United States District Court, W.D. Pennsylvania
SARAH HEINZL, individually and on behalf of all others similarly situated, Plaintiff,
CRACKER BARREL OLD COUNTRY STORES, INC., Defendant
For Sarah Heinzl, individually and on behalf of all others similarly situated, Plaintiff: R. Bruce Carlson, LEAD ATTORNEY, Carlson Lynch, Pittsburgh, PA USA; Benjamin J. Sweet, Carlson Lynch LTD, Pittsburgh, PA USA; Stephanie K. Goldin, Carlson Lynch, Sewickley, PA USA.
For Cracker Barrel Old Country Store, Inc., Defendant: Laura L. Mall, PRO HAC VICE, Ford & Harrison LLP, West Palm Beach, FL USA; Nancy A. Walker, Walker Law Offices, PC, Media, PA USA; Todd S. Aidman, PRO HAC VICE, Ford & Harrison LLP, Tampa, FL USA.
ROBERT C. MITCHELL, United States Magistrate. Judge Judge Hornak.
ROBERT C. MITCHELL, United States Magistrate Judge.
It is respectfully recommended that the motion to dismiss filed on behalf of the defendant (ECF No. 10) be denied.
Plaintiff, Sarah Heinzl, brings this action individually and on behalf of all others similarly situated against Defendant, Cracker Barrel Old County Stores, Inc. (" Cracker Barrel"), alleging violations of Title III of the Americans With Disabilities Act, 42 U.S.C. § § 12181 to 12189 (ADA). Specifically, she alleges that the facilities at Cracker Barrel are not fully accessible to and independently usable by individuals who use wheelchairs for mobility, as she does, because of various barriers in the parking lot and along the route to the building entrance.
Presently before the Court is Defendant's motion to dismiss the Complaint on the ground that she lacks standing to bring this action because she has not visited and has no plans to visit six of the seven locations cited in the Complaint. For the reasons that follow, the motion should be denied.
Plaintiff states that she is a resident of the Commonwealth of Pennsylvania who has a mobility disability and is limited in the major life activity of walking, causing her to be dependent upon a wheelchair for mobility. (Compl. ¶ ¶ 2, 15.) She has visited Defendant's property located at 200 Davis Boulevard in Pittsburgh, Pennsylvania (the " Subject Property"). During these visits, she has experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and access aisles. (Compl. ¶ ¶ 18, 24.)
She also indicates that, on her behalf, investigators examined this location and six other retail Cracker Barrel locations in Pennsylvania, West Virginia and Ohio and found the following violations: 1) the surfaces of one or more access aisles and one or more purportedly accessible parking spaces had slopes exceeding 1:48 (i.e., 2.1%); 2) a grate in the surface had openings that would allow the passage of a 1/2 inch sphere; 3) a curb ramp located on the route to the building entrance had a running slope exceeding 1:12 (i.e., 8.3%); 4) no spaces were designated as " van accessible"; 5) a portion of the route to the building entrance had a cross slope exceeding 1:48 (i.e., 2.1%); 6) portions of two routes to the building entrance had running slopes exceeding 1:20 (i.e., 5.0%); and 7) no purportedly accessible spaces were marked with required signs. (Compl. ¶ 19.)
Plaintiff indicates that she regularly shops in the Robinson area near the Subject Property and that she intends to return to dine and to ascertain whether the facility remains in violation of the ADA, but that numerous architectural barriers deter her from doing so. (Compl. ¶ 23.)
Plaintiff filed this action on October 27, 2014. Federal question jurisdiction is based on the ADA claim, 28 U.S.C. § 1331; 42 U.S.C. § 12188(a). She alleges that the cited violations constitute " a failure to remove architectural barriers" in violation of 42 U.S.C. § 12182(b)(2)(A)(iv) and a failure to alter, design or construct accessible facilities after the effective date of the ADA in violation of § 12183(a)(1) and the appropriate regulations, which will deter her and similarly situated individuals from returning to Defendant's facilities and that, ...