United States District Court, E.D. Pennsylvania
disability discrimination case arises from Plaintiff Eileen
A. Sabel's (“Plaintiff” or “Ms.
Sabel”) unsuccessful attempt to gain entry to the Saint
Lazarus Bar (the “Saint” or the
“Bar”) on April 5, 2017. Plaintiff, who is a
wheelchair user, attempted to eat at the Saint but was unable
to enter the Bar because of a step at the front door.
Plaintiff left the Bar, unaware at the time that the Saint
provided wheelchair access by way of a portable ramp.
26, 2017, Plaintiff initiated this case pro se by
filing a Complaint against Defendants Saint Lazarus Bar, JJG
Enterprises Incorporated, Janay M. Green, and Brendan Olkus
(collectively, “Defendants”), alleging violations
of Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.
(Doc. No. 3.) Plaintiff claims the Saint unlawfully
discriminates against individuals with disabilities by not
having a permanent ramp at the main entrance to provide
wheelchair access. (Id.)
October 16, 2017, Defendants filed an Answer in which they
denied liability under Title III of the ADA, claiming that
the Saint's use of a modular ramp satisfies their
obligations under the ADA. (Doc. No. 8.) Defendants also
asserted in the Answer a counterclaim against Plaintiff for
violation Federal Rule of Civil Procedure 11, which covers a
party's representations to the Court. (Id.)
Defendants claim that Ms. Sabel is a “serial
filer” who initiated this lawsuit in violation of Rule
11 because the claims are frivolous and meritless.
affording the parties months to obtain fact discovery, and
after multiple attempts between the parties to mediate this
dispute, the Court held a bench trial on January 30, 2019. At
the trial, the Court heard testimony from Ms. Sabel, Ms.
Sabel's disability advocate, Morgan Hugo, Defendant
Brendan Olkus, and Defendants' structural engineering
expert, Mr. Tony Andraos, M.S. The Court now makes the following
findings of fact and conclusions of law.
FINDINGS OF FACT
is an adult individual who, because of her disabilities, is
confined to a motorized wheelchair. Plaintiff's
disability advocate, Morgan Hugo (“Ms. Hugo”), is
an employee of Liberty Resources, Inc., a Center for
Independent Living that was established after the passage of
the Rehabilitation Act in 1973. (Doc. No. 30 at 21.)
Plaintiff and Ms. Hugo began working together in 2009.
Saint Lazarus Bar (“the Saint” or “the
Bar”) is a small corner bar located in Plaintiff's
neighborhood at 102 West Girard Avenue in Philadelphia,
Pennsylvania. (Id. at 6-7, 22.) Saint Lazarus Bar is
a tradename used by S&B Restaurant Group, LLC, which has
not been named as a party in this case. (Doc. No. 31
¶¶ 3-4.) S&B Restaurant Group, LLC owns,
operates, and maintains the Saint. (Id.)
Brendan Olkus (“Mr. Olkus”) is a member of
S&B Restaurant Group, LLC and considers himself the
self-employed owner of the Saint. (Id. ¶ 4;
Doc. No. 30 at 58-59.) Defendant Janay M. Green (“Ms.
Green”) is an employee of S&B Restaurant Group, LLC
and the General Manager of the Saint. (Id. ¶ 4;
Doc. No. 30 at 60.)
JJG Enterprises, Inc. (“JJG”) owns the building
that houses the Saint at 102 West Girard Avenue,
Philadelphia, Pennsylvania. (Doc. No. 30 at 59.) S&B
Restaurant Group, LLC leases the building from JJG to operate
the Saint. (Id. at 60.)
The Location of the Saint
Lazarus Bar is a small bar that operates out of the building
owned by JJG at the corner of West Girard Avenue and Front
Street in Philadelphia. (Doc. No. 30 at 59-60.) The building
is a concrete structure with a basement that was built
sometime in the 1800s. (Id. at 61.) Mr. Olkus has
operated the Saint out of this building for the last six
years. (Id. at 60.)
main entrance to the Saint is located on Girard Avenue.
(Id. at 66.) At the main entrance, there is a large
step. (Id.) Mr. Olkus testified that the reason for
there being a step is because the height of the basement
ceiling extends above street level, thus raising the first
floor of the building above the sidewalk. (Id.)
Outside the main entrance, the Saint shares the sidewalk with
a Septa transit stop and a PECO power box. (Doc. No. 30 at
69; Tr. Ex. D-1.) A few feet further down from the main
entrance, there is a pillar supporting the elevated Septa
train. (Doc. No. 30 at 69.)
from the main entrance, there are two side doors to the Saint
located on Front Street, both of which also have steps.
(Id. at 66.) One of the doors on Front Street has
been sealed from the inside for many years and is no longer
capable of being used as an entrance to the Bar.
(Id. at 42; Tr. Ex. D-1.) The other door on Front
Street is three feet away from a water department corrosion
control box, four feet away from a water department sewage
access cover, and seven feet away from a pillar supporting
the elevated train. (Doc. No. 30 at 66; Tr. Ex. D-1.) Because
the two doors on Front Street are not used as entrances to
the Bar, the only entrance to the Saint is the main entrance
located on Girard Avenue.
Plaintiff's Attempt to Enter the Saint
Plaintiff testified that on April 5, 2017, at about 2:00
p.m., she went to the Saint with her disability advocate, Ms.
Hugo, to eat “pub food.” (Doc. No. 30 at 5-7.)
Ms. Hugo testified that Plaintiff had been wanting to go to
the Saint for some time because it was close to her home and
it appeared to have interesting artwork in the window.
(Id.) When Plaintiff and Ms. Hugo arrived at the
Saint, Plaintiff could not enter the Bar in her motorized
wheelchair because of the step at the main entrance. Ms. Hugo
then went inside the Saint and spoke with Defendant Janay
Green, the Bar's General Manager. (Id. at
22-23.) Ms. Hugo handed Ms. Green a Liberty Resources, Inc.
brochure and asked Ms. Green to make the Saint
wheelchair-accessible and ADA-compliant. (Id. at
22-23.) Ms. Green walked outside of the Saint to speak with
Plaintiff, at which point Plaintiff and Ms. Hugo both
testified that Ms. Green became combative and threatened to
call the police if they did not leave the Bar immediately.
(Id. at 7-12, 23.)
Wheelchair Accessibility at the Saint
Olkus testified that the Saint utilizes a steel modular ramp
for wheelchair access at the main entrance. (Doc. No. 30 at
62.) Mr. Olkus purchased the modular ramp before the events
giving rise to this lawsuit occurred. (Id.) All
employees of the Saint are trained in how to use the modular
ramp, which takes about a minute to assemble. (Id.)
Mr. Olkus testified that several customers have successfully
used the modular ramp to gain entry to the Saint, including a
close friend of his who is confined to a wheelchair and
visits the Bar about once a month. (Id. at 63.)
addition to the modular ramp, Mr. Olkus testified that after
being informed of this lawsuit, he installed a doorbell at
the front entrance. (Id. at 62; Tr. Ex. D-2.) The
doorbell is clearly marked with a wheelchair accessibility
sign, and is set up to ring into the Bar and the Bar's
office to alert employees that a disabled individual is
outside who needs access to the building by use of the
modular ramp. (Id.; Tr. Ex. D-2.)
The Feasibility Study Concerning a Permanent ...