Scott Johnson v. Blackhawk Centercal, LLC et al

Filing 106

INVITATION FOR UNITED STATES TO FILE AMICUS BRIEF. Signed by Judge Alsup on 11/30/2018. (whalc1, COURT STAFF) (Filed on 11/30/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SCOTT JOHNSON,

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For the Northern District of California

United States District Court

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No. 17-02454 WHA

Plaintiff,
INVITATION FOR
UNITED STATES
TO FILE AMICUS BRIEF

v.
STARBUCKS CORPORATION, a
Washington corporation,
Defendant.
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In this action under the Americans with Disabilities Act and California’s Unruh Civil

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Rights Act, a pivotal issue has become the interpretation of the 2010 ADA Accessibility

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Guidelines (“ADAAG”) adopted by the United States Department of Justice. The particular

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issue relates to 2010 ADAAG 904.4.1, concerning sales and service counters. The provision

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provides (36 C.F.R. § Pt. 1191, App. D):

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904.4.1 Parallel Approach. A portion of the counter surface that is 36 inches
(915 mm) long minimum and 36 inches (915 mm) high maximum above the
finish floor shall be provided. A clear floor or ground space complying with 305
shall be positioned for a parallel approach adjacent to the 36 inch (915 mm)
minimum length of counter.

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EXCEPTION: Where the provided counter surface is less than 36 inches (915
mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum
above the finish floor.

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The parties agree on the following facts. At the subject facility, the defendant Starbucks

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has one continuous transactions counter, uniform in height and depth, designed for customers
using wheelchairs to make a parallel approach. Two cash registers are located on the

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transaction counter and adjacent to each cash register is space provided for customers to make

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their transactions. The transaction counter is also used to display merchandise. The counter

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uniformly measures less than 36 inches high. Because of the cash registers and merchandise

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displays, however, defendant does not provide a 36-inch-long clear counter surface. The

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following image is illustrative.

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For the Northern District of California

United States District Court

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Defendant argues that ADAAG 904.4.1's “exception” applies where, as here, the sales

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counter shared by all customers is of a uniform height. In such a situation, defendant argues,

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the exception requires only that the counter be no higher than 36-inches tall with no minimum

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length requirement. Plaintiff argues that a more logical interpretation is that ADAAG 904.4.1’s

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exception applies only where a 36-inch-wide counter cannot be provided, such as where it

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would be technically infeasible or not readily achievable. See 28 C.F.R. § 36.305(a); 36 C.F.R.

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§ Pt. 1191, App. B § 202.3, Exception 2.

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In light of the apparent conflict presented by the text of ADAAG 904.4.1 and its

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exception, the district court would appreciate an amicus brief from the United States on the

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following two questions:

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1.

Under the above-described circumstances, does ADAAG 904.4.1's

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exception apply such that the sales counter need not meet ADAAG 904.4.1's 36-inch

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length requirement?

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2.

If ADAAG 904.4.1's 36-inch length requirement does apply, does a

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defendant violate this length requirement by maintaining merchandise or other items on

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the counter top, thereby failing to maintain 36-inches of clear counter space?

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The Court requests that the United States Department of Justice advise the Court and the

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parties of its views on these questions. The Court would appreciate the United States notifying

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the Court of a date by which it believes an amicus brief on these issues could be submitted.

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For the Northern District of California

United States District Court

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The Deputy Clerk shall serve this order on Sara Winslow of the United States
Attorney’s Office.

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Dated: November 30, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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