IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA FILED APR 22 1997 (STAMPED) ROGER ALLEN, ) ) Plaintiff, ) ) v. ) CIV-96-1518-A ) KENNETH J. RUSSELL, ) SHIRLEY A. RUSSELL, and ) ODESSA V. ROZELL, ) ) Defendants. ) UNITED STATES' APPLICATION TO INTERVENE AND OPENING BRIEF IN SUPPORT The United States of America respectfully requests that this Court grant leave for the United States to intervene in this action, pursuant to Rule 24(b)of the Federal Rules of Civil Procedure and 42 U.S.C.  12188(a)(1). A brief in support and proposed order accompany this application. OPENING BRIEF IN SUPPORT The United States respectfully requests that this Court grant leave for the United States to intervene in this action. In support of this application, the United States asserts: 1. The plaintiff, Roger Allen ("Plaintiff"), alleged in his complaint that the defendants -- Kenneth Russell, Shirley Russell and Odessa Rozell ("Defendant") -- have violated title III of the Americans with Disabilities Act of 1990, 42 U.S.C.  12181-12189 ("ADA"). 2. The United States Attorney's Office for the Western District of Oklahoma received a copy of Plaintiff's complaint on November 18, 1996 and has investigated Plaintiff's claims. 01-06942 Based upon this investigation, the United States believes that Defendants have committed the following violations of the ADA. (a) Imposing unlawful eligibility criteria which discriminated against Plaintiff's disability, 42 U.S.C.  12182 (b)(2)(A)(i); (b) Denying Plaintiff the opportunity to benefit from, or affording an unequal opportunity to benefit from, facilities or accommodations on the basis of his disability, 42 U.S.C. 12182(b)(1)(A)(i), 12182(b)(1)(A)(ii); (c) Coercion, intimidation, threats or interference with Plaintiff for his exercise or enjoyment of any right granted or protected by the ADA, 42 U.S.C.  12203(b); (d) Failure to make reasonable modifications to policies, practices and procedures, 42 U.S.C. 12182(b)(2)(A)(ii); and (e) Failure to make any remove barriers to access where it is readily achievable to do so. 42 U.S.C.  12182(a), 12182(b)(2)(A)(iv). 3. Pursuant to 42 U.S.C.  12188(b)(1)(B)(ii), the Attorney General has certified that this case raises an issue of general public importance (attached as Exhibit A). 4. The United States believes that it would not be an economical use of judicial resources for the United States to file a separate lawsuit regarding the same set of facts alleged in Plaintiff's complaint. 5. If this Court permitted the United States to intervene in this action, the United States would file the third-party complaint attached as Exhibit B. 2 01-06943 Argument The United States Has Satisfied the Requirements for Permissive Intervention It is in the public interest and would not prejudice Defendants for this Court to grant permissive intervention to the United States. As shown below, the United States Department of Justice ("Justice Department") has a substantial interest in ADA enforcement, has made a timely motion, and that such intervention is unlikely to prejudice Defendants. The United States seeks leave to intervene under Section 308 of the ADA and Rule 24(b) of the Federal Rules of Civil Procedure. Section 308 of the ADA authorizes Attorney General intervention in private actions. See 42 U.S.C.  12188(a)(1) (referring to the remedies and procedures in section 204(a) of the Civil Rights Act, 42 U.S.C.  2000a-3(a), which specifically authorizes Attorney General intervention in private actions). Rule 24(b) of the Federal Rules of Civil Procedure states that an agency may intervene in an action involving a statute administered by that agency: When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. Fed R. Civ. P. 24(b). See Securities and Exch. Comm'n v. United States Realty & Improvement Co., 310 U.S. 434, 460 (1940) (allowing SEC to intervene due to its interest in maintaining its statutory authority and performing its public duties; decided before 1946 amendment which added above quoted language to Rule 24). See also Fed. R. Civ. P. 24 note to subdivision (b), 1946 amendment (explaining the purpose for the additional language allowing government intervention). 3 01-06944 With regard to prejudice and delay, Rule 24(b) also states: "In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Fed R. Civ. P. 24(b). The Justice Department's Substantial Interest in the Administration and Enforcement of the ADA Title III of the ADA prohibits discrimination "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.  12182(a). The Justice Department is responsible for enforcing and administering Title III of the ADA. E.g., 42 U.S.C.  12188. Under the ADA, the Justice Department has the authority to investigate alleged violations of the ADA and commence a civil action where reasonable cause is found to believe that any person has been discriminated against on the basis of disability. 42 U.S.C.  12188(b)(1)(A)(i), 12188(b)(1)(B)(ii). As a result of this office's investigation, the Justice Department believes that Defendants are liable for their discrimination against Plaintiff based upon his disability, in violation of the following statutes: 42 U.S.C.  12182(a), 12182(b)(1)(A)(I), 12182(b)(1)(A)(ii), 12182(b)(2)(A)(I), 2182(b)(2)(A)(ii), 12182(b)(2)(A)(iv) and 12203(b). Supra,  2, pp. 1-2; see also Exhibit B (United States' proposed third-party complaint). Pursuant to 42 U.S.C.  12188(b)(1)(B)(ii), the Attorney General has certified that the case raises an issue of general public importance. Supra,  3, p. 2, and Exhibit A. Although the United States is authorized to bring its own suit to remedy this discrimination pursuant to 42 U.S.C.  12188(b)(1)(B)(ii), the Justice Department believes that a 4 01-06945 separate suit regarding the same set of facts alleged in Plaintiff's complaint would be a waste of judicial resources. Supra,  4, p. 2. Therefore, the United States moves this Court for an order granting permission to intervene in this action. The Proposed Intervention Is Timely and Does Not Prejudice Defendants The United States has made this application and motion within eight months of Plaintiff's filing of his complaint and within slightly over four months of this Court's order denying Defendant's motion to dismiss. Thus, the United States' intervention is unlikely to unduly delay resolution of this case or prejudice Defendants. This Court "must determine timeliness in light of all the circumstances...including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances." Sanguine, Ltd. v.United States Dep't of Interior, 736 F.2d 1416, 1418 (10th Cir. 1984) (order denying intervention reversed), aff'd, 798 F.2d 389 (10th Cir. 1986) (appeal after remand), cert. denied, 479 U.S. 1054 (1987). By moving to intervene so quickly after the complaint was filed, the United States is well within the Tenth Circuit's time limits for intervention. Compare Sanguine, 736 F.2d at 1418 (intervention allowed 30 days after judgment) with Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10th Cir. 1987) (denying intervention request filed three and one-half years following actual notice of case). It is unlikely that any claims of prejudice by Defendants will outweigh the public interest in the Justice Department's enforcement of the ADA (as described above). 5 01-06946 Conclusion For the foregoing reasons, the United States requests that this Court allow the United States to intervene in this action. Dated this 22nd day of April, 1997. Respectfully submitted, PATRICK M. RYAN United States Attorney MICHAEL JAMES Assistant United States Attorney 210 Park Avenue, suite 400 Oklahoma City, OK 73102 (405) 553-8700 (405) 553-888 (telefax) MAILING CERTIFICATE This is to certify that a true copy of the foregoing pleading was served on each of the parties hereto by mailing the same to attorneys for Plaintiff and Defendants on the 22nd day of April, 1997. (SIGNATURE) Assistant U.S. Attorney 6 01-06947 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ROGER ALLEN, ) ) Plaintiff, ) and ) ) CIV-96-1518-A UNITED STATES OF AMERICA, ) ) ) Third-Party Plaintiff, ) ) v. ) ) KENNETH J. RUSSELL, ) SHIRLEY A. RUSSELL, and ) ODESSA V. ROZELL, ) ) Defendants. ) ATTORNEY GENERAL CERTIFICATION This case alleges the refusal of a commercial building owner and operator to lease a retail facility to an individual with a disability and the failure of the building to comply with ADA architectural standards. In addition to the general non- discrimination provisions of ADA Title III, the exclusion violates specific provisions: (a) prohibiting unnecessary eligibility requirements that screen out persons with disabilities; and (b) requiring the removal of architectural barriers to access where they are readily achievable to remove. See 42 U.S.C.  12182(b)(2)(A)(i),(iv). The complaint also alleges that Defendants took coercive or intimidating actions against the Plaintiff for his attempts to assert his right to lease. See Id.  12203(b). 1 01-06948 In this case, the plaintiff alleges that a building owner and operator explicitly refused to lease space to him because he has quadriplegia. It also alleges that the defendants refused to remove architectural barriers, including barriers at the building's entrance, and even prevented the plaintiff from removing the barriers at his own expense. These facts present a compelling case of intentional discrimination on the basis of disability. Disability-based discrimination in leasing appears to be a pervasive problem, given the amount of complaints and anecdotal evidence the Department has received about it. Discrimination in commercial leasing excludes individuals with disabilities from business and employment opportunities and perpetuates the historical discrimination that the ADA was intended to prevent. I hereby certify that this case presents an issue of general public importance, within the meaning of 42 U.S.C.  12188(a)(1) and 42 U.S.C.  2000a-(3)(a). JANET RENO Attorney General (SIGNATURE) by: ISABELLE KATZ PINZLER Acting Assistant Attorney General Civil Rights Division 2 01-06949 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ROGER ALLEN, ) ) Plaintiff, ) and ) ) UNITED STATES OF AMERICA, ) CIV-96-1518-A ) Third-Party Plaintiff, ) ) v. ) ) KENNETH J. RUSSELL, ) SHIRLEY A. RUSSELL, and ) ODESSA V. ROZELL, ) ) Defendants. ) T H I R D P A R T Y C O M P L A I N T The United States of America for its Complaint against the defendants alleges: NATURE OF THE CASE 1. The United States has intervened in this action to enforce Title III of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C.  12181-12189, against Defendants. JURISDICTION AND VENUE 2. Jurisdiction exists pursuant to 42 U.S.C.  12188 and 28 U.S.C.  1331 and 1345. The Court has authority to grant declaratory and other relief pursuant to 42 U.S.C.  12188 and 28 U.S.C.  2201-02. 3. Venue exists pursuant to 28 U.S.C.  1391. Defendants either live or conduct business in the Western District of Oklahoma. The acts of discrimination giving rise to the United States' claims occurred in the Western District of -1- 01-06950 Oklahoma. The property that is the subject of the action is located in the Western District of Oklahoma. PARTIES 4. Plaintiff Roger Allen ("Plaintiff Allen") lives in the Western District of Oklahoma. Third-Party Plaintiff is the United States of America. 5. Defendants Kenneth J. Russell and Shirley A. Russell reside in California and conduct business in the Western District of Oklahoma. Defendant Odessa V. Rozell ("Defendant Rozell") lives and conducts business in the Western District of Oklahoma. GENERAL ALLEGATIONS 6. Plaintiff Allen has quadriplegia. He has the use of his arms, but not his hands, and moves by means of a specially-equipped van or an electric wheelchair. Plaintiff Allen is an individual with a disability within the meaning of 42 U.S.C.  12102 (2). 7. The American Fidelity Building (the "Fidelity Building"), located at 101 West Grant Street in Pauls Valley, Oklahoma, is a place of public accommodation within the meaning of 42 U.S.C.  12182(7) and affects commerce. 8. Defendants Kenneth and Shirley Russell own and operate the Fidelity Building. Defendant Rozell, as the building manager and leasing agent, operates the Fidelity Building. 9. Defendants Kenneth and Shirley Russell are liable for the actions of their agent and employee, Defendant Rozell. -2- 01-06951 10. The Attorney General has certified that this case is of general public importance. 11. Defendants' actions constitute a pattern or practice of discrimination within the meaning of 42 U.S.C.  12188 (b) (1) (B). COUNT I Improper Eligibility Requirements To Screen Individuals With Disabilities, 42 U.S.C.  12182 (b) (2) (A) (i) 12. On or about September 1994, Plaintiff Allen tried to lease a second-floor office in the Fidelity Building in order to operate his perfume business. 13. Defendant Rozell refused to lease an office to Plaintiff and stated "we don't rent to the handicapped." 14. Within several days, Defendant Rozell stated that she would lease the same second-floor office to Plaintiff Allen's non-disabled friend, who indicated that the office would be used to operate a perfume business. On the day the lease was signed, Plaintiff Allen's friend signed the lease as a representative of Plaintiff Allen; Plaintiff Allen was also present. At that same meeting, Defendant Rozell accepted a security deposit check signed by Plaintiff Allen. 15. Defendants imposed eligibility requirements which screened out individuals with disabilities in violation of 42 U.S.C.  12182(b) (2) (A) (i). -3- 01-06952 COUNT II Denying Benefit Of Facilities Or Accommodations, Or Affording An Unequal Opportunity To Benefit From Facilities Or Accommodations, On The Basis Of Plaintiff's Disability, 42 U.S.C.  12182(b) (1) (A) (i), 12182(b) (1) (A) (ii) 16. The United States incorporates here the allegations in paragraphs 1 through 15 of the Third-Party Complaint. 17. Within several days after the lease was signed, Defendant Rozell returned Plaintiff's check and stated that the "building did not accommodate cripples" and that Plaintiff would have to move. 18. Defendant Rozell refused to cash any of Plaintiff's Allen's rent checks. 19. Plaintiff Allen used lumber (i.e. 2x4's) in the parking area to serve as a makeshift wheelchair ramp. Whenever Plaintiff Allen left the lumber in the parking lot, Defendant Rozell moved the lumber into a dumpster, even though the lumber was clearly labelled "Do Not Remove" and "Wheelchair Ramp." Defendant Rozell stated that the 2x4's were an "eyesore," that "people would stumble on them," and that "this building does not accommodate cripples." 20. Plaintiff Allen offered to install a wheelchair ramp at his own expense but Defendant Rozell refused. 21. Defendant Rozell removed Plaintiff Allen's business logo from his office door. 22. Defendant Rozell removed Plaintiff Allen's business name from the Fidelity Building's office directory. -4- 01-06953 23. Defendant Rozell discontinued janitorial services for Plaintiff Allen's office. 24. Defendant Rozell removed a strap which Plaintiff Allen had placed on his office door in order to open and close the door. 25. Defendant Rozell often told Plaintiff Allen that "you've got to go" or "Don't you understand? You've got to go." 26. Defendants Rozell's actions denied Plaintiff the opportunity to benefit from, or afforded Plaintiff an unequal opportunity to benefit from, the facilities and accommodations of the Fidelity Building on the basis of Plaintiff's disability, in violation of 42 U.S.C.  12182(b)(1)(A)(i), 12182(b)(1)(A)(ii). COUNT III Interference, Intimidation and Coercion 42 U.S.C.  12203(b) 27. The United States incorporates here the allegations in paragraphs 1 through 26 of the Third-Party Complaint. 28. Defendants' statements to Plaintiff Allen and actions, including but not limited to Defendant Rozell's actions described above in paragraphs 17 through 25, constituted unlawful coercion, intimidation, threats, or interference of Plaintiff Allen's exercise or enjoyment of his rights granted or protected by this Title III of the ADA, in violation of 42 U.S.C.  12203(b). -5- 01-06954 COUNT IV Failure To Make Reasonable Modifications To Policies, Practices and Procedures 42 U.S.C.  12182 (b) (2) (A) (ii) 29. The United States incorporates here the allegations in paragraphs 1 through 28 of the Third-Party Complaint. 30. Defendants failed to make reasonable modifications to policies, practices and procedures when such modifications were necessary to afford such services, facilities, privileges, advantages or accommodations to individuals with disabilities, in violation of 42 U.S.C. 12182(b)(2)(A)(ii). COUNT V Failure To Remove Architectural Barriers 42 U.S.C.  12182 (a), 12182 (b)(2)(A)(iv) 31. The United States incorporates here the allegations in paragraphs 1 through 30 of the Third-Party Complaint. 32. The Fidelity Building is a four story building and is bounded on the north and west sides by a parking lot for the use by the building's tenants and customers. 33. The tenants of the Fidelity Building include, among others, a real estate broker and a tax preparation service on the first floor, a bail bondsman on the second floor, and an attorney on the second or higher floor. 34. The Fidelity Building has numerous architectural barriers which prevent or restrict access to the building by individuals with disabilities, including individuals who use -6- 01-06955 wheelchairs, in that several features, elements, and spaces of the Fidelity Building are not readily accessible to or usable by individuals with disabilities, as specified in the Department of Justice's Title III implementing regulation, 28 C.F.R. Part 36. See Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A. Barriers to access at the Fidelity Building include but are not limited to: a. There is no accessible parking. b. There is no accessible route from the parking area to any building entrance south door. c. The restroom on the second floor has a ledge over one-foot high which leads to the toilet and sink, making the restroom facilities inaccessible by wheelchair. d. The building's interior door hardware is not readily accessible to or useable by persons with disabilities. 35. Removal of the barriers listed in the previous paragraph is readily achievable. 36. Defendants have not undertaken any removal of architectural barriers where it is readily achievable to do so, in violation of 42 U.S.C.  12182 (a), 12182 (b)(2)(A)(iv). PRAYER FOR RELIEF WHEREFORE, the UNITED STATES demands and prays that judgment be entered in its favor and against Defendants as follows: (1) Declare that Defendants have violated Title III of the Americans with Disabilities Act, 42 U.S.C.  12181-12189, -7- 01-06956 and the regulations thereunder, 28 CF R pt. 36, by discriminating on the basis of disability; (2) Enjoin Defendants, their officers, agents and employees, and all other persons in active concert or participation with any of them, from discrimination against individuals with disabilities; (3) Order Defendants to institute and implement policies and procedures which will eliminate discrimination on the basis of disability, including but not necessarily limited to, requiring Defendants to adopt and post in the Fidelity Building a policy of nondiscrimination on the basis of disability; (4) Order Defendants to remove architectural barriers to access at the Fidelity Building, to the extent that it is readily achievable to do so, including but not limited to: a. Providing accessible routes to and from the following spaces, features and elements serving the places of public accommodation within the building: the parking lot, the main lobby, the elevator, the first through fourth floors, the restrooms and office areas -- in compliance with the provisions of the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (the "Standards"), including those provisions governing accessible routes, entrances, ramps, parking and passenger loading zones, elevators, and stairs; b. Providing rental space for places of public accommodation that is readily accessible to and usable by -8- 01-06957 individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards, including those provisions governing accessible routes and doors; and c. Providing restrooms that are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, in compliance with the provisions of the Standards, including those provisions governing water closets, toilet stalls, urinals, lavatories and mirrors, toilet rooms, handrails, and accessible routes. (5) Assess a civil penalty against each Defendant of up to $50,000, pursuant to 42 U.S.C.  12188(b) (2) (C), to vindicate the public interest; (6) Award compensatory damages to Plaintiff Allen, the person aggrieved by the illegal acts of discrimination committed by Defendants; and (7) Order such other appropriate relief as the interests of justice may require. Dated this day of January, 1997. Respectfully submitted, JANET RENO Attorney General ISABELLE KATZ PINZLER PATRICK M. RYAN Acting Assistant Attorney General United States Attorney Civil Rights Division -9- 01-06958 (SIGNATURE) JOHN L. WODATCH, Chief MICHAEL C. JAMES Disability Rights Section Assistant U. S. Attorney Civil Rights Division 2100 Park Avenue, suite 400 Oklahoma City, OK 73102 (405) 553-8700 (405) 553-8888 (telefax) -10- 01-06959