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.
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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.
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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.
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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.
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FOOTNOTES
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.