, App. A, 3.5) (emphasis
altered).) The unobstructed floor space and minimum depth requirements are clearly
calculated to permit a wheelchair to maneuver in front of the water closet, and the
Restaurant’s overly technical argument would eviscerate this goal.
The Court declines to grant summary judgment on this issue because a disputed
issue of material fact remains. FED. R. CIV. P. 56(c). The Restaurant, relying on
plaintiff’s photograph (Pl.’s Cross Mot. to Dismiss [28-6] Ex. D), argues that the
dispenser is mounted above the height of the wheelchair’s handles and thus does not
inhibit maneuverability. (Def.’s Reply [30] at 2 n.1.) Plaintiff contends that the
dispenser hits his shoulder at this height, which prevents him from moving into position
in front of the water closet. (See Pl.’s Cross Mot. for Summ. J. [28-6] Ex. D.) Granting
all justifiable inferences to the non-moving party in assessing each party’s respective
motion for summary judgment, the Court comes to opposite conclusions on each motion
because the evidence supplied by plaintiff’s photograph is inconclusive. 3 Therefore, a
dispute of material fact remains, and both parties’ motions for summary judgment on this
issue will be denied.
3 Nothing in plaintiff’s supplemental affidavit [34-1] alters this conclusion. In that affidavit, plaintiff also states that the space directly in front of the water closet must be clear so an assistant can help him transfer from his wheelchair to the water closet. (Pl.’s Aff. [34-1] ¶ 5.) Plaintiff did not raise this argument in his motions or at the hearing, thus the Restaurant has not had the opportunity to respond. Therefore, the Court will not address this argument.
11 D. Curtain Below the Lavatory
Plaintiff complains that a curtain hanging below the lavatory is a barrier to access
because the space from the floor to the bottom edge of the lavatory is supposed to be
clear for a distance of 29”. (Pl.’s Reply [33] at 5.) 28 C.F.R. pt. 36, App. A, 4.19.2 &
fig. 31. The Restaurant argues that the curtain lifts to allow a wheelchair to roll
underneath the lavatory. (Def.’s Reply [30] at 3.)
Although a fabric curtain might not impede access in the same way that a hard
barrier would, plaintiff points out that a curtain can easily get caught in a wheelchair’s
wheels or power controls. (Pl.’s Cross Mot. for Summ. J. [29] at 5 n.1.) Plaintiff’s
counsel also pointed out at the hearing that a person in a wheelchair would be
apprehensive about rolling his legs into a curtain without any knowledge of what might
lie behind it. The Restaurant argues that plaintiff did not allege that the curtain actually
did get caught in his wheelchair, but this is not the meaning of “accessibility.” Plaintiff
should be able to roll his wheelchair under the lavatory confident that no damage or
major inconvenience will occur as a result. Because he cannot do so without such
apprehension, the curtain poses a barrier to access that prevents him from using the
lavatory, and plaintiff’s motion for summary judgment on this claim will be granted. 4
4 The Restaurant’s counsel alerted the Court that the Restaurant has already removed the curtain, which, she argued, mooted the issue. The Court clarifies here that the issue is not moot. First, the Court may assume that the curtain is still in place, and chooses to do so here. The Restaurant did not dispute the curtain’s placement when it contested plaintiff’s Rule 7(h) Statement of Material Facts [28-1]. (Def.’s Reply [30] at 6.) Pursuant to the Court’s Local Rules, a court ruling on a motion for summary judgment “may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted” by the opposing party. D.D.C. R. 7(h). The Court sees no reason not to make such an assumption, especially when counsel did not bring the fact of the curtain’s removal to the Court’s attention until oral argument. Second, subsequent acts by the parties can moot an issue if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968). There is no evidence that the Restaurant is prevented from hanging the curtain again, so the issue is not moot.
12 E. ADA Awareness Training
Plaintiff requests that the Court order the Restaurant to supply ADA awareness
training to its employees. Counsel argued at the hearing that without such training the
Restaurant’s employees may engage in violations of the ADA, for example by stacking
boxes in a hallway such that a wheelchair user could not pass through; by placing the
portable trash can back into position next to the water closet; or by placing objects
beneath the lavatory, which would prevent wheelchair users from washing their hands.
Plaintiff cites to two cases in support of his request. In Fortyune v. Am. Multi-Cinema,
Inc., 364 F.3d 1075, 1078–79 (9th Cir. 2004), a quadriplegic plaintiff sued a movie
theater for refusing to remove another patron from the “companion seat” next to the space
reserved for wheelchair users, which prevented the plaintiff’s wife from sitting with him.
The Ninth Circuit upheld an injunction requiring the theater to reserve the companion
seats for companions of wheelchair users up to ten minutes before the movie start time.
Id. at 1079. In Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 121–23 (N.D.N.Y.
2000), the plaintiff, a blind woman, requested injunctive relief after employees of Wal-
Mart and Sam’s Club told her she could not enter those stores with her service dog.
Neither the cited cases nor plaintiff’s allegation of hypothetical barriers to access
supports plaintiff’s request for court-ordered ADA awareness training. Fortyune and
Stan involved discriminatory policies, but here, plaintiff does not allege discriminatory
policies or treatment by any of the Restaurant’s employees. He argues instead that their
lack of training may cause them to erect further barriers to access. However, he fails to
show that a lack of employee training has led to any barriers to access. Although he
states that a lack of training led employees to place the portable trash can next to the
13 toilet, the Court has established that plaintiff lacks standing for that claim. Although the
ADA-compliant toilet paper dispenser was empty during his visit, plaintiff has not shown
that this temporary interruption of access was more than an isolated incident. Plaintiff
does not allege that employees have in fact stacked boxes in the hallways or under the
lavatory, and the Court will not order ADA awareness training on the basis of a
hypothetical injury. The Court is confident that the injunctive relief granted in this
case—an order to maintain the space below the lavatory free of obstructions—will
sufficiently redress the claim on which plaintiff has prevailed.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment [25] will
be GRANTED in part and DENIED in part. Plaintiff’s Cross-Motion for Summary
Judgment [29] will be GRANTED in part, DENIED in part, and DISMISSED in part for
lack of standing.
A separate order shall issue this date.
Date
January 14, 2010.
________/s/______________ ROYCE C. LAMBERTH Chief Judge United States District Court