UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) DAVID C. SHARP, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2035 (RCL) ) CAPITOL CITY BREWING ) COMPANY, LLC, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff David C. Sharp brings this action against defendant Capitol City Brewing

Company (“Restaurant”), alleging violations of Title III of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189. Before the Court are defendant’s

motion for summary judgment and plaintiff’s cross-motion for summary judgment. Upon

consideration of the motions, the replies, the oral arguments of counsel, the record of this

case, and the applicable law, the Court concludes that each motion should be granted in

part and denied in part, and that two of plaintiff’s claims should be dismissed for lack of

standing.

I. Background

Plaintiff is quadriplegic with very limited use of one of his arms and uses a

wheelchair for mobility. 1 (Pl.’s Aff. [28-2] ¶ 2.) In October 2007, plaintiff visited

defendant’s restaurant at 1100 New York Avenue, NW in Washington, D.C. (Id.) On

1 At the motions hearing of September 22, 2009, counsel represented that plaintiff could raise his right arm several inches and had no use of his left arm except for the fingers on that hand. October 19, 2007, plaintiff sent a letter to the Restaurant to complain about architectural

barriers to wheelchair access in the men’s restroom of that restaurant. In the letter, he

gave the Restaurant fifteen days to sign and return an agreement drafted by his attorney.

(Letter of Oct. 19, 2007 [25-3].) Under the agreement, plaintiff would decline to sue the

Restaurant under the ADA in exchange for the Restaurant’s acknowledging architectural

barriers, creating a plan to remedy the barriers, and sharing the plan with plaintiff. (Id.)

The Restaurant responded nineteen days later with a note of apology and an explanation

that it was planning to renovate the restroom anyway and would be sure to make it ADA

compliant in the process. (Letter of Nov. 6, 2007 [25-3].) Plaintiff responded that the

Restaurant did not comply with his demand, and he filed suit on November 6, 2007.

(Letter of Nov. 8, 2007 [25-3].)

The Restaurant drafted architectural plans to renovate its restroom and provided

plaintiff with those plans in January 2008. (Pl.’s Cross Mot. for Summ. J. [29] at 2.)

However, plaintiff determined that these plans were not ADA-compliant and informed

the Restaurant. (Id.) The Restaurant then commissioned new plans that, in plaintiff’s

opinion, would have rendered the restroom ADA-compliant if the Restaurant followed

them exactly. (Pl.’s Cross Mot. for Summ. J. [29] at 2.)

Both parties moved for summary judgment, and the Court ruled on the motions

after renovations to the restroom were completed in March 2009. (Pl.’s Cross Mot. for

Summ. J. [29] at 2–3.) The Court denied the motions because neither party had provided

evidence of compliance or non-compliance. (Order [24] at 1–2.) On April 6, 2009, the

Restaurant filed a Renewed Motion for Summary Judgment [25], including photos of the

newly renovated restroom. After visiting the restroom on April 21, plaintiff determined

2 that it still presented barriers to access and filed an opposition and cross-motion for

summary judgment. (Pl.’s Cross Mot. for Summ. J. [29] at 3.)

Plaintiff claims five barriers to access:

(1) The grab rail next to the toilet (“water closet” 2 ) is mounted above the

maximum height allowed under the ADA Accessibility Guidelines

(“ADAAG”). (Pl.’s Cross Mot. for Summ. J. [29] at 8.)

(2) A portable trash can is located next to the water closet, but this space must

be clear of any obstructions to ease transfer from a wheelchair onto the

water closet. (Id. at 5, 8.)

(3) The ADA-compliant toilet paper dispenser was empty during plaintiff’s

visit, whereas a second, non-ADA compliant dispenser mounted too far

away for plaintiff to reach was full. (Id. at 4, 8.)

(4) The non-ADA compliant toilet paper dispenser mounted directly in front

of the toilet juts out 6” from the wall. This dispenser reduces the depth of

the stall to 52”, which is 4” less than the required minimum depth and

which inhibits the maneuverability of plaintiff’s wheelchair. (Id.)

(5) A curtain mounted below the sink (“lavatory”) violates the minimum

required clearance from the floor to the lavatory. (Id. at 8 & n.2.)

Plaintiff asks the Court to order the removal of the alleged barriers and to order

the Restaurant to provide ADA awareness training to its employees. (Id. at 9.)

2 The ADA Accessibility Guidelines refer to toilets as “water closets” and sinks as “lavatories.” See 28 C.F.R. pt. 36, App. A, 4.16, 4.19. This opinion continues that practice for the sake of consistency.

3 II. Legal Standard

A court considering a motion for summary judgment should render judgment if

the evidence shows no genuine issue of material fact. FED. R. CIV. P. 56(c). The court

must take the facts in the light most favorable to the non-moving party, granting it “all

justifiable inferences,” and then determine if there remains a genuine issue of material

fact upon which a jury could hold either way. Anderson v. Liberty Lobby, Inc.

(1986). In determining whether or not such an issue exists which could

determine the outcome of the suit, the primary consideration is the substantive law on the

claim.

. However, mere unsupported allegations or denials will not create a

genuine issue of material fact. Celotex Corp. v. Catrett,

(1986).

Under the ADA, no owner or operator of a place of public accommodation may,

on the basis of a disability, discriminate against a person by denying him “full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or accommodations”

of that place of public accommodation.

(a). “Discrimination” includes

“a failure to remove architectural barriers . . . where such removal is readily achievable.”

§ 12182(b)(2)(A)(4). The ADAAG sets forth architectural specifications and other

requirements for restrooms in places of public accommodation. See 28 C.F.R. pt. 36,

App. A.

Though neither party has raised the issue of standing in the motions under

consideration, “the [C]ourt has an independent obligation to assure that standing exists.”

Summers v. Earth Island Inst.,

(2009) (citing Bender v.

Williamsport Area Sch. Dist.,

(1986)). Plaintiff, as the party invoking

the Court’s jurisdiction, has the burden to show standing. Lujan v. Defenders of Wildlife,

4

(1992). In order to have standing, a plaintiff must have suffered actual

or imminent “injury in fact.” See

at 560 (citing Whitmore v. Arkansas,

(1990)). “Injury in fact” requires the plaintiff himself to be “among the injured.”

Lujan,

. To establish such injury on a motion for summary judgment,

“[the plaintiff] must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for

purposes of the summary judgment motion will be taken to be true.”

.

Therefore, for his claims to survive a motion for summary judgment, the plaintiff must

present to the Court “specific facts” that demonstrate injury to the plaintiff. Defendant’s

alleged violation of the ADA is, by itself, not enough to aver “injury in fact.” Cf. Allen v.

Wright,

(1984) (Government’s violation of the law, by itself, does not

confer standing on adverse parties).

III. Discussion

A. Standing

The Court finds that plaintiff lacks standing for his claims related to the grab rails

and the portable trash can next to the water closet. After addressing standing, the Court

will consider plaintiff’s remaining claims and his requested relief.

In order to have standing, plaintiff must have suffered actual or imminent “injury

in fact.” See Lujan,

. He cannot claim injury on behalf of another person.

See

. Because plaintiff’s quadriplegia causes him to have only very limited use

of his arms and hands, he cannot point to an “injury in fact” arising out of the height of

the grab rail or the placement of a portable trash can next to the water closet. The Court

will address standing for each of the five claims.

5 1. Grab Rail

Plaintiff claims that the grab rail next to the water closet is too high off the ground

and thus violates the ADAAG. Consideration of the goals of the ADAAG’s technical

specifications and of the nature of plaintiff’s disability reveals that he cannot show

“injury in fact” from grab rails that violate the height standards. The technical

requirements that the ADAAG imposes on the placement of grab rails are meant to help

disabled persons maintain their balance and to facilitate a wheelchair user’s transfer from

his wheelchair to the water closet. See 28 C.F.R. pt. 36, App. A, A4.16.4 & fig. A6;

pt. 36, App. A, A4.26.1. Plaintiff cannot use the grab rail for these purposes. He has no

use of his legs and uses a wheelchair, so the grab rail is unnecessary to maintain his

balance, and he does not claim that the grab rail’s height keeps him from using it for this

purpose. Furthermore, based upon counsel’s representations of plaintiff’s disabilities at

the motions hearing, plaintiff has such limited use of his arms and legs that he could not

transfer himself to the water closet even with a compliant grab rail. To do this, he

requires an assistant, in which case it is unclear how the grab rail would assist transfer.

Plaintiff has failed to set forth specific facts showing that the height of the grab rail

causes him “injury in fact”, thus he does not have standing for this claim.

2. Trash Can

Plaintiff claims that a portable trash can next to the water closet violates the

ADAAG because the space next to the water closet must be clear for wheelchair users to

transfer themselves to the water closet. (Pl.’s Cross Mot. for Summ. J. [29] at 5.) See 28

C.F.R. pt. 36, App. A, A4.16.4 fig. A6(b) (showing mechanics of side transfer). As

6 established above, plaintiff’s disability is such that he cannot transfer himself to a water

closet whether a trash can is in his way or not. As plaintiff’s counsel admitted, if an

assistant is with him, there is no reason the assistant cannot move this portable trash can

to facilitate plaintiff’s transfer. The trash can does not prevent plaintiff from engaging in

any activity that he could otherwise perform, therefore he has shown no “injury in fact.”

3. Side Toilet Paper Dispenser

Plaintiff alleges that the ADA-compliant toilet paper dispenser to the right of the

water closet was empty during his visit of April 21, 2009, whereas a non-compliant

dispenser too far away for him to reach was full. (Pl.’s Cross Mot. for Summ. J. [29] at

4.) Plaintiff’s disability raises the question of whether he is unable to reach the ADA-

compliant dispenser without any assistance, which would prevent him from having

standing for this claim. However, based on counsel’s representation of plaintiff’s use of

his arms, plaintiff has standing for this claim because the Court will grant him the

reasonable inference that he can reach the dispenser. See Wasco v. T Corp., No. 04-0099,

, at *2 (D.D.C. Jan. 3, 2008) (plaintiff has burden to point to facts that

“create at least a genuine dispute” about elements of constitutional standing).

4. Front Toilet Paper Dispenser

Plaintiff complains that the dispenser directly in front of the water closet

protrudes 6” from the wall, which reduces the depth of the stall to 52”, or 4” less than

what the ADAAG requires. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) His counsel

clarified at the motions hearing that he must be able to situate his wheelchair directly in

7 front of the toilet in order to empty a urinal container into the water closet, and that the

protruding dispenser prevents him from doing so. Plaintiff sufficiently alleges an “injury

in fact,” thus he has standing for this claim.

5. Curtain Below the Lavatory

Plaintiff complains that the space below the front lip of the lavatory must be clear

for a distance of 29”, but defendant has placed a curtain in that space. Plaintiff argues

that this curtain could get caught in the wheels or power controls of his wheelchair. (Pl.’s

Cross Mot. for Summ. J. [29] at 5 n.1). The Restaurant pointed out at the hearing that

plaintiff never alleged that the curtain ever did get caught in his wheelchair, but this is not

the injury on which standing is based in this case. A plaintiff may base standing on a

“reasonable concern about the effects” of the defendant’s actions if those actions directly

affect the plaintiff’s interests. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.

, 183–84 (2000). Here, plaintiff is reasonably concerned that the curtain

could damage his wheelchair or that something lying behind the curtain would injure him

if he rolled his wheelchair under the lavatory. This apprehension prevents plaintiff from

attempting to use the lavatory, which constitutes the “injury in fact” that serves as the

basis for standing for this claim.

6. Conclusion

Plaintiff failed to sufficiently allege “injury in fact” for two of his five claims,

therefore the Court has jurisdiction to review only the remaining three. Plaintiff confirms

his lack of standing when he states that two of the alleged barriers in the Restaurant will

8 prevent “many people with disabilities” from being able to use the water closet, but does

not state that they inhibit his own access. (Pl.’s Aff. [28-2] ¶ 12.) Despite plaintiff’s

leadership position in a national association for disabled persons (Id. ¶ 3), he may resort

to federal courts only to redress his own injuries when suing in his personal capacity. See

Wasco,

, at *2 (“The ADA does not transform every disabled person into

a roving paladin.”). The Court now turns to the three remaining claims and plaintiff’s

requested relief.

B. Side Toilet Paper Dispenser

Plaintiff claims that when he visited the Restaurant on April 21, 2009, the ADA-

compliant toilet paper dispenser to the right of the water closet was empty, but the toilet

paper dispenser directly in front of the water closet, which was too far away for him to

reach, was full. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) The Restaurant argues that if

the ADA-compliant dispenser is empty, then plaintiff can simply request toilet paper

from the Restaurant’s staff. (Def.’s Reply [30] at 2.) Plaintiff responds that forcing him

to ask for assistance when non-disabled people need not do so is not “equal access” under

the ADA. (Pl.’s Reply [33] at 4.)

The ADAAG requires that “[i]f controls, dispensers, receptacles, or other

equipment are provided, then at least one of each shall be on an accessible route and shall

comply with 4.27.” 28 C.F.R. pt. 36, App. A, 4.22.7. The ADAAG also sets

requirements for a dispenser’s accessibility to disabled persons.

pt. 36, App. A, 4.27.

As far as the Court can tell, the side toilet paper dispenser meets these requirements, and

plaintiff does not dispute that it is ADA-compliant. The implementing regulations of the

9 ADA state that a public accommodation must “maintain in operable working condition

those features of facilities and equipment that are required to be readily accessible to and

usable by persons with disabilities by the Act . . . .”

§ 36.211(a). However, the

regulations do not prohibit “isolated or temporary interruptions in service or access due to

maintenance or repairs.” Id. § 36.211(b). The regulations therefore grant the Restaurant

a reasonable amount of time to “maintain” the ADA-compliant toilet paper dispenser,

which in this case means to ensure it is loaded with toilet paper. The Restaurant has

provided an accessible dispenser, and plaintiff has failed to show that this one instance of

the dispenser being empty was anything more than an “isolated or temporary

interruption[] in . . . access,” so his claim must be denied.

C. Front Toilet Paper Dispenser

Plaintiff claims that the toilet paper dispenser directly in front of the water closet

protrudes 6” from the wall, which reduces the depth of the toilet stall to less than the

minimum of 56”. (Pl.’s Cross Mot. for Summ. J. [29] at 4.) See 28 C.F.R. pt. 36, App.

A, 4.17.3 & fig. 30(a). Due to plaintiff’s limited use of his arms and hands, he must be

able to situate himself directly in front of a water closet in order to empty a urine

container. (Pl.’s Aff. [34-1] ¶ 4.) The dispenser, he argues, prevents him from doing so

because it juts into his shoulder when he tries to maneuver into position. The Restaurant

argues that the ADAAG refers to unobstructed floor or ground space, and because the

toilet paper dispenser is mounted well above the floor, it does not violate the guidelines.

(Def.’s Reply [30] at 2.)

10 The Restaurant’s argument ignores the language from the ADAAG that the

Restaurant quoted to the Court: “Clear Floor Space” is defined as “[t]he minimum

unobstructed floor or ground space required to accommodate a single, stationary

wheelchair and occupant.” (Id. (quoting 28 C.F.R. pt. 36, App. A, 3.5) (emphasis

altered).) The unobstructed floor space and minimum depth requirements are clearly

calculated to permit a wheelchair to maneuver in front of the water closet, and the

Restaurant’s overly technical argument would eviscerate this goal.

The Court declines to grant summary judgment on this issue because a disputed

issue of material fact remains. FED. R. CIV. P. 56(c). The Restaurant, relying on

plaintiff’s photograph (Pl.’s Cross Mot. to Dismiss [28-6] Ex. D), argues that the

dispenser is mounted above the height of the wheelchair’s handles and thus does not

inhibit maneuverability. (Def.’s Reply [30] at 2 n.1.) Plaintiff contends that the

dispenser hits his shoulder at this height, which prevents him from moving into position

in front of the water closet. (See Pl.’s Cross Mot. for Summ. J. [28-6] Ex. D.) Granting

all justifiable inferences to the non-moving party in assessing each party’s respective

motion for summary judgment, the Court comes to opposite conclusions on each motion

because the evidence supplied by plaintiff’s photograph is inconclusive. 3 Therefore, a

dispute of material fact remains, and both parties’ motions for summary judgment on this

issue will be denied.

3 Nothing in plaintiff’s supplemental affidavit [34-1] alters this conclusion. In that affidavit, plaintiff also states that the space directly in front of the water closet must be clear so an assistant can help him transfer from his wheelchair to the water closet. (Pl.’s Aff. [34-1] ¶ 5.) Plaintiff did not raise this argument in his motions or at the hearing, thus the Restaurant has not had the opportunity to respond. Therefore, the Court will not address this argument.

11 D. Curtain Below the Lavatory

Plaintiff complains that a curtain hanging below the lavatory is a barrier to access

because the space from the floor to the bottom edge of the lavatory is supposed to be

clear for a distance of 29”. (Pl.’s Reply [33] at 5.) 28 C.F.R. pt. 36, App. A, 4.19.2 &

fig. 31. The Restaurant argues that the curtain lifts to allow a wheelchair to roll

underneath the lavatory. (Def.’s Reply [30] at 3.)

Although a fabric curtain might not impede access in the same way that a hard

barrier would, plaintiff points out that a curtain can easily get caught in a wheelchair’s

wheels or power controls. (Pl.’s Cross Mot. for Summ. J. [29] at 5 n.1.) Plaintiff’s

counsel also pointed out at the hearing that a person in a wheelchair would be

apprehensive about rolling his legs into a curtain without any knowledge of what might

lie behind it. The Restaurant argues that plaintiff did not allege that the curtain actually

did get caught in his wheelchair, but this is not the meaning of “accessibility.” Plaintiff

should be able to roll his wheelchair under the lavatory confident that no damage or

major inconvenience will occur as a result. Because he cannot do so without such

apprehension, the curtain poses a barrier to access that prevents him from using the

lavatory, and plaintiff’s motion for summary judgment on this claim will be granted. 4

4 The Restaurant’s counsel alerted the Court that the Restaurant has already removed the curtain, which, she argued, mooted the issue. The Court clarifies here that the issue is not moot. First, the Court may assume that the curtain is still in place, and chooses to do so here. The Restaurant did not dispute the curtain’s placement when it contested plaintiff’s Rule 7(h) Statement of Material Facts [28-1]. (Def.’s Reply [30] at 6.) Pursuant to the Court’s Local Rules, a court ruling on a motion for summary judgment “may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted” by the opposing party. D.D.C. R. 7(h). The Court sees no reason not to make such an assumption, especially when counsel did not bring the fact of the curtain’s removal to the Court’s attention until oral argument. Second, subsequent acts by the parties can moot an issue if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Ass’n,

(1968). There is no evidence that the Restaurant is prevented from hanging the curtain again, so the issue is not moot.

12 E. ADA Awareness Training

Plaintiff requests that the Court order the Restaurant to supply ADA awareness

training to its employees. Counsel argued at the hearing that without such training the

Restaurant’s employees may engage in violations of the ADA, for example by stacking

boxes in a hallway such that a wheelchair user could not pass through; by placing the

portable trash can back into position next to the water closet; or by placing objects

beneath the lavatory, which would prevent wheelchair users from washing their hands.

Plaintiff cites to two cases in support of his request. In Fortyune v. Am. Multi-Cinema,

Inc.,

, 1078–79 (9th Cir. 2004), a quadriplegic plaintiff sued a movie

theater for refusing to remove another patron from the “companion seat” next to the space

reserved for wheelchair users, which prevented the plaintiff’s wife from sitting with him.

The Ninth Circuit upheld an injunction requiring the theater to reserve the companion

seats for companions of wheelchair users up to ten minutes before the movie start time.

. In Stan v. Wal-Mart Stores, Inc.,

, 121–23 (N.D.N.Y.

2000), the plaintiff, a blind woman, requested injunctive relief after employees of Wal-

Mart and Sam’s Club told her she could not enter those stores with her service dog.

Neither the cited cases nor plaintiff’s allegation of hypothetical barriers to access

supports plaintiff’s request for court-ordered ADA awareness training. Fortyune and

Stan involved discriminatory policies, but here, plaintiff does not allege discriminatory

policies or treatment by any of the Restaurant’s employees. He argues instead that their

lack of training may cause them to erect further barriers to access. However, he fails to

show that a lack of employee training has led to any barriers to access. Although he

states that a lack of training led employees to place the portable trash can next to the

13 toilet, the Court has established that plaintiff lacks standing for that claim. Although the

ADA-compliant toilet paper dispenser was empty during his visit, plaintiff has not shown

that this temporary interruption of access was more than an isolated incident. Plaintiff

does not allege that employees have in fact stacked boxes in the hallways or under the

lavatory, and the Court will not order ADA awareness training on the basis of a

hypothetical injury. The Court is confident that the injunctive relief granted in this

case—an order to maintain the space below the lavatory free of obstructions—will

sufficiently redress the claim on which plaintiff has prevailed.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment [25] will

be GRANTED in part and DENIED in part. Plaintiff’s Cross-Motion for Summary

Judgment [29] will be GRANTED in part, DENIED in part, and DISMISSED in part for

lack of standing.

A separate order shall issue this date.

Date

January 14, 2010.

________/s/______________ ROYCE C. LAMBERTH Chief Judge United States District Court

14