[nfbmi-talk] relevant sign case including leased by government entity

[joe harcz Comcast]

Sept. 5, 2010

Re: Victor Office Building and All State of Michigan Buildings Re: Required Signage and More
to Whom It May Concern:

Both Title II and Title III requirements for signage apply to the Victor office building and all other state buildings.

This goes to cannon's contention along with the regulations of ADA, Title II and III itself that state liability is limited when it leases a facility such as it does with the Victor Office building.

Both the readily achievable standards of Title III of the ADA apply (that goes to the place of public accommodation) and the program access and other requirements of Title II (state and local government entities ) apply ....

One would think the State of Michigan ADA coordinator would know this wouldn't one?

Now, in these regards Mr. Cannon is either woefully ignorant and thus grossly malfeasance or he is intentionally discriminatory in his known actions or inactions to remove barriers in his own HQ even after years of notice of obligations to do so, let alone his affirmative obligations to do so as required under other parts of the ADA, Title II such as its required transition plan requirements.

Regardless, there are multiple violations over now decades by him and other agents of the State of Michigan in these regards.

Sincerely,

Joe Harcz

Signage and standing case 8th circuitUnited States Court of Appeals

http://64.233.161.104/search?q=cache:MEtCBKJXNEMJ:www.ca8.uscourts.gov/opndir/00/10/992294P.pdf+braille+and+district+court&hl=en&gl=us&ct=clnk&cd=43

 

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Page 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-2294

___________

Michelle L. Steger; Patrick H. Burch;

*

Debbie L. Lane; Mark J. Woods;

*

Matthew C. Young,

*

*

Appellants,

*

*

v.

* Appeal from the United States

* District Court for the

Franco, Inc., an administratively

* Eastern District of Missouri.

dissolved Missouri corporation,

*

*

Appellee.

*

----------------------------------

United States of America,

*

*

Amicus on Behalf of Appellants. *

___________

Submitted: February 14, 2000

Filed: October 3, 2000

___________

Before RICHARD S. ARNOLD, HEANEY, and LOKEN, Circuit Judges.

___________

HEANEY, Circuit Judge.

 

Page 2

1

The district court docket sheet mistakenly names Patrick Burch as Richard

H. Burch.

2

Michelle Steger, Deborah Lane, Matthew Young, Mark Woods and Patrick

Burch

1

sued defendant Franco, Inc. to compel Franco to bring one of its buildings, the

Clayton Central Building (CCB), into compliance with the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12101-12213 (2000). The district court dismissed plaintiffs'

claims for lack of standing, and they appeal. We affirm the district court's ruling as to

Steger, Lane, Woods and Young, but reverse as to Burch.

BACKGROUND

The focus of plaintiffs' lawsuit is the CCB, located in the St. Louis suburb of

Clayton, Missouri. The building provides office and retail space for health care

providers and other retail and service establishments. In September 1996, plaintiffs

sued Franco to bring the CCB into ADA compliance.

Thedistrict court held a preliminary-injunction hearing in June 1998, where three

of the five plaintiffs testified. Steger, a Kirkwood, Missouri resident, is partially

paralyzed and uses a wheelchair. She testified that although she visits various

government buildings, private businesses, and restaurants in Clayton “a lot,” she did

not remember ever entering the CCB and did not know whether the building was

accessible to her at the time this lawsuit was filed. (Tr. at 14.)

Youngresides in Oakland, Missouri and also uses a wheelchair. Young testified

that he occasionally patronizes Clayton's businesses. At the time suit was filed, he had

never been in the CCB and had no personal knowledge whether it was accessible to

him. However, in 1997, Young visited a retail brokerage firm with a storefront office

in the CCB, but never entered the building's common area.

 

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Plaintiff Burch is blind. He resides in another St. Louis suburb, but testified that

he frequently visits government offices and private businesses in Clayton as a sales and

marketing employee for the St. Louis Lighthouse for the Blind. In July 1996, Burch

dined at the Tuscany Coffee Shop, a storefront café in the CCB. Before leaving the

café, Burch entered the CCB's common area to use the first floor men's restroom. He

asked for and was given directions to the restroom, but was unable to locate it because

the restroom was not marked with raised lettering, braille, or other signage that would

identify it to a blind person. He has not reentered the building since then.

Also testifying at the hearing was plaintiffs' expert witness, architect Gina

Hilberry. Hilberry reported on numerous structural barriers within the CCB that she

concluded violated the ADA. She noted, however, that at the time she toured the

CCB, some eight months after the complaint was filed, the signage at the first-floor

men's restroom was ADA-compliant.

Atthe close of plaintiffs' evidence, the defendant moved for judgment as a matter

of law, arguing that plaintiffs lacked standing to maintain their claims. The district

court dismissed the case on the ground that because neither Steger, Lane, Woods, nor

Young had been in the CCB prior to filing suit, they failed to show sufficient injury to

confer standing. The district court also dismissed Burch's claim, concluding that

although he was injured, his specific injury had been redressed because the signage at

the first-floor men's restroom currently complied with the ADA. Plaintiffs appeal.

DISCUSSION

Title III of the ADA proscribes discrimination in places of public

accommodation against persons with disabilities. See 42 U.S.C. § 12182(a).

Discriminationincludes “a failure to remove architectural barriers, and communication

barriers that are structural in nature, in existing facilities . . . where such removal is

 

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readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA grants a private right

of action for injunctive relief to, inter alia, “any person who is being subjected to

discrimination on the basis of disability.” 42 U.S.C. § 12188(a)(1).

We review de novo the district court’s determination that plaintiffs lacked

standing to seek injunctive relief under the ADA. See Park v. Forest Serv., 205 F.3d

1034, 1036 (8th Cir. 2000). In so doing, we accept as true all material averments in the

complaint and construe them in favor of the plaintiff. See Warth v. Seldin, 422 U.S.

490, 502 (1975). Because standing is determined as of the lawsuit's commencement,

we consider the facts as they existed at that time. See Park, 205 F.3d at 1038.

Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to

actual cases and controversies. Therefore, the plaintiff's standing to sue “is the

thresholdquestion in every federal case, determining the power of the court to entertain

the suit.” Warth, 422 U.S. at 498. To show Article III standing, a plaintiff has the

burden of proving: (1) that he or she suffered an “injury-in-fact,” (2) a causal

relationshipbetween the injury and the challenged conduct, and (3) that the injury likely

will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992). Only the first and last elements are at issue in this case.

I.

Injury-in-Fact

An injury-in-fact is a harm that is “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Id. (internal quotations omitted). The

plaintiff must show that he or she “sustained or is immediately in danger of sustaining

some direct injury as the result of the challenged . . . conduct and [that] the injury or

threat of injury [is] both real and immediate . . . .” City of Los Angeles v. Lyons, 461

U.S. 95, 102 (1983) (internal quotations omitted). Although plaintiffs need not engage

in the “futile gesture” of visiting a building containing known barriers that the owner

has no intention of remedying, see 42 U.S.C. § 12188(a)(1), they must at least prove

 

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knowledge of the barriers and that they would visit the building in the imminent future

but for those barriers. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120

S. Ct. 693, 704-06 (2000) (noting proof that environmental plaintiffs would use

waterway for recreational purposes but for polluted condition is sufficient to show

injury-in-fact). Intent to return to the place of injury “some day” is insufficient. Lujan,

504 U.S. at 564.

Steger, Lane, Woods, and Young argue that even though they have not been

denied access to the CCB, they have been injured nonetheless because they are

disabled and may enter the building in the future. Neither Lane nor Woods testified at

the preliminary injunction hearing, and no evidence was presented regarding their

knowledge of the building's barriers or their likelihood to visit the building in the

imminent future. Steger testified that she could not remember ever being in the CCB

and did not know whether the building was accessible to her. She presented no

evidence that she intended to enter the building in the future. Consequently, neither

Steger,Lane, nor Woods suffered injury, and the district court correctly dismissed their

claims.

Young argues that because he visited the retail brokerage firm in the CCB after

the complaint was filed, he has shown an imminent threat of future injury. As noted

above, however, standing is based on the facts as they existed at the time the lawsuit

was filed. See Park, 205 F.3d at 1037. At that time, Young had not been in the CCB

and testified that he did not know whether the building was ADA-compliant. He also

presented no evidence indicating whether, at the time of filing, he had a need or intent

to access the building in the future. Young is thus in the same position as plaintiffs

above, and the district court correctly dismissed his claim.

Finally, we turn to Burch. Unlike his fellow plaintiffs, Burch entered the CCB

before commencing this lawsuit. While dining at the Tuscany Coffee Shop, Burch

entered the CCB's common area to access the men's restroom, but was unable to do so

 

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because the restroom's signage was not ADA-compliant. The district court correctly

concluded that Burch indeed was injured.

II.

Redressability

Though it ruled that Burch demonstrated injury, the district court nevertheless

dismissed his claim on the ground that his injury had been redressed. For an injury to

be redressable, judicial action must be likely to remedy the harm and cannot be merely

speculative. See Lujan, 504 U.S. at 560. Burch contends the district court erred

because numerous ADA violations, both related and unrelated to blind persons, still

exist in the CCB. Franco counters that Burch's injury is limited solely to the first floor

men's restroom, and that because the signage at the restroom currently complies with

the ADA, judicial action will have no effect.

Burchessentially argues that he has standing to seek relief for all ADA violations

in the CCB, including those unrelated to his disability. We cannot agree. To meet the

injury-in-fact requirement, “the party seeking review [must] be himself among the

injured.” Id. Burch is not “among the injured” with regard to ADA violations in the

building that do not affect the blind, and thus granting him standing to seek relief on

behalf of all disabled individuals would expand the standing doctrine beyond the limits

of Article III. See, e.g., Lewis v. Casey, 518 U.S. 343, 358 & n.6 (1996) (considering

only remedies that would redress limitation experienced by plaintiff).

On the other hand, the redressability of Burch's injury is not restricted to the

signage at the first-floor men's restroom as Franco contends. Although Burch was

injured by Franco's failure to employ ADA-compliant signage, Hilberry testified that

the building contains other violations that could injure blind persons. They include

numerous doors without raised-letter signs; signs mounted incorrectly; an elevator that

lacks audible signals and closes while people are in the doorway; stairs lacking proper

handrails; tile flooring which does not meet slip-resistant standards; and a drinking

 

Page 7

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fountain that obstructs a hallway. Hilberry testified that many of these barriers could

be removed with relatively little effort or cost.

Burchneed not encounter all of these barriers to obtain effective relief. See, e.g.,

Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 762 (D. Or.

1997) (ordering injunctive relief for entire arena although it “is unlikely that any

individual plaintiff will ever sit in each of the seats in the area, or use each of the

restrooms, or attempt to reach each of the ketchup dispensers”). The effect of such a

rule would be piecemeal compliance. To compel a building's ADA compliance,

numerous blind plaintiffs, each injured by a different barrier, would have to seek

injunctive relief as to the particular barrier encountered until all barriers had been

removed. This not only would be inefficient, but impractical.

Moreover, the ADA does not support such a narrow construction. The statute

provides that where a defendant fails to remove barriers in existing facilities and

removal is “readily achievable,” 42 U.S.C. § 12182(b)(2)(a)(iv), injunctive relief is

mandated to “make such facilities readily accessible to and usable by individuals with

disabilities. . . ,” 42 U.S.C. § 12188(a)(2). Accordingly, injunctive relief is encouraged

where compliance is readily achievable, which Hilberry testified is the case here.

Congress intended that the ADA serve as a “clear and comprehensive national

mandate” to eliminate discrimination against disabled individuals. 42 U.S.C. §

12101(b)(1). It envisioned “clear, strong, consistent, enforceable standards addressing

discrimination against [disabled] individuals.” Id. at § 12101(b)(2). Further, the ADA

is a remedial statute, see Webb v. Garelick Mfg. Co., 94 F.3d 484, 487 (8th Cir. 1996),

and should be broadly construed to effectuate its purpose, see Tcherepnin v. Knight,

389 U.S. 332, 336 (1967). Hence, our analysis of Article III standing, informed by the

ADA's language and policy, leads us to conclude that Burch has standing to seek relief

for any ADA violations in the CCB affecting his specific disability.

 

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CONCLUSION

For the reasons stated above, we affirm the district court's decision dismissing

the claims of plaintiffs Steger, Lane, Woods, and Young, and reverse as to plaintiff

Burch. We remand for proceedings consistent with this opinion.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

The ADA grants a private right of action for injunctive relief “to any person who

is being subjected to discrimination on the basis of disability in violation of this

subchapter.” 42 U.S.C. § 12188(a)(1). I agree with the court that plaintiffs Steger,

Young, Woods, and Lane lack standing to seek injunctive relief against any alleged

ADAviolations in the Clayton Central Building. At the preliminary injunction hearing,

none of these plaintiffs offered any evidence that he or she had ever been in the

building, knew of conditions in the building, or would visit the building in the

immediate future. Thus, they failed to prove injury in fact -- that they are “among the

injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). They also failed

todemonstrate the real and immediate threat of future harm that is essential for standing

to seek an injunction. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-05 (1983).

I further agree that plaintiff Burch suffered an ADA injury when he stopped at

the coffee shop in the Clayton Central Building in July 1996 and could not find the first

floor men’s restroom because the restroom door was not marked with raised lettering,

braille, or other signage that would help a blind person identify it. To seek injunctive

relief, Burch should have made a stronger showing that he would likely use the

Building in the immediate future if this barrier is remedied, but I agree with the district

court that his showing of injury-in-fact at the preliminary injunction hearing was

sufficient, at least for this relatively early stage in the litigation. “Past wrongs [a]re

evidence bearing on whether there is a real and immediate threat of repeated injury.”

Lyons, 461 U.S. at 102 (quotation omitted).

 

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However, I cannot agree that Burch has standing to seek injunctive relief against

alleged ADA violations affecting blind persons who might visit areas above the first

floor of the Building. As to these areas, Burch is like plaintiffs Steger, Young, Woods,

and Lane. He has never been there, he has no knowledge of conditions there, and he

has no plans to go there in the future.

The requirement of actual injury does more than assure a live controversy

between adverse parties. “[T]he discrete factual context within which the concrete

injury occurred or is threatened insures the framing of relief no broader than required

by the precise facts to which the court’s ruling would be applied.” Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974). Therefore, “[t]he

remedy must of course be limited to the inadequacy that produced the injury in fact that

the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Here, the

injury-producing inadequacy was the absence of signs identifying the first-floor

bathroom to a blind person. Any injunctive relief must be limited to remedying that

inadequacy. As the Supreme Court recently admonished, “[s]tanding is not dispensed

in gross.” Friends of the Earth, Inc. v. Laidlaw Environmental Serv., Inc., 120 S.Ct.

693, 706 (2000) (quotation omitted).

The court declines to apply this principle because it would result in “piecemeal

compliance,”a result the court deems “inefficient” and “impractical.” But the Supreme

Courthas consistently refused to relax its principles of Article III standing “for the sake

of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820 (1997). Nor is it

relevant in this regard that the ADA is a “remedial statute.” The Court has consistently

applied its rigorous standing principles to environmental and conservation laws –

paradigmatic examples of remedial statutes. See Laidlaw, 120 S. Ct. at 703-04 (Clean

WaterAct); SteelCo. v. Citizens for a Better Environment, 523 U.S. 83, 102-04 (1998)

(Emergency Planning and Community Right-to-Know Act); Lujan, 504 U.S. at 559-62

(Endangered Species Act).

 

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The court’s expansive view of standing in this case stands in stark contrast to

concerns expressed in the legislative history by ADA supporters who feared that the

statute would lead to an explosion of litigation, inflicting crippling uncertainties and

costs on the small businesses that must remove architectural and communications

barriersfrom existing buildings, “where such removal is readily achievable.” 42 U.S.C.

§ 12182(b)(2)(A)(iv). For example, in the Senate debates, several Senators worried

that the grant of a private right of action, with an award of attorney’s fees if successful,

would result in excessive and excessively costly litigation. See 135 C

ONG

. R

EC

.

S10754-63 (daily ed. Sept. 7, 1989). Senator Dale Bumpers observed that the term

“readily achievable” is an unknown term of art and would therefore prove to be “like

the term beauty. Beauty is in the eye of the beholder and readily achievable means

[w]hat some judge says it means?” Id. at S10760-61. Responding to these concerns,

Senator Tom Harkin, the ADA’s chief Senate sponsor, predicted:

MR. HARKIN. I think the instances in which, practically speaking,

instances in which cases could be brought for injunctive relief would be

very few and will involve egregious cases of multiple types of

discrimination, probably against more than one person with a disability.

Suppose an individual with a disability goes into a place of public

accommodationand is told he cannot come in or something, is that person

going to go to court and get an injunction? No, they will just go

someplace else. They will say, "Heck, we will not go back to that place

of business again."

Id. at S10754. If the court’s extraordinary disregard of traditional standing limitations

becomes the judicial norm, the benign prediction of Senator Harkin will prove untrue,

and the worst fears of Senator Bumpers will be realized. Lawyers and architectural

expertswill bring countless abstract disputes to federal court, and federal judges across

the country will sit as all-powerful ADA building inspectors, dictating what structural

renovations are “readily achievable” in particular buildings.

 

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In my view, this portion of the court’s decision violates Article III’s standing

requirement as construed by the Supreme Court. Accordingly, I respectfully dissent

in part.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.