IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 96-WY-2490-AJ COLORADO CROSS DISABILITY COALITION and KEVIN WILLIAMS, Plaintiffs, v. HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendants. Civil Action No. 96-WY-2491-AJ COLORADO CROSS DISABILITY COALITION and KEVIN WILLIAMS, for himself and all others similarly situated, Plaintiffs, v. HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendants. Civil Action No. 96-WY-2492-AJ COLORADO CROSS DISABILITY COALITION and KEVIN WILLIAMS, for himself and all others similarly situated, Plaintiffs, v. NINE WEST GROUP, INC. and HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendants. Civil Action No. 96-WY-2493-AJ COLORADO CROSS DISABILITY COALITION and KEVIN WILLIAMS, Plaintiffs, v. HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendants. 1 ORDER DENYING MOTIONS TO DISMISS The motions to dismiss filed by the defendants in the above captioned matters, and plaintiff's responses to those motions, came before the Court for consideration. The Court, having reviewed the motions, the plaintiff's responses to the motions, the submissions of the parties in support of their respective positions, all pleadings of record, and being fully advised in the premises, FINDS and ORDERS as follows: Background In these consolidated cases, plaintiff asserts claims for violations of the Americans with Disabilities Act (42 U.S.C. S 12101 et seq.) and certain provisions the Colorado Anti- Discrimination Act (C.R.S. S 24-34-601 et seq.) Plaintiff complains that defendants have failed to assure that their public accommodations are accessible to those in wheelchairs, by failing to remove barriers, although removal of barriers or provision of alternative methods of accommodation is readily achievable. The buildings at issue in these cases are located in Larimer Square in downtown Denver, Colorado. Plaintiff Kevin Williams is a tetraplegic who uses a motorized wheelchair for mobility. He, with a friend, was unable to gain access into certain buildings in Larimer Square because there were steps that had to be ascended in order to get into the stores. He claims that no ramp or other 2 alternative means of gaining access into the shops was available to him. His friend went into the stores to ask about other access and learned there were no other entrances into the stores that were accessible to wheelchairs. The businesses made no other alternative provisions for gaining access into the shops by those using wheelchairs, such as portable ramps or other forms of assistance. Case No. 96-WY-2490-AJ involves the building located at 1425 Larimer in which Chatelaine Lingerie is located. There are two steps and no ramp at this location. Case No. 96-WY-2491-AJ involves the AnnTaylor store at 1421 Larimer, which has two steps and no ramp. Case No. 96-WY-2492-AJ involves 1429 Larimer, the Nine West shop, which has two steps and no ramp. Case No. 96-WY- 2493-AJ is the Sussex Building at 1430 Larimer, which has one step and no ramp. All of the buildings at issue are owned by the Hermanson Family Limited Partnership. The stores are operated by other entities, some of whom are also defendants in these cases. There are two basic issues that have been raised by the motions to dismiss filed in these four consolidated cases. The first addresses whether the plaintiff's claims for relief under Title III of the Americans with Disabilities Act ("ADA") should be dismissed because plaintiff has failed to exhaust administrative remedies. The second concerns whether plaintiff has stated a cause of action under the Colorado statutes set out at S 24-34-601 et seq. Defendant argues that these sections, although they prohibit discrimination in the provision of public accommodations, do not 3 impose any affirmative obligations to remove access barriers to those with disabilities, unlike the federal Americans with Disabilities Act. Plaintiff has opposed the motions. Standard of review Fed.R.Civ.P. 12(b)(6) The Tenth Circuit, in Pitts v. Turner and Boisseau Chartered, 850 F.2d 650, 652 (10th Cir. 1988), cert. denied in 488 U.S. 1030 (1989) (quoting Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.), set forth the standard of review for dismissals pursuant to Fed.R.Civ.P. 12(b)(6): In reviewing a dismissal for failure to state a claim, we must accept as true the plaintiff's well-pleaded factual allegations and all reasonable inferences must be indulged in favor of the plaintiff. Dismissal is appropriate only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' (Citations omitted.) In considering a motion to dismiss, a court must take the allegations of the complaint at face value and must construe them most favorably to the plaintiff. The allegations in the plaintiff's complaint are presumed true. Miller v. Glanz, 948 F.2d 1563, 1565 (10th Cir. 1991). A court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff could prove no set of facts supporting the claim which would entitle plaintiff to relief. Huxall v. First State Bank, 842 F.2d 249, 250-51 (10th Cir. 1988). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint 4 alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d at 1565. Discussion A. Exhaustion The Court agrees with plaintiff that the Americans with Disabilities Act ("ADA") does not require exhaustion of administrative remedies. The defendant has relied primarily on two cases, one of which is out of the U.S. District Court in Colorado. The Court does not find the analyses in these cases to provide particularly persuasive authority that should control disposition of the instant cases. Title III is the portion of the ADA that governs public accommodations and services provided by private entities. The complaint seeks redress under Title III, and specifically seeks injunctive relief designed to eliminate barriers to access by wheelchairs in the buildings that are the subject of this lawsuit. Defendant argues that plaintiff is required to first pursue administrative remedies before filing these lawsuits. Although there are some courts that have imposed such a requirement, the Court believes these opinions mis-read the applicable statutory language. 42 U.S.C. S 12188(a) provides, in part: (a) In general (1) Availability of remedies and procedures The remedies and procedures set forth in 5 section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions. (2) Injunctive relief In the case of violations of sections 12182(b)(2)(A)(iv) and section 12183(a) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter. (b) Enforcement by Attorney General * * * * Clearly, this section adopts only portions of 2000a-3(a), rather than all of 42 U.S.C. S 2000a-3. This section adopts portions of the federal civil rights statutes that are to be considered in applying the ADA. Specifically, 42 U.S.C. S 2000a-3, entitled civil,actions for injunctive relief, provides: (a) Persons aggrieved; intervention by Attorney General; legal representation; commencement of action without payment of fees, costs, or security Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive 6 relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security. (b) Attorney's fees; liability of United States for costs In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fees as part of the costs, and the United States shall be liable for costs the same as a private person. (c) State or local enforcement proceedings; notification of State or local authority; stay of Federal proceedings In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings. (d) References to Community Relations Service to obtain voluntary compliance; duration of reference; extension of period In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has no State or local law prohibiting such act or practice, a civil action may be brought under section (a) of this section: Provided, That the court may refer the matter to the Community Relations Service established by subchapter VIII of this 7 chapter for as long as the court believes there is a reasonable possibility of obtaining voluntary compliance, but for not more than sixty days; Provided further, That upon expiration of such sixty-day period, the court may extend such period for an additional period, not to exceed a cumulative total of one hundred and twenty days, if it believes there then exists a reasonable possibility of securing voluntary compliance. The issue before the Court arises because some of the courts that have construed these sections have determined that the reference in 42 U.S.C. 12188 is to all of 42 U.S.C. S 2000a-3, rather than just 42 U.S.C. S 2000a-3(a). This is contrary to the express language in S 12188, which only adopts the remedies and procedures set out in 2000a-3(a). The defendant has relied on several cases, which this Court does not find provide meaningful guidance. These cases include, Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148, 1150 (D. Colo. 1996), in which the court states: Where, as here, the alleged act or practice of which an individual complains is prohibited by state or local law, "no civil action may be brought ... before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person." 42 U.S.C. S 2000a-3(c). By making S 2000a-3 applicable to enforcement actions under 42 U.S.C. S 12188, Congress has imposed a state law exhaustion requirement on disabled individuals seeking to enforce their rights under Subchapter III of the ADA. Howard, 935 F. Supp. at 1150. This mis-cites the applicable statutory language. Howard stands for the proposition that Subchapter III of the ADA does not provide a private cause of action for damages. Defendants also rely on a unpublished case out of the Eastern District of Pennsylvania, Bechtel v. East Penn School Dist. of Lehigh County, Pa., reported at 1994 U.S. Dist. 8 Lexis 1327 at 4 (E.D. Penn. 1994). The court there determined that there was no exhaustion requirement for claims under Title II of the ADA and generally, that claims under the Rehabilitation Act have no exhaustion requirement. The court only mentions the exhaustion requirement with respect to claims under Title III of the ADA in dicta stating: Defendants are correct that Section 12188 makes enforcement procedures of the Civil Rights Act of 1964, which provide for exhaustion of administrative remedies, applicable to actions brought under Title III of the ADA. Again, this language mis-states the actual language of 42 U.S.C. S 12188. Contrary authority, relied on by plaintiff, while not entirely on point, finds there is no exhaustion requirement under these provisions of the ADA. See e.g., Devlin v. Arizona Youth Soccer Assoc., 1996 WL at 118445, at *2 (D.Ariz. Feb. 8, 1996), in which the court stated: . . . the legislative history of the ADA indicates that Congress precluded a waiver of judicial remedies of an ADA violation and that exhaustion of administrative remedies is not required. Grubbs v. Medical Facilities of America, Inc., 6 NDLR Para. 105 at 372 (W.D.Va. Sept. 23, 1994). Secondly, the regulations implementing Title II of the ADA omit an exhaustion requirement. See 28 C.F.R. SS 36.501-.504 (1995). Finally, the ADA's provision of the relationship of the ADA to other laws further demonstrates that Plaintiff's ADA claim is not subject to the exhaustion/arbitration requirements of the Amateur Sports Act. That provision states in relevant part: Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or Jurisdiction that provides greater or equal protection for the rights of individuals with equal protection for the rights of individuals 9 with disabilities than are afforded by this Act. 42 U.S.C. S 12201(b) (Supp. V 1993) (emphasis added). The aforementioned provision implies that the ADA does preempt federal and state laws that provide less protection than the ADA and by precluding a judicial remedy, the Amateur Sports Act provides less protection for the rights of individuals with disabilities than does the ADA. The Court finds that Plaintiff's ADA claims are not subject to arbitration and/or exhaustion of administrative remedies requirements. Plaintiff also cites Grubbs v. Medical Facilities of America, Inc., 1994 WL 791708, at *3, 7 A.D.D. 570, 6 NDLR P 105 (W.D.Va. 1994), in which the court determined there was no exhaustion requirement for the plaintiff's Title III ADA claim, citing to the legislative history of the ADA, citing J.L. v. Social Security Admin., 971 F.2d 260, 9-64 n.4 (9th Cir. 1992), which quotes H. Rep. No. 101-485, 101st Cong., 2d Sess. 98 (1990). Soignier v. American Board of Plastic Surgery, 92 F.3d 547, 553 (7th Cir. 1996), dealing mainly with statute of limitations issues, is a case in which the court stated, as to the ADA: Because there is no first obligation to pursue administrative remedies, Soignier had to file suit within two years of the accrual date even if he had not exhausted all possible internal remedies. His internal appeal was only an added forum -- an opportunity to get two bites at the apple. The United States has filed an amicus brief in 96-WY-2492-AJ, supporting the plaintiff's arguments in this case, arguing that the Department of Justice, the agency charged with significant enforcement responsibilities under the ADA in certain circumstances, has taken the position that Subchapter III of the 10 ADA does not have an exhaustion requirement. The Court concludes that the ADA does not, by its express terms, incorporate the portions of the Civil Rights Act of 1964 that require exhaustion of administrative remedies. B. State law Anti-Discrimination Act ("CADA") Issues. The other issue that is raised in the motions to dismiss asks whether the plaintiff has stated a cause of action under state law. Plaintiff's claims for relief include asserted violations of C.R.S. S 24-34-601. This section prohibits direct and indirect discrimination in places of public accommodations on the basis of disability. Defendant argues that these statutes do not impose any affirmative obligations on the defendant to remove barriers to access, unlike the ADA, and that it simply prohibits discrimination on the basis of disability. Defendants also argue that the court should decline to exercise supplemental jurisdiction over the state law claims, because the federal claims fail and because plaintiffs have failed to exhaust state administrative remedies. Insofar as this Court has already determined that plaintiff's federal claims shall survive the defendants' motions to dismiss, this second aspect of the defendants' argument is without merit. The Colorado Act parallels on the federal Rehabilitation Act of 1973, 29 U.S.C. SS 701-96. Colorado Civil Rights Commission v. North Washington Fire Protection Dist., 772 P.2d 70, 77 (Colo. 1989) (discussing part 4 of the Colorado Act dealing with discriminatory employment practices). The federal Act is a broad 11 act designed to remedy conduct and eliminate barriers that have a disparate impact upon those with disabilities. Similar to Title VII, a plaintiff need not provide direct proof of discrimination on the basis of disability in order to sustain a cause of action under the federal Rehabilitation Act. See e.g., Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996), citing Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1386-87 (10th Cir. 1981). Plaintiff must first establish a prima facie case before the burden shifts to the defendant to show a nondiscriminatory reason for its actions. Williams v. Widnall, 79 F.3d at 1005 (also noting that same model has been adopted for cases under the ADA). The Court rejects the defendants' arguments that CADA requires direct proof of discrimination on the basis of handicap and does not authorize a court to require a defendant to take action specifically designed to remediate discrimination, direct or indirect, on the basis of disability. Colorado law does not make actions brought pursuant to the CADA in these circumstances an exclusive remedy. In the statutory language, C.R.S. S 24-34-601 does not preclude the filing of a suit in federal court under the ADA nor does it expressly state that exhaustion of remedies is required. See e.g., Galieti v. State Farm Mut. Automobile Ins. Co., 840 F. Supp. 104, 105 (D.Colo. 1993) (involves claims brought under 24-34-402.5, which provides that it is an unfair or discriminatory employment practice to terminate employment due to employee's engaging in lawful activities off the premises of the employer during nonworking hours). 12 C.R.S. S 24-34-601 et seq. prohibits discrimination in places of public accommodation. Section 24-34-602, addressing penalty and civil liability, provides: Any person who violates any of the provisions of section 24-34-601 by denying to any citizen, except for reasons applicable alike to all citizens of every disability, race, creed, color, sex, marital status, national origin, or ancestry, and regardless of disability, race, creed, color, sex, marital status, national origin, or ancestry, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated or by aiding or inciting such denial, for every such offense, shall forfeit and pay a sum of not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby to be recovered in any court of competent jurisdiction in the county where said offense was committed; and also for every such offense such person is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than ten dollars nor more than three hundred dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. A judgment in favor of the party aggrieved or punishment upon an indictment or information shall be a bar to either prosecution, respectively; but the relief provided by this section shall be an alternative to that authorized by section 24- 34-306(e), and a person who seeks redress under this section shall not be permitted to seek relief from the commission. C.R.S. S 24-34-602 (emphasis supplied). Section 24-34-306(9) provides for a hearing before the Colorado Civil Rights Commission (CRCC) for charges of discriminatory practices. The remedy available under S 24-34-602 is an alternative remedy to that provided for in S 24-34-306(9), a hearing before the commission. The statute expressly precludes seeking relief from the commission when the S 24-34-602 type of remedy is sought instead. Exhaustion of administrative remedies and procedures is 13 discussed in C.R.S. S 24-34-306(14). That section provides that: No person may file a civil action in a district court in this state based on an alleged discriminatory or unfair practice prohibited by parts 4 to 7 of this article without first exhausting the proceedings and remedies available to him under this part 3 unless he shows, in an action filed, in the appropriate district court, by clear and convincing evidence, his ill health which is of such a nature that pursuing administrative remedies would not provide timely and reasonable relief and would cause irreparable harm. (emphasis supplied). In electing to bring suit under S 24-34-602, plaintiff has foregone remedies that would be available to him by way of a hearing before the Colorado Civil Rights Commission pursuant to C.R.S. 24-34-306. However, if he had elected the relief available under S 24-34-306, then exhaustion of administrative remedies would be required. Further, even if administrative relief had been the remedy of choice, the plaintiff could have requested a right to sue letter, and upon receipt of a notice of right to sue the exhaustion of administrative remedies requirement would have been satisfied so as to permit a civil action to proceed. See C.R.S. S 24-34- 306(15). The Court was unable to discover much helpful Colorado case law on these issues, nor did the parties provide citations to clearly persuasive authority. Defendants cite to Brooke v. Restaurant Services, Inc., 881 P.2d 409, reversed in 906 P.2d 66 (Colo. 1995). In that case, the Colorado Supreme Court held that the Colorado Anti-Discrimination Act (C.R.S. S 24-34-301 et seq.) is not the exclusive remedy for employment-related sex discrimination and that the act does not require plaintiff to 14 exhaust administrative remedies before filing her claim in state district court. That court noted that "as a general rule, federal and state remedies for civil rights violations are cumulative, not exclusive." Brooke, 906 P.2d at 68. The Colorado Court also noted that remedies under the Colorado Act for individuals subjected to sex discrimination on the job are "only incidental to the Act's primary purpose of eradicating discriminatory practices by employers." Id. Further, "the duties of the CCRC, in addition to enforcing the compulsory provisions of the Act, are geared toward eliminating discriminatory practices on a broad scale rather than addressing the harm such practices cause on a case-by-case basis." Id.1 The Colorado Court of Appeals has held that the provisions of C.R.S. S 24-34-306 permitting the filing of a claim with the CRCC is an alternative to seeking relief through the courts. It stated therefore that the principle requiring exhaustion of administrative 1The language used in C.R.S. S 24-34-306 is not mandatory, i.e., "any person claiming to be aggrieved by a discriminatory or unfair practice as defined by parts 4 to 7 of this article may, by himself or his attorney-at-law, make, sign, and file with the commission" written charges regarding discriminatory or unfair practices. Part 4 of the act deals with employment practices; part 5 deals with housing practices; part 6 deals with discrimination in places of public accommodation and prohibits discriminatory practices (direct or indirect) that withhold, refuse, or deny an individual or group because of handicap, full and equal enjoyment of facilities or accommodations of a place of public accommodation. C.R.S. S 24-34-605 of part 6 authorizes, in addition to relief provided for in C.R.S. S 24-34-306(9), the commission to order a respondent who is found to engage in a discriminatory practice to rehire, reinstate, and provide back pay, to make reports of compliance to the commission, and to take other affirmative action, including the posting of notices setting forth the substantive rights of the public under part 6. 15 remedies was not applicable. Wing v. JMB Property Management Corp., 714 P.2d 916, 914 (Colo. App. 1985). This entire statutory scheme, as it relates to exclusivity and exhaustion of administrative remedies for claims on the basis of disability, is somewhat cloudy. Therefore, the Court finds that the motions to dismiss should be denied, also finding that exhaustion of remedies under the state scheme is not required in this case. The Court will to permit both the federal and state causes of action to go forward, as both types of claims require proof of similar or identical elements. Additionally, the Court notes that factual issues exist. It is not clear on the state of the existing record before the Court that plaintiff could prove no set of facts which would entitle him to the relief he now seeks in these cases. Accordingly, and for the foregoing reasons, it is therefore ORDERED that all motions to dismiss the plaintiff's amended complaints filed by the defendants in the above captioned proceedings shall be, and are, DENIED. Dated this 3d day of March 1997. UNITED STATES DISTRICT JUDGE BY DESIGNATION 16 Case Number: 96-WY2490-AJ I certify that I mailed a copy of the attached to the following: Dated: March 10, 1997 JAMES R. MANSPEAKER, CLERK By: Deputy Clerk Timothy P. Fox Christopher G. Bell Amy F. Robertson Jackson, Lewis, Schnitzler & Krupman Fox & Robertson, P.C. 1625 K Street, N.W., #700 3773 Cherry Creek Dr. N. #575 Washington, D.C. 20006 Denver, CO 80209 George A. Harper cc: Magistrate Judge Schlatter Jackson, Lewis, Schnitzler & Krupman 233 Peachtree St., NE #2400 Joe L. Silver Atlanta, GA 30303-1509 Silver & DeBoskey 1801 York St. Abraham Hutt Denver, CO 80206 2303 E. Dartmouth Ave. Englewood, CO 80110 Stewart McNab Morrison & Foerster, LLP 370 17th St. #5200 Denver, CO 80202 Sheila K. Delaney U. S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 Michael P. Serruto Assistant Attorney General DC Box No. 20 Chester R. Chapman Michael W. Breeskin Legal Center for People with Disabilities and Older People 455 Sherman St. #130 Denver, CO 80203 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 96-WY-2492-AJ COLORADO CROSS-DISABILITY COALITION And KEVIN W. WILLIAMS, for himself and all others similarly situated, Plaintiffs, v. NINE WEST GROUP, INC. And HERMANSON FAMILY LIMITED PARTNERSHIP I, Defendants. MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE I. BACKGROUND On October 25, 1996, plaintiffs Colorado Cross-Disability Coalition and Kevin W. Williams, a person who is a tetraplegic and uses an electric wheelchair for mobility, filed this action against defendants Nine West Group Inc., the operator of a retail shoe store located at 1439 Larimer Street in Denver, Colorado, and the Hermanson Family Limited Partnership I ("Hermanson"), the owner of the building located at the Larimer Street address. Plaintiffs allege that the entrance to the building at that location is inaccessible to persons who use wheelchairs in violation of the barrier removal and alterations provisions of - 2 - Title III of the ADA, 42 U.S.C. SS 12182(2)(A)(iv) and 12183(a)(2). Plaintiffs also allege violations of Colorado law prohibiting discrimination in public accommodations, C.R.S SS 24-34-601 et seq.1 On December 6, 1996, defendant Hermanson filed a motion to dismiss plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that plaintiffs have failed to exhaust administrative remedies under both Title III of the ADA and Colorado law. In support of its motion to dismiss the ADA claim, defendant primarily relies on a decision of this court in Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148, 1150 (D. Colo. 1996) and Bechtel v. East Penn School Dist. of Lehigh County, Civ. A. No. 93-4898, 1994 WL 791708 at *3 (E.D. Pa. Jan. 4, 1994). The defendant essentially contends that the ADA enforcement provision, 42 U.S.C. S 12188, incorporates not only the remedies and procedures of Subsection 204(a) of the Civil Rights Act of 1964, 42 U.S.C. S 2000a-3(a), to which it specifically refers, but also Subsection 204(c) of the 1964 Act, 42 U.S.C. S 2000a-3(c), and that Subsection 204(c) requires exhaustion of available state and local administrative remedies. Because the United States has important regulatory and enforcement responsibilities under Title III of the ADA and 1 Plaintiffs allege that by failing to provide a ramp to the entrance to the Nine West store, the Defendants have violated Colorado law that prohibits discrimination on the basis of disability by places of public accommodation. CRS SS 24-34-601. The United States takes no position with regard to the defendant's motion to dismiss the state law claim. -3- believes that the court's ruling in the Howard case with regard to the exhaustion of administrative remedies in Title III cases is incorrect, the United States has sought permission to file this memorandum as amicus curiae urging that this court deny the defendant's motion. II. ARGUMENT The defendant's argument that plaintiff must exhaust state administrative remedies before filing a claim under Title III of the ADA is based upon an erroneous interpretation of the ADA. The plain language of the enforcement provision of Title III of the ADA, 42 U.S.C. S 12188, imposes no such requirement. In providing individuals who suffer discrimination based on disability by a place of public accommodation the remedies and procedures provided in Subsection 204(a) of the Civil Rights Act of 1964, 42 U.S.C. S 2000a-3(a), Congress did not intend to engraft upon Title III of the ADA other provisions of Section 204 that have no applicability to the unique statutory scheme created by the ADA. To impose a requirement that individuals alleging discrimination based upon disability must first invoke state administrative remedies prior to bringing a federal action under Title III of the ADA is to introduce an unwarranted barrier to the prompt vindication of rights protected by the ADA. Because Subsection 204(c) of the 1964 Act gives the district court in which an action is filed pursuant to 204(a) the authority to "stay proceedings in such civil action pending the termination of -4- State or local enforcement proceedings," 42 U.S.C. S 2000a-3(c), such a requirement could cause a substantial delay in obtaining appropriate relief under Title III. Where it is apparent from the plain language of the statute that Congress did not intend to impose such a delay, this court should not create such a procedural requirement. A. The Plain Language Of The ADA Does Not Require Invocation Of State Administrative Remedies Prior To Bringing Suit In Federal Court In any inquiry into the meaning of a statute, "[t]he language of the statute [is] the starting place." Staples v. United States, 114 S. Ct. 1793, 1797 (1994). The Supreme Court has instructed "time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992). Title III of the Americans With Disabilities Act (ADA), 42 U.S.C. S 12181, et seq., provides that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. S 12182(a). Included within the definition of "public accommodation" is a "clothing store. . . or other sales or rental establishment." 42 U.S.C. S 12181(7)(E). Congress intended the nondiscrimination provisions of Title III to be enforced both by persons who are themselves subjected - 5 - to discrimination on the basis of disability, 42 U.S.C. S 12188(a), and by the Attorney General, 42 U.S.C. S 12188(b). Thus, section 308(a)(1), 42 U.S.C. S 12188(a)(1), provides, in relevant part (emphasis added): The remedies and procedures set forth in section 2000a- 3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183. The "remedy" provided by 42 U.S.C. S 2000a-3(a), is a civil action for injunctive relief. The "procedures" it provides are intervention by the Attorney General in a case certified by the Attorney General to be of "general public importance," and, "[u]pon application by the complainant and in such circumstances as the court may deem just," appointment of an attorney for the complainant and the commencement of suit without the payment of fees, costs, or security.2 _________________________ 2 Section 204(a), 42 U.S.C. 2000a-3(a), states: Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved and, upon timely application, the court, may in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security. - 6 - As it often does in enacting a new statute, Congress selectively incorporated portions of existing statutes into the ADA. The ADA Title III enforcement provision under which the plaintiffs have brought the instant suit makes reference only to Subsection 204(a) of the 1964 Act. It does not refer to any of the other three subsections of Section 204, including Subsection 204(c) upon which the defendant relies. Given the clear and unambiguous language in Title III of the ADA incorporating only Subsection 204(a), there is no legal basis for incorporating additional subsections of Section 204 to which Congress did not refer. The Third Circuit faced an analogous situation in Sperling v. Hoffman-La Roche, Inc., 24 F.3d 463 (3rd Cir. 1994). There the issue was whether the filing of a representative complaint under the Age Discrimination in Employment Act, 29 U.S.C. S 626(b), tolled the statute of limitations for unnamed employees to become members of the opt-in class. At the time the action was filed, the ADEA expressly incorporated the statute of limitations contained in Section 6 of the Portal-to-Portal Act, 29 U.S.C. S 255. 29 U.S.C. S 626(e)(1) (1991). The employer argued that the tolling question should be governed by Section 7 of the Portal-to-Portal Act, 29 U.S.C. S 256, which was not incorporated specifically into the ADEA. Section 7 would have required employees who wished to opt-in to do so within the Section 6 statute of limitations. - 7 - The Court of Appeals noted that "incorporation of selected provisions into section 7(b) of [the] ADEA indicates that Congress deliberately left out those provisions not incorporated." 24 F.3d at 470. The Court stated that its decision was "a fairly routine application of the traditional rule of statutory construction pithily captured in the Latin maxim expression unius est exclusio alterius." Ibid. That principle applies equally here. Title III of the ADA is not simply a carbon-copy of Title II of the 1964 Act, although both prohibit discrimination in places of public accommodation. Congress recognized that discrimination based upon disability is manifested in ways that are distinct from discrimination on the basis of race, color, religion or national origin, and must be addressed in a different way. Thus, rather than simply amending Title II of the 1964 Act to add disability as a prohibited basis for discrimination, Congress enacted a comprehensive statute addressing issues such as architectural and communication barriers, 42 U.S.C. S 12182(b)(2)(A)(iv), and provision of auxiliary aids and services, 42 U.S.C. S 12182(b)(2)(A)(iii), that were not relevant to the kinds of discrimination prohibited by the 1964 Act. The ADA concept of public accommodations is also much broader than that of Title II of the 1964 Act. Compare 42 U.S.C. S 2000a(b) with 42 U.S.C. 12181(7), 42 U.S.C. S 12183 (commercial facilities), 42 U.S.C. S 12184 (public transportation services provided by private entities). - 8 - Congress borrowed from the 1964 Act the remedial structure contained in Section 204(a), but it did not thereby incorporate any of the other provisions of Section 204. Congress could simply have repeated the language of section 204(a) in Title III of the ADA to indicate the remedies and procedures it intended to provide to aggrieved persons. If it had done so, it would be manifestly clear that Congress had no intention of requiring such persons to exhaust state or local administrative remedies. The fact that Congress used Subsection 204(a) of the 1964 Act as a shorthand method to refer to the remedies and procedures it intended to provide should not change that result.3 In construing the requirements of the enforcement provision of Title III, courts have held that plaintiffs are not required to exhaust state administrative remedies prior to filing an ________________________ 3 Even if the defendant is correct that Subsection 204(c) of the 1964 Act is implicitly incorporated into the ADA along with the specifically-referenced Subsection 204(a), there is no basis for the contention that Subsection 204(c) requires individuals to "exhaust" state administrative remedies. Subsection 207(a) of the 1964 Act, 42 U.S.C. 2000a-6(a), specifically provides that [t]he district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subchapter and shall exercise the same without regard to whether the aggrieved party shall have exhausted any administrative or other remedies that may be provided by law. In reconciling the seeming contradiction between Subsection 204(c) and Subsection 207(a), courts have concluded that Subsection 204(c) requires only that the aggrieved person give notice of the alleged violation to the state or local agency and wait 30 days thereafter before filing suit; exhausting the state or local remedy is not a jurisdictional prerequisite to suit. Harris v. Ericson, 457 F.2d 765, 766-767 (10th Cir. 1972). - 9 - action to enforce Title III of the ADA. Soignier v. American Board of Plastic Surgery, 92 F.3d 547, 553 (7th Cir. 1996) (holding that "because there is no first obligation to pursue administrative remedies," the plaintiff in the Title III action was obligated to file suit within the period dictated by the state statute of limitations.); Grubbs v. Medical Facilities of America, Inc., No. 94-0029-D, 1994 WL 791798 at *2-3 (W.D. Va. Sept. 23, 1994) (in denying a motion to dismiss, the court found that Congress did not intend to require exhaustion of administrative remedies for persons with disabilities under either S 504 of the Rehabilitation Act or Title III of the ADA). Neither of the district court decisions principally relied upon by defendant Hermanson provide any legal analysis for the conclusion that plaintiffs in Title III enforcement actions must follow the procedures of Subsection 204(c). Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148 (D. Colo. 1996); Bechtel v. East Penn School Dist. of Lehigh County, Civ. A. No. 93-4898, 1994 WL 791708 at *3 (E.D. Pa. Jan. 4, 1994). In Howard, the district court dismissed an action brought under Title III of the ADA on the grounds that the ADA does not authorize private individuals to sue for damages, but it granted the plaintiff's request for leave to amend the complaint with the simple "caveat that any claim for injunctive relief under Subchapter III of the ADA must comply with the applicable state law exhaustion requirement set forth in 42 U.S.C. S 2000a-3(c)." 935 F. Supp. - 10 - at 1150.4 Although never articulated, the underlying rationale of both the Howard and Bechtel courts would seem to be that by incorporating Subsection 204(a), Congress must necessarily have intended to incorporate the rest of Section 204 as well. However, an examination of the other subsections of Section 204 that are also not specifically incorporated demonstrates the fallacy of any such reasoning. Title III of the ADA does not refer specifically to Subsection 204(d) of the 1964 Act, which applies under Title II of the 1964 Act where the alleged discrimination takes place in a state where there is no state law prohibiting such discrimination. Under those circumstances, Subsection 204(d) allows a court in which a civil action is commenced pursuant to Section 204(a) to refer the matter to the Community Relations Service (CRS) for a limited time, if it believes there is a "reasonable possibility of obtaining voluntary compliance." Although the district court's apparent rationale in Howard would suggest that Subsection 204(d) may be followed by a court in which an ADA Title III action is filed, Congress could not have intended such a result. Since the ADA did not expand the _______________ 4 Similarly, in an action to enforce title II of the ADA, the district court in Bechtel v. East Penn School Dist. of Lehigh County, Civ. A. No. 93-4898, WL 791708 At *3 (E.D. Pa., Jan. 4 1994) simply observed in dicta, without further analysis, that "[d]efendants are correct that Section 12188 makes the enforcement procedures of the Civil Rights Act of 1964, which provide for exhaustion of administrative remedies, applicable to actions under Title III of the ADA." 1994 U.S. Dist. Lexis 1327 at 6. On the other hand, the court properly held that claims under Title II of the ADA do not require exhaustion of administrative remedies. 1994 U.S. Dist. Lexis 1327 at 6-8. - 11 - jurisdiction of the CRS to allow it to mediate issues of discrimination based on disability, Congress could not have intended Subsection 204(d) to be incorporated by implication into Title III. Neither does the ADA refer to Subsection (b) of Section 204 of the 1964 Act, which allows a court to award attorney's fees to a prevailing party other than the United States in an action brought pursuant to Subsection 204(a). Congress certainly did not intend to incorporate Subsection 204(b) because the ADA contains a separate attorney's fees provision, 42 U.S.C. S 12205, that is applicable to all civil actions and administrative proceedings brought pursuant to the ADA. As Tenth Circuit has recognized, when one statute is modeled on another one but does not include a specific provision contained in the original, "a strong presumption exists that the legislature intended to omit that provision." Kirchner v. Chattanooga Choo Choo, 10 F.3d 737, 738-739 (10th Cir. 1993) (citations omitted). See also Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947) (in construing a statute, "[o]ne must also listen attentively to what it does not say.") The inherent differences between Title II of the 1964 Act and Title III of the ADA demonstrates the error in the defendant's attempt to pick and choose, on its own, portions of the 1964 Act to incorporate into the ADA. The plain language of Section 308 of the ADA indicates that plaintiffs in a Title - 12 - III action need not exhaust state administrative remedies and that this court has jurisdiction to proceed with the ADA claim.5 B. Neither the Regulations Implementing Title III of the ADA nor the Technical Assistance Manual Interpreting Title III Mention the Need to Exhaust State Administrative Remedies Pursuant to 42 U.S.C. S 12186(b) and 42 U.S.C. S 12206(c)(3), the Department of Justice has issued regulations ________________________ 5 The only discussion in the legislative history of the ADA of prerequisites to filing a federal action under Title III is contained in a colloquy between Senator Harkin, one of the primary sponsors of the ADA and the floor manager of the bill, and Senator Bumpers, a co-sponsor. Although the colloquy is apparently addressed to the question whether Title III creates any federal administrative remedy, it indicates that it was not accidental that Congress incorporated only subsection (a) of section 204. MR. BUMPERS. * * * if somebody who is disabled goes into a place of business, and we will just use this hypothetical example, and they say, "You do not have a ramp out here and I am in a wheelchair and I just went to the restroom here and it is not suitable for wheelchair occupants," are they permitted at that point to bring an action administratively against the owner of that business, or do they have to give the owner some notice prior to pursuing a legal remedy? MR. HARKIN. First of all, Senator, there would be no administrative remedy in that kind of a situation. The administrative remedies only apply in the employment situation. In the situation you are talking about - MR. BUMPERS. That is true. So one does not have to pursue or exhaust his administrative remedies in title III if it is title III that is the public accommodations. 135 Cong. Rec. 19859 (1989). If Congress had intended to incorporate Subsection 204(c) of the 1964 Civil Rights Act into Title III of the ADA, it is likely that either Congressmen Harkin or Bumpers would have made reference to it during this colloquy. The fact that they did not is persuasive evidence that exhaustion of administrative remedies was not contemplated by Congress. - 13 - and a Technical Assistance Manual interpreting Title III. Neither the regulations nor the Technical Assistance Manual make any mention of a need to exhaust administrative remedies or a pre-suit state administrative notice requirement. See 28 C.F.R. 36.501(a) (1993); Department of Justice, The Americans with Disabilities Title III Technical Assistance Manual, SS III- 8.1000, 8.2000.6 The absence of any mention of such requirements in the contemporaneous administrative interpretation of the statute is cogent evidence of the Attorney General's belief that resort to such procedures was not intended by Congress. 6 There also is no federal administrative remedy under Title III of the ADA. Thus, the Attorney General has taken the position that "it is not necessary to file a complaint with the Department [of Justice] prior to exercising [a] private right of action." Department of Justice, Response to Inquiry, 4 Nat'l Disability L. Rep. P 360. - 14 - III. CONCLUSION For the reasons set forth above, it is apparent from the plain language of the ADA that Congress did not intend impose a requirement that plaintiffs first exhaust state administrative remedies prior to bringing a suit to enforce Title III of the ADA and that the defendant's motion to dismiss the federal ADA claim should be denied. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General JOHN WODATCH, Chief ALLISON J. NICHOL, Deputy Chief SHEILA K. DELANEY, Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-6309 - 15 - CERTIFICATE OF SERVICE I, the undersigned attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by overnight delivery, true and correct copies of the foregoing Memorandum for the United States as Amicus Curiae: Attorneys for Plaintiffs: Timothy P. Fox Amy F. Robertson Fox & Robertson, P.C. 3773 Cherry Creek Drive North Suite 575 Denver, Colorado 80209 (303) 331-4428 Attorneys for Defendant Hermanson: Joe L. Silver Jay S. Jester Silver & DeBoskey 1801 York Street Denver, Colorado 80206 (303) 399-3000 Attorneys for Defendant Nine West Group, Inc. Christopher G. Bell Jackson, Lewis, Schnitzler & Krupman 1625 K Street, N.W., Suite 700 Washington, D.C. 20006 (202) 347-5200 - 16 - Stewart McNab (local counsel only) Morrison & Foerster 370 17th Street #5200 Denver, Colorado 80202 (303) 592-2253 SO CERTIFIED this 20th day of December, 1996. SHEILA K. DELANEY Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-6309