Free Amended Complaint - District Court of California - California

Case 3:08-cv-01385-BEN-LSP

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LYNN HUBBARD, III, SBN 69773 SCOTTLYNN J HUBBARD, IV, SBN 212970 DISABLED ADVOCACY GROUP, APLC 12 Williamsburg Lane Chico, CA 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

A.J. OLIVER, Plaintiff, vs. UNS, INC. dba LONG JOHN SILVER'S #31090, Defendant.

) ) Case No. 08cv1385 BEN (LSP) ) ) ) Plaintiff's First Amended ) Complaint ) ) ) ) ) ) ) )

Oliver v. UNS, Inc. dba Long John Silver's #31090 Plaintiff's First Amended Complaint

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. 8. 6. 3. 4. 1343 for ADA claims. Long John Silver's #31090 1049 3rd Avenue Chula Vista, CA 91911 (hereafter "the Restaurant") 2. 1.

I. SUMMARY This is a civil rights action by plaintiff A.J. Oliver ("Oliver") for discrimination at the building, structure, facility, complex, property, land, development, and/or surrounding business complex known as:

Oliver seeks damages, injunctive and declaratory relief, attorney fees

and costs, against UNS, Inc. dba Long John Silver's (hereinafter referred to as Long John Silver's) pursuant to the Americans with Disabilities Act of 1990, ( 42 U.S.C. §§ 12101 et seq.), and related California statutes. II. JURISDICTION This Court has original jurisdiction under 28 U.S.C. §§ 1331 and Supplemental jurisdiction for claims brought under parallel

California law--arising from the same nucleus of operative facts--is predicated on 28 U.S.C. § 1367. 5. Oliver's claims are authorized by 28 U.S.C. §§ 2201 and 2202. III. VENUE All actions complained of herein take place within the jurisdiction of the United States District Court, Southern District of California, and venue is invoked pursuant to 28 U.S.C. § 1391(b), (c). IV. PARTIES Long John Silver's owns, operates, and/or leases the Restaurant, and Oliver suffered a stroke approximately 13 years ago. The stroke left
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consists of a person (or persons), firm, and/or corporation. him paralyzed, speech impaired, and unable to stand or walk. Oliver requires the
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use of a motorized wheelchair when traveling about in public. Consequently, Oliver is "physically disabled," as defined by all applicable California and United States laws, and a member of the public whose rights are protected by these laws. V. FACTS 9. commerce. 10. 11. Oliver has documented a visit to the Restaurant on May 28, 2008. Oliver visited the Restaurant and encountered barriers (both physical The Restaurant is an establishment serving food and drink, open to the public, which is intended for nonresidential use and whose operation affects

and intangible) that interfered with--if not outright denied--his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility. To the extent known by Oliver, the barriers at the Restaurant included, but are not limited to, the following: · The tow away signage posted is not correct; · The access aisle has a slope and cross slope that exceeds 2.0% due to the encroaching built up curb ramp; · The van accessible signage is not correct; · The disabled parking stalls have slopes and cross slopes that exceed 2.0%; · There is no International Symbol of Accessibility posted on the strike side of the entry door; · The platform in front of the entry door is not level; · There is no seating designated as being accessible to the disabled; · There is no disabled seating; · The food service counter is too high and there is no portion lowered to accommodate patrons in wheelchairs; · There is no signage at the men's restroom to indicate that it is accessible to the disabled; · The water closet stall is too narrow;
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· The toilet tissue dispenser is more than 12 inches from the water closet; · The toilet tissue dispenser is an obstruction to the use of the side grab bar; · The side grab bar does not extend 24 inches from the front of the water closet; · The operable part of the disposable seat cover dispenser is more than 40 inches from the floor; · The disposable seat cover dispenser is mounted above and behind the water closet causing it to be outside of the required reach range limits; · The water closet is an obstruction to the use of the disposable seat cover dispenser; · The lavatory controls require twisting, pinching, and/or grasping to operate; · The pipes underneath the lavatory are not wrapped; · The mirror is mounted at more than 40 inches from the floor; · The operable part of the paper towel dispenser is mounted at more than 40 inches from the floor; and, · There is insufficient strike side clearance when exiting the restroom. These barriers prevented Oliver from enjoying full and equal access. 12. Oliver was also deterred from visiting the Restaurant because he knew that the Restaurant's goods, services, facilities, privileges, advantages, and accommodations were unavailable to physically disabled patrons (such as himself). He continues to be deterred from visiting the Restaurant because of the future threats of injury created by these barriers. 13. Oliver also encountered barriers at the Restaurant, which violate state and federal law, but were unrelated to his disability. Nothing within this Complaint, however, should be construed as an allegation that Oliver is seeking to remove barriers unrelated to his disability.
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14.

Long John Silver's knew that these elements and areas of the

Restaurant were inaccessible, violate state and federal law, and interfere with (or deny) access to the physically disabled. Moreover, Long John Silver's has the financial resources to remove these barriers from the Restaurant (without much difficulty or expense), and make the Restaurant accessible to the physically disabled. To date, however, Long John Silver's refuses to either remove those barriers or seek an unreasonable hardship exemption to excuse non-compliance. 15. At all relevant times, Long John Silver's has possessed and enjoyed sufficient control and authority to modify the Restaurant to remove impediments to wheelchair access and to comply with the Americans with Disabilities Act Accessibility Guidelines and Title 24 regulations. Long John Silver's has not removed such impediments and has not modified the Restaurant to conform to accessibility standards. Long John Silver's has intentionally maintained the Restaurant in its current condition and has intentionally refrained from altering the Restaurant so that it complies with the accessibility standards. 16. Oliver further alleges that the (continued) presence of barriers at the Restaurant is so obvious as to establish Long John Silver's discriminatory intent.1 On information and belief, Oliver avers that evidence of this discriminatory intent includes Long John Silver's refusal to adhere to relevant building standards; disregard for the building plans and permits issued for the Restaurant; conscientious decision to the architectural layout (as it currently exists) at the Restaurant; decision not to remove barriers from the Restaurant; and allowance that the Restaurant continues to exist in its non-compliant state. Oliver further alleges, on information and belief, that Long John Silver's is not in the midst of a remodel, and that the barriers present at the Restaurant are not isolated (or temporary) interruptions in access due to maintenance or repairs.2
E.g., Gunther v. Lin, 144 Cal.App.4th 223, fn. 6 Id.; 28 C.F.R. § 36.211(b) Oliver v. UNS, Inc. dba Long John Silver's #31090 Plaintiff's First Amended Complaint

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VI. FIRST CLAIM Americans with Disabilities Act of 1990 Denial of "Full and Equal" Enjoyment and Use Oliver incorporates the allegations contained in paragraphs 1 Title III of the ADA holds as a "general rule" that no individual shall through 15 for this claim. be discriminated against on the basis of disability in the full and equal enjoyment (or use) of goods, services, facilities, privileges, and accommodations offered by any person who owns, operates, or leases a place of public accommodation. 42 U.S.C. § 12182(a). 19. Long John Silver's discriminated against Oliver by denying "full and equal enjoyment" and use of the goods, services, facilities, privileges or accommodations of the Restaurant during each visit and each incident of deterrence. Failure to Remove Architectural Barriers in an Existing Facility 20. The ADA specifically prohibits failing to remove architectural The term "readily barriers, which are structural in nature, in existing facilities where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). without much difficulty or expense." Id. § 12181(9). 21. When an entity can demonstrate that removal of a barrier is not readily achievable, a failure to make goods, services, facilities, or accommodations available through alternative methods is also specifically prohibited if these methods are readily achievable. Id. § 12182(b)(2)(A)(v). 22. Here, Oliver alleges that Long John Silver's can easily remove the architectural barriers at the Restaurant without much difficulty or expense, and that Long John Silver's violated the ADA by failing to remove those barriers, when it was readily achievable to do so.
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achievable" is defined as "easily accomplishable and able to be carried out

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23.

In the alternative, if it was not "readily achievable" for Long John

Silver's to remove the Restaurant's barriers, then Long John Silver's violated the ADA by failing to make the required services available through alternative methods, which are readily achievable. Failure to Design and Construct an Accessible Facility 24. On information and belief, the Restaurant was designed or constructed (or both) after January 26, 1992--independently triggering access requirements under Title III of the ADA. 25. The ADA also prohibits designing and constructing facilities for first occupancy after January 26, 1993, that aren't readily accessible to, and usable by, individuals with disabilities when it was structurally practicable to do so. 42 U.S.C. § 12183(a)(1). 26. Here, Long John Silver's violated the ADA by designing or constructing (or both) the Restaurant in a manner that was not readily accessible to the physically disabled public--including Oliver--when it was structurally practical to do so.3 Failure to Make an Altered Facility Accessible 27. 28. On information and belief, the Restaurant was modified after The ADA also requires that facilities altered in a manner that affects January 26, 1992, independently triggering access requirements under the ADA. (or could affect) its usability must be made readily accessible to individuals with disabilities to the maximum extent feasible. 42 U.S.C. § 12183(a)(2). Altering an area that contains a facility's primary function also requires adding making the paths of travel, bathrooms, telephones, and drinking fountains serving that area accessible to the maximum extent feasible. Id.

Nothing within this Complaint should be construed as an allegation that plaintiff is bringing this action as a private attorney general under either state or federal statutes. Oliver v. UNS, Inc. dba Long John Silver's #31090 08cv1385 BEN (LSP) Plaintiff's First Amended Complaint

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29.

Here, Long John Silver's altered the Restaurant in a manner that

violated the ADA and was not readily accessible to the physically disabled public--including Oliver--to the maximum extent feasible. Failure to Modify Existing Policies and Procedures 30. The ADA also requires reasonable modifications in policies, practices, or procedures, when necessary to afford such goods, services, facilities, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter their nature. 42 U.S.C. § 12182(b)(2)(A)(ii). 31. Here, Long John Silver's violated the ADA by failing to make reasonable modifications in policies, practices, or procedures at the Restaurant, when these modifications were necessary to afford (and would not fundamentally alter the nature of) these goods, services, facilities, or accommodations. 32. Oliver seeks all relief available under the ADA (i.e., injunctive relief, attorney fees, costs, legal expense) for these aforementioned violations. 42 U.S.C. § 12205. 33. Oliver also seeks a finding from this Court (i.e., declaratory relief) that Long John Silver's violated the ADA in order to pursue damages under California's Unruh Civil Rights Act or Disabled Persons Act. VII. SECOND CLAIM Disabled Persons Act 34. 35. Oliver incorporates the allegations contained in paragraphs 1 California Civil Code § 54 states, in part, that: Individuals with through 30 for this claim. disabilities have the same right as the general public to the full and free use of the streets, sidewalks, walkways, public buildings and facilities, and other public places.
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36.

California Civil Code § 54.1 also states, in part, that: Individuals

with disabilities shall be entitled to full and equal access to accommodations, facilities, telephone facilities, places of public accommodation, and other places to which the general public is invited. 37. 38. Both sections specifically incorporate (by reference) an individual's Here, Long John Silver's discriminated against the physically rights under the ADA. See Civil Code §§ 54(c) and 54.1(d). disabled public--including Oliver--by denying them full and equal access to the Restaurant. Long John Silver's also violated Oliver's rights under the ADA, and, therefore, infringed upon or violated (or both) Oliver's rights under the Disabled Persons Act. 39. For each offense of the Disabled Persons Act, Oliver seeks actual damages (both general and special damages), statutory minimum damages of one thousand dollars ($1,000), declaratory relief, and any other remedy available under California Civil Code § 54.3. 40. He also seeks to enjoin Long John Silver's from violating the Disabled Persons Act (and ADA) under California Civil Code § 55, and to recover reasonable attorneys' fees and incurred under California Civil Code §§ 54.3 and 55. VIII. THIRD CLAIM Unruh Civil Rights Act 41. 42. Oliver incorporates the allegations contained in paragraphs 1 California Civil Code § 51 states, in part, that: All persons within the through 30 for this claim. jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
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43.

California Civil Code § 51.5 also states, in part, that: No business

establishment of any kind whatsoever shall discriminate against any person in this state because of the disability of the person. 44. 45. California Civil Code § 51(f) specifically incorporates (by reference) Long John Silver's aforementioned acts and omissions denied the an individual's rights under the ADA into the Unruh Act. physically disabled public--including Oliver--full and equal accommodations, advantages, facilities, privileges and services in a business establishment (because of their physical disability). 46. Unruh Act. 47. offense. 48. Oliver also seeks to enjoin Long John Silver's from violating the Unruh Act (and ADA), and recover reasonable attorneys' fees and costs incurred under California Civil Code § 52(a). IX. FOURTH CLAIM Denial of Full and Equal Access to Public Facilities 49. 50. Oliver incorporates the allegations contained in paragraphs 1 Health and Safety Code § 19955(a) states, in part, that: California through 13 for this claim. public accommodations or facilities (built with private funds) shall adhere to the provisions of Government Code § 4450. 51. Health and Safety Code § 19959 states, in part, that: Every existing (non-exempt) public accommodation constructed prior to July 1, 1970, which is altered or structurally repaired, is required to comply with this chapter.
Oliver v. UNS, Inc. dba Long John Silver's #31090 Plaintiff's First Amended Complaint 08cv1385 BEN (LSP)

These acts and omissions (including the ones that violate the ADA)

denied, aided or incited a denial, or discriminated against Oliver by violating the Oliver was damaged by Long John Silver's wrongful conduct, and

seeks statutory minimum damages of four thousand dollars ($4,000) for each

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52.

Oliver alleges the Restaurant is a public accommodation

constructed, altered, or repaired in a manner that violates Part 5.5 of the Health and Safety Code or Government Code § 4450 (or both), and that the Restaurant was not exempt under Health and Safety Code § 19956. 53. Long John Silver's non-compliance with these requirements at the Restaurant aggrieved (or potentially aggrieved) Oliver and other persons with physical disabilities. Accordingly, he seeks injunctive relief and attorney fees pursuant to Health and Safety Code § 19953. X. PRAYER FOR RELIEF WHEREFORE, Oliver prays judgment against Long John Silver's for: 1. 2. 3. 4. 5. Injunctive relief, preventive relief, or any other relief the Court deems Declaratory relief that Long John Silver's violated the ADA for the Statutory minimum damages under either sections 52(a) or 54.3(a) of the Attorneys' fees, litigation expenses, and costs of suit.4 Interest at the legal rate from the date of the filing of this action. DISABLED ADVOCACY GROUP, APLC /s/ Lynn Hubbard, III LYNN HUBBARD, III Attorney for Plaintiff proper. purposes of Unruh Act or Disabled Persons Act damages. California Civil Code (but not both) according to proof.

DATED: July 30, 2008

This includes attorneys' fees under California Code of Civil Procedure § 1021.5. Oliver v. UNS, Inc. dba Long John Silver's #31090 Plaintiff's First Amended Complaint

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