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Sabel v. Bar

United States District Court, E.D. Pennsylvania

July 2, 2019

EILEEN SABEL, Plaintiff,
v.
SAINT LAZARUS BAR, et al., Defendants.

          OPINION

          SLOMSKY, J.

         I. INTRODUCTION

         This 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.

         On June 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.)

         On 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. (Id.)

         After 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.[1] The Court now makes the following findings of fact and conclusions of law.

         II. FINDINGS OF FACT[2]

         A. The Parties

         Plaintiff 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. (Id.)

         Defendant 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.)

         Defendant 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.)

         Defendant 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.)

         B. The Location of the Saint

         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.)

         The 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.)

         Aside 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.

         C. 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.)

         D. Wheelchair Accessibility at the Saint

         Mr. 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.)

         In 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.)

         E. The Feasibility Study Concerning a Permanent ...


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