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Karczewski v. DCH Mission Valley LLC

United States Court of Appeals, Ninth Circuit

July 10, 2017

John Karczewski, Plaintiff-Appellant,
v.
DCH Mission Valley LLC, a California Limited Liability Company, Defendant-Appellee.

          Argued and Submitted February 9, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California, D.C. No. 3:14-cv-02639-BAS-BLM Cynthia A. Bashant, District Judge, Presiding

          Russell Clive Handy (argued), Center for Disability Access, San Diego, California, for Plaintiff-Appellant.

          Lann G. McIntyre (argued), Jonna D. Lothyan, Ryan P. Garchie, and Jeffry A. Miller, Lewis Brisbois Bisgaard & Smith LLP, San Diego, California, for Defendant-Appellee.

          Felicia Ruth Reid (argued), Hirschfeld Kraemer LLP, San Francisco, California, for Amici Curiae National Automobile Dealers Association, California New Car Dealers Association, and National Mobility Equipment Dealers Association.

          Christopher C. Wang and Sharon M. McGowan, Attorneys; Vanita Gupta, Principal Deputy Assistant Attorney General; Appellate Section, Civil Rights Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States.

          Before: Susan P. Graber, Jay S. Bybee, and Morgan Christen, Circuit Judges.

         SUMMARY [*]

         Americans with Disabilities Act

         The panel reversed the district court's dismissal of a claim that the defendant automobile dealership violated Title III of the Americans with Disabilities Act by refusing to install temporary vehicle hand controls for test-drives of a car offered for sale.

         The panel held that the plaintiff stated a claim under 42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public accommodation to "make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford . . . goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities."

         The panel held that the plaintiff did not state a claim under § 12182(b)(2)(A)(iv), which requires the removal of architectural barriers in existing facilities, because the "barrier" that the plaintiff encountered could not reasonably be described as an architectural barrier in an existing facility. The barrier was the lack of hand controls in the defendant's cars, and the cars that the defendant offered for sale were goods, not facilities.

         The panel held that two implementing regulations, 28 C.F.R. §§ 36.307(a) and 36.306, did not preclude the plaintiff's statutory claim.

         Acquiescing dubitante, Judge Bybee wrote that he would hold that 28 C.F.R. § 36.304(b)(21), enforcing the architectural barriers provision of the ADA and requiring the installation of vehicle hand controls, is not a permissible construction of the statute. Judge Bybee objected to the majority's analysis of § 12182(b)(2)(A)(ii) because it enabled anything to be construed as a policy and because the Department of Justice's regulations and manuals had taken a more modest approach to the terms "policies, practices, and procedures."

          OPINION

          GRABER, Circuit Judge.

         Plaintiff John Karczewski, who is paralyzed from the waist down, sought to test-drive one of the cars offered for sale by Defendant DCH Mission Valley LLC. He requested that Defendant temporarily install hand controls so that he could test-drive the car, but Defendant declined. Plaintiff then brought this action, alleging that Defendant's refusal to install temporary vehicle hand controls violated the Americans with Disabilities Act ("ADA"). The district court granted Defendant's motion to dismiss, Fed.R.Civ.P. 12(b)(6), holding that, as a matter of law, a plaintiff may not bring a claim under the ADA requiring a public accommodation to install vehicle hand controls for test-drives, no matter the circumstances.

         Reviewing de novo, Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1240 (9th Cir. 2013), and resolving a split among district courts in our circuit, we reverse and remand. Accepting the allegations in the complaint as true, as we must, id. at 1247, Plaintiff has stated a claim under 42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public accommodation to "make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities."

         FACTUAL AND PROCEDURAL HISTORY

         Plaintiff "is a level T10/11 paraplegic who is paralyzed from the waist down, cannot walk, and . . . uses a wheelchair for mobility." "He drives a specially equipped vehicle with hand controls, " and he "has a disabled persons placard . . . [and] a driver's license." Defendant is "a facility open to the public . . . and a business establishment" that sells cars. Defendant permits potential buyers "the opportunity to test drive vehicles that they are considering buying."

         Plaintiff visited Defendant's business with the intention of buying a used car. He asked Defendant's employees "for the opportunity to test drive a vehicle and informed them that he could not use his legs and, therefore, needed to have vehicle hand controls temporarily installed on the vehicle so that he could avail himself of this opportunity." The employees told Plaintiff that Defendant "does not install vehicle hand controls on any vehicles for sale and that they would not do so for him as an accommodation."

         Plaintiff alleges that "[t]here are numerous companies that sell (and will install) vehicle hand controls that are universal in design, meaning that they can be used on any vehicle, and their installation does not render any safety features inoperable or cause any permanent modification or damage to the vehicle itself." "Such hand controls are inexpensive, are widely used within the car rental agency world for temporary installation and removal, and could be easily installed by [Defendant] without much difficulty or expense."

         Following Defendant's refusal to facilitate a test-drive, Plaintiff brought this action, alleging that Defendant's failure to install temporary vehicle hand controls violated the ADA.[1] In particular, Plaintiff alleges that Defendant discriminated by reason of:

a. A failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the accommodation would work a fundamental alteration of those services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii).
b. A failure to remove architectural barriers where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). . . .
. . . .
Among the barrier removal tasks that are readily achievable to accomplish is installing vehicle hand controls. 28 C.F.R. § 36.304(b)(21).

         The district court dismissed the claim, holding that it was foreclosed by 28 C.F.R. § 36.307(a), which states that "[t]his part does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities." Plaintiff timely appeals.

         District courts have divided on the legal question presented in this appeal: whether a person seeking to test- drive a car may bring a claim under the ADA to require an automobile dealership to install temporary vehicle hand controls, at least in some circumstances, or whether such claims necessarily fail. Compare, e.g., Tate v. Deoca, No. cv14-08738SJO(MRWx), 2015 WL 12552042 (C.D. Cal. June 30, 2015) (dismissing a claim similar to Plaintiff's claim), and Schutza v. FRN of San Diego, LLC, No. 14cv628JM(RBB), 2015 WL 2152207 (S.D. Cal. May 7, 2015) (same); with Funches v. Barra, No. 14civ.7382(KPF), 2016 WL 2939165 (S.D.N.Y. May 17, 2016) (denying a motion to dismiss a similar claim), and Schutza v. CarMax Auto Superstores Cal., LLC, No. 14cv2617L(JLB), 2015 WL 1632716 (S.D. Cal. Apr. 13, 2015) (same). We received two helpful briefs from amici: a brief from the United States, in support of Plaintiff's position; and a brief from the National Automobile Dealers Association, the California New Car Dealers Association, and the National Mobility Equipment Dealers Association, in support of Defendant's position.

         DISCUSSION

         "Title III of the ADA prohibits discrimination by public accommodations . . . ." Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 669 (9th Cir. 2010) (citing 42 U.S.C. § 12182(a)). "Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience." Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012). Section 12182 begins with a "General rule" in subsection (a):

No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). More specifically:

For purposes of subsection (a) of this section, discrimination includes-
. . . .
(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
. . . .
(iv) a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and
(v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

Id. § 12182(b)(2)(A).

         "Congress entrusted the Attorney General with the responsibility of promulgating Title III's implementing regulations, " Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004) (citing 42 U.S.C. § 12186(b)), and the Attorney General issued regulations, through notice and comment, found at 28 C.F.R. pt. 36. Accordingly, when analyzing an ambiguity or a gap in the statute, we analyze those regulations under the familiar Chevron framework. Baughman, 685 F.3d at 1136.

         A. Reasonable Modifications in Policies, Practices, or Procedures

         Plaintiff contends that Defendant's refusal to install vehicle hand controls constitutes

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations[.]

42 U.S.C. ยง 12182(b)(2)(A)(ii). To prevail on a claim under that statutory provision, Plaintiff ...


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