Normann v. SDQ Fee LLC et al

Filing 38

ORDER that Plaintiff's Motion for Summary Judgment 32 is denied. ORDER that Plaintiff show cause by 12/4/13, why summary judgment should not be granted for Defendants on the issue of accessible parking. Signed by Judge Neil V Wake on 11/14/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Normann,

No. CV-13-00154-PHX-NVW
Plaintiff,

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v.

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ORDER

SDQ Fee LLC; Kierland Crossing LLC,

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Defendants.

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Before the Court is Plaintiff’s Motion for Summary Judgment, Defendants’
Response, and Plaintiff’s Reply. (Docs. 32, 34, 37). For the following reasons, the
Motion for Summary Judgment will be denied, and an Order to Show Cause will issue to
Plaintiff to show why summary judgment should not be granted for Defendants on the
issue of accessible parking.
I.

LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the moving party carries its burden of

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demonstrating that there is no genuine dispute as to any material fact and that it is entitled

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to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

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317, 322 (1986). A material fact is one that might affect the outcome of the suit under

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the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual

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issue is genuine if “the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party.” Id.

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Once the moving party has carried its burden under Rule 56, the party opposing

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summary judgment must “set forth specific facts showing that there is a genuine issue for

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trial.” Anderson, 477 U.S. at 256. The facts are “viewed in the light most favorable to

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the nonmoving party only if there is a genuine dispute as to those facts.” Scott v. Harris,

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550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational

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trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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II.

FACTS

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The Americans with Disabilities Act (“ADA”) prohibits discrimination against

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people with disabilities by places of public accommodation. 42 U.S.C. §§ 12181–12189.

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Defendants SDQ Fee, LLC and Kierland Crossing, LLC lease space to tenants at

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Scottsdale Quarter, a shopping center and place of public accommodation located in

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Scottsdale, Arizona. (Doc. 35, ¶ 1). Because it is a place of public accommodation built

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for first occupancy after January 26, 1993, Scottsdale Quarter must comply with the

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ADA rules applying to new construction. (Doc. 35 ¶¶ 2, 4); 28 C.F.R. Pt. 36.401(a).

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Plaintiff David Normann asserts that he has mobility-related impairments from

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from secondary multiple sclerosis, a degenerative disease that attacks the brain, spinal

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cord and optic nerves, and a spinal cord injury. (Doc. 35-1). He asserts that he uses a
wheelchair, walker, and crutches for mobility assistance and that the size of his
wheelchair van requires him to park in handicap accessible parking spaces. (Id.).
Mr. Normann is a patron of Scottsdale Quarter. (Doc. 35-1). He has visited the
property on numerous occasions, alone and with family, and has done business with
numerous tenants.

(Id.).

During his visits, he claims to have encountered three

architectural barriers which have upset him and hurt him as signs of discrimination on
account of his disability.

(Id.).

First, he claims Scottsdale Quarter’s designated

accessible parking spaces are not located in accordance with ADA Accessibility
Guidelines. (Doc. 32). He asserts that although Scottsdale Quarter provides accessible
spaces in its parking garages, it is required to provide accessible parking on the streets
adjacent to store entrances. (Id.). Second, Mr. Normann claims Scottsdale Quarter’s
ramps leading up to certain restaurants are too steep, causing him to experience fatigue
and strain. (Id.). Finally, he claims the heaviness of the entrance door to a men’s
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restroom and the lack of maneuvering space make the restroom difficult to access. (Id.).

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After encountering these barriers, Mr. Normann consulted an expert certified by

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the International Code Council as an accessibility inspector and plans examiner. (Doc.

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35, ¶ 1). The expert, Mr. Paul Faber, identified what he believed were twenty barriers to

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accessibility on the Scottsdale Quarter property. (Id. at ¶ 13). The identified barriers are

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as follows:

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1. Lack of maneuvering clearance at men’s room door; heavy door.

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2. Family restroom door requires excessive opening force.

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3. High mirrors and heavy door require excessive opening force.

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4. High changing counter and dispenser at family restroom.

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5. No clearance floor space at ATM machine.

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6. Steep curb ramp at Brio Tuscan Grille.

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7. Steep curb ramp at Menchie’s.

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8. Steep curb ramp at sound corner of 73rd place.

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9. Steep curb ramp at Stingray Sushi.

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10. Steep curb ramp at Grimaldi’s.
11. Lack of accessible seating in Quad.
12. Various barriers at NW1 parking.
13. Various barriers at NWB1 parking.
14. Various barriers at NE1 parking.
15. Various barriers at NEB1 parking.
16. Various barriers at SE1 parking.
17. Various barriers at NEB1 parking.
18. Various barriers at SW1 parking.
19. Various barriers at SWB1 parking.
20. Inaccessible curb front parking.
(Doc. 33 ¶ 14).
Defendants’ expert witness, Karen Haney of Compliance Design Consultants,
agreed with most of Mr. Farber’s findings, except the finding that the lack of accessible
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curbside parking is a violation of the ADA Accessibility Guidelines. She also partly

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disagreed with item five because the floor space had been cleared in front of the ATM,

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with thirteen because she found the number of noncompliant access aisles to be 3 instead

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of 4, and with sixteen because she found the number of noncompliant parking signs to be

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3 instead of 4. (Doc. 35 ¶ 19)

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Plaintiff filed suit seeking (1) an injunction prohibiting conduct of business at

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Scottsdale Quarter until barriers to Plaintiff’s access are removed, (2) an order directing

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the removal of all access barriers at Scottsdale Quarter, (3) an award of attorney fees,

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costs, and litigation expenses under the ADA, and (4) compensatory damages under the

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Arizonans with Disabilities Act. (Doc. 1). Plaintiff then filed this Motion for Summary

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Judgment. (Doc. 32).

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III.

ANALYSIS

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To establish a prima facie case of discrimination by a public accommodation

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under the ADA, Mr. Normann must show (1) he has a disability, (2) Defendants own,

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operate, or lease a place of public accommodation, and (3) he was denied full and equal

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treatment because of his disability. 42 U.S.C. §§ 12182(a)-(b); see Molski v. M.J. Cable,
Inc., 481 F.3d 724, 730 (9th Cir. 2007). Because Defendants admit that Scottsdale
Quarter is a place of public accommodation, only the first and third elements are disputed
on this Motion for Summary Judgment.
A.

i.

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Whether Mr. Normann has a disability
Legal Standard

The ADA defines a disability, in part, as “a physical or mental impairment that
substantially limits one or more major life activities.”1 42 U.S.C. § 12102(1)(A). A
physical impairment is “[a]ny physiological disorder or condition . . . affecting one or
more body systems, such as [the] neurological [or] musculoskeletal” systems. 29 C.F.R.
Pt. 1630.2(h)(1). “Major life activities” include, but are not limited to, caring for oneself,

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Plaintiff has not alleged he has a record of disability or that he is regarded as
disabled, so the alternative definitions of disability under the ADA are not applicable.
See 42 U.S.C. § 12102(1) (defining “disability” under the ADA).
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performing manual tasks, walking, standing, lifting, and bending.

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§ 12102(2)(A). An impairment “need not prevent, or significantly or severely restrict, the

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individual from performing a major life activity in order to be considered substantially

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limiting,” but must “limit[] the ability of an individual to perform a major life activity as

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compared to most people in the general population.” 29 C.F.R. Pt. 1630.2(j).

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See 42 U.S.C.

The definition of disability is “construed in favor of broad coverage of individuals

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. . . to the maximum extent permitted by the terms of [the statute].”

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§ 12102(4)(A). “To survive summary judgment, an affidavit supporting the existence of

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a disability must not be merely self-serving and must contain sufficient detail to convey

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the existence of an impairment.” Rohr v. Salt River Project Agric. Imp. & Power Dist.,

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555 F.3d 850, 859 (9th Cir. 2009) (internal citations and quotation omitted).

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ii.

42 U.S.C.

Analysis

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Defendants assert Plaintiff has failed to prove he is a person with a disability

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because he has not shown that he is substantially limited in the major life activity of

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walking. (Doc. 34). In response to Defendants’ interrogatories, Mr. Normann states that

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he suffers from “secondary progressive multiple sclerosis and spinal chord injury, which
affect his mobility.” (Doc. 35-1 ¶ 2). In his signed affidavit, he attests that he “requires
the use of a wheelchair or walker for mobility” and relies on an oversized van to transport
his wheelchair. (Doc. 32, 36). Defendants asked Mr. Normann to produce documents
relating to his contention that is a person with a disability, but Plaintiff failed to produce
any, claiming he had none is his possession. (Doc. 35 ¶ 5).
To carry his burden on this Motion for Summary Judgment, Mr. Normann needs
to show that there is no issue of material fact regarding whether his disability limits his
ability “to perform a major life activity as compared to most people in the general
population.” 29 C.F.R. Pt. 1630.2(j). Mr. Normann’s statements that he has multiple
sclerosis and uses devices for mobility assistance could, in the absence of controverting
evidence or reason to doubt his self-serving statements, carry his burden of proving that
he is substantially limited in the major life activity of walking. But on this record, his
self-serving statements regarding his disability could reasonably be doubted. If true, his
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disability would be corroborated by an abundance of objective evidence.

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Normann has refused to produce any such documentary evidence. Medical records, a

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doctor’s note, or a handicapped parking card would have sufficed. His refusal, despite

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appropriate discovery requests, to produce any verifying evidence suffices to put his own

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testimony in doubt and creates a material issue of fact regarding whether Mr. Normann is

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a person with a disability. Summary judgment must be denied on the issue.

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B.

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Yet Mr.

denied full and equal treatment by Scottsdale Quarter?

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Assuming he is a person with a disability, was Mr. Normann

a.

Standing

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To have standing under the ADA, a plaintiff must demonstrate that he has suffered

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an injury-in-fact, that the injury is traceable to the defendants’ actions, and that the injury

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can be redressed by a decision in his favor. Chapman v. Pier 1 Imports (U.S.) Inc., 631

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F.3d 939, 946 (9th Cir. 2011) (en banc). A person with a disability suffers an injury-in-

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fact when he encounters a barrier at a place of public accommodation that “deprives him

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of full and equal enjoyment of the facility due to his particular disability.” Oliver v.

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Ralphs Grocery Co., 654 F.3d 903, 907 (9th Cir. 2011). Because the ADA Accessibility
Guidelines “establish the technical standards required for ‘full and equal enjoyment,’ if a
barrier violating these standards relates to a plaintiff's disability, it will impair the
plaintiff's full and equal access, which constitutes ‘discrimination’ under the ADA.”
Chapman, 631 F.3d at 947. Under the ADA, a plaintiff is injured the first time he or she
encounters an architectural barrier that relates to his or her disability. Id. at 950. Once
the first barrier is encountered, a plaintiff may sue for injunctive relief as to all other
barriers related to his or her disability, regardless of whether he or she actually
encountered the other barriers. Id. at 951.
In addition to showing he actually encountered a barrier related to his disability, a
plaintiff must also demonstrate a “real and immediate threat of repeated injury” in the
future. Chapman, 631 F.3d at 946 (quoting O’Shea v. Littleton, 414 U.S. 488, 496
(1974)). A plaintiff can demonstrate a real and immediate threat of future injury by
demonstrating an intent to return to the place of public accommodation. Id. at 949.
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Defendants argue that, assuming Mr. Normann is a person with a disability, he has

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not been injured by the alleged barriers because he has patronized Scottsdale Quarter

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frequently, has not been deterred from visiting or purchasing anything from its

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establishments, and intends to return. (Doc. 34). They also assert that Mr. Normann only

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experienced three of the twenty barriers identified by his expert and has not produced any

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evidence that he was injured by them.

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The barriers, however, did not need to prevent Mr. Normann from patronizing

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Scottsdale Quarter for him to have standing to sue. Assuming for the purposes of this

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section that Mr. Normann is a person with a disability, Mr. Normann was injured the first

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time he encountered an architectural barrier related to his disability. Defendants’ expert

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confirmed that the men’s bathroom door did not comply with the ADA Accessibility

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Guidelines. Because the bathroom door did not comply with the ADA Accessibility

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Guidelines, it would have deprived a person with the handicaps Mr. Normann claims of

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full and equal access to the facilities. After encountering a single barrier, he would be

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entitled to bring suit for injunctive relief on account of all barriers present at Scottsdale

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Quarter that relate to his alleged disability. Furthermore, his frequent patronage of the
shops at Scottsdale Quarter and his intent to return evidences a real risk of future injury.
Accordingly, if Mr. Normann is a person with a disability, he has standing to sue for
injunctive relief as to all architectural barriers related to his disability at Scottsdale
Quarter, whether he actually encountered them or not.
b. Architectural barriers
To establish that he was denied full and equal treatment because of his alleged
disability, Mr. Normann must prove that Defendants failed to “design and construct
facilities . . . that are readily accessible and usable by individuals with disabilities.”
28 C.F.R. Pt. 36.401(a).

Although the ADA does not establish technical standards for

accessibility, it directs the Department of Justice to issue regulations that create design
standards for places of public accommodation. 42 U.S.C. § 12186(b). The Department
of Justice’s regulations must “be consistent with the minimum guidelines and
requirements issued by the Architectural and Transportation Barriers Compliance Board
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[(the ‘Access Board’)],” a federal agency tasked with establishing the minimum

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guidelines for accessible public accommodations. Miller v. Ca. Speedway Corp., 536

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F.3d 1020, 1024-25 (9th Cir. 2008) (citing 42 U.S.C. § 12186(c); 29 U.S.C. § 792(b)).

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In 1991, the Access Board published its first ADA Accessibility Guidelines, and, after an

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opportunity for public comment and revision, the Department of Justice adopted the

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guidelines verbatim.

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standards “for accessibility to places of public accommodation . . . [that were] to be

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applied during the design, construction, and alteration of such buildings.” 28 C.F.R. Pt.

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36, App. A.

56 Fed.Reg. 35,408-01 (1991).

The guidelines set technical

Because Scottsdale Quarter was first constructed for occupancy after

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January 26, 1993, it is subject to the 1991 ADA Accessibility Guidelines. 28 C.F.R. Pt.

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36.401(a).

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i.

Parking spaces

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The ADA Accessibility Guidelines state, “In parking facilities that do not serve a

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particular building, accessible parking shall be located on the shortest accessible route of

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travel to an accessible pedestrian entrance of the parking facility.” 28 C.F.R. Pt. 36, App.

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A § 4.6.2. The number of accessible spots required is dictated by the total parking
available in each lot. Id. at § 4.1.2(5)(a). If a building is served by multiple lots,
accessible spaces do not need to be provided in each lot and may be “provided in a
different location if equivalent or greater accessibility, in terms of distance from an
accessible entrance, cost and convenience is ensured.” Id.
Scottsdale Quarter is a private facility with two large parking garages that serve its
ten buildings. (Doc. 35; DSOF ¶¶ 15-17). It also offers fifty-four curbside, parallel
parking spaces along the private streets that traverse its property. (Id.). All of the
accessible parking spaces serving the property are located in the two garages. (Id.).
Although the parties agree that Scottsdale Quarter offers the required number of
accessible spaces, Mr. Normann asserts that, under the ADA Accessibility Guidelines,
Scottsdale Quarter is required to provide accessible spaces not only in its garages, but
also along its private streets.
Nothing in the ADA Accessibility Guidelines requires Scottsdale Quarter to
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provide accessible curbside parking in addition to the accessible parking it already offers

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in its garages. The accessibility requirements implemented by the ADA are detailed. As

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written, they apply only to parking lots and facilities and make no mention of curbside

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parallel parking spaces. See, e.g., 28 C.F.R. Pt. 36, App. A § 4.1.2(5)(a) (mentioning

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“parking lot”); § 4.6.2 (mentioning “parking facilities”). When constructing its facility,

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Scottsdale Quarter verified that it was not required to construct accessible curbside

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parking by consulting with an ADA technical advisor at the U.S. Department of Justice.

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(Doc. 35-1). The technical advisor confirmed that because parallel, storefront parking

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spaces are not part of a parking lot or parking facility, they are not covered by the ADA

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standards of accessible design. See 28 C.F.R. Pt. 36, App. A § 4.1.2(5)(a).

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Plaintiff suggests the garages do not provide appropriate accessible parking

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because the ADA Guide for Small Businesses requires property owners to “[l]ocate

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accessible parking spaces as close as possible to the accessible entrances on an accessible

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route to the building.” Office of Small Bus. Admin., Americans with Disabilities Act:

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ADA Guide for Small Businesses (1999).

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He interprets this instruction to require

property owners to locate accessible parking on the shortest route between store entrances
and any customer parking. (Doc. 32). The ADA Guide for Small Businesses, however,
provides informal assistance to small businesses and its guidelines are not “legal
interpretations of the [ADA].” ADA Guide for Small Businesses, pg. i. Even if the guide
was binding, Plaintiff’s reading is overbroad. The guideline does not require accessible
parking immediately adjacent to every tenant’s storefront, but, rather, requires accessible
parking to be located as close as possible to entrances that provide access to the entire
facility.
The two parking garages serve all ten buildings at Scottsdale Quarter, and the
accessible spaces are located on “the shortest accessible route of travel to an accessible
pedestrian entrance of the parking facility.” 28 C.F.R. Pt. 36, App. A § 4.6.2; (DSOF ¶¶
41-44). Patrons with disabilities can park on the ground floor of either garage and access
a route that connects all of the property’s buildings. (DSOF ¶¶ 41-44). This is exactly
the type of accessibility contemplated by the guidelines. Because Scottsdale Quarter’s
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parking facilities comply with the ADA Accessibility Guidelines, and this Motion

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presents no factual dispute over the type and amount of parking offered at Scottsdale

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Quarter, the Court will issue an order for Plaintiff to show cause as to why summary

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judgment should not be granted for the Defendants on the issue of accessible parking.
ii.

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Other features

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The parties agree that eleven items identified by Mr. Normann’s expert violate the

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ADA Accessibility Guidelines. The undisputed items, as labeled in Plaintiff’s expert

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report, are Items 1-4, 11, 12, 14, 15, and 17-19. (Doc. 35 ¶ 19). Accordingly, Plaintiff

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has carried his burden of proving there is no issue of material fact surrounding the

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barriers identified by his expert in Items 1-4, 11, 12, 14, 15, and 17-19 and that the

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identified barriers violate the ADA Accessibility Guidelines.

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In addition to the barriers discussed above, Defendants agree that all but two of the

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barriers identified in Plaintiff’s expert report under Items 13 and 16 violate the ADA

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Accessibility Guidelines. Item 13 covers parking in the North parking garage on the

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level designated as B1. Under Item 13, Plaintiff’s expert identifies various parking

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barriers, including narrow access aisles, steep ramps, and low vertical parking space
signs. Defendants agree with all of the barriers listed under Item 13 except they argue
one of the identified access aisles is actually compliant. Plaintiff’s expert claims the
disputed aisle, which is required to be at least 60 inches wide, is only 56-57 inches wide.
Defendants’ expert contends the aisle is actually 93 inches wide. (Doc. 33-4; Doc. 35-1).
A similar dispute surrounds an accessible parking sign identified under Item 16 in
the South parking garage. Plaintiff’s expert asserts that four accessible parking signs are
placed only 48 inches above the ground when they are required to be placed 60 inches
above the ground.

Defendants’ expert contends one of the four identified signs is

compliant and hangs 60 inches above the ground. (Doc. 33-4; Doc. 35-1). Because there
are material issues of fact surrounding the width of the disputed access aisle and the
height of the disputed sign, summary judgment cannot be granted for Plaintiff on those
barriers. In contrast, there is no issue of material fact regarding the remaining barriers
identified under Items 13 and 16. Summary judgment, however, cannot be granted for
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Plaintiff because there is a dispute of material fact regarding whether Plaintiff is a person

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with a disability.

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Defendants dispute that the access ramps identified in Items 6 through 10 of

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Plaintiff’s expert report violate the ADA Accessibility Guidelines. Although Defendants

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agree that the slopes of the ramps technically exceed the maximum slope allowed by

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guidelines, they argue that the amount by which the slopes exceed the maximum slope

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permitted is negligible. (Doc. 35 ¶¶ 60-65). The ramps, identified as Items 6 through 10

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in Plaintiff’s expert report, exceed the maximum slope allowed by .67%, .77%, .97%,

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1.07%, and 1.27%. (Id.) Defendants argue these deviations are not violations because

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they are minor and fall within accepted construction deviations. (Doc. 34).
As a general rule, new construction must strictly comply with the ADA

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Accessibility

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noncompliance . . . is often a matter of inches.” Chapman, 631 F.3d at 946-47; see, e.g.,

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ADA Accessibility Guidelines § 4.16.4 (requiring grab bar behind water closets to be at

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least thirty-six inches long); id. § 4.19.6 (stating that “[m]irrors shall be mounted with the

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Guidelines,

and

“the

difference

between

compliance

and

bottom edge of the reflecting surface no higher than 40 in (1015 mm) above the finish
floor”). The ADA Accessibility Guidelines permit slight deviations by providing that
“[a]ll dimensions are subject to conventional building industry tolerances for field
conditions.” 28 C.F.R. Pt. 36, App. A § 3.2. Plaintiff has failed to show that these
deviations exceed industry standards, so summary judgment cannot be granted for
Plaintiff on the ramps identified in Items 6 through 10. Summary judgment also cannot
be granted on Item 5, the ATM that was blocked by a soda machine, because the parties
have not briefed the issue sufficiently.
IV.

CONCLUSION

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Although Mr. Normann has carried his burden of showing that certain barriers at

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Scottsdale Quarter violated the ADA Accessibility Guidelines, the Motion for Summary

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Judgment must be denied because there is a dispute of material fact over whether he is a

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person with a disability.

Additionally, on the undisputed facts, Scottsdale Quarter’s

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parking facilities comply with the ADA Accessibility Guidelines. Therefore, Plaintiff’s

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Motion for Summary Judgment will be denied, and Plaintiff will be ordered to show

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cause why summary judgment should not be granted to Defendants on the issue of

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accessible parking.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary Judgment
(Doc. 32) is denied.

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IT IS FURTHER ORDERED that Plaintiff show cause by December 4, 2013, why

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summary judgment should not be granted for Defendants on the issue of accessible

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parking.

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Dated this 14th day of November, 2013.

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