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Ninth Circuit:
Lessor Must Remedy ADA Violations Caused by Tenant Not Unlocking Store’s Front Door
By a MetNews Staff Writer
A fix-it-up order to the owner of a building in Inglewood that was not compliant with federal handicapped access standards—with the deviation contingent on its tenant’s customers parking in the rear of the building and entering from there—was proper, the Ninth U.S. Circuit Court of Appeals has held, even though the front lot was rendered compliant and a sign was posted placing the back lot off-limits to all but the tenant and its employees.
A memorandum opinion by a three-judge panel, filed Wednesday, affirms a decision by District Court Judge Dolly M. Gee of the Central District of California. The opinion is signed by Circuit Judges Kenneth Kiyul Lee and John B. Owens and by David A. Ezra, a District Court judge for the District of Hawaii, sitting by designation.
Gee agreed with the defendant, 116 S. Market LLC., that “to the extent that the barriers identified in Plaintiff’s Complaint have been redressed, Plaintiff’s claims would be moot” with respect to its claim under the federal Americans With Disabilities Act (“ADA”), which authorizes injunctive relief. But, she declared on March 11, the owners’ efforts to comply with ADA requirements were ineffective because on the day of an inspection by the plaintiff’s investigator, after the filing of the lawsuit, the front entrance had been found locked.
Front access had thus been barred by the tenant, a cannabis shop—which the lessor has been trying to evict—with the only entry being from the rear.
Judgment was awarded by Gee to the plaintiff, paraplegic Michael Smith, granting him an injunction under the ADA, which does not provide for damages, along with a $12,000 statutory damage-award pursuant to California’s Unruh Civil Rights Act which requires monetary recompense in any instance where an ADA violation is established.
Under the ADA, a plaintiff must show the prospect of “real and immediate threat of repeated injury” in the future from the lack of access. The defendant contended that Smith cannot “demonstrate a sufficient likelihood that he will again be wronged in a similar way” because it is in the process of evicting the tenant, Highspot Dispensary.
Gee declared:
“Even viewing the facts in the light most favorable to the non-moving party, the Court finds that, unless and until Defendant successfully evicts the Store and the Store closes, Plaintiff suffers continuing injury based on his desire to return to the Store but inability to do so without difficulty and discomfort due to its inaccessible parking and entrance. Plaintiff has therefore sufficiently demonstrated a real and immediate threat of injury.”
She said in a footnote:
“Defendant also argues that, since the Store has been found to be operating without a license, Plaintiff cannot assert an intent to return to an unlawfully operating store….The Court does not see how Defendant is no longer obligated under the ADA to provide accessible entrances to the Property solely because its tenant is not operating with a license, so long as the tenant continues to discriminate against Plaintiff and other individuals with disabilities.”
In awarding Unruh Act damages, Gee said:
“The undisputed facts indicate that Plaintiff encountered three separate construction access violations: lack of accessible parking spaces in the rear parking lot, uneven ground in the route between the parking lot and the rear entry, and a noncompliant ramp from the parking lot to the rear entry. Plaintiff is therefore entitled to $4,000 in statutory damages for each encounter.”
Agreeing with Gee that the continuing effort to eject the tenant is of no significance, the opinion says:
“Because the dispensary has not been evicted, this case is not moot.”
The defendant argued on appeal that if it does not render the rear of the building ADA compliant, it will be in violation of a court order, but if it does so, it could be prosecuted under the Controlled Substances Act for abetting the operation of an unlicensed and therefore illegal cannabis business.
The opinion responds that Gee’s order has nothing to do with cannabis, saying that it “is silent as to marijuana use” and “merely requires that the Defendant comply with its obligations under the ADA.” It adds:
“The Defendant cites a November 20, 2019 letter from the California Bureau of Cannabis Control as support for its concern regarding criminal liability, but the Bureau’s letter emphasized the fact that the Defendant’s property was ‘being used for illegal commercial cannabis activity’ and that such activity was ‘unlicensed.’ Adding ADA-compliant facilities would not change this basic fact.”
The case is Smith v. 116 S Market LLC, 20-55304.
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