Metropolitan News-Enterprise


Wednesday, September 23, 2009


Page 3


C.A.: Access Does Not Make Private Property a ‘Public Accommodation’


By Steven M. Ellis, Staff Writer


A property owner’s decision not to actively deny the public access to private recreational property does not convert the property into a “public accommodation” under the Americans With Disabilities Act or California law, the Fourth District Court of Appeal ruled yesterday.

Div. Three rejected a challenge to barriers restricting vehicles from a series of recreational trails in an Orange County housing development, even though the trails were connected to a larger system of privately and publicly owned trails and accessible to the general public for free.

Evan Carolyn brought the challenge against the Orange Park Community Association after it installed the barriers at trail entry points to prevent vehicles from utilizing the trails due to safety concerns for “horseback riders and trail hikers,” and damage to trail fencing.

Carolyn, who is disabled, alleged that he planned in 2007 to take a horse-drawn carriage ride through the OPCA trail system, and he brought suit under the ADA and state civil rights law when he discovered the trails could no longer be used by such vehicles.

The OPCA maintains the trails for the benefit of homeowners in the development, but admitted that it did not check the status of trail users. In deposition testimony, one of the association’s directors further admitted that non-residents who knew about the association’s portion of the interconnected trail system “could put their horse in the trailer, drive over…, saddle up the horse and go for a ride.”

Orange Superior Court Judge Steven L. Perk granted summary judgment to the association—determining that the trails were not a public accommodation within the definition of the ADA, the California Disabled Persons Act, the Unruh Civil Rights Act and other statutes—and the Court of Appeal agreed in an opinion by Justice Raymond J. Ikola.

The justice first rejected the association’s contention that Carolyn lacked any standing to sue because he did not own property in the development, noting that the association could not discriminate against disabled individuals—resident or not—if the trails were a public accommodation.

However, Ikola wrote that OPCA’s trails would not be a public accommodation if the association actively excluded the general public, and were not transformed into a public accommodation by the association’s failure to do so.

Ikola agreed with the premise that recreational common areas within common interest developments can be subject to federal and state fair housing law restrictions on discrimination against the disabled, but he pointed out that Carolyn could not bring a claim under those provision unless he was a resident or had unsuccessfully attempted to become one.

The justice also wrote that classifying the trails as a public accommodation subject to access standards under state and federal law “could have perverse consequences for the disabled and able-bodied alike.”

He explained:

“It would be unfortunate if property owners (including but not limited to homeowners’ associations) presently inclined toward nonenforcement of their right to exclude the public from recreational areas changed their outlook because of fears of civil litigation conducted by individuals without an ownership stake in the recreational area at issue.

“Indeed, the most likely explanation for OPCA’s neglect of its members’ property rights is the cost and hassle associated with excluding nonmembers and including members. It is possible a decision contrary to that reached here could lead a previously apathetic association (or individual landowner) to invest in fences, security, access technology, and other means of excluding the public from privately owned recreational areas.”

Justices Kathleen O’Leary and Eileen C. Moore joined Ikola in his opinion.

The case is Carolyn v. Orange Park Community Association, 09 S.O.S. 5708.


Copyright 2009, Metropolitan News Company