This week’s blog entry is a twofer. First, is there a notice requirement to state entities where the state has an antidiscrimination law and a person wants to sue under title III of the ADA? Second, a case discussing that the line between product accessibility and service accessibility is not always so clear. That particular case involves a person with mobility impairments that wanted to test drive a car at a car dealership prior to buying it, but the car dealer would not install temporary hand controls so that the car could be driven. As usual, the blog entry is divided into categories: notice requirement under title III?; hand control case facts; hand control case majority reasoning; hand control case acquiescing dubitante opinion (say what ? You will have to keep reading:-); and takeaways. The reader is free to focus on any or all of the categories.

Also, I do want to thank all of my readers and also those who voted for me for the ABA 100. I do appreciate it!

I

Is There a Notice Requirement to a State Agency Responsible for a Disability Nondiscrimination Law When Suing an Entity for Violating Title III of the ADA?

We have previously discussed title III notice requirements here. That said, as everyone knows, serial lawsuits are a real problem. We have discussed how to fend off those lawsuits here, and we have also discussed pending federal legislation on that matter here as well. Recently, we have seen the Arizona Atty. Gen. intervene to get dismissed a bunch of serial lawsuits. The Nevada Atty. Gen. has now done the same thing. In their filing, which can be found here, the claim is made that a state entity has to be notified prior to filing a title III suit where that state has a disability antidiscrimination law enforced by that state agency. The reference is to 42 U.S.C. §2000a-3(c), which requires such notice when suing under the Civil Rights Act of 1964. However, title III of the ADA contains no such requirement in 42 U.S.C. 12181 et. seq. It is true that in 42 U.S.C. §12188(a), the ADA references 42 U.S.C. §2000a-3, but the reference is very specific to 42 U.S.C. §2000a-3(a). There is absolutely no mention of 42 U.S.C. §2000a-3(c). Since it is only 42 U.S.C. §2000a-3(c) that contains the notice requirement and that section is not  referenced by the ADA, an extremely strong argument exists that notice to a state agency responsible for implementing a disability antidiscrimination law is not required when filing a title III suit. Finally, keep in mind, that not all states have disability antidiscrimination laws. Georgia for all practical purposes, for example, does not.

II

Hand Control Case Facts

The case of the week is Karczewski v. DCH Mission Valley LLC, a published decision of the Ninth Circuit decided on July 10, 2017. The facts of the case are pretty straightforward. The plaintiff who is paralyzed from the waist down and uses hand controls when driving a vehicle sought to test drive one of the cars offered for sale by DCH Mission Valley LLC. Plaintiff requested that the defendant temporarily install hand controls so that he could test drive the car, but the defendant declined to do so. Plaintiff then sued alleging violation of title III of the ADA.

III

Majority Reasoning

In reversing and remanding the lower court decision and finding that the plaintiff stated a claim, the court reasoned as followed:

1. Public accommodations must start by considering how their facilities are used by guests without disabilities and then take reasonable steps to provide guests with disabilities a like experience.
2. To prevail on a claim involving 42 U.S.C. §12182(b)(2)(A)(ii) a plaintiff has to show: 1) plaintiff has a disability as defined by the ADA; 2) the defendant is a private entity owning, leasing, or operating a place of public accommodation; 3) the defendant employed a discriminatory policy or practice; and 4) the defendant discriminated against the plaintiff based upon the plaintiff’s disability by failing to make a requested reasonable modification that was necessary to accommodate the plaintiff’s disability.
3. Plaintiff’s complaint alleged that hand controls are inexpensive, easy to obtain, work on all types of vehicles, do not disable any safety features, cause no damage, and can be installed by the defendant without much difficulty or expense and those allegations must be taken as true on a motion to dismiss.
4. Temporary modification of a car for the purpose of a short test drive is relief fitting comfortably within the ordinary understanding of a modification to a policy.
5. Proving a prima facie case for an unreasonable policy is for all practical purposes identical to proving a prima facie case involving a barrier being readily achievable.
6. Proving a case for an unreasonable policy is likely to be harder than proving a case involving whether a barrier is readily achievable because a policy claim allows for a defendant to assert the affirmative defense of fundamental alteration and a readily achievable barrier claim does not allow for such a defense.
7. The barrier encountered by plaintiff cannot reasonably be described as an architectural barrier in an existing facility. Rather, the barrier faced by the plaintiff was the lack of hand controls in defendant’s cars, which are clearly goods and not facilities. Since that is the case, the implementing regulations describing the temporary installation of vehicle hand controls as an example of removing an architectural barrier in an existing facility found in 28 C.F.R. §36.304(b)(21) is not applicable to plaintiff’s claim. That said, in a footnote, the court said that nothing in the opinion is intended to cast doubt on the application of the statutory section involved in the case and its corresponding regulation to other factual scenarios, such as the practice by rental car companies of installing vehicle hand controls in their rental cars.The court specifically declined to address factual situations and legal issues not before them.
8. The court was not buying the argument that allowing the claim to go forward would violate the safe harbor that a business was not required to alter its inventory to include accessible or special goods designed for or that facilitate use by individuals with disabilities per 28 C.F.R. §36.307(a). The court said that regulation pertains to where a business has to order additional goods, but does not pertain to plaintiff’s requested accommodation, which was a short-term modification to an existing individual item already contained in the inventory.
9. While places of public accommodation are generally not required to alter their inventory by manufacturing or ordering specialty goods, the ADA does require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as non-disabled customers.
10. The personal device exception found in 28 C.F.R. §36.303 does not help the defendant either. Applying the interpretive principle that a general rule applies unless a more specific rule provides otherwise, an exception is carved out to the general prohibition on personal devices whenever the regulations elsewhere require the provision of personal devices.
11. The court did not believe that the Department of Justice would have added an explicit qualification of the regulation while at the same time leaving it up to the courts to read and implicit qualification into another regulation. Accordingly, 28 C.F.R. §36.306 and §36.303 can be read in harmony together so as to not create a conflict. That is, personal devices are independently useful objects that a person possesses to use for a general purpose, which is not the case for hand controls nor is it the case for assistive listening systems for that matter.
12. It is far more practical to require dealerships that voluntarily offer the privilege or service of test drive to carry hand controls of a brand that the dealership knows how to install and use when a customer seeks a test drive (assuming, of course, that providing hand controls would be a reasonable modification and that the other statutory requirements are met).
13. A narrow reading of “personal devices,” and §36.306 is more consistent with the overall structure of the regulations and with the purpose of the ADA.
14. Installation of vehicle hand controls is likely reasonable at a large dealership that regularly installs hand controls, has spare universal hand controls on hand, and employs many mechanics with expertise in installing an controls, when advance notice is given by a customer with clear expertise in using hand controls.
15. It is more consistent with the text of the ADA, its overall intent, and with the case law to inquire into the underlying facts rather than come up with a rule to never require the provision of vehicle hand controls no matter the situation.

IV

Hand Control Case Acquiescing Dubitante Opinion (Judge Bybee)

1. 28 C.F.R. §36.304(b)(21) list as one of its examples for removing barriers being the installation of vehicle hand controls. However, this particular example is completely unlike any of the other examples listed in that regulation. That is, installing vehicle hand controls cannot be a reasonable application of the ADA’s command to remove architectural barriers in existing facilities because architectural barriers ought to have something to do with architecture. Accordingly, Judge Bybee would hold that §36.304 specific provision requiring vehicle hand controls is not a reasonable construction of the statute it purports to implement and therefore, is a dead letter, i.e. not subject to deference.
2. Under the majority’s aggressive reading of the ADA, everything can be construed as a policy, practice, or procedure.
3. A savvy plaintiff with an architectural barrier claim will now always bring a policy, practices, and procedures claim as well. Under the system imposed by the majority, once the plaintiff makes out a prima facie case, the defendant will have to demonstrate both that the removal of its architectural barrier is not readily achievable and that modifying of policy would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
4. The majority statement that readily achievable claims and policy claims are for all practical purposes identical isn’t reassuring because ordinarily when Congress adopts two different standards within the same legislation, it is assumed that the standards mean different things.
5. DOJ and its regulations and manuals have taken a more modest approach to what is policy, practices, and procedures. If policy, practice, or procedure are going to be defined in the way the majority defines it, then DOJ’s regulations on policy, practices, and procedures become nearly meaningless.
6. A court should hesitate supplying the rationale where the agency’s explanation has failed. Here, DOJ adopted an on point regulation, but did so under a different provision of the ADA rather than in a section of the regulations more specifically applying to the situation.

V

Takeaways

1. Just what is an acquiescing dubitante opinion? In all my years of reading opinions and it is thousands and thousands by now, I have never seen an acquiescing dubitante opinion before. So, I had to look it up. It is very much as described by Judge Bybee. That is, it is a situation where a judge simply cannot bring himself to writing a concurring opinion nor can he bring himself to writing a dissent. Accordingly, this kind of opinion is an opinion that says, “I see it both ways, and I simply can’t come down one way or the other.”
2. It wouldn’t surprise me in the least to see this appealed to the United States Supreme Court or for the dealership to petition the Ninth Circuit to hear it en banc. With respect to the Supreme Court, it is absolutely true that persons with disabilities have fared well when it comes to cases outside of the employment context, but this case gets into the issue of the line between product accessibility and service accessibility. It also gets into the issue of whether DOJ with respect to its hand control provisions in its final implementing regulation would be entitled to Chevron Both of these claims might be something that Justice Gorsuch would be very receptive to. Also, Justice Kennedy in the past has not been the swing vote on persons with disabilities. It would be very interesting to see how Chief Justice Roberts might deal with this. Finally, the court does not always wait for a Circuit Court before deciding to take up a case.
3. I do find problematic the majority’s blurring of policy, practices, and procedure claims with architectural barrier claims.
4. While it is true that fundamental alteration is a defense, it is also true that architectural barrier claims have a defense as well. That is, with respect to existing facilities, the defense that removing an architectural barrier would not be readily achievable does exist.
5. The case assumes, as we have discussed before, that certain barrier removals are per se readily achievable.
6. I am not so sure that the inventory defense can be dismissed so readily. Critical questions are: Just how easy it is to install temporary hand controls?; What is the expense to the car dealership of installing hand controls?; Whether the car dealership by installing the hand controls is engaged in providing a service or in modifying a product?; How do you deal with a hybrid situation involving product modification and the providing of services? Does the analysis change if rental cars are involved?
7. Does the ADA really require places of public accommodation to make reasonable, temporary adjustment to goods already in stock if doing so will help customers with disabilities access the same goods and services as customers without disabilities. I’m not so sure…
8. I can see how cases like this should survive a motion to dismiss because the law is so much up in the air and because it turns on very fact specific questions.
9. I don’t think I follow how fundamental alteration with respect to policy, procedures, and practices matches up with the standards used in architectural barriers situations.
10. As a user of personal devices since fourth grade, in my case hearing aids, the distinction the majority makes regarding personal devices as being something for general use makes a great deal of sense to me.
11. A great preventive law step is for public accommodations to consider how their facilities are used by guests without disabilities and then take reasonable steps, keeping in mind the dictates of the ADA, to provide guests with disabilities a like experience.