Metropolitan News-Enterprise


Wednesday, March 13, 2019


Page 1


Ninth Circuit:

Liability Attaches if Portable Toilets Are Not ADA-Compliant


By a MetNews Staff Writer


A governmental or commercial entity that provides portable toilets that are not large enough to accommodate persons in wheelchairs runs afoul of the federal Americans With Disabilities Act, the Ninth U.S. Circuit Court of Appeals held yesterday.

In a case also decided under California’s Unruh Civil Rights Act (which, in Civil Code §51, incorporates the ADA) and the state Disabled Persons Act, a three-judge panel, in a memorandum opinion, affirmed an award of statutory damages and attorney fees to two paraplegic plaintiffs.

The action was brought against the City of San Diego and Air California Adventure, Inc. which operates the Torrey Pines Gliderport, on city property in the La Jolla area.

Allegations of Complaint

Scott Schutza and John Karczewski set forth in their Dec. 12, 2013 complaint:

“Plaintiffs intend to return to the Gliderport in the future, to watch the sailplanes, hang gliders and paragliders. Until the unlawful and discriminatory barriers at the Gliderport are remedied by Defendants, Plaintiffs will continue to be denied full and equal access to the goods, facilities, programs, services and activities offered by Defendants to the general public, and will suffer ongoing discrimination by being prevented and deterred from returning there.”

District Court Judge Cathy A. Bencivengo of the Southern District of California awarded each plaintiff $12,000 in statutory damages, under the Unruh Act, along with attorneys fees in the amount of $83,120 and $6.478 in costs.

Memorandum Opinion

The Ninth Circuit said yesterday:

“[W]e affirm the imposition of statutory damages because Plaintiffs suffered ‘difficulty, discomfort, or embarrassment’ under California Civil Code section 55.56(c). Plaintiffs testified at their depositions that they personally encountered the portable toilets, found the toilets were too small to accommodate their wheelchairs, and would have used the portable toilets had they been accessible. Plaintiffs further submitted declarations that the restrooms were too small, had doorways that were too narrow, did not have grab bars, and that their experiences caused them ‘difficulty, frustration and discomfort.’ As this evidence was uncontroverted, no rational trier of fact could conclude either that Plaintiffs did not encounter the obstacles or that they did not experience frustration or discomfort.”

The opinion adds that the District Court “did not abuse its discretion in awarding full attorney’s fees in light of Plaintiffs’ ‘excellent results,’ noting that they “prevailed on all but one claim, either through summary judgment or consent decree.”

The case is Schutza v. City of San Diego, 17-56220.

Other Cases

Schutza and Karczewski have filed various other actions alleging lack of equal access to facilities.

In 2017, the Ninth Circuit in Karczewski v. DCH Mission Valley LLC reversed a District Court’s dismissal of an action against a used car dealer that refused to install temporary vehicle hand controls on an automobile so that Karczewski could test drive it. Circuit Judge Susan Graber wrote:

“[T]aking the allegations in the complaint as true, Plaintiff has stated a claim that Defendant discriminated against him by failing to make a reasonable modification to a policy, practice, or procedure,” adding:

“Rather than interpreting the ADA never to require the provision of vehicle hand controls, no matter the situation, we conclude that it is more consistent with the text of the ADA, with the Act’s overall intent, and with our caselaw, to inquire into the underlying facts.”

Justice Jay Bybee wrote:

“I acquiesce in the judgment, but dubitante.”

In light of that decision, the Ninth Circuit, in unpublished dispositions, reversed dismissal of actions in Karczewski v. K Motors, Inc. and Karczewski v. Conant Auto Retail, San Diego, Inc.

In Conant, on remand, District Court Judge John A. Houston of the Southern District of California on Jan. 9 denied summary judgment to the defendant, which also declined to install temporary vehicle hand controls on a car Karczewski said he wanted to test drive. Houston said “there is a genuine dispute as to the ‘reasonableness’ of Plaintiff’s request for portable hand controls.”

Schutza has also sued various car dealerships that would not install hand controls, and brought various other actions under the ADA.

A Jan. 7, 2015 article in the San Diego Reader recites:

“The toilets inside the restrooms at the Sunshine Car Wash on Mission Gorge Road are too low to the ground.

“At Midas Auto Repair Center in Mission Valley, the blue paint on the disabled parking spaces is faded.

“Cardboard placards listing the daily lunch and dinner specials block the wheelchair-accessible portion of a counter at Ashoka Restaurant in Mira Mesa.

“The dirt paths at San Diego’s Gliderport are bumpy and dangerous for wheelchairs.

“None of the new and used cars at auto dealerships Witt Lincoln in Mission Valley and Carmax in Kearny Mesa have hand controls on vehicles.

“These alleged violations of the Americans with Disabilities Act feature in lawsuits filed by attorney Mark Potter, founder of the Center for Disability Access in San Diego, on behalf of his client Scott Schutza.”


Copyright 2019, Metropolitan News Company