Byron CHAPMAN, Plaintiff-Appellee, v. PIER 1 IMPORTS (U.S.) INC., dba Pier 1 Imports # 1132, Defendant-Appellant.
No. 12-16857.
United States Court of Appeals, Ninth Circuit.
March 5, 2015.
779 F.3d 1001
Argued and Submitted Nov. 19, 2014.
The evidence identified by the district court is precisely the type of evidence that Sunnyvale was permitted to rely upon to substantiate its interest, City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925, and that the district court was permitted to review under the lens of intermediate scrutiny, Jackson, 746 F.3d at 966. We cannot say that the district court‘s weighing of the evidence or credibility determinations were clearly erroneous, and we decline to substitute our own discretion for that of the district court.
CONCLUSION
We conclude that the district court did not abuse its discretion in determining, on the record before it, that Sunnyvale presented sufficient evidence to show that Measure C was likely to survive intermediate scrutiny and that Fyock failed to demonstrate that he would likely succeed on the merits of his claim. Therefore, we affirm the district court‘s denial of Fyock‘s motion for a preliminary injunction.
AFFIRMED.
Scottlynn J. Hubbard IV, Law Offices of Lynn Hubbard, Chico, CA, for Plaintiff-Appellee.
Before: MARSHA S. BERZON and JOHNNIE B. RAWLINSON, Circuit Judges, and ELAINE E. BUCKLO, Senior District Judge.*
OPINION
BERZON, Circuit Judge:
Byron Chapman, a wheelchair user, challenged numerous alleged barriers to access at Pier 1 Imports (U.S.) Inc.‘s store in Vacaville, California (the “Store“) in a suit first filed in 2004. Chapman claimed that the alleged barriers denied him “full and equal” access to the Store in violation of the Americans with Disabilities Act (“ADA” or “the Act“).
Pier 1 appeals, arguing that the alleged obstructions are “temporary” barriers to access under the ADA‘s implementing regulations and so do not violate Chapman‘s rights under the Act.
I. Background
This appeal is another chapter in this case‘s lengthy history. Byron Chapman is disabled by a spinal cord injury and requires the use of a motorized wheelchair when traveling in public. In July 2004, Chapman sued Pier 1 under the ADA,
The parties filed cross-motions for summary judgment. Chapman‘s motion appended a new and separate list of unencountered barriers identified by his accessibility expert, Joe Card. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 943-44 (9th Cir.2011) (en banc). The district court granted summary judgment for Pier 1 as to many of the challenged barriers, but ruled for Chapman as to seven barriers listed in the Card Report, none of which Chapman had personally encountered at the Store. See id. at 944.
Pier 1‘s position on appeal was that Chapman did not have Article III standing to challenge unencountered alleged barriers. Sitting en banc, we “clarif[ied] that when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability, even if he is not deterred from returning to the public accommodation at issue.” Id. at 944. But, we held, Chapman still lacked standing under this standard to litigate his ADA claim. His complaint, we explained, did not allege “which, if any, of the alleged violations deprived him of the same full and equal access that a person who is not wheelchair bound would enjoy ... [or] identify how any of the alleged violations threatens to deprive him of full and equal access due to his disability if he were to return to the Store, or how any of them deter him from visiting the Store due to his disability.” Id. at 955. We therefore vacated the grant of summary judgment and remanded to the district court.
After remand, Chapman filed a Second Amended Complaint, alleging that on numerous visits to the Store he had encountered two specific barriers violative of his rights under the ADA. First, he alleged, the Store‘s “customer service counter for disabled patrons” was cluttered by merchandise, a condition which prevented customers with disabilities from easily pur-
Pier 1 once again filed a motion for summary judgment, this time contending that any obstructions of the sales counter or the store aisles were “temporary,” and so not violations of the ADA. More specifically, Pier 1 argued that the obstructions at the Store fell within the scope of DOJ regulations providing that “isolated or temporary” obstructions to accessibility do not violate the ADA. In support of its motion for summary judgment, Pier 1 submitted declarations by Kim R. Blackseth, Pier 1‘s disability accessibility expert, and Tracy Snow, the Store‘s manager since November 2004.
Blackseth stated in his expert report that (1) on the date of his inspection, the Store‘s customer service counter was “clear of goods“; (2) the “aisles throughout the store were the required minimum 36” wide and clear of goods“; and (3) he was “able to navigate the aisles in [his] electric Invacare wheelchair.” The report contained photographs from the November 2011 inspection, depicting three aisles clear of obstructions.
According to Snow‘s declaration, she had “been a part of Pier 1[sic] efforts to assist its mobility-impaired customers and to ensure the stores aisles are 36 inches wide, pursuant to Pier 1‘s policy.” Snow explained that the Store‘s monthly merchandise plans directing employees on how to place merchandise for display “always include an instruction to maintain an aisle-width of at least 36 inches for the shopping aisles.” She went on to report that because customers commonly move merchandise around the Store, and because Store employees must move merchandise for customers or for stocking purposes, the Store “ha[d] adopted a number of strategies for ensuring the Store‘s shopping aisles” remained accessible—for example, directing that employees regularly walk around the Store with a yard stick to measure the width of Store aisles. Moreover, Snow stated, she and two other managers had personally measured all the shopping aisles at the Store, finding each to be at least 36 inches wide.
Chapman opposed Pier 1‘s motion and filed a cross-motion for summary judgment. He explained that on each of his eleven visits to the Store in 2011 and 2012, aisles were obstructed by merchandise or other items, such that “there were times that [he] could not reach or get to certain items, height or not, due to the aisles being blocked.” Additionally, on at least on two occasions, the store‘s accessible sales counter, designed to be used by Pier 1 customers using wheelchairs, was cluttered with objects.
Chapman enlisted expert Joe Card once again to support his position. Card inspected the Store‘s aisles and accessible counter and reported numerous obstructions. Relying upon a number of photographs he had taken of alleged barriers, as well as his wife‘s declaration and the Card report, Chapman argued that there is no genuine dispute of material fact concerning whether merchandise blocked accessible routes and counters during his eleven visits to the store. He contended that these barriers were “not temporary, isolated occurrences ... but, rather, a systematic pattern of abuse against the disabled.”
The district court then turned to Pier 1‘s defense that the barriers were only “temporary,” and so did not violate the ADA. Noting that the applicable ADA regulations exempt liability for “isolated or temporary” interruptions in the availability of accessible features, the district court explained that applicable interpretive authorities indicate that “‘[t]emporary,’ as used in this context, is closer to ‘transitory,’ that is, an object that is unavoidably placed in the aisle, but with the intention of removing it as soon as possible.” For instance, Pier 1‘s defense would be applicable where “boxes [were] temporarily placed in an accessible route while being moved from, say, ‘the hall to the storage room.‘” The district court found that Chapman‘s declaration and his expert report sufficiently established that the barriers Chapman encountered at the Store were not “transitory” in this sense.
After determining that Pier 1 failed to establish any other defense or genuine dispute of fact, the district court granted summary judgment to Chapman on his ADA claim and the dependent state law claims. The district court accordingly issued a permanent injunction enjoining Pier 1 from (1) blocking its aisles with merchandise or other items, “except for the unavoidable transitory blockages caused by re-stocking and similar activities“; and (2) cluttering its accessible sales counter with materials other than the “unavoidable transitory clutter resulting from the current use of that counter to check-out merchandise.” Pier 1 timely appealed.
II. Statutory and Regulatory Provisions
The ADA “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The regulations implementing ADA Title III, see
Three regulatory requirements underlie the current dispute. The ADAAG provide that “[t]he minimum clear width of an accessible route shall be 36 in[ches].”
Fleshing out the import of
A common problem observed by the Department is that covered facilities do not maintain accessible routes. For example, the accessible routes in offices or stores are commonly obstructed by boxes, potted plants, display racks, or other items so that the routes are inaccessible to people who use wheelchairs. Under the ADA, the accessible route must be maintained and, therefore, these items are required to be removed. If the items are placed there temporarily—for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room—then
§ 36.211(b) excuses such “isolated or temporary interruptions.”
Also of some relevance, at least by analogy, is the DOJ‘s guidance with respect to the maintenance of equipment. The Manual explains that, while mechanical failures in “equipment such as elevators or automatic doors” are bound to happen, “the obligation to ensure that facilities are readily accessible to and usable by individuals with disabilities would be violated, if repairs are not made promptly or if improper or inadequate maintenance causes repeated and persistent failures.” Manual § III-3.7000. Likewise, the DOJ commentaries to the rule implementing Title III state that, while “temporary obstructions or isolated instances of mechanical failure would not be considered violations of the [ADA],” “allowing obstructions or ‘out of service’ equipment to persist beyond a reasonable period of time would violate this part, as would repeated mechanical failures due to improper or inadequate maintenance.” 56 Fed.Reg. 35,544, 35,562 (July 26, 1991) (emphasis added).
III. Analysis
A. Aisles
Applying the interpretive aids just summarized, we conclude, as did the district court, that the obstructed aisles Chapman encountered while visiting the Store were not “isolated or temporary interruptions in ... access” under
Chapman encountered several obstructed and blocked aisles on each of eleven separate visits to the Store in 2011 and 2012. The photographs Chapman submitted with his declaration depict a number of aisles that contain merchandise or other items, resulting in a functional width measurably less than the 36 inches required under the ADAAG. Many of the aisles appear inaccessible due to the presence of large items, such as furniture (armchairs and tables), or display racks holding merchandise and ladders. Some of the aisles blocked to wheelchair users would have been accessible to nondisabled customers, who could have walked around or along the side of the blockage.
Additionally, Card‘s expert report notes that when he visited the Store—on a different day than Chapman‘s visits—he “witnessed a number of aisles blocked by merchandise or reduced in width below 36 inches.” The photographs Card took during his November 3, 2011, inspection confirm that some of the aisles were blocked to wheelchair users.
To dispute this evidence, Pier 1 submitted, first, an expert report. The report states that, on two inspections of the Store in October and November 2011, the “aisles throughout the store were the required minimum 36” wide and clear of goods,” and that the expert was “able to navigate the aisles in [his] electric Invacare wheelchair.” That the Store‘s aisles were clear on two visits by Pier 1‘s expert does not
Pier 1‘s other factual submission in support of its summary judgment motion is the Snow Declaration. That Declaration, Pier 1 maintains, shows that the Store had “policies and procedures” in place to ensure that the aisles remained unobstructed by merchandise, and so “undisputably established that any items that were in the aisles or on the accessible check-out counter were ‘transitory’ or ‘in transit’ to their proper location.”7
The existence of policies designed to limit obstructions does not establish that the obstructions that Chapman encountered were “temporary.” Instead, Chapman‘s evidence demonstrates that these policies and procedures were either ineffective in preventing frequent blocking of the aisles or honored in the breach.
Moreover, as the district court observed, “the Snow Declaration ... did not ascribe the aisle blockages to merchandise stocking,” but to the fact that any obstructions would be moved on request or in time. The DOJ interpretive authorities make clear that the presence of items in aisles is not “temporary” for the purposes of
We note in this connection that given its frequency, the aisle access problem must be viewed systemically, not as a series of individual barriers to access. Removing one obstructing object does not assure accessible aisles where it is likely that soon thereafter another item will be moved and create a blockage. Thus, the evidence that Chapman encountered “repeated and persistent failures” in accessing the aisles, Manual § III-3.7000, confirms that the Store failed to remedy the problem “promptly,“—that is, within a “reasonable period of time,” 56 Fed.Reg. at 35,562—rendering its maintenance “improper or inadequate.” Manual § III-3.7000.
To be sure, the “regulations implementing the ADA do not contemplate perfect service.” Midgett v. Tri-County Metro. Transp. Dist. of Or., 254 F.3d 846, 849 (9th Cir.2001). Consequently, “an isolated or temporary hindrance to access does not give rise to a claim under the ADA.” Gilkerson v. Chasewood Bank, 1 F.Supp.3d 570, 589 (S.D.Tex.2014) (citing cases). But the cases so holding have generally concerned truly isolated failures to maintain readily accessible facilities.
Foley v. City of Lafayette, Ind., 359 F.3d 925 (7th Cir.2004), for example, addressed a plaintiff‘s claim that a train station‘s failure to clear snow from ramps and repair an elevator after a weekend of significant snowfall violated the ADA. Noting that the “train station is, in the normal course of operation, fully accessible to indi-
Here, in contrast, the evidence demonstrates that Pier 1 repeatedly failed to maintain accessible routes in its Store. Furthermore, while the defendant did not cause the obstruction of access in Foley, at least some of the obstructions here appear to have resulted from the affirmative actions of Pier 1 and its employees. For example, the large step ladders obstructing the aisles on Chapman‘s visits, were almost surely placed there by the Store‘s staff rather than by customers. See also Madden v. Del Taco, Inc., 150 Cal.App.4th 294, 58 Cal.Rptr.3d 313, 320 (2007) (holding that a restaurant‘s placement of a concrete trash container on entrance ramp, which “appear[ed] to be a result of the affirmative conduct of [defendant],” was not exempted under
In sum, Chapman‘s evidence establishes that the barriers he repeatedly encountered in the Store‘s aisles were not “temporary” within the meaning of
B. Sales Counter
We reverse, however, the district court‘s grant of summary judgment on Chapman‘s ADA claim as to the accessible sales counter.
Chapman offers insufficient evidence that the obstructions on the counter violated his rights under Title III of the ADA. In contrast to the items blocking the aisles for wheelchair users, the items on the otherwise properly accessible sales counter depicted in Chapman‘s photographs were not a barrier to the use of the counter by persons with disabilities.
For example, the asserted “clutter[],” on the sales counter detailed in Chapman‘s expert report consisted of “a display of books in a basket, three coffee cups, and a movable store telephone.”8 There is no evidence that the presence of these various small items on the otherwise accessible sales counter deprived wheelchair users of “full and equal” access to the use of the counters for their intended use—placing items for purchase and transacting sales.
In sum, Chapman was not entitled to summary judgment on his ADA claim concerning the accessible sales counter.
IV. Conclusion
We affirm the district court‘s grant of summary judgment on Chapman‘s claim that the Store‘s failure to maintain accessible aisles violated his rights under the ADA. We also affirm the grant of summary judgment on Chapman‘s state law claims, which, as noted above, are entirely dependent on establishing an ADA violation. We reverse the grant of summary judgment as to Chapman‘s claim concerning the Store‘s accessible sales counter, and remand to the district court to modify the injunction consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.