Karczewski v. DCH Mission Valley LLC, No. 15-55633 (9th Cir. 2017)
Annotate this CasePlaintiff, who is paralyzed from the waist down, filed suit alleging that defendant's refusal to install temporary vehicle hand controls violated the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. The Ninth Circuit held that plaintiff has stated a claim under section 12182(b)(2)(A)(ii) for failure to make reasonable modifications in policies, practices or procedures. However, plaintiff failed to make a claim that defendant did not remove architectural barriers in existing facilities, because section 2182(b)(2)(A)(iv) did not apply to the circumstances of this case. Finally, additional implementing regulations, 28 C.F.R. 36.307(a) and 36.306, did not preclude plaintiff's statutory claim. Accordingly, the panel reversed the district court's dismissal and remanded.
Court Description: Americans with Disabilities Act. The panel reversed the district court’s dismissal of a claim that the defendant automobile dealership violated Title III of the Americans with Disabilities Act by refusing to install temporary vehicle hand controls for test-drives of a car offered for sale. The panel held that the plaintiff stated a claim under 42 U.S.C. § 12182(b)(2)(A)(ii), which requires a public accommodation to “make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford . . . goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” The panel held that the plaintiff did not state a claim under § 12182(b)(2)(A)(iv), which requires the removal of architectural barriers in existing facilities, because the “barrier” that the plaintiff encountered could not reasonably be described as an architectural barrier in an existing facility. The barrier was the lack of hand controls in the defendant’s cars, and the cars that the defendant offered for sale were goods, not facilities. The panel held that two implementing regulations, 28 C.F.R. §§ 36.307(a) and 36.306, did not preclude the plaintiff’s statutory claim. KARCZEWSKI V. DCH MISSION VALLEY 3 Acquiescing dubitante, Judge Bybee wrote that he would hold that 28 C.F.R. § 36.304(b)(21), enforcing the architectural barriers provision of the ADA and requiring the installation of vehicle hand controls, is not a permissible construction of the statute. Judge Bybee objected to the majority’s analysis of § 12182(b)(2)(A)(ii) because it enabled anything to be construed as a policy and because the Department of Justice’s regulations and manuals had taken a more modest approach to the terms “policies, practices, and procedures.”
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