HEINE et al v. COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS OF THE STATE OF NEW JERSEY et al

Filing 50

OPINION. Signed by Judge Kevin McNulty on 8/22/14. (jd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ELLEN HEINE, JOHN AND JANE DOE 1
TO 10, ABC COMPANIES and/or
ENTITIES 1 TO 10, JOSEPH FABICS,
CHRIS GRIECO, JOHN F. MALONE,
CAITLIN RUPPERT, RYAN MOSKOWITZ,
and PAUL WONDOWSKY,

Civ. No. 2:11-5347 (KM)(MCA)

OPINION

Plaintiffs,
V.

COMMISSIONER of the DEPARTMENT of
COMMUNITY AFFAIRS of the STATE of
NEW JERSEY, JOHN and JANE DOE 1 to
10, ABC COMPANIES and or ENTITIES 1
to 10, THE STATE OF NEW JERSEY,
BERGEN COUNTY D.Y.F.S.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court upon a motion for judgment on the
pleadings, pursuant to Fed. R. Civ. P 12(c), and in the alternative for summary
judgment, pursuant to Fed. R. Civ. P. 56, brought by the Defendant, the
Commissioner of the Department of Community Affairs of the State of New Jersey
(“DCA” or the “Department”), Docket No. 40 (“Def. Br.”). Pro Se Plaintiffs Ellen
Heine and Joseph Fabics have opposed the motion. Docket Nos. 44, 46, 47, 48.
For the reasons set forth below, I will dismiss the Complaint in its entirety as
against DCA. Five of the six counts in the Complaint are barred by the Eleventh
Amendment; the remaining count, No. 3, fails to state a claim.

I.

BACKGROUND

On September 14, 2011, Plaintiffs Ellen Heine, Joseph Fabics, Chris
Grieco, John Malone, Caitlin Ruppert, Ryan Moskowitz, and Paul Wondowsky’
initiated this matter in this Court. On December 9, 2013, Plaintiffs filed the Sixth
Amended Complaint (“Complaint”), which is the currently operative pleading.
That Complaint alleges six counts against DCA, all related to the Department’s
regulation of rooming and boarding homes in New Jersey.
Plaintiffs are alleged to be owners, beneficiaries, note holders, and tenants
of 515 Van Bussum Avenue in Garfield, New Jersey, as well as members of the
“Citizen’s Homeowners Association.” Plaintiffs are either owners or tenants of
dwellings that were cited by the DCA for violations of the New Jersey Rooming
and Boarding House Act (“RBHA”), N.J.S.A. 55:13B-1—16—-specifically, for
operating a rooming house without a license. The RBHA is administered by the
DCA Bureau of Rooming and Boarding House Standards (the “Bureau”).
2
The Complaint alleges that the Bureau’s regulatory enforcement of
rooming and boarding houses in New Jersey is discriminatory and violative of
federal and state law and the United States Constitution. The Complaint is
brought against the Commissioner of DCA in his official capacity. Compi., Parties
¶ 2. Plaintiffs have also named the State of New Jersey and the Bergen County
DYFS as Defendants. Plaintiffs seek eight million dollars in compensatory
4
damages for these violations.

1

Plaintiff Therese Ruppert was terminated on December 9, 2013.

The RBHA specifically proscribes any individual from operating a rooming or
boarding house “without [a] valid license to own or operate such a facility, issued by the
Commissioner.” N.J.S.A. 55:13B-7(a). Under the RBHA, a rooming house is a “boarding
house wherein no personal or financial services are provided to residents.” N.J.S.A.
55:133-3(h). A rooming home contains two or more rooms that are intended for sleeping
or dwelling that are not arranged for independent living. According to the DCA,
determining whether two or more rooms are intended for such use can be done by simple
inspection, while determining whether dweffing units are configured for independent
living requires a more in depth inquiry of additional evidence.
2

Each section of the Complaint begins anew with the numbering of paragraphs.
Therefore, I refer both to the section and paragraph when referring to a specific
paragraph of the Complaint.
DYFS is the Division of Youth and Family Services. The State of New Jersey and
2

Plaintiffs bring claims under 42 U.S.C. Section 1983 (counts 1, 2, 4, 6);
the New Jersey Law Against Discrimination (“NJLAD”) (counts i, , 5); the
Americans with Disabilities Act (“ADA”) (count 3); and the Fair Housing Act
(“FHA”) (counts 4, 5). All of them are pleaded solely as claims for damages. The
six counts of the complaint are as follows:
(1) The Department’s regulatory actions are discriminatory, in violation of
42 U.S.C. § 1983, the NJLAD, N.J.S.A. § 10:5-12(g) (unlawful employment
practice or unlawful discrimination) and 10:5-12.5(a) (discrimination in
regulation of land use and housing) (Count 1);
(2) The Department’s regulatory actions violate the Fourth and Fourteenth
Amendments of the United States Constitution (Count 2);
(3) The DCA’s regulatory actions violate the ADA (Count 3);
(4) The DCA’s enforcement discriminates against “individuals in their free
expression of the family unit and family life,” in violation of the FHA, 42 U.S.C.
§ 3601 et seq., 42 U.S.C. § 1983, and the NJLAD § 10:5-12.5 and 10:5-12
(Count 4);
(5) The Department “is practicing discrimination and selective
enforcement ‘in the regulation of land use and housing” in violation of the
NJLAD, N.J.S.A. § 10:5-12.5(a), and is practicing “Hate Crimes of Marital Status
Discrimination” in violation of the NJLAD, § 10:5-12(g) and the FHA (Count 5);
(6) The definitions of “boarding house” and “single room occupancy” under
the RBHA are unconstitutional and the RBHA violates the Fourth and
Fourteenth Amendments as well as “Federal Anti-discrimination and eviction
laws” (Count 6).6

the Bergen County DYFS have not appeared or otherwise responded in this matter. It
does appear from the docket that these parties have been served with the Sixth Amended
Complaint.
In Counts 2 and 6, Plaintiffs allege that Defendants violated the Fourth and
Fourteenth Amendments—allegations that must be brought, if at all, under 42 U.S.C. §
1983.
5

In Count 6, Plaintiffs also allege that Defendants have violated “other statutes,
Federal Anti
eviction laws as well as.
laws and processes in the state as well as.
discrimination and eviction laws.” Without more, the Court cannot infer what additional
“laws” are referred to.
3

6

.

.

.

.

DCA submits that the Complaint must be dismissed because (1) the claims
are barred by the Eleventh Amendment; (2) the claims have been adjudicated in
state court and are therefore barred by the doctrines of res judicata and collateral
estoppel; (3) there is no constitutional basis for the due process and illegal search
claims; and (4) the state’s actions were dictated by statute, not discriminatory
animus.
DCA has submitted this motion as one for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). To the extent that the motion relies
“upon matters outside the record, i.e., the State court actions,” however, “the
Department respectfully request[sj that the motion to dismiss be treated as one
for summary judgment pursuant to Fed. R. Civ. P. 56.” Def. Br. at 8. As set forth
below, I have declined that invitation to consider summary judgment, because
there has not been an adequate opportunity for mutual discovery.
II. DISCUSSION
A. Standard of Review: Judgment on the Pleadings

A motion for judgment on the pleadings pursuant to Rule 12(c) is often
indistinguishable from a motion to dismiss, except that it is made after the filing
of a responsive pleading. Federal Rule of Civil Procedure 12(h)(2) “provides that
a defense of failure to state a claim upon which relief can be granted may also
be made by a motion for judgment on the pleadings.” Turbe v. Gov’t of Virgin
Islands, 938 F.2d 427, 428 (3d Cir. 1991). Accordingly, when a Rule 12(c) motion
asserts that the complaint fails to state a claim, the familiar Rule 12(b)(6)
standard applies. Id.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part,
if it falls to state a claim upon which relief can be granted. The defendant, as the
moving party, bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule
12(b)(6) motion, a court must take the allegations of the complaint as true and
draw reasonable inferences in the light most favorable to the plaintiff. Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (traditional “reasonable
inferences” principle not undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
4

not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556
U.S. at 678.
.

.

Here, Plaintiffs are appearing pro Se. “Where the plaintiff is a pro se litigant,
the court has an obligation to construe the complaint liberally.” Giles v. Keamey,
571 F.3d 318, 322 (3d Cir. 2009) (citing Haines v. Kemer, 404 U.S. 519, 520521 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n.6 (3d Cir. 1997)). I have construed
these pro se litigants’ pleadings and filings in that liberal spirit.
B. Analysis
1. Subject Matter Jurisdiction: Sovereign Immunity under the
Eleventh Amendment
All the Counts of the Complaint assert claims against the Commissioner
of the DCA in his official capacity. Plaintiffs do not seek injunctive relief; each
count seeks monetary damages in the sum of eight million dollars. The DCA
submits that all of the claims in the Complaint—under Section 1983, the FHA,
the ADA, the NJLAD—are barred by the Eleventh Amendment. As to all claims
but the ADA claim (Count 3), I agree; the Eleventh Amendment sovereign
immunity bar applies, and this Court lacks jurisdiction to hear Counts 1, 2, 4,
5, and 6.
The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The
Eleventh Amendment is a jurisdictional bar that operates as a limit on the
subject matter jurisdiction of a federal court. Rudolph u. Adamar of New Jersey,
7
As discussed, the Eleventh Amendment has long been interpreted to bar suits
against any state in federal court by that state’s own citizens, and by citizens of other
states. See Edelman v. Jordan, 415 U.S. 651 (1974); Hans v. Louisiana, 134 U.S. 1, 15
5

Inc., 153 F. Supp. 2d 528, 533 (D.N.J. 2001) (citing Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 119—20 (1984)). Despite its seemingly limited
wording, “the Eleventh Amendment has been interpreted to bar suits against any
state in federal court by that state’s own citizens as well as suits by citizens of
other states.” Id. (citing Edelman v. Jordan, 415 U.S. 651 (1974); Hans v.
Louisiana, 134 U.S. 1, 15 (1890)).
“There are three primary exceptions to Eleventh Amendment immunity: (1)
congressional abrogation, (2) waiver by the state, and (3) suits against individual
state officers for prospective injunctive and declaratory relief to end an ongoing
violation of federal law.” Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F.
App’x 247, 252 (3d Cir. 2005) (citation omitted; not precedential). A state’s waiver
must be “unequivocally expressed,” Pennhurst, 465 U.S. at 99, and a state’s
waiver in its own courts does not constitute a waiver in the federal courts. Petty
v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 276 (1959). New Jersey’s
enactment of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., is a limited waiver of
sovereign immunity that does not waive the state’s Eleventh Amendment
immunity. Matter of Kahr Bros., Inc., 5 B.R. 765, 770, n.9 (Bankr. D.N.J. 1980)
(citing Ritchie v. Cahall, 386 F.Supp. 1207, 1209-10 (D.N.J. 1974)).
I must first address whether the claims brought against the Commissioner
of the DCA are considered claims against the State. Relevant case law clearly
establishes that claims brought against the Commissioner in his official capacity
are actually brought against the state for purposes of the Eleventh Amendment.
Sovereign immunity extends to state agencies and departments “provided that
the state is the real party in interest.” Garden State Elec. Inspection Servs. Inc. v.
Levin, 144 F. App’x 247, 250-5 1 (3d Cir. 2005) (not precedential) (citing MCI
Telecomm. Corp. v. Bell Atlantic—Pa. Sen.’., 271 F.3d 491, 503 (3d Cir. 2001)). By
extension, “[t]he Eleventh Amendment also bars a suit against a state official in
his or her official capacity because it ‘is not a suit against the official but rather
is a suit against the official’s office. As such it is it is no different from a suit
against the State itself.”’ Id. (quoting Will v. Mich. Dept. of State Police, 491 U.S.
58, 71(1989)).
The Complaint is an action for damages. It explicitly asserts its claims
against the Commissioner in his official capacity. Therefore, for purposes of

(1890). The defense of sovereign immunity is properly raised as a jurisdictional defect
under Fed. R. Civ. P. 12(b)(1). Because this particular motion is directed to the face of
the Complaint, the distinction between Rule 12(b)(1) and Rule 12(b)(6) or 12(c) has no
practical consequences here.
6

analyzing Defendant’s sovereign immunity arguments, I interpret these as claims
for damages against the State of New Jersey.
a. Section 1983 Claims
Counts 1, 2, 4, and 6 allege that the DCA’s enforcement of the RBHA
violates Plaintiffs’ constitutional rights, in violation of 42 U.S.C. § 1983. Section
1983 provides that a civil action may be brought against any “person,” who,
“under color” of state law, “subjects, or causes to be subjected, any citizen of the
United States or any person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunity secured by the Constitution and laws.” 42
U.S.C. § 1983. In Edelman v. Jordan, the Supreme Court reasoned that “a federal
court’s remedial power, consistent with the Eleventh Amendment, is necessarily
limited to prospective injunctive relief . . . and may not include a retroactive
award which requires the payment of funds from the state treasury. . . .“ 415
U.S. at 677. Therefore, Section 1983 does not waive the state’s sovereign
immunity from a suit for damages in federal court. Id. Where a party sues a state
official, such as the DCA Commissioner, in his official capacity, the Eleventh
Amendment bars claims for damages, which will ultimately be paid out of the
state coffers. See Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F. App’x
at 250-5 1.
Accordingly, Plaintiffs’ Section 1983 claims are barred by the Eleventh
Amendment. These claims, which are raised in Counts 1, 2,8 4, and 6, will be
dismissed.
b. NJLAD Claims
Plaintiffs also bring several claims under the NJLAD. See Complaint
Counts 1, 4, 5. Because the State of New Jersey has not waived its sovereign
immunity with respect to NJLAD claims, they too must be dismissed pursuant
to the Eleventh Amendment.
Any waiver of sovereign immunity must be express and unequivocal. Other
judges of these Courts have persuasively held that, at least where the state is
not sued in its capacity as an employer, New Jersey has not waived sovereign
It is not entirely clear whether Count 2 also alleges a violation of the First
Amendment, but the analysis would be the same. Such a constitutional claim must be
brought against the state via Section 1983. Therefore, any First Amendment claim would
also be barred by the sovereign immunity principle inherent in the Eleventh
Amendment.
8

7

immunity in the NJLAD. See e.g., Rudolph v. Adamar of New Jersey, Inc., 153 F.
Supp. 2d 528, 542 (D.N.J. 2001) (noting that “[sluits brought against the State
as an employer are clearly within the scope of the explicit waiver of sovereign
immunity contained in N.J.S.A. § 10:5—5(e); § 10:5—12(a),(c)). 1n Rudolph, the
court found it “inconceivable that the legislature of New Jersey intended to waive
the State’s Eleventh Amendment immunity under the NJLAD and allow the State
to be sued in federal court in its legislative or executive capacities, while
expressly reserving its immunity in these capacities under the New Jersey Tort
Claims Act.” Id. at 543; see also Garcia v. Richard Stockton Coll. of New Jersey,
210 F. Supp. 2d 545, 550 (D.N.J. 2002) (holding that “a plaintiff may not sue the
State of New Jersey, or its alter egos, under the NJLAD in federal court.”).
There are no allegations in the Complaint that could be construed as
NJLAD claims against the Commissioner of the DCA in his capacity as an
employer. The Complaint alleges that Defendants, by virtue of the manner in
which they administered the RBHA and regulations thereunder, violated
Sections 10:5-12(g) and 10:5-12.5(a) of the NJLAD. And Plaintiffs, of course, do
not sue as, and apparently are not, employees of the State.
I will dismiss the NJLAD claims raised in Counts 1, 4, and 5 on Eleventh
Amendment grounds. This Court lacks subject matter jurisdiction to hear them.
c. Fair Housing Act Claims
In Counts 4 and 5, Plaintiffs sue for damages under the FHA, alleging that
DCA’s enforcement practices have discriminated against individuals’ “free
expression of the family unit and family life,” Compi., Count 4 ¶ 2; that the
Department has “discriminated against small property owners who the DCA has
targeted as illegal housing,” Compl., Count 5 ¶ 3; and that the Department’s
regulatory and enforcement actions are tantamount to “Hate Crimes of Marital
Status Discrimination,” id. ¶ 6. These claims, too, must be dismissed on Eleventh
Amendment grounds.
Congress may abrogate the states’ Eleventh Amendment sovereign
immunity “when it both unequivocally intends to do so and acts pursuant to a
valid grant of constitutional authority.” Bd. of Trustees of Univ. of Alabama v.
Garrett, 531 U.S. 356, 121 5. Ct. 955, 148 L. Ed. 2d 866 (2001). The Supreme
Court, however, has “repeatedly expressed its distaste for lower courts ‘running
afoul of the unequivocal-expression requirement’ of the Eleventh Amendment.”
Gregory v. S. Carolina Dep’t of Transp., 289 F. Supp. 2d 721, 725 (D.S.C. 2003),
affd, 114 F. App’x 87 (4th Cir. 2004) (quoting United States v. Nordic Viii., 503
U.S. 30, 38, (1992)); see also Biatchford v. Native Viii. of Noatak, 501 U.S. 775,
8

111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (noting that a general jurisdictional
grant does not suffice to show Congress abrogated a state’s Eleventh Amendment
rights).
It has repeatedly been held that Congress did not abrogate state sovereign
immunity when it enacted the Fair Housing Act. See Gregory v. S. Carolina Dep’t
of Transp., 289 F. Supp. 2d 721 (D.S.C. 2003); Project Life, Inc. v. Glendening,
139 F. Supp. 2d 703, 711 (D. Md. 2001) affd, 46 F. App’x 147 (4th Cir. 2002)
(finding that the Eleventh Amendment precluded an award of damages against
state officials for violation of the FHA, but allowing prospective injunctive relief);
Welch v. Centtinj 21 Chimes Real Estate Inc., CV-90-3410, 1991 WL 29950, at *1
(E.D.N.Y. Feb. 27, 1991) (“Because plaintiffs complaint seeks money damages
from DSLD [for a violation of the FHA], money which would come from the state
treasury, the eleventh amendment acts to bar this suit.”). Plaintiffs here set forth
no argument to suggest that Congress intended to or did abrogate the state’s
immunity when it enacted the FHA.
Finding no unequivocal abrogation of the state’s immunity in the FHA, I
will also dismiss the FHA claims raised in Counts 4 and 5 for lack of subject
matter jurisdiction.
d. ADA claims
Count 3 alleges that the DCA has compromised individuals’ “barrier free
needs,” in violation of the ADA. Compl., Count 3 ¶ 4. The Supreme Court has
held that Congress, in enacting the ADA, did abrogate state sovereign immunity.
United States v. Georgia, 546 U.S. 151, 154, 126 S. Ct. 877, 879, 163 L. Ed. 2d
650 (2006) (citing Board of Trustees of Univ. ofAla. v. Garrett, 531 U.S. 356, 363—
364 (2001) and the ADA) (noting that the ADA specifically states that “[a] State
shall not be immune under the eleventh amendment to the Constitution of the
United States from an action in [a] Federal or State court of competent
jurisdiction for a violation of this chapter.”).
The Eleventh Amendment therefore does not bar Count 3 insofar as it
asserts an ADA claim.

3. Whether Count 3 Adequately Alleges an ADA Claim
Because the Court has jurisdiction over Count 3, I consider whether that
Count states a claim under the standards of Rules 12(b)(6) and 12(c). See Section

9

II.A, supra. Even granting Count 3 the liberal construction due a pro se pleading,
I find that it does not meet the standards of Twombly and Iqbal, supra.
Count 3 alleges that the DCA’s regulations and its enforcement practices
relating to rooming houses violate individuals’ “barrier free needs,” contrary to
the ADA. Compi., Count 3 ¶ 4. The Complaint does not specify under which part
of the ADA Plaintiffs bring this claim, although it might be inferred that this is a
claim under the “public entity” provisions of Title II of the ADA. Title II provides
that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132.
Few facts are alleged. Count 3 states that Defendants “have not provided
any recommendations or information about available financing, both low cost
and government subsidized, and programs for residential upgrades and
construction of barrier free access.” Id. ¶ 5. Plaintiffs also allege that the
“inspections and enforcements” of rooming houses “completely ignore the rights
of residents that are protected by” the ADA, id. ¶ 2, and that “inspections have
neglected to include ADA barrier free recommendations [that] are provided for by
law.” Id. ¶ 3.
The Complaint does not identify the alleged source of, e.g., this duty to
provide “recommendations or information” about financing of accessibility
improvements. It does not state the nature of any exclusion, denial, or
discrimination on the basis of disability. Nor does it suggest how the state-law
requirement that boarding houses be licensed would relate to such a claim.
9

Plaintiffs’ allegations with regard to barrier free access seem to borrow concepts
from Title III of the ADA. Under Title III, no individual may discriminate on the basis of
a disability with regard to the full arid equal enjoyment of public accommodations. New
construction must be in compliance with the ADA’s barrier free access guidelines. As to
existing construction, the owner of a public accommodation must remove barriers where
such removal is “readily achievable.” 42 U.S.C. § 12182.
Under Title III, the onus is on the party who opens an accommodation to the
public to ensure compliance. Thus Plaintiffs themselves, as operators of boarding
houses, would seem to be the responsible parties. The State, by virtue of requiring a
license to operate a boarding house, should not be deemed to take on the responsibilities
of an owner. Nor has this Court found any case law to the effect that the State, as a
licensing entity, must assist operators with ADA compliance or disseminate information
about opportunities for financing of access improvements.
10

In short, Count 3 does not identify a potential legal basis for liability and
it does not state facts that plausibly suggest that a defendant is liable. Count 3
will be dismissed for failure to state a claim.
In light of the foregoing, I do not discuss DCA’s remaining contentions,
such as claim preclusion or issue preclusion.
III. CONCLUSION
For the foregoing reasons, the Sixth Amended Complaint is dismissed in
its entirety as against the Commissioner of the Department of Community Affairs
of the State of New Jersey, which is the movant and is apparently the only
defendant that has been served. That dismissal is without prejudice to the filing
of a properly supported motion to amend the complaint, which attaches a
proposed Seventh Amended Complaint and explains how such a pleading would
remedy the deficiencies identified in this Opinion. I caution the Plaintiffs,
however, that Counts 1, 2, 4, 5, and 6 were dismissed for lack of jurisdiction,
not for mere deficiencies in pleading. If no motion to amend the Complaint is
filed within 30 days, this dismissal will become final.
An appropriate order will be filed with this Opinion.
I

Dated: August 22, 2014

Rciiu1

KEVIN MCNULTY
United States District Judge

True, the ADA requires that the federal agencies responsible for issuing ADA
regulations provide “technical assistance,” including the dissemination of information
“to assist the public, including individuals protected by the ADA and entities covered by
the ADA.” U.S. Department of Justice, Title lET Highlights, www.ada.gov/t3hilght.htm.
That informational duty is placed on the federal, not the state, government. Moreover,
the regulations make it clear that “[a] public accommodation or other private entity shall
not be excused from compliance with the requirements [of Title III] because of any failure
to receive technical assistance, including any failure in the development or
dissemination of any technical assistance manual authorized by the Act.” 28 C.F.R.
§
36.507. Even as to government entities that clearly are charged with the burden of
administering the ADA, noncomplying individuals cannot shift liability in the manner
attempted by Plaintiffs here. A fortiori, they cannot do so as to a state licensing entity
that has no particular duties or functions with respect to administering the ADA.
11