United States District Court, W.D. Pennsylvania
CHRISTOPHER MIELO and SARAH HEINZL, individually and on behalf of all others similarly situated, Plaintiffs,
STEAK ‘N SHAKE OPERATIONS, INC., Defendant.
C. Mitchell United States Magistrate Judge
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.
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.
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.
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).
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
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.
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.
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).
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.
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.
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).
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. 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
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.
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 ...