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HILL v. PARK

January 27, 2004.

CHRISTOPHER HILL AND AMERICAN DISABILITY INSTITUTE Plaintiffs,
v.
KEUM S. PARK, NO. 03-4677 Defendant



The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge

MEMORANDUM

Keum S. Park, doing business as Manoa Diner and Deli, ("Defendant") owns and operates a diner and deli at 1305 West Chester Pike, Havertown, Pennsylvania. Plaintiff Christopher Hill ("Hill") is confined to a wheelchair as a result of a disability. Plaintiff American Disability Institute ("ADI") is a nonprofit advocacy group that seeks to make public accommodations available to all individuals by ensuring that public property is in compliance with the Americans with Disabilities Act ("ADA"). On August 13, 2003, Plaintiffs filed a complaint against Defendant alleging that Defendant's failure to renovate his facilities to accommodate his disabled patrons violates the ADA.

On October 8, 2003, pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendant filed the instant motion to dismiss for lack of subject matter jurisdiction. Defendant argues that Title III of the ADA requires a litigant to exhaust his administrative remedies as a prerequisite to Page 2 filing a civil suit, and, Plaintiffs having failed to do so, their ADA claim therefore should be dismissed for lack of subject matter jurisdiction. Defendant also argues that Title III does not grant Plaintiffs the right to a jury trial.*fn1 Lastly, Defendant has moved to dismiss ADI as a party, as ADI allegedly lacks standing to bring this action.

  For the reasons detailed herein, Defendant's Motion to Dismiss will be granted in part and denied in part.

 I. Standard and Jurisdiction

  A court will grant a motion to dismiss a complaint under Rule 12(b) if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Sprague v. Am. Bar Assoc., No. 01-382, 2001 U.S. Dist. LEXIS 18707, at *6 (E.D. Pa. Nov. 14, 2001) (quotation omitted). This Court may grant Defendant's Motion to Dismiss for lack of subject matter jurisdiction based on Plaintiffs' failure first to exhaust administrative remedies only if it is undisputed that there has been no attempt to exhaust administrative remedies. Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997). It is undisputed that Plaintiffs undertook no effort to exhaust administrative remedies prior to initiating suit.

  This action arises from a violation of Title III of the ADA, 42 U.S.C. § 12181 et seq., Therefore, this Court may exercise jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. Venue is appropriate under 28 U.S.C. § 1391(b).

 II. Discussion

  Title III of the ADA prohibits places of public accommodation from discriminating, on Page 3 the basis of a disability, against an individual in the full and equal access to goods and services. The law's general prohibition provides:
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). A violation under Title III can be based on the "failure to make reasonable modifications in policies, practices, or procedures, when such procedures are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. . . ." 42 U.S.C. § 12182(b)(2)(A)(ii).

  A. Exhaustion Prerequisite

  Defendant's Motion to Dismiss rests on his contention that Title III of the ADA required Hill and ADI to have exhausted their administrative remedies before initiating this suit.

  Instead of drafting a separate enforcement provision for Title III, Congress instead borrowed from Title II of the Civil Rights Act of 1964. 42 U.S.C. § 12188(a)(1) provides that the "remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000a-3(a)) are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this title. . . ." Section 2000a-3(a) of Title 42 allows an aggrieved person to seek injunctive relief in order to terminate or prevent the discrimination prohibited under Title II. However, in the context of Title II, section 2000a-3(a) is limited by section 2000a-3(c), which requires the plaintiff first to seek relief from the appropriate state or local body, provided that there exists a state or local law prohibiting the conduct actionable under federal law. Like its federal counterpart, Pennsylvania law Page 4 prohibits places of public accommodation from discriminating against an individual in the full and equal access to goods and services on the basis of a disability. 43 PA. CONS. STAT. § 953 (2003). Therefore, Defendant argues that 42 U.S.C. § 2000a-3(c) required Plaintiffs first to have sought relief from the appropriate state agency before initiating suit against Defendant. Plaintiffs respond that since 42 U.S.C. § 12188(a)(1) explicitly adopts § 2000a-3(a) only, the administrative exhaustion provision contained within § 2000a-3(c) is inapplicable to Title III cases.

  Only one Court of Appeals has decided this question. The Ninth Circuit has held that the plain language of 42 U.S.C. § 12188 does not require a plaintiff in a private Title III action to exhaust administrative remedies before filing his federal lawsuit. Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000).*fn2 The Ninth Circuit in Paul McNally Realty wrote, in pertinent part:

  The plain language of § 12188(a)(1) is clear and unambiguous, and it can be understood without reference to any other statutory provision. Section 12188(a)(1) is devoid of any reference to § 2000a-3(c). Yet, Congress explicitly incorporated subsection (a) of § 2000a-3 into § 12188(a)(1). The incorporation of one statutory provision to the exclusion of another must be presumed intentional under the statutory canon of espressio unius. Surely, "Congress obviously knew how to adopt provisions of Title VII because it expressly adopted subsection (a) . . .[and it is] ...


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