BOTOSAN v MCNALLY REALTY, 9955580
U.S. 9th Circuit Court of Appeals
BOTOSAN v MCNALLY REALTY
9955580
KORNEL BOTOSAN,
Plaintiff-Appellee,
v.
No. 99-55580
PAUL MCNALLY REALTY, a
D.C. No.
California corporation; CHUCK N.
CV-98-00367-
RUSTON, Trustee of Trust U/D/T
NAJ (JAH)
Dated Eleven October 1990;
JUDITH A. RUSTON, Trustee of OPINION
Trust U/D/T Dated Eleven
October 1990,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, Jr., District Judge, Presiding
Argued and Submitted
November 2, 1999--Pasadena, California
Filed June 20, 2000
Before: James R. Browning and A. Wallace Tashima,
Circuit Judges, and Samuel P. King,1 District Judge.
Opinion by Judge King
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 notice to a state or local agency
charged with enforcing civil rights laws is not required before
filing suit under the Americans With Disabilities Act.
Appellee, Kornel Botosan, a paraplegic who required the
use of a wheelchair at all times, was prevented from entering
Realty World, a real estate office, because the office did not
provide handicapped parking. Botosan brought an action
alleging violations of the Americans With Disabilities Act
(ADA) and California's Unruh Civil Rights Act against appel-
lants Chuck and Judith Ruston (the Rustons), trustees of the
trust that owned the property where Realty World was situ-
ated, and Paul McNally Realty, Inc., dba Realty World
(Realty World). Botosan did not notify any state or local
authorities about the violations he alleged in the complaint
before filing suit.
The district court denied the Rustons' motion for summary
judgment, which was based on their contention that they were
entitled to summary judgment as to all claims against them
because the lease on the property assigned responsibility for
compliance with all laws to the tenant. The district court
denied the Rustons' and Realty World's motion to dismiss,
which was based on their contention that the district court
lacked subject matter jurisdiction, since Botosan failed to pro-
vide notice to a state or local agency charged with enforcing
civil rights laws before filing suit. In opposition to Botosan's
motion for summary judgment, the Rustons and Realty World
argued that the ADA violates the Commerce Clause, is uncon-
stitutionally vague, violates due process, and that Botosan had
not proven actual damages. The district court granted Boto-
san's motion and awarded him $1,000 in damages. The Rus-
tons and Realty World appealed all of the district court's
rulings.
[1] In 42 U.S.C. S 12188(a)(1) of the ADA, Title III pro-
vides that the remedies and procedures set forth in 42 U.S.C.
S 2000a-3(a) of Title VII are the remedies and procedures
provided by the ADA to any person who is being subjected
to discrimination on the basis of disability. Under Title VII,
no civil action may be brought before the expiration of thirty
days after written notice has been given to the appropriate
state or local authority. Section 12188(a)(1) makes no explicit
reference to S 2000a-3(c).
[2] Where the statutory language is clear and consistent
with the statutory scheme at issue, the plain language of the
statute is conclusive and the judicial inquiry is at an end.
[3] The plain language of S 12188(a)(1) is clear and unam-
biguous. Section 12188(a)(1) is devoid of any reference to
S 2000a-3(c), yet Congress explicitly incorporated S 2000a-
3(a) into S 12188(a)(1). The incorporation of one statutory
provision to the exclusion of another must be presumed inten-
tional. The statute's legislative history, the Code of Federal
Regulations, and the Department of Justice's Technical Assis-
tance Manual generally support the conclusion that Title III
actions do not require state notification. Botosan was not
required to provide notice to any state or local agency as a
prerequisite to filing his Title III action.
[4] The ADA's prohibitions against discrimination apply to
any person who owns, leases, or operates a place of public
accommodation. The ADA holds a landlord liable for non-
compliance.
[5] A landlord has an independent obligation to comply
with the ADA that may not be eliminated by contract.
[6] The Department of Justice (DOJ) has promulgated a
regulation that permits a landlord and tenant to allocate
responsibility for compliance in their lease. However, this
regulation provides that allocation of responsibility between
the landlord and a tenant by lease is effective only as between
the parties. Contractual allocation of responsibility has no
effect on the rights of third parties. The power to waive or
impose liability as against a third party resides only in Con-
gress, and Congress has stated that both the landlord and ten-
ant are liable under the ADA.
[7] Owners of public accommodations should not be per-
mitted to contract away liability. [8] A landlord who is aware
of its liability for any ADA violations found on its premises
has a strong incentive to monitor compliance on its property.
[9] The lease agreement between the Rustons and Realty
World did not transfer all liability for ADA compliance to the
lessee.
[10] Under California's Unruh Civil Rights Act, proof of
actual damages is not a prerequisite to recovery of statutory
minimum damages.
[11] To maintain an action for damages under the Unruh
Civil Rights Act, an individual must establish that he or she
was denied equal access on a particular occasion, but proof of
denial of access can be indirect. A plaintiff can recover dam-
ages where there is proof that violations of applicable Califor-
nia disability standards deterred him or her on a particular
occasion from attempting to enter a place of public accommo-
dation.
[12] Botosan established a case for an award of statutory
minimum damages. The record was undisputed that the Rus-
tons and Realty World did not provide handicapped parking
on at least one occasion when Botosan attempted to become
a customer. These facts made out a case of deterrence.
Although Botosan could have gained access to Realty World
by using a nondisabled parking space, he would have risked
having another car park next to him, thereby making it impos-
sible for him to reenter his vehicle from his wheelchair. Boto-
san was deterred from patronizing Realty World and the
district court was correct in awarding him statutory minimum
damages.
[13] The district court properly rejected the Rustons' and
Realty World's challenge to the constitutionality of the ADA
as a violation of the Commerce Clause.
[14] A statute is vague not when it prohibits conduct
according to an imprecise but comprehensible normative stan-
dard, but rather in the sense that no standard of conduct is
specified at all. Under this standard, the ADA would be vague
only if it was so indefinite in its terms that it failed to articu-
late comprehensible standards to which a person's conduct
must conform.
[15] The term "readily achievable," as it is used in Title III,
is sufficiently specific to put the owner of a public accommo-
dation on notice of what is required by Title III. The DOJ has
printed a handbook that contains numerous diagrams and
specifications explaining the type of modifications and auxil-
iary aids that a building must install to be ADA compliant.
With documentation of this specificity available, the standard
of what is "readily achievable" can hardly be considered
vague.
[16] The term "disability" is not unconstitutionally vague.
Congress chose not to give an exhaustive enumeration of
impairments or disabling conditions because of the difficulty
of compiling such a list and because new disorders would
undoubtedly develop in the future. However, ADA regula-
tions give specific examples of what constitute physical or
mental impairments and major life activities. The regulations
also list what is not considered a disability. Given the broad-
ness of the concept of a "disability," Congress and the DOJ
have done an adequate job of making the ADA's require-
ments cognizable yet flexible.
_________________________________________________________________
COUNSEL
Donald Merkin, Merkin & Associates, La Jolla, California,
for the defendants-appellants.
Russell C. Handy, Law Offices of Mark D. Potter, San Diego,
California, for the plaintiff-appellee.
Miriam R. Eisenstein, United States Department of Justice,
Washington, D.C., for amicus United States.
_________________________________________________________________
OPINION
KING, District Judge:
Plaintiff-Appellee Kornel Botosan ("Appellee") filed a pri-
vate action against Defendants-Appellants Chuck and Judith
Ruston (the "Rustons") and Paul McNally Realty, Inc., dba
Realty World ("Realty World"; collectively,"Appellants"),
alleging violations of the Americans With Disabilities Act
("ADA" or the "Act"), 42 U.S.C. S 12101 et seq., and Califor-
nia's Unruh Civil Rights Act, Cal. Civ. Code S 51 et seq.
Appellee claims he was denied access to Realty World's real
estate office due to a lack of handicapped parking. Appellants
argue, inter alia, that Appellee is not entitled to recovery
because: (1) he did not provide notice of his ADA claim to a
state or local agency charged with administering the relevant
civil rights laws before filing suit; (2) McNally Realty
assumed all liability for ADA compliance in its lease with the
Rustons; (3) he did not prove actual damages; and (4) the
ADA is an unconstitutional exercise of Congress' commerce
power and unconstitutionally vague. The district court ruled
in favor of Appellee on all arguments. We affirm.
I. BACKGROUND
Appellee is a paraplegic who requires the use of a wheel-
chair at all times. In December 1997, he visited Realty World,
a real estate office, and discovered that the office did not pro-
vide handicapped parking. Due to the lack of a designated
parking space for disabled persons, he was prevented from
entering the office and becoming a customer. He made no
other attempt to patronize Realty World after that single inci-
dent. On February 18, 1998, he filed a complaint alleging vio-
lations of the public accommodations provisions of the ADA
(Title III), California's Health and Safety Code, the California
Civil Code, and California's Unruh Civil Rights Act. Only the
claims brought under the ADA and the Unruh Civil Rights
Act are relevant for the purposes of the instant appeal. Appel-
lee requested monetary damages, punitive damages, injunc-
tive relief, and attorney's fees. He did not notify any state or
local authorities about the violations he alleged in the com-
plaint before filing suit.
The Rustons are trustees of the trust that owns the property
on which Realty World is situated. Realty World leases the
property from the Rustons. The lease contains several provi-
sions that allocate responsibility for maintenance of the prop-
erty and compliance with the law, as between the landlord and
tenant.
Appellants filed a motion for summary judgment on May
1, 1998. Their motion raised two arguments: (1) that the Rus-
tons were entitled to summary judgment as to all claims
against them because the lease on the property assigned
responsibility for compliance with all laws to the tenant; and
(2) that both the Rustons and Realty World were entitled to
summary judgment as to Appellee's claims for injunctive
relief because the alleged violations had been remedied. In an
order dated August 12, 1998, the district court denied the
motion for summary judgment.
On September 2, 1998, Appellants filed a motion to dismiss
arguing that Appellee failed to provide notice to a state or
local agency charged with enforcing civil rights laws before
filing suit pursuant to 42 U.S.C. S 2000a-3(c), thereby depriv-
ing the district court of subject matter jurisdiction. The district
court denied this motion on November 24, 1998.
On December 23, 1998, Appellee filed a motion for sum-
mary judgment. Appellants' opposition to the motion argued,
inter alia, that the ADA violated the Commerce Clause, was
unconstitutionally vague, violated due process, and that
Appellee had not proven actual damages. The district court
granted Appellee's motion, awarded him $1,000 in damages,
and issued a final order on February 19, 1999. Appellants
timely appealed all of the district court's rulings.
II. STANDARDS OF REVIEW
We review de novo a district court's grant or denial of sum-
mary judgment. See Idaho Sporting Congress v. Thomas, 137
F.3d 1146, 1149 (9th Cir. 1998). The district court's order
denying Appellants' motion to dismiss involved a determina-
tion of the existence of subject matter jurisdiction. We review
that order de novo as well. See Hexom v. Oregon Dep't of
Transp., 177 F.3d 1134, 1135 (9th Cir. 1999).
III. DISCUSSION
The instant appeal presents four issues: (1) whether a plain-
tiff is required to notify the state or local agency charged with
enforcing the applicable state civil rights laws at least 30 days
prior to filing a private lawsuit under Title III of the ADA
pursuant to 42 U.S.C. S 2000a-3(c); (2) whether a lease may
allocate all responsibility for compliance with the ADA from
the landlord to the tenant; (3) whether a plaintiff must prove
actual damages under California's Unruh Civil Rights Act
before awarding statutory minimum damages; (4) whether the
ADA is an invalid exercise of the Commerce Clause power
and unconstitutionally vague. These are issues of first impres-
sion for this Court.
A. Notice Requirement under Title III
[1] Congress patterned Title III of the ADA ("Title III")
after Title VII of the Civil Rights Act of 1964 ("Title VII").
Specifically, Title III provides that "[t]he remedies and proce-
dures set forth in section 2000a-3(a) of [Title VII] are the
remedies and procedures this subchapter provides to any per-
son who is being subjected to discrimination on the basis of
disability . . . ." 42 U.S.C. S 12188(a)(1). In turn, 42 U.S.C.
S 2000a-3(a) provides that an aggrieved individual may bring
"a civil action for preventive relief, including an application
for a permanent or temporary injunction, restraining order, or
other order . . . ." 42 U.S.C. S 2000a-3(a). Appellants suggest
that the remedies and procedures applicable to Title III and
those applicable to Title VII are completely identical--that is,
that suits brought under Title III are subject to all limitations
imposed on suits maintained pursuant to Title VII. The limita-
tion relevant in this case is found in S 2000a-3(c):
[N]o civil action may be brought under subsection
(a) of [S 2000a-3] 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.
42 U.S.C. S 2000a-3(c). The question before us is whether
actions for violations of Title III are subject to this limitation.
Section 12188(a)(1) of the ADA makes no explicit reference
to S 2000a-3(c), thus leaving uncertain whether notice to an
appropriate state or local agency is a prerequisite to filing suit
under Title III.
A number of district courts have addressed the issue, with
varying results. Some courts have held that the ADA implic-
itly incorporates the notice requirement of Title VII. See, e.g.,
Burkhart v. Asean Shopping Ctr., Inc., 55 F. Supp. 2d 1013
(D. Ariz. 1999); Snyder v. San Diego Flowers, 21 F. Supp. 2d
1207 (S.D. Cal. 1998); Mayes v. Allison, 983 F. Supp. 923 (D.
Nev. 1997); Daigle v. Friendly Ice Cream Corp. , 957 F. Supp.
8 (D.N.H. 1997); Howard v. Cherry Hills Cutters, Inc., 935
F. Supp. 1148 (D. Colo. 1996). Others have held that no
notice requirement applies to ADA Title III actions. See, e.g.,
Guzman v. Denny's Inc., 40 F. Supp. 2d 930 (S.D. Ohio
1999); Moyer v. Showboat Casino Hotel, Atlantic City, 56 F.
Supp. 2d 498 (D.N.J. 1999); Botosan v. Fitzhugh , 13 F. Supp.
2d 1047 (S.D. Cal. 1998); Lewis v. Aetna Life Ins. Co., 993
F. Supp. 382 (E.D. Va. 1998); Bercovitch v. Baldwin School,
964 F. Supp. 597 (D.P.R. 1997), rev'd on other grounds, 133
F.3d 141 (1st Cir. 1998); Doukas v. Metropolitan Life Ins.,
No. Civ. 4-478-SD, 1997 WL 833134 (D.N.H. Oct. 21, 1997);
Coalition of Montanans Concerned With Disabilities, Inc. v.
Gallatin Airport Auth., 957 F. Supp. 1166 (D. Mon. 1997);
Soignier v. American Bd. of Plastic Surgery, No. 95C2736,
1996 WL 6553 (N.D. Ill. Jan. 8, 1996), aff'd, 92 F.3d 547 (7th
Cir. 1996); Grubbs v. Medical Facilities of Am., Inc., Civ. A.
No. 94-0009-D, 1994 WL 791708 (W.D. Va. Sept. 23, 1994).
As a survey of the case law reveals, even district courts within
this circuit are divided on the issue. No appellate court has yet
addressed the issue directly. We now consider this issue of
first impression.
[2] Statutory interpretation begins with the plain meaning
of the statute's language. See United States v. Alvarez-
Sanchez, 511 U.S. 350, 356 (1994). Where the statutory lan-
guage is clear and consistent with the statutory scheme at
issue, the plain language of the statute is conclusive and the
judicial inquiry is at an end. See California Franchise Tax Bd.
v. Jackson (In re Jackson), 184 F.3d 1046, 1051 (9th Cir.
1999).
[3] The plain language of S 12188(a)(1) is clear and unam-
biguous, and it can be understood without reference to any
other statutory provision. Section 12188(a)(1) is devoid of
any reference to S 2000a-3(c). Yet, Congress explicitly incor-
porated subsection (a) of S 2000a-3 into S 12188(a)(1). The
incorporation of one statutory provision to the exclusion of
another must be presumed intentional under the statutory
canon of expressio unius. Surely, "Congress obviously knew
how to adopt provisions of Title VII because it expressly
adopted subsection (a) . . . [and it is] unlikely that Congress
would absentmindedly forget to adopt a provision that appears
a mere two paragraphs below the subsection it adopted."
Botosan, 13 F. Supp. 2d at 1050; see also Guzman, 40 F.
Supp. 2d 930. Even if incorporation of all subsections of
S 2000a-3 into S 12188(a)(1) did not render the explicit refer-
ence to S 2000a-3(a) superfluous or redundant, the statute's
legislative history, the Code of Federal Regulations, see 28
C.F.R. S 26.501(a), and the Department of Justice's Technical
Assistance Manual generally support the conclusion that Title
III actions do not require state notification. Thus, we hold that
S 12188(a)(1) does not implicitly incorporateS 2000a-3(c). A
plaintiff in a private Title III action is not required to provide
notice to any state or local agency as a prerequisite to filing
suit.
Accordingly, Appellee was not required to give notice to
any state or local agency before filing his Title III action.
B. The ADA Landlord/Tenant Provisions
The Rustons argue that they cannot be held liable to third
parties for the ADA violations found on the property they
leased to Realty World because the lease agreement shifted all
responsibility for ADA compliance to Realty World. Alloca-
tion of liability between the landlord and the tenant, they con-
tend, is permitted by ADA regulations.
[4] Again, interpretation of a statute always begins with the
statute's plain language. See United States v. Alvarez-
Sanchez, 511 U.S. 350, 356 (1994). Subsection (a) of S 12182
provides that the ADA's prohibitions against discrimination
apply to "any person who owns, leases (or leases to), or oper-
ates a place of public accommodation." 42 U.S.C.S 12182(a)
(emphasis added). The express terms of the ADA hold a land-
lord liable for noncompliance. The legislative history of the
ADA supports this construction of the statute:
This [provision] makes it clear that the owner of
the building which houses the public accommoda-
tion, as well as the owner or operator of the public
accommodation itself, has obligations under this Act.
For example, if an office building contains a doctor's
office, both the owner of the building and the doc-
tor's office are required to make readily achievable
alterations. It simply makes no practical sense to
require the individual public accommodation, a doc-
tor's office for example, to make readily achievable
changes to the public accommodation without
requiring the owner to make readily achievable
changes to the primary entrance to the building.
Similarly, a doorman or guard to an office build-
ing containing public accommodations would be
required, if requested, to show a person who is blind
to the elevator or to write a note to a person who is
deaf regarding the floor number of a particular
office.
The amendment also clarifies that entities which
lease public accommodations are covered by the
requirements of this title.
H.R. Rep. No. 101-485(III), at 55-56 (1990), reprinted in
1990 U.S.C.C.A.N. 445, 478-79; see also H.R. Conf. Rep.
No. 101-596, at 76, reprinted in 1990 U.S.C.C.A.N. 565, 585
(reporting that the Senate accedes to the House version).
[5] Subsection (b) of S 12182 sets forth principles govern-
ing how S 12182 should be construed:
It shall be discriminatory to subject an individual or
class of individuals on the basis of a disability or dis-
abilities of such individual or class, directly, or
through contractual, licensing, or other arrange-
ments, to a denial of the opportunity of the individual
or class to participate in or benefit from the goods,
services, facilities, privileges, advantages, or accom-
modations of an entity.
42 U.S.C. S 12182(b)(1)(A)(i) (emphasis added). The legisla-
tive history behind this provision explains:
[T]he reference to contractual arrangements is to
make clear that an entity may not do indirectly
through contractual arrangements what it is prohib-
ited from doing directly under this Act . . . .[O]f
course, a covered entity may not use a contractual
provision to reduce any of its obligations under this
Act. In sum, a public accommodation's obligations
are not extended or changed in any manner by virtue
of its lease with the other entity.
H.R. Rep. No. 101-485(II), at 104, reprinted in 1990
U.S.C.C.A.N. 303, 387. The legislative history confirms that
a landlord has an independent obligation to comply with the
ADA that may not be eliminated by contract. See Independent
Living Resources v. Oregon Arena Corp., 982 F. Supp. 698,
767 (D. Or. 1997), supplemented by, 1 F. Supp. 2d 1159 (D.
Or. 1998) (holding that the landlord, rather than the tenant, is
responsible for ADA compliance in common areas).
[6] Appellants correctly point out that regulations promul-
gated by the Department of Justice ("DOJ") permit a landlord
and tenant to allocate responsibility for compliance in their
lease. The regulation relevant to this topic provides:
Both the landlord who owns the building that houses
a place of public accommodation and the tenant who
owns or operates the place of public accommodation
are public accommodations subject to the require-
ments of this part. As between the parties, allocation
of responsibility for complying with the obligations
of this party may be determined by lease or other
contract.
28 C.F.R. S 36.201(b). Significantly, the regulation states that
a landlord is a "public accommodation," which triggers cover-
age under Title III. See S 12182(a). Furthermore, the regula-
tion provides that allocation of responsibility between the
landlord and a tenant by lease is effective only"[a]s between
the parties." 28 C.F.R. S 36.201(b). Thus, contractual alloca-
tion of responsibility has no effect on the rights of third par-
ties. See Independent Living Resources, 982 F. Supp. at 767.
The power to waive or impose liability as against a third party
resides only in Congress, and Congress has stated that both
the landlord and tenant are liable under the Act.
This reading is supported by the DOJ's formal interpreta-
tion of the regulation in its Technical Assistance Manual:
Both the landlord and the tenant are public accom-
modations and have full responsibility for complying
with all ADA title III requirements applicable to that
place of public accommodation. The title III regula-
tion permits the landlord and the tenant to allocate
responsibility, in the lease, for complying with par-
ticular provisions of the regulation. However, any
allocation made in a lease or other contract is only
effective as between the parties, and both landlord
and tenant remain fully liable for compliance with all
provisions of the ADA relating to that place of pub-
lic accommodation.
ILLUSTRATION: ABC Company leases
space in a shopping center it owns to XYZ
Boutique. In their lease, the parties have
allocated to XYZ Boutique the responsibil-
ity for complying with the barrier removal
requirements of title III within that store. In
this situation, if XYZ Boutique fails to
remove barriers, both ABC Company (the
landlord) and XYZ Boutique (the tenant),
would be liable for violating the ADA and
could be sued by an XYZ customer. Of
course, in the lease, ABC could require
XYZ to indemnify it against all losses
caused by XYZ's failure to comply with its
obligations under the lease, but again, such
matters would be between the parties and
would not affect their liability under the
ADA.
Department of Justice, Technical Assistance Manual on the
American With Disabilities Act S III-1.2000 (1994). As this
passage of the Technical Assistance Manual makes clear, the
DOJ takes the view that a lease allocating liability between a
landlord and a tenant does not affect either parties' liability
with respect to third parties. We have held that"[t]he Justice
Department's interpretation of its own regulations, such as the
Technical Assistance Manual, must also be given substantial
deference and will be disregarded only if `plainly erroneous
or inconsistent with the regulation.' " Bay Area Addiction
Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725,
732 (9th Cir. 1999) (quoting Thomas Jefferson Univ. v. Sha-
lala, 512 U.S. 504, 512 (1994)). The DOJ's interpretation is
entirely consistent with the regulation, and accordingly, it is
due deference.
[7] Finally, we take note of significant policy reasons for
adhering to the DOJ's interpretation. Owners of public
accommodations should not be permitted to contract away lia-
bility. In the proposed version of 28 C.F.R. S 36.201, the DOJ
allocated responsibility for providing auxiliary aids and ser-
vices solely to the tenant. See 28 C.F.R. ch. I, pt. 36, app. B.,
at 594. Groups representing persons with disabilities objected
to the proposed rule because, in their view, it permitted a
landlord to circumvent the ADA by leasing to smaller entities
for which ADA compliance would not be "readily achievable."2
In response, the DOJ eliminated the provisions listing specific
allocations to specific parties in the final rule, and instead,
permitted the parties to allocate responsibility. See id.
[8] Appellants' interpretation of the regulation would
renew the concerns raised by the proposed rule. A landlord
would be able to allocate all responsibility for ADA compli-
ance to the tenant in the lease, and if the compliance measures
were not "readily achievable" for the tenant, the plaintiff
would have recourse against no one. Under the DOJ's inter-
pretation of the regulation, however, the landlord is a neces-
sary party in an ADA action, regardless of what the lease
provides. The landlord can in turn seek indemnification from
the tenant pursuant to their lease agreement. Not only does
this construction of the regulation hamper efforts of a landlord
and a tenant to evade ADA requirements, but it also aids in
the enforcement of the Act. A landlord who is aware of its lia-
bility for any ADA violations found on its premises has a
strong incentive to monitor compliance on its property. See
Independent Living Resources, 982 F. Supp. at 768; cf. Kim
v. United States, 121 F.3d 1269 (9th Cir. 1997) (noting that
making innocent store owners responsible for misconduct by
store's employees as to Food Stamp program created incen-
tive for employers to monitor employees' compliance with
program regulations).
[9] We hold that the lease agreement between the Rustons
and Realty World did not transfer all liability for ADA com-
pliance to the lessee.
C. Damages Under the Unruh Civil Rights Act
[10] The district court held that Appellee could recover
damages under California's Unruh Civil Rights Act 3 without
proving that it was impossible for him to enter Realty World.
Instead, Appellee only had to prove he was denied "equal
access." The court awarded Appellee statutory minimum
damages of $1,000. Appellant argues that the district court
erred in awarding damages in the absence of proof of actual
damages.
Section 52(a) of the Unruh Civil Rights Act states:
Whoever denies, aids or incites a denial, or makes
any discrimination or distinction contrary to Section
51 or 51.5, is liable for each and every offense for
the actual damages, and any amount that may be
determined by a jury, or a court sitting without a
jury, up to a maximum of three times the amount of
actual damage but in no case less than one thousand
dollars ($1,000), and any attorney's fees that may be
determined by the court in addition thereto, suffered
by any person denied the rights provided in Section
51 or 51.5.
Cal. Civ. Code S 52. The statute lists actual damages and stat-
utory damages as two separate categories of damages that a
plaintiff may recover. Therefore, proof of actual damages is
not a prerequisite to recovery of statutory minimum damages.
This interpretation of section 52 is consistent with the Cali-
fornia Supreme Court's holding in Koire v. Metro Car Wash,
707 P.2d 195 (Cal. 1985). In that case, the plaintiff sued under
the Unruh Civil Rights Act to challenge the policies of two
business establishments that gave discounted prices only to
females. Although the plaintiff, a male, could not prove any
actual damages, the court held that "the statute provides for
damages aside from any actual damages incurred by the plain-
tiff." Id. at 200.
[11] Later cases have clarified the rule established in Koire.
In Donald v. Cafe Royale, Inc., 266 Cal. Rptr. 804 (Cal. Ct.
App. 1990), the California Court of Appeal held that in order
to maintain an action for damages under the Unruh Civil
Rights Act, "an individual must take the additional step of
establishing that he or she was denied equal access on a par-
ticular occasion." Id. at 813; see also Boemio v. Love's Res-
taurant, 954 F. Supp. 204, 207 (S.D. Cal. 1997). However,
proof of denial of access can be indirect. In Arnold v. United
Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal.
1994), the court held that a plaintiff can recover damages
where there is proof that violations of applicable California
disability standards deterred him or her on a particular occa-
sion from attempting to enter a place of public accommoda-
tion. See id. at 439.
[12] In this case, Appellee has established a case for an
award of statutory minimum damages. The record is undis-
puted that Appellants did not provide handicapped parking on
at least one occasion when Appellee attempted to become a
customer. At the least, these facts make out a case of deter-
rence. As the district court noted, although Appellee could
have gained access to Realty World by using a non-disabled
parking space, he would have risked having another car park
next to him, thereby making it impossible for him to reenter
his vehicle from his wheelchair. Appellee was thus deterred
from patronizing Realty World. The district court was correct
in awarding him statutory minimum damages.
D. Constitutionality of the ADA
Appellants attack the constitutionality of the ADA on the
basis that (1) it is an invalid exercise of congressional power
under the Commerce Clause, and (2) it is unconstitutionally
vague.
[13] We need not decide whether Congress properly
invoked its Commerce Clause power in enacting the ADA, for
we have already held that the ADA is a valid exercise of con-
gressional power under section 5 of the Fourteenth Amend-
ment. See Clark v. California, 123 F.3d 1267 (9th Cir. 1997),
cert. denied sub nom., Wilson v. Armstrong , 118 S. Ct. 2340
(1998); see also Amos v. Maryland Dep't of Public Safety &
Correctional Servs., 178 F.3d 212, 223 (4th Cir. 1999) (find-
ing it unnecessary to decide the constitutionality of the ADA
under the Commerce Clause because it had determined that
the ADA was a valid exercise of congressional power under
the Fourteenth Amendment).
[14] Appellants' suggestion of vagueness is similarly with-
out merit. Because the ADA is a statute that regulates com-
mercial conduct, it is reviewed under a less stringent standard
of specificity. See Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498 -99 (1982); Nunez v.
City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997).
[15] The fundamental rationale underlying the vagueness
doctrine is that due process requires a statute to give adequate
notice of its scope. See Grayned v. City of Rockford, 408 U.S.
104, 108 (1971). A statute is vague not when it prohibits con-
duct according "to an imprecise but comprehensible norma-
tive standard, but rather in the sense that no standard of
conduct is specified at all." Coates v. City of Cincinnati, 402
U.S. 611, 614 (1971). Under this standard, the ADA would be
vague only if it is so indefinite in its terms that it fails to artic-
ulate comprehensible standards to which a person's conduct
must conform.
Appellants' vagueness challenge essentially attacks the def-
initions of two terms in Title III: (1) "readily achievable" and
(2) "disability."
The term "readily achievable" is defined as "easily accom-
plishable and able to be carried out without much difficulty or
expense." 42 U.S.C. S 12181(9). The ADA lists four factors
for determining whether an action is readily achievable:
(A) the nature and cost of the action needed under
this chapter;
(B) the overall financial resources of the facility
or facilities involved in the action; the number of
persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of
such action upon the operation of the facility;
(C) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees;
the number, type, and location of its facilities; and
(D) the type of operation or operations of the cov-
ered entity, including the composition, structure, and
functions of the workforce of such entity; the geo-
graphic separateness, administrative or fiscal rela-
tionship of the facility or facilities in question to the
covered entity.
Id.
[16] Although the definition of "readily achievable" and its
corresponding factors are no models of precision, they do not
qualify as vague. See Pinnock v. International House of Pan-
cakes Franchise, 844 F. Supp. 574, 581-82 (S.D. Cal. 1993)
(holding that the term "readily achievable" is not vague).
Taken together with administrative regulations and interpreta-
tions, the term, as it is used in Title III, is sufficiently specific
to put the owner of a public accommodation on notice of what
is required by Title III. See United States v. Schneiderman,
968 F.2d 1564, 1568, cert. denied, 507 U.S. 921 (1993)
(explaining that administrative regulations and interpretations
may provide sufficient clarification to save an otherwise
vague statute). In an appendix to the ADA regulations, the
DOJ has printed a handbook entitled "ADA Accessibility
Guidelines for Buildings and Facilities." See 28 C.F.R. ch. 1,
app. A. The handbook contains numerous diagrams and speci-
fications explaining the type of modifications and auxiliary
aids (e.g., handrails, grab bars, ramps) that a building must
install to be ADA compliant. With documentation of this
specificity available, the standard of what is "readily achiev-
able" can hardly be considered vague.
[17] Likewise, the term "disability " is not unconstitution-
ally vague. Appellants contend that, because the ADA covers
numerous disabilities, a business owner cannot know which
of all possible disabilities it must accommodate. Rather than
listing all the disabilities covered, the ADA provides that a
"disability" is a condition that fits into one or more of these
categories: "(A) a physical or mental impairment that substan-
tially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment." 42 U.S.C.
S 12102(2). Congress chose not to give an exhaustive enumer-
ation of impairments or disabling conditions because of the
difficulty of compiling such a list and because new disorders
would undoubtedly develop in the future. See H.R. Rep. No.
101-485(III), at 27, reprinted in 1990 U.S.C.C.A.N. 445, 449.
However, ADA regulations give specific examples of what
constitute "physical or mental impairment" and "major life
activities." See 28 C.F.R. S 36.104. The regulations also list
what is not considered a disability. See id. Given the broad-
ness of the concept of a "disability," Congress and the DOJ
have done an adequate job of making the ADA's require-
ments cognizable yet flexible.
IV. CONCLUSION
For the foregoing reasons, the district court's denial of
Appellants' motion to dismiss, denial of Appellants' motion
for summary judgment, and granting of Appellee's motion for
summary judgment are AFFIRMED./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
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FOOTNOTES
1 Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.
2 The economic situation of a public accommodation owner is taken into
account in assessing whether the removal of architectural barriers or the
provision of auxiliary aids is "readily achievable." See 42 U.S.C.
S 12181(9). For the statutory language listing the factors relevant to this
determination, see infra Part III(D).
3 Sections 51 and 54 of the Unruh Civil Rights Act prohibit discrimina-
tion against persons with disabilities. See Cal. Civ. Code SS 51, 54.