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Mielo v. Steak 'N Shake Operations, Inc.

United States District Court, W.D. Pennsylvania

April 27, 2017

CHRISTOPHER MIELO and SARAH HEINZL, individually and on behalf of all others similarly situated, Plaintiffs,


          Robert C. Mitchell United States Magistrate Judge

         Presently pending before the Court is a Motion for Class Certification filed on behalf of Plaintiffs Christopher Mielo and Sarah Heinzl (ECF No. 44). For the reasons stated herein, the motion will be granted.

         Plaintiffs move the Court for an Order certifying this action as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, and seek certification of a class defined as follows:

All persons with qualified mobility disabilities who were or will be denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any Steak ‘n Shake restaurant location in the United States on the basis of a disability because such persons encountered accessibility barriers at Steak‘n Shake restaurant where Defendant owns, controls and/or operates the parking facilities.

         (ECF No. 44-1).

         I. Factual and Procedural History

          Plaintiffs Mielo and Heinzl bring this action individually and on behalf of all others similarly situated against Steak ‘n Shake Operations, Inc., alleging violations of Title III of the Americans with Disabilites Act, 42 U.S.C. § 12101 et seq., (the “ADA”) and its implementing regulations. Specifically, Plaintiffs allege that the various properties owned and managed by Defendant are not fully accessible to and independently usable by individuals who use wheelchairs or are otherwise mobility disabled.

         Discovery in this case ended on December 5, 2016. Plaintiffs' Motion for Class Certification (ECF No. 44) was filed on November 4, 2016 and was accompanied by a brief in support (ECF No. 45). Defendant filed a brief in opposition (ECF No. 60) and Plaintiffs filed a reply brief (ECF No. 68). On March 20, 2017, the Court held oral argument on the motion and took it under advisement. (ECF No. 72).

         The following facts are not in dispute. Plaintiff Mielo is a self-employed business owner, who currently resides in Pittsburgh, Pennsylvania. He is a paraplegic and uses a wheelchair to ambulate. He has long been an advocate for individuals with disabilities. His work includes the “Unbreakable Drive” project, where he speaks to youth with disabilities throughout the United States, and his participation in the Pennsylvania Youth Leadership Network, where he is a board member and, among other things, helps advance leadership training, community outreach and diversity.

         Plaintiff Heinzl attends graduate school in Arizona, and permanently resides in Pittsburgh, Pennsylvania. She is a paraplegic and uses a wheelchair to ambulate. She is involved in advocacy work for individuals with disabilities, including work for the Three Rivers Center for Independent Living, where she coordinated and taught youth events; serving as a board member for the Children's Hospital Advisory Network, where she assisted youth in transitioning from pediatric to adult care; working at the LEND program run through the University of Pittsburgh; and, participating in other fundraising and volunteer activities.

         Both Mr. Mielo and Ms. Heinzl have visited various restaurants owned and/or operated by Defendant and have experienced difficulty accessing these restaurants as a result of architectural barriers in the parking facilities. For example, Mr. Mielo had trouble accessing Defendant's 650 Waterfront Drive, East Munhall, Pennsylvania restaurant due to an excessively sloped parking space and access aisle at that location. Similarly, Ms. Heinzl experienced difficulty at Defendant's 410 Clairton Boulevard, Pleasant Hills, Pennsylvania restaurant due to excessive slopes in the parking spaces, access aisles, and in the route to the restaurant. Once identified, Plaintiffs' counsel instructed investigators to examine multiple of Defendant's restaurants located in Pennsylvania and Ohio. This investigation identified architectural barriers in the parking facilities at eight of Defendant's restaurants within that geographic region, specifically, in some cases, accessible parking spaces and access aisles with slopes exceeding the 2.1% limit.

         II. Discussion

         A. The ADA

         Title III of the ADA “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” 42 U.S.C. § 12182(a); Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). Specifically, it requires “places of public accommodation” to “remove architectural barriers … in existing facilities … where such removal is readily achievable, ” 42 U.S.C. § 12182(b)(2)(A)(iv), and to “design and construct facilities for first occupancy [no] later than 30 months after July 26, 1990 that are readily accessible to and usable by individuals with disabilities, ” § 12183(a). Places of public accommodation include “a restaurant, bar, or other establishment serving food or drink, ” 42 U.S.C. § 12181(7)(B), and thus include Steak ‘N Shake. Failure to meet these requirements constitutes a violation of the ADA which may be enforced by individuals bringing suit for injunctive relief in federal court, § 12188(a). The statute further states that “injunctive relief shall also include … modification of a policy….” Id. “Under Title III of the ADA, private plaintiffs may not obtain monetary damages and therefore only prospective injunctive relief is available.” Anderson v. Macy's, Inc., 943 F.Supp.2d 531, 538 (W.D. Pa. 2013) (citation omitted). See 42 U.S.C. § 12188(a) (providing that the remedies available to individuals shall be those set forth in 42 U.S.C. § 2000a-3(a), which allows a private right of action only for injunctive relief for violations of Title II of the Civil Rights Act of 1964); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (noting that Title II allows for injunctive relief only).

         “Whether a facility is ‘readily accessible' is defined, in part, by the ADA Accessibility Guidelines (‘ADAAG'), which lay out the technical structural requirements of places of public accommodation.” Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1006 (9th Cir. 2015). The ADAAG is promulgated by the Department of Justice pursuant to 42 U.S.C. § 12186(b). There are two active ADAAGs, the 1991 ADAAG Standards (“1991 Standards”), 28 C.F.R. § pt. 36, App. D, and the 2010 ADAAG Standards (“2010 Standards”) 36 C.F.R. § pt. 1191, App. D.

         Title III's implementing regulations further require places of public accommodation to “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities[.]” 28 C.F.R. § 36.211(a). This ongoing obligation “broadly covers all features that are required to be accessible under the ADA.” See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508, 34523 (June 17, 2008) (emphasis in original) (hereinafter “Department Comments”). While isolated or temporary accessibility failures due to maintenance or repairs are permitted, see 28 C.F.R. § 36.211(b), places of public accommodation may not allow inaccessibility to persist beyond a reasonable period of time, allow accessible features to repeatedly fall out of compliance, or fail to arrange for prompt repair of inaccessible features violate the ADA. See 28 C.F.R. pt. 36 app. C § 36.211; Department Comments, 73 Fed. Reg. at 34523.

         The Court has recognized Title III and its implementing regulations “contemplate an ongoing process of effective ADA compliance.” Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455, 2016 WL 2347367, at *17 (W.D. Pa. Jan. 27, 2016). Other district courts have reached similar conclusions. See, e.g., Sawczyn v. BMO Harris Bank Nat. Ass'n, 8 F.Supp.3d 1108, 1113-15 (D. Minn. 2014) (recognizing maintenance obligation in voluntary cessation context); Thomas v. Branch Banking and Trust Co., 32 F.Supp.3d 1266, 1271 (N.D.Ga. 2014); Nat'l All. for Accessability, Inc. v. McDonald's Corp., No. 8:12-cv-1365, 2013 WL 6408650, at *7 (M.D. Fla. Dec. 6, 2013); Moeller v. Taco Bell Corp. (“Moeller” I”), 816 F.Supp.2d 831, 869 (N.D. Cal. 2011) (holding class-wide injunctive relief warranted where defendant systematically violated ongoing maintenance obligation); see also Cupolo v. Bay Area Rapid Transit, 5 F.Supp.2d 1078, 1084-86 (N.D. Cal. 1997) (entering preliminary injunction to ensure defendant complied with duty to maintain in Title II context).

         Plaintiffs contend that Defendant has adopted an ADA compliance policy that largely ignores its obligation to ensure its parking facilities become and remain accessible to individuals with disabilities. Specifically, when a restaurant is built, Defendant does not conduct an independent post construction assessment to determine whether architectural barriers actually exist in its parking facilities, but rather, relies exclusively on purportedly ADA complaint design plans as its sole means of ensuring a parking facility is constructed in compliance with the ADA. See Duffner Dep.31:7-33:1.[1] Plaintiffs contend that Defendant's policy of burdening its customers with the responsibility of identifying architectural barriers is in plain violation of Defendant's ongoing statutory duty to proactively maintain the accessible features of its restaurants. See 28 C.F.R. § 36.211; 28 C.F.R. pt. 36 app. C § 36.211; Department Comments, 73 Fed. Reg. at 34523. More fundamentally, forcing individuals with disabilities to complain about discrimination before anything is done to remediate discriminatory conditions conflicts with the ADA's purpose.

         Defendant argues that we adopt an interpretation of the ADA that substantially limits the maintenance obligation of public accommodations under 28 C.F.R. § 36.211 to temporary mechanical failures and easily movable obstructions. Defendant argues that when Section 211 requires public accommodations to “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and useable by persons with disabilities[.]”, 28 C.F.R. § 36.211(a) (emphasis provided), what the Department of Justice intended was the public accommodations maintain machines and equipment “in operable working condition.” Defendant cites to DOJ commentary when issuing the Final Title III Rules, 56 Fed. Reg. 7452 (July 26, 1991) (emphasis added), reprinted at 28 C.F.R. Part 36, App. C., which place emphasis on equipment and mechanical failures. Defendant also notes that the DOJ could have included the obligation to maintain accessible features had it wanted to, having done so in ADA's Title II context.

         Defendant also notes that in June 2009, the DOJ published “technical guidance” on the “maintenance” obligation in Section 211 in the form of guidance and a detailed “checklist” entitled “Maintaining Accessible Features in Retail Establishments.” This checklist does not mention slope ratios or the use of a slope meter. However, it is clear that this guidance was intended to help businesses to ...

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