Noel v. NY City Taxi & Limousine Comm'n, No. 12-41 (2d Cir. 2012)

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Justia Opinion Summary

Two people who use wheelchairs and organizations that represent persons with disabilities brought a class action against the New York City Taxi and Limousine Commission and the TLC Commissioner for violation of Parts A and B of Title II of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the New York City Human Rights Law. The district court granted plaintiffs partial summary judgment as to liability on the ADA claim and entered a temporary injunction, requiring that all new taxi medallions and street-hail livery licenses be limited to vehicles that are wheelchair accessible until the TLC proposes and the district court approves a comprehensive plan to provide meaningful access to taxi service for wheelchair-bound passengers. The Second Circuit vacated the temporary injunction as improvidently granted. Although the TLC exercises pervasive control over the taxi industry in New York City, defendants were not required by Title II(A) to deploy their licensing and regulatory authority to mandate that persons who need wheelchairs be afforded meaningful access to taxis.

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12-41-cv Noel v. New York City Taxi & Limousine Comm n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: April 19, 2012 Decided: June 28, 2012) Docket No. 12-41-cv - - - - - - - - - - - - - - - - - - - - - - -x CHRISTOPHER NOEL; SIMI LINTON; UNITED SPINAL, a nonprofit organization; TAXIS FOR ALL CAMPAIGN, a nonprofit organization; 504 DEMOCRATIC CLUB, a nonprofit organization; DISABLED IN ACTION, a nonprofit organization, PLAINTIFFS-APPELLEES, 20 21 22 -v.- 23 24 25 26 27 NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, a charter mandated agency; DAVID YASSKY, in his official capacity, as Commissioner of the New York City Taxi and Limousine Commission, 28 29 30 31 32 33 34 35 36 DEFENDANTS-APPELLANTS. - - - - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE and HALL, Circuit Judges. 1 Appeal from a temporary injunction entered in the 2 United States District Court for the Southern District of 3 New York (Daniels, J.) requiring all new taxi medallions and 4 street-hail livery licenses issued in the City of New York 5 be limited to vehicles that are wheelchair accessible. 6 conclude that defendants are not in violation of Title II, 7 Part A, of the Americans with Disabilities Act and that the 8 district court therefore erred in granting partial summary 9 judgment for plaintiffs and entering the temporary 10 We injunction. 11 Vacated and remanded for entry of partial summary 12 judgment for defendants and further proceedings consistent 13 with this opinion. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Michael A. Cardozo, Corporation Counsel of the City of New York (Leonard Koerner, Robin Binder, Michelle Goldberg-Cahn, Ronald E. Sternberg, on the brief), for Defendants-Appellants. Sid Wolinsky (Julia Pinover, MaryLee Smith, Kara J. Janssen, on the brief), Disability Rights Advocates (Allegra L. Fishel, Outten and Golden, LLP, on the brief), for Plaintiffs-Appellees. Richard D. Emery (Emery Celli Brinckerhoff & Abady LLP), for Taxicab, Limousine & Paratransit Association as amicus curiae in support of Defendants-Appellants. 2 1 DENNIS JACOBS, Chief Judge: 2 Two people who use wheelchairs and the organizations 3 that represent persons with disabilities bring this class 4 action against the New York City Taxi and Limousine 5 Commission ( TLC ) and the TLC Commissioner David Yassky for 6 violation of Parts A and B of Title II of the Americans with 7 Disabilities Act ( ADA ), the Rehabilitation Act of 1973, 8 and the New York City Human Rights Law. 9 District Court for the Southern District of New York The United States 10 (Daniels, J.) granted plaintiffs partial summary judgment as 11 to liability on the claim that defendants are violating Part 12 A of Title II of the ADA ( Title II(A) ) by failing to 13 provide meaningful access to taxi services for persons with 14 disabilities. 15 injunction that requires that all new taxi medallions and 16 street-hail livery licenses be limited to vehicles that are 17 wheelchair accessible ( accessible taxis ), until the TLC 18 proposes and the district court approves a comprehensive 19 plan to provide meaningful access to taxi service for 20 wheelchair-bound passengers. 21 The district court also entered a temporary Defendants appeal the injunction and the grant of 22 partial summary judgment upon which the injunction is 23 premised. 24 injunction and the underlying merits that relate to it. Appellate jurisdiction exists to review the 3 We 1 conclude that, though the TLC exercises pervasive control 2 over the taxi industry in New York City, defendants were not 3 required by Title II(A) to deploy their licensing and 4 regulatory authority to mandate that persons who need 5 wheelchairs be afforded meaningful access to taxis. 6 district court therefore erred in entering the temporary 7 injunction. 8 9 The Accordingly, we vacate the temporary injunction and remand for the district court to enter summary judgment for 10 defendants on the Title II(A) claim and for further 11 proceedings consistent with this opinion.1 12 13 14 BACKGROUND The facts are not in dispute. Plaintiffs are [1] 15 persons with disabilities who seek fuller access to New York 16 City taxis and [2] organizations who represent them. 17 contend that the taxi services in New York City fail to give 18 meaningful access to persons with disabilities and that the 19 TLC thus discriminates in violation of the ADA, the 20 Rehabilitation Act, and the New York City Human Rights Law. 1 They Because we vacate the temporary injunction as improvidently granted, we need not address defendants secondary argument that the district court erred by entering an injunction that, as defendants contend, exceeded the scope of the litigation and the request of plaintiffs. 4 1 There are two types of licensed taxis in New York City: 2 the traditional yellow cabs and the livery cabs. The yellow 3 cabs are medallion taxis because the license is 4 accompanied by a metal medallion that is affixed to the 5 outside of the taxi. 6 yellow taxi is a 5-passenger vehicle for hire licensed to 7 accept hails from passengers in the street. 8 502(l). 9 is dispatched from a livery base station on a pre-arranged N.Y.C. Admin. Code § 19-502(h). A Id. § 19- A livery cab is a 5-passenger vehicle for hire that 10 basis. See 35 N.Y.C. Rules & Regs. §§ 59A-03(j), (k); see 11 generally N.Y.C. Admin. Code § 19-502(g) (defining for-hire 12 vehicle ). 13 street hails.2 Livery cabs have not been authorized to accept 14 2 New York adopted legislation in December 2011 (amended in February) (1) allowing the TLC to sell 2,000 additional yellow taxi medallions, all of which must be for accessible taxis, and (2) establishing the Hail Accessible Inter-Borough License ( HAIL ) program, which permits livery vehicles to respond to street hails in northern Manhattan and the other boroughs. See 2012 NY ALS 9 (amending 2011 NY ALS 602). The TLC will be authorized to issue 18,000 HAIL licenses over a three-year period: 6,000 in the first year, 6,000 in the second year, and 6,000 in the third year. Twenty percent of the HAIL licenses are for accessible vehicles. Id. at § 5(b). The licenses and medallions are expected to yield over a billion dollars in revenue for the City. Significantly, the TLC cannot sell any of its new accessible medallions until the HAIL license program commences. Id. at § 8. 5 1 Under the City Charter, all taxis are licensed and 2 regulated by the TLC, an administrative agency of the City 3 of New York under the Deputy Mayor for Operations. 4 N.Y.C. Charter § 2300. 5 owners and drivers must comply with the TLC s applicable 6 laws and regulations. 7 § 19-504. 8 establish[es] an overall public transportation policy 9 governing taxi, coach, limousine, wheelchair accessible van See 65 As a condition of licensure, taxi Id. §§ 2300, 2303; N.Y.C. Admin. Code Under the City Charter, the TLC adopt[s] and 10 services and commuter van services as it relates to the 11 overall public transportation network of the city. 12 Charter § 2300. 13 criteria for the licensing of vehicles, drivers and 14 chauffeurs ; establishing standards of service, . . . 15 insurance and minimum coverage, . . . driver safety, . . . 16 equipment safety and design, . . . noise and air pollution 17 control ; and adjudicating charges of violations of the 18 provisions of the administrative code and rules promulgated 19 thereunder. 20 N.Y.C. This includes set[ting] standards and Id. §§ 2300, 2303. The number of medallions is limited by law to 13,237. 21 At least 231 are designated for wheelchair-accessible 22 vehicles, though any medallion owner may operate such a taxi 6 1 regardless of whether the medallion has that designation. 2 Currently, 233 taxis are so accessible; 98.2% of medallion 3 taxis are therefore inaccessible to persons in wheelchairs.3 4 Not surprisingly, the wait time for accessible taxis is 5 prolonged. 6 taxi in Manhattan within ten minutes is 87.33%, whereas the 7 chances of hailing an accessible taxi within ten minutes is 8 3.31%. The record shows that the chances of hailing any 9 * * * 10 After some discovery, plaintiffs moved for partial 11 summary judgment only on the ADA claims and only as to 12 liability. 13 side s motion for summary judgment was granted in part and 14 in part denied. 15 Defendants cross-moved on all claims. Each As to Part B of Title II of the ADA ( Title II(B) ), 16 which governs public transportation, the district court 17 granted summary judgment in favor of defendants. 18 district court reasoned that although the TLC has extensive 19 regulatory powers, the agency itself has no authority to 3 The The complaint alleges that 60,000 people in New York City are wheelchair users. The City s population exceeds eight million. See 2010 Census Bureau, available at (last visited June 20, 2012). Accordingly, people in wheelchairs make up approximately 0.73% of New York City s population. 7 1 provide [public transportation] services, and does not 2 function as a transportation services provider, to the 3 public. 4 F. Supp. 2d --, No. 11 Civ. 237 (GBD), 2011 WL 6747466, *5 5 (S.D.N.Y. Dec. 23, 2011). 6 operate a public transportation service, the district 7 court held that the TLC is not obligated under Title II(B) 8 to ensure meaningful access to taxis for persons with 9 disabilities. 10 Noel v. New York City Taxi & Limousine Comm n, -- Because the TLC does not Id. at *6. However, as to Title II(A), which governs public 11 services generally, the district court granted summary 12 judgment in favor of plaintiffs. 13 reasoned that the TLC is a public entity carrying out a 14 public regulatory function that affects and confers a 15 benefit on New York City taxicab riders, and therefore may 16 not discriminate in any of its functions--including its 17 regulatory activities--and must ensure persons with 18 disabilities have meaningful access to taxis in New York 19 City. 20 plaintiffs enjoyed no meaningful access to taxis, id., and 21 were therefore entitled to summary judgment, id. at *8-9. Id. at *8. The district court The district court determined that 22 8 1 The district court then entered a temporary injunction 2 that had immediate impact in view of recent changes in New 3 York State law, which had authorized the issuance of 4 additional medallions and authorized, for the first time, 5 livery cabs to pick up street hails in under-served areas of 6 the City. 7 8 9 10 11 12 13 14 15 16 17 See supra note 1. The injunction is as follows: [t]he TLC must propose a comprehensive plan to provide meaningful access to taxicab service for disabled wheelchair bound passengers. Such a plan must include targeted goals and standards, as well as anticipated measurable results. Until such a plan is proposed and approved by th[e District] Court, all new taxi medallions sold or new streethail livery licenses or permits issued by the TLC must be for wheelchair accessible vehicles. Id. at *9. On appeal, defendants challenge the temporary 18 injunction and the grant of summary judgment, to the extent 19 it bears on the injunction. 20 we granted defendants motion to stay enforcement of the 21 injunction. 22 appeal and vacate the temporary injunction.4 While the appeal was pending, We now consider the merits of defendants 4 Because this appeal comes to us on review of the district court s temporary injunction and because plaintiffs have not cross-appealed, the issue of whether the district court correctly granted summary judgment for defendants on the Title II(B) claim is not before us. In addition, because the district court did not rule on plaintiffs Rehabilitation Act and state law claims, those claims are also not before us. 9 1 JURISDICTION 2 We have jurisdiction over this interlocutory appeal 3 because the district court entered an order granting an 4 injunction[]. 5 token, we have jurisdiction to consider the underlying 6 merits of the case, to the extent they relate to the 7 propriety of granting injunctive relief. 8 Allen, 155 F.3d 35, 39 (2d Cir. 1998) (alterations and 9 internal quotation marks omitted) (holding that this Court See 28 U.S.C. § 1292(a)(1). By the same United States v. 10 had jurisdiction to consider not only the injunction but 11 also the merits of the district court s determination that 12 the appellee was entitled to summary judgment). 13 Accordingly, we review the entry of the temporary injunction 14 as well as the grant of partial summary judgment on which it 15 is based. 16 17 18 DISCUSSION We review a district court s grant of injunctive relief 19 for abuse of discretion. Kapps v. Wing, 404 F.3d 105, 112 20 (2d Cir. 2005). 21 when it rests its decision on an error of law or clearly 22 erroneous finding of fact. 23 Bus, 644 F.3d 110, 115 (2d Cir. 2011). A district court abuses its discretion Abrahams v. MTA Long Island 10 1 We review the grant of summary judgment, which was the 2 basis for the temporary injunction, de novo. 3 Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 4 2003). Miller v. 5 6 7 I One goal of the ADA is to provide a clear and 8 comprehensive national mandate for the elimination of 9 discrimination against individuals with disabilities. 10 Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) 11 (quoting 42 U.S.C. § 12101(b)(1)). 12 first three titles proscribe discrimination against 13 individuals with disabilities in employment and hiring 14 (Title I), access to public services (Title II), and public 15 accommodations (Title III). 16 divided into Parts A and B : Part A governs public 17 services generally, and Part B governs the provision of 18 public transportation services. 19 This appeal involves only Title II(A). 20 Id. To do so, the ADA s Title II is, in turn, Abrahams, 644 F.3d at 115. Title II(A) provides: Subject to the provisions of 21 this subchapter, no qualified individual with a disability 22 shall, by reason of such disability, be excluded from 11 1 participation in or be denied the benefits of the services, 2 programs, or activities of a public entity, or be subjected 3 to discrimination by any such entity. 4 To prevail under Title II(A), plaintiffs must demonstrate 5 that (1) they are qualified individuals with a disability; 6 (2) that the defendants are subject to the ADA; and (3) that 7 plaintiffs were denied the opportunity to participate in or 8 benefit from defendants services, programs, or activities, 9 or were otherwise discriminated against by defendants, by 42 U.S.C. § 12132. 10 reason of plaintiffs disabilities. Henrietta D., 331 F.3d 11 at 272. 12 qualified individuals or that the TLC is a public entity 13 that is generally subject to Title II(A). 14 on appeal then is whether the TLC denied plaintiffs an 15 opportunity to participate in its services, programs, or 16 activities, or otherwise discriminated against them on 17 account of a disability. Defendants do not dispute that plaintiffs are The only question 18 19 20 II As a remedial statute, the ADA must be broadly 21 construed to effectuate its purpose of providing a clear 22 and comprehensive national mandate for the elimination of 12 1 discrimination against individuals with disabilities. 2 Innovative Health Sys., Inc. v. City of White Plains, 931 F. 3 Supp. 222, 232 (S.D.N.Y. 1996) (internal quotation marks 4 omitted), aff d in part, 117 F.3d 37 (2d Cir. 1997), 5 recognized as superseded on other grounds, Zervos v. Verizon 6 N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). 7 Accordingly, the phrase services, programs, or activities 8 has been interpreted to be a catch-all phrase that 9 prohibits all discrimination by a public entity. 10 11 Innovative Health Sys., 117 F.3d at 45. Although the ADA is to be interpreted broadly, the 12 scope of Title II is not limitless. See Reeves v. Queen 13 City Transp., Inc., 10 F. Supp. 2d 1181, 1185 (D. Col. 14 1998). 15 General to promulgate regulations to implement Title II(A), 16 see 42 U.S.C. § 12134(a), and the Attorney General s 17 regulations add scope and shape to the general prohibitions 18 in the ADA, which are not self-reading. 19 Judiciary Committee Report conceded, it is the purpose of 20 this section . . . to direct the Attorney General to issue 21 regulations setting forth the forms of discrimination 22 prohibited. 23 1990 U.S.C.C.A.N. 445, 475. In enacting Title II, Congress directed the Attorney As the House H.R. Rep. 101-485(III) at 52, reprinted in 13 1 The most relevant regulation here is 28 C.F.R. 2 § 35.130(b)(6), which governs the conduct of a public entity 3 administering a licensing program. 4 administers a licensing program: the licensing of taxis. 5 Section 35.130(b)(6) prohibits a public entity from 6 administer[ing] a license or certification program in a 7 manner that subjects qualified individuals with disabilities 8 to discrimination on the basis of disability or 9 establish[ing] requirements for the programs or activities The TLC, of course, 10 of licensees or certified entities that subject qualified 11 individuals with disabilities to discrimination on the basis 12 of disability. 13 Notwithstanding the broad construction of the ADA, 14 Section 35.130(b)(6) does not support plaintiffs claim 15 against the TLC. 16 from refusing to grant licenses to persons with disabilities 17 who are otherwise qualified to own or operate a taxi (i.e., 18 qualified medallion purchasers and drivers); it does not 19 assist persons who are consumers of the licensees product. 20 This reading of Section 35.130(b)(6) is consistent with the 21 Technical Assistance Manual of the Department of Justice 22 ( TAM ), which is persuasive authority as to the ADA s 23 meaning, unless it is plainly erroneous or inconsistent with Section 35.130(b)(6) prohibits the TLC 14 1 the ADA s regulations. 2 at 45 n.8. 3 the persons who are protected are those who are seeking 4 licenses: 5 6 7 8 9 10 11 12 13 14 15 16 See Innovative Health Sys., 117 F.3d The section involving licensing makes clear that A public entity may not discriminate on the basis of disability in its licensing, certification, and regulatory activities. A person is a qualified individual with a disability with respect to licensing or certification, if he or she can meet the essential eligibility requirements for receiving the license or certification. . . . Public entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is qualified. 17 ADA TAM II-3.7200, available at 18 (last visited June 19 20, 2012). 20 limitation: 21 22 23 24 25 26 27 The example given in the TAM reinforces that ILLUSTRATION: A State prohibits the licensing of transportation companies that employ individuals with missing limbs as drivers. XYZ company refuses to hire an individual with a missing limb who is qualified to perform the essential functions of the job, because he is able to drive safely with hand controls. 28 Id. 29 would violate Title II(A), id., but--critically--that [t]he 30 State is not accountable for discrimination in the 31 employment or other practices of XYZ company, if those The TAM concludes that such a licensing requirement 15 1 practices are not the result of requirements or policies 2 established by the State. 3 Id. That guidance goes far to deciding this appeal. The 4 gravamen of plaintiffs claim is that there are too few 5 accessible taxis in New York City and that the TLC should 6 use its regulatory authority to require that more taxis be 7 accessible. 8 II(A) against the TLC because nothing in the TLC s 9 administration of the licensing program discriminates But no such claim is cognizable under Title 10 against persons with disabilities. Although only 231 11 medallions are conditioned on wheelchair accessibility, none 12 of the medallions issued by the TLC prohibits any medallion 13 owner from operating an accessible taxi. 14 15 16 III Plaintiffs contend that the TLC violates Title II(A) 17 because the industry it licenses fails to provide meaningful 18 access to taxis for persons with disabilities. 19 As an initial matter, Title II(A) makes clear that 20 [t]he programs or activities of entities that are licensed 21 or certified by a public entity are not, themselves, covered 16 28 C.F.R. § 35.130(b)(6).5 1 by [Title II(A)]. As the TAM 2 advises: [a]lthough licensing standards are covered by 3 title II, the licensee s activities themselves are not 4 covered. 5 activity of a public entity merely because it is licensed 6 by the public entity. 7 At the risk of being obvious, [t]he New York City taxicab 8 industry is a private industry. 9 Corp., 721 F. Supp. 2d 218, 220 (S.D.N.Y. 2010). An activity does not become a program or ADA TAM II-3.7200 (emphasis added). Freidman v. Gen. Motors 10 Accordingly, even if private industry (such as the New York 11 City taxi industry) fails to provide meaningful access for 12 persons with disabilities, a licensing entity (such as the 13 TLC) is not therefore in violation of Title II(A), unless 14 the private industry practice results from the licensing 15 requirements. 16 See ADA TAM II-3.7200. This conclusion was adopted by the two district courts 17 that have considered the issue. 18 City of Manhattan, 849 F. Supp. 1429, 1441-42 (D. Kan. 19 1994), that Manhattan (Kansas) violated Title II(A) by 20 granting liquor licenses to businesses that were 5 It was claimed in Tyler v. Cf. 49 C.F.R. § 37.37(a) (Title III) (Department of Transportation regulation providing that [a] private entity does not become subject to the requirements of this part for public entities[] because it . . . is regulated by, or is granted a . . . permit to operate by a public entity. ). 17 1 inaccessible to persons with disabilities. 2 court concluded that the regulations implementing Title II 3 of the ADA do not cover the programs and activities of 4 [private] entities that are licensed or certified by a 5 public entity. 6 § 35.130(b)(6)); accord id. (explaining that [a]lthough 7 City programs operated under contractual or licensing 8 arrangements may not discriminate against qualified 9 individuals with disabilities, the programs or activities of 10 licensees or certified entities are not themselves programs 11 or activities of the public entity merely by virtue of the 12 license or certificate. 13 marks, and alteration omitted)). 14 licensing of non-accessible private establishments did not 15 deny access to services, aids, and programs provided by the 16 City under licensing or contractual arrangements. 17 1442. 18 The district Id. at 1441 (citing 28 C.F.R. (internal citation, quotation Tyler ruled that the Id. at The plaintiff in Tyler also argued that the city s 19 physical inspection of licensed facilities provided a 20 benefit to non-disabled people only, because only non- 21 disabled people could enter those establishments. 22 district court explained that it was not the government 23 inspections that denied access to the facilities or the 18 Id. The 1 benefits of being there; it was the facilities themselves, 2 which were operated privately. 3 actionable under Title II(A), Tyler reasoned, because Title 4 II . . . and its implementing regulations prohibit 5 discrimination against qualified individuals only by public 6 entities and do not go so far as to require public 7 entities to impose on private establishments, as a condition 8 of licensure, a requirement that they make their facilities 9 physically accessible to persons with disabilities. Id. Such a claim is not Id. 10 Because private establishments are not services, programs or 11 activities of a public entity, Tyler held that they are not 12 governed by Title II(A) or its implementing regulations. 13 Id. 14 In Reeves v. Queen City Transportation, Inc., 10 F. 15 Supp. 2d 1181 (D. Colo. 1998), a private company transported 16 guests to resorts in vehicles that were not wheelchair 17 accessible. 18 commission that had issued the company a certificate to 19 operate, alleging a violation of Title II(A). 20 83. 21 The plaintiffs sued the public utility Id. at 1182- In rejecting the Title II(A) challenge, the District of 22 Colorado concluded that the utility commission operates a 23 certification program, not a transportation program, and 19 1 that issuance of a certificate of operation to a private 2 transportation company does not constitute a violation of 3 Title II even if [that company] subsequently engage[s] in 4 unlawful discrimination. 5 marks omitted). 6 Id. at 1186 (internal quotation Plaintiffs undertake to distinguish these cases on the 7 ground that this Circuit interprets the ADA more broadly. 8 To be sure, this Circuit broadly interprets the ADA, see 9 Innovative Health Sys., 117 F.3d at 45--and the district 10 court here relied on that broad construction, see Noel, 2011 11 WL 6747466, at *7-8. 12 limits, and limits are found in the Attorney General s 13 regulations, which (as relevant here) emphasize that Title 14 II(A) s prohibition on discrimination by public entities 15 does not compel public entities to police compliance by the 16 private entities they license. 17 § 35.130(b)(6); see also ADA TAM II-3.7200. 18 Reeves can hardly be distinguished on the ground that it is 19 incompatible with the Second Circuit s broad reading of the 20 ADA; Reeves properly cites our decision in Innovative Health 21 Systems for that proposition. 22 1183. However, the ADA is not without E.g., 28 C.F.R. Moreover, Reeves, 10 F. Supp. 2d at 23 20 1 Plaintiffs also contend that this case is different 2 because the TLC s control of the taxi industry is pervasive. 3 See N.Y.C. Charter § 2303(b); Statharos v. N.Y. City Taxi & 4 Limousine Comm n, 198 F.3d 317, 321, 324 (2d Cir. 1999). 5 Pervasive control is significant, plaintiffs argue, because 6 it was the dispositive factor in Paxton v. State of West 7 Virginia Department of Tax & Revenue, 451 S.E. 2d 779 (W. 8 Va. 1994). 9 In Paxton, the West Virginia Supreme Court affirmed a 10 writ of mandamus compelling a lottery commission--a public 11 entity--to require all places that sell lottery tickets to 12 be accessible to persons with disabilities. 13 786. 14 substantial control and regulatory authority over the 15 lottery, id. at 783-84, but that was not essential to the 16 decision. 17 the lottery franchises from the liquor licenses in Tyler-- 18 was that, through its contract vendors the Lottery 19 Commission furnishes the lottery devices and services that 20 allow the licensee to conduct lottery sales. 21 Thus the lottery commission was not only engaged in a 22 licensing arrangement, but provide[d] an aid, benefit or 23 service on a continuing basis to its licensee ; and that is Id. at 781, The court noted that the lottery commission has The crucial fact--which was held to distinguish 21 Id. at 785. 1 the reason that the West Virginia Supreme Court held that 2 the commission was covered by Title II(A). 3 lottery is the service provided by the Lottery Commission, 4 and it is this service that makes the Lottery Commission 5 subject to the ADA under 28 C.F.R. § 35.130(b)(1). ).6 6 We neither endorse nor challenge the reasoning of Id. ( [T]he 7 Paxton. 8 and Taylor, in which the public entity is merely the entity 9 charged with regulating and licensing private industry. In any event, our case is a closer analog to Reeves The 10 TLC s control over the taxi industry, however pervasive it 11 is at this time, does not make the private taxi industry a 12 program or activity of a public entity. 13 3.7200; accord 28 C.F.R. § 35.130(b)(6).7 See ADA TAM IIAccordingly, the 6 Reeves distinguished Paxton on this same basis: that Paxton relied heavily on the fact that state statutes charged the Lottery Commission with operation of the state lottery on a continuous basis, such that the lottery is the service provided by the Lottery Commission. Reeves, 10 F. Supp. 2d at 1187 (internal quotation marks omitted). 7 Plaintiffs pervasive control argument might have more force if the TLC failed to include accessible models on its list of vehicles that medallion holders can use as taxis. There is no showing, however, that the TLC inhibits the purchase of accessible medallions or vehicles that can be adapted for wheelchair access. In short, the ADA does not require a licensing entity to use its regulatory power to coerce compliance by a private industry. Plaintiffs suggest that the Taxi-for-Tomorrow Initiative violates Title II(A) by effectively preventing medallion owners from using an accessible vehicle. Taxifor-Tomorrow, which is non-binding, seeks to select the 22 1 TLC does not violate the ADA by licensing and regulating a 2 private taxi industry that fails to afford meaningful access 3 to passengers with disabilities. 4 5 6 7 IV None of the regulations cited by plaintiffs require a different result. 8 Section 35.130(b)(1)(i) provides that [a] public 9 entity, in providing any aid, benefit, or service, may not, 10 directly or through contractual, licensing, or other 11 arrangements, . . . [d]eny a qualified individual with a 12 disability the opportunity to participate in or benefit from 13 the aid, benefit, or service on the basis of [that 14 individual s] disability. 15 This provision bars a public entity from discriminating by 16 refusing to issue a license to a person who has a disability 17 because of the disability; but the TLC denies that it 18 engages in any such discrimination, and Plaintiffs do not 28 C.F.R. § 35.130(b)(1)(i). next vehicle that will be used as the standard taxicab of New York. Joint App x 33. According to the record, a committee tentatively accepted the Nissan NV200. The current model of the NV200 is not accessible, but the model that would serve as the standard taxi is still being developed. Joint App x 142. We decline to decide now issues that might arise in the future as the project goes forward. 23 1 dispute the point. 2 argue that the service the TLC provides is the regulation 3 of the taxi industry, plaintiffs argument is the same 4 argument that was rejected in Tyler, where the plaintiff 5 pleaded inability to avail himself of the benefits of the 6 municipality s physical inspections of non-accessible 7 facilities. 8 9 Moreover, to the extent that plaintiffs Plaintiffs also rely on 28 C.F.R. § 35.130(b)(3)(i), which prohibits a public entity . . . , directly or through 10 contractual or other arrangements, from utiliz[ing] 11 criteria or methods of administration . . . [t]hat have the 12 effect of subjecting qualified individuals with disabilities 13 to discrimination on the basis of disability. 14 aimed at requirements that discriminate against people with 15 disabilities, such as when a public entity refuses to do 16 business with a person who has a disability. 17 TAM II-3.7100, available at 18 (last accessed June 19 20, 2012). 20 This is See, e.g., ADA Plaintiffs raise no such claim against the TLC. Finally, plaintiffs argue that Section 35.130(b)(6) 21 (discussed at length above) governs their claim because it 22 (in part) prohibits a public entity [from] establish[ing] 23 requirements for the programs or activities of licensees or 24 1 certified entities that subject qualified individuals with 2 disabilities to discrimination on the basis of disability. 3 An example of such discrimination would be denying licenses 4 to transportation companies that employ individuals with 5 disabilities, which causes discrimination against 6 prospective employees who are otherwise qualified. 7 II-3.7200. 8 the elementary ground that it does not cause discrimination. 9 ADA TAM The TLC licensing scheme is distinguishable on Instead, plaintiffs contend that the TLC violates the 10 ADA because it could require more taxis to be accessible, 11 but does not. 12 discriminate and do not cause anyone else to discriminate, 13 by licensing or otherwise. 14 taxi owners from operating accessible vehicles. 15 medallions that specify whether the taxi must be accessible 16 specify that the taxi operated pursuant to that license be 17 accessible. 18 streets if the TLC required more of them to be accessible. 19 But the TLC s failure to use its regulatory authority does 20 not amount to discrimination within the meaning of the ADA 21 or its regulations. The TLC s licensing requirements do not The TLC s licenses do not bar The only No doubt, more such taxis would be on the 22 23 25 1 2 V It may be that there is a failure to provide meaningful 3 access to taxis for persons with disabilities. 4 it is a failure of the taxi industry in New York City. 5 Plaintiffs do not--and cannot--bring such a claim against 6 the taxi industry directly under Title III of the ADA (which 7 governs private entities), because Title III expressly 8 exempts taxi providers from purchasing or leasing 9 accessible automobiles. 10 But if so, 49 C.F.R. § 37.29(b).8 Plaintiffs assert their claim under Title II(A), but 11 Title III is instructive nevertheless. Plaintiffs contend 12 that the TLC violates the ADA because the industry it 13 pervasively regulates fails to afford meaningful access to 14 persons with disabilities. 15 itself is exempt, there is no underlying violation of the 16 ADA for the TLC to redress by regulation. 17 court, which has held that the TLC must increase the number 18 of handicap-accessible taxis, has thus run counter to the But since the taxi industry 8 The district If, however, a provider of taxi service purchases or leases a vehicle other than an automobile, the vehicle is required to be accessible . . . . 49 C.F.R. § 37.29(b). Nevertheless, because [a] provider of taxi service is not required to purchase vehicles other than automobiles in order to have a number of accessible vehicles in its fleet, a taxi provider is not obligated to purchase or lease vehicles accessible to persons with disabilities. Id. 26 1 policy choice of the political branches, which exempted the 2 taxi industry from the ADA. 3 This was a problem of which the district court was all 4 too aware. 5 district court observed: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Discussing plaintiffs Title II(B) claim, the Title III cannot be read as exempting taxicab owners from any requirement that they purchase wheelchair accessible automobiles, but at the same time have intended that subtitle B of Title II impose such a personal obligation based solely on the extent of the control of the public regulatory agency. The effect would be to impose an obligation on those private owners under subtitle B of Title II that Congress explicitly intended to exempt under Title III. Congress had the same power to require regulated private owners providing taxi service to purchase wheelchair accessible automobiles under Title III, and chose not to do so. Noel, 2011 WL 6747466, at *6. That sound reasoning applies with equal force to 22 plaintiffs Title II(A) claim. If the TLC is required under 23 Title II(A) to ensure that the taxi industry provides a 24 sufficient number of accessible taxis, then private taxi 25 owners would be required to purchase or lease accessible 26 taxis even though the ADA explicitly exempts them from such 27 requirements. 28 the conclusion that the ADA, as a whole, does not require 49 C.F.R. § 37.29(b). 29 27 The exemption compels 1 the New York City taxi industry to provide accessible 2 taxis.9 3 * * * 4 In sum, Title II(A) does not obligate the TLC to use 5 its licensing and regulatory authority over the New York 6 City taxi industry to require that taxi owners provide 7 meaningful access to taxis for persons with disabilities. 8 The district court therefore erred in granting summary 9 judgment for plaintiffs on their Title II(A) claim and in 10 entering a temporary injunction premised on that grant of 11 summary judgment. 12 that [a] district court abuses its discretion when it[, 13 inter alia,] rests its decision on an error of law ). See Abrahams, 644 F.3d at 115 (holding 14 9 We reject plaintiffs argument that, in this case, Title II and Title III merely provide differing standards of obligations under the ADA and that, where standards differ, the standard providing the highest degree of access must be met. See ADA TAM II-1.3000, Illustration 3, available at (last accessed June 20, 2012). It may be true, as the TAM example demonstrates, that when public and private entities form a joint venture to build a stadium, the stadium must comply with both Title II and Title III and, where the standards differ, the stadium must comply with the higher standard. But here, there is no joint venture. Nor do standards differ: the taxi industry is exempt from the ADA. If Title II(A) were construed to require indirectly that the taxi industry provide accessible vehicles, Title III s exemption would be undone altogether. 28 1 2 CONCLUSION Accordingly, the district court s temporary injunction 3 is vacated. The case is remanded with instructions for the 4 district court to grant summary judgment to defendants on 5 the Title II(A) claim and for further proceedings consistent 6 with this opinion. 29