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    JANKEY v TWENTIETH CENTURY, 9856585

    U.S. 9th Circuit Court of Appeals

    JANKEY v TWENTIETH CENTURY
    9856585

    LES JANKEY,
    Plaintiff-Appellant,
    No. 98-56585
    v.
    D.C. No.
    TWENTIETH CENTURY FOX FILM
    CV-97-08948-LGB
    CORPORATION, a Delaware
    OPINION
    corporation,
    Defendant-Appellee.
    
    
    Appeal from the United States District Court
    for the Central District of California
    Lourdes G. Baird, District Judge, Presiding
    
    Argued and Submitted
    April 5, 2000--Pasadena, California
    
    Filed May 16, 2000
    
    Before: Stephen Reinhardt and Diarmuid F. O'Scannlain,
    Circuit Judges, and William W Schwarzer,*
    Senior District Judge.
    
    Opinion by Judge Schwarzer
    
    SUMMARY 
     
    The summary, which does not constitute a part of the opinion of the court, 
    is copyrighted C 2000 by West Group. 
    _________________________________________________________________
    
    Individual Rights/Disabilities
    
    The court of appeals affirmed a judgment of the district
    court. The court held that facilities that are within a category
    of public accommodation specified in the Americans with
    Disabilities Act (ADA) are exempt from coverage under the
    statute if they are not in fact open to the public.
    
    Appellant Les Jenkey is wheelchair-bound and disabled
    under the ADA. He frequently visited the movie lot of appel-
    lee Twentieth Century Fox Film Corporation on business,
    usually with a visitor's pass. Fox security personnel admitted
    only employees and persons on a list of authorized business
    guests.
    
    Jankey was unable to access the Fox commissary, studio
    store, and an automatic teller machine located on the lot
    because they were not equipped to accommodate wheelchairs.
    He sued Fox under the ADA, alleging violations of Title III
    of the ADA prohibiting public accommodations from discrim-
    inating on the basis of a disability.
    
    The district court granted summary judgment for Fox on
    the ground that the facilities in question were not in fact open
    to the public. Jankey appealed, contending that Fox was sub-
    ject to Title III because the facilities he wanted to use were
    public accommodations under S 12181(7) of the ADA.
    
    [1] The provisions of Title III do not apply to establish-
    ments exempted from coverage under Title II of the Civil
    Rights Act. Title II exempts from coverage any establishment
    not in fact open to the public. Title III does not apply to a
    facility described in S 12181(7) regardless of whether it is
    open to the public.
    
    _________________________________________________________________
    COUNSEL
    
    Thomas E. Frankovich, Thomas E. Frankovich and Richard
    K. Jolliffe, San Francisco, California, for the plaintiff-
    appellant.
    
    David H. Raizman, Bryan Cave, Santa Monica, California, for
    the defendant-appellee.
    
    _________________________________________________________________
    
    OPINION
    
    SCHWARZER, Senior District Judge:
    
    Les Jankey appeals from the district court's summary judg-
    ment in favor of Twentieth Century Fox Film Corporation
    (Fox) on his claim of disability discrimination under the pub-
    lic accommodations provisions of Title III of the Americans
    with Disabilities Act (the Act), 42 U.S.C. SS 12181-12189.
    We must decide whether facilities that fall within one of the
    categories of public accommodations specified in the Act are
    exempt if they are not in fact open to the public.
    
    FACTUAL AND PROCEDURAL BACKGROUND
    
    The relevant facts are not in dispute. Fox operates a film
    and production facility (the Lot) in Los Angeles. Daytime
    access to the Lot is restricted to Fox employees and their
    authorized business guests. Fox security personnel posted at
    the entrance to the Lot maintain a list of authorized visitors,
    and admit only employees and persons on the list.
    
    Jankey, who is confined to a wheelchair, is disabled within
    the meaning of the Act. He has frequently visited the Lot for
    business purposes over the past twenty years, almost always
    on a visitor's pass. He contends that while there he was
    unable to access the Commissary, the Studio Store, and an
    Automatic Teller Machine (ATM) (collectively, the Facili-
    ties), all located on the Lot, because they were not equipped
    to accommodate wheelchairs.
    
    Jankey filed a complaint in district court alleging violations
    of Title III of the Act prohibiting "public accommodations"
    from discriminating on the basis of a disability. The complaint
    also alleged various state law violations. The district court
    granted summary judgment, holding that because the Facili-
    ties were not places of public accommodation they were not
    covered by the Act. The court dismissed the remaining state
    law claims pursuant to 28 U.S.C. S 1367(c).
    
    DISCUSSION
    
    We review de novo the district court's grant of summary
    judgment. See Balint v. Carson City, 180 F.3d 1047, 1050
    (9th Cir. 1999). Because the parties do not dispute the facts,
    our review is limited to whether the district court correctly
    applied the relevant substantive law. See Alltell Info. Servs.,
    Inc. v. Federal Deposit Ins. Corp., 194 F.3d 1036, 1038 (9th
    Cir. 1999).
    
    Section 302 of the Act prohibits discrimination "on the
    basis of disability in the full and equal enjoyment of the
    goods, services, facilities, privileges, advantages, or accom-
    modations of any place of public accommodation by any per-
    son who . . . operates a place of public accommodation." 42
    U.S.C. S 12182(a). The Act lists twelve categories of private
    entities that are "public accommodations," including:
    
            (B) a restaurant, bar or other establishment serv-
           ing food or drink;
    
           . . .
    
            (E) a . . . clothing store . . . or other sales or rental
           establishment;
            (F) a . . . bank . . . or other service establishment
           . . . .
    
    42 U.S.C. S 12181(7).
    
    The district court found that the Facilities--the Commis-
    sary, the Studio Store and the ATM--were not places of pub-
    lic accommodation subject to the Act. On this appeal, Jankey
    contends that because the Facilities fall within the descriptive
    language of the categories specified in S 12181(7)(B), (E) and
    (F), they are public accommodations subject to the Act. With
    respect to these Facilities, he contends, Fox is therefore sub-
    ject to Title III because it operates places of public accommo-
    dation.
    
    [1] Jankey's argument is premised on the assumption that
    if a facility falls within a S 12181 category, the Act applies
    regardless of whether it is open to the public. This argument,
    for which we have found no support, ignores the plain lan-
    guage of S 12187, which states: "The provisions of [Title III]
    shall not apply to private clubs or establishments exempted
    from coverage under Title II of the Civil Rights Act." 42
    U.S.C. S 12187. Title II of the Civil Rights Act, in turn,
    exempts from coverage any "private club or other establish-
    ment not in fact open to the public." 42 U.S.C. S 2000a(e)
    (emphasis added); see also Clegg v. Cult Awareness Network,
    18 F.3d 752, 755 n.3 (1994) ("Only when the facilities are
    open to the public at large does Title II govern."). Given the
    plain language of S 12187 and S 2000a(e), we reject Jankey's
    contention that Title III applies to a facility described in 42
    U.S.C. S 12181(7) regardless of whether it is open to the pub-
    lic.
    
    Because Jankey does not dispute that the Facilities are "es-
    tablishment[s] not in fact open to the public " our analysis
    needs go no farther.
    
    AFFIRMED.
    _______________________________________________________________
    
    FOOTNOTES
    
    *The Honorable William W Schwarzer, Senior United States District
    Judge for the Northern District of California, sitting by designation.
    

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