       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    Jones v. City of Monroe, Michigan            No. 01-2335
    ELECTRONIC CITATION: 2003 FED App. 0299P (6th Cir.)
                File Name: 03a0299p.06                     ON BRIEF: J. Mark Finnegan, HEBERLE & FINNEGAN,
                                                           Ann Arbor, Michigan, David F. Grenn, Monroe, Michigan,
                                                           for Appellant. Robert D. Goldstein, GARAN, LUCOW,
UNITED STATES COURT OF APPEALS                             MILLER, SEWARD, COOPER & BECKER, Grand Blanc,
                                                           Michigan, Thomas R. Paxton, GARAN, LUCOW, MILLER,
              FOR THE SIXTH CIRCUIT                        SEWARD, COOPER & BECKER, Detroit, Michigan, for
                _________________                          Appellee.

 HELEN JONES,                      X                          GIBBONS, J., delivered the opinion of the court, in which
          Plaintiff-Appellant,      -                      BATCHELDER, J., joined. COLE, J. (pp. 15-32), delivered
                                    -                      a separate dissenting opinion.
                                    -  No. 01-2335
            v.                      -                                          _________________
                                     >
                                    ,                                              OPINION
 CITY OF MONROE, MICHIGAN , -
           Defendant-Appellee. -                                               _________________
                                    -                         JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-
                                    -                      appellant Helen Jones, who has multiple sclerosis, brought
                                   N                       suit alleging that the municipal parking program of the City
       Appeal from the United States District Court        of Monroe, Michigan (“Monroe”) violates Title II of the
      for the Eastern District of Michigan at Detroit.     Americans With Disabilities Act (“ADA”) and Section 504 of
  No. 01-71472—John Corbett O’Meara, District Judge.       the Rehabilitation Act of 1973. Jones filed a motion for a
                                                           preliminary injunction requesting that the district court order
               Argued: October 17, 2002                    Monroe to modify its parking program to grant Jones free all-
                                                           day parking adjacent to her place of employment.
          Decided and Filed: August 21, 2003               Specifically, Jones asked that the district court order Monroe
                                                           to reserve a free parking space for Jones adjacent to her office
 Before: BATCHELDER, COLE, and GIBBONS, Circuit            or to cease ticketing Jones when she parks in a designated
                   Judges.                                 one-hour parking space for the entire work day. The district
                                                           court denied Jones’s motion for a preliminary injunction on
                  _________________                        the ground that she failed to establish a likelihood of success
                                                           on the merits. Jones appeals this order. For the reasons set
                       COUNSEL                             forth below, we affirm the district court’s denial of a
                                                           preliminary injunction.
ARGUED: J. Mark Finnegan, HEBERLE & FINNEGAN,
Ann Arbor, Michigan, for Appellant. Robert D. Goldstein,
GARAN, LUCOW, MILLER, SEWARD, COOPER &
BECKER, Grand Blanc, Michigan, for Appellee.

                            1
No. 01-2335         Jones v. City of Monroe, Michigan         3    4        Jones v. City of Monroe, Michigan              No. 01-2335

                               I.                                  basis of disability in violation of federal law.1 In conjunction
                                                                   with filing her complaint, Jones sought a preliminary
   Jones suffers from multiple sclerosis, an incurable, usually    injunction. On June 15, 2001, the district court held a hearing
progressive disease. Her disability affects her sight, balance     on Jones’s motion for a preliminary injunction. On
and ability to walk. Jones customarily uses a wheelchair,          August 28, 2001, the district court denied Jones’s motion for
although on occasion she walks for short distances with the        a preliminary injunction on the basis that Jones had failed to
use of a cane. Jones is employed by the Salvation Army             establish a likelihood of success on the merits of her claim.
Harbor Light (“Salvation Army”) as a substance abuse
counselor for deaf and hard-of-hearing clients. The Salvation          This timely appeal followed.
Army is located in downtown Monroe.
                                                                                                     II.
   Because the building which houses the Salvation Army’s
offices lacks private parking spaces, Jones must either park in       On appeal, Jones argues that the district court erred in
a space provided by Monroe or in a private commercial              refusing to enjoin Monroe’s allegedly discriminatory parking
parking area. Monroe has several parking areas that provide        policies and require that Monroe cease ticketing Jones when
free parking in the downtown vicinity. One such parking area       she parks in a designated one-hour parking space or provide
is immediately adjacent to the downtown Monroe business            Jones with a free all-day parking space adjacent to her office
district as well as Jones’s office. These free parking spaces,     pending a final resolution on the merits. This court reviews
however, are each limited to one-hour parking only. Several        a lower court’s decision on whether to grant a preliminary
parking spaces designated for disabled users are located in        injunction for an abuse of discretion. Taubman Co. v.
this one-hour parking area. These spaces are similarly limited     Webfeats, 319 F.3d 770, 774 (6th Cir. 2003); In re DeLorean
to one-hour parking. Monroe also provides free all-day             Motor Co. v. DeLorean, 755 F.2d 1223, 1228 (6th Cir. 1985).
parking in several lots located within two blocks of Jones’s       The district court’s determination will be disturbed only if the
office. According to Jones, she is not able to walk from any       district court relied upon clearly erroneous findings of fact,
of these free all-day parking lots to her office due to her        improperly applied the governing law, or used an erroneous
disability.                                                        legal standard. Nightclubs, Inc. v. City of Paducah, 202 F.3d
                                                                   884, 888 (6th Cir. 2000) (quoting Connection Distrib. Co. v.
   On numerous occasions Jones has parked her car in a one-        Reno, 154 F.3d 281, 288 (6th Cir. 1998)). Under this
hour parking space adjacent to her office for the duration of      standard, we must review the district court’s legal conclusions
a work day. Monroe has issued Jones dozens of parking              de novo and its factual findings for clear error. Taubman, 319
tickets based on her violations of the one-hour time limitation.   F.3d at 774.
Jones displays a handicapped parking permit on her vehicle,
but Monroe contends that the permit does not allow her to
violate the one-hour time limitation.                                   1
                                                                         The original complaint contained three counts. Count one sought
                                                                   individual relief for Jones relating to Monro e’s failure to mod ify its
  On April 16, 2001, Jones brought suit alleging that              downtown parking program to allow Jone s to participate. Counts two and
Monroe’s refusal to modify its municipal parking program           three related to class-wide claims under federal law a nd M ichigan law
constitutes unlawful and intentional discrimination on the         respe ctively. Counts two and three of the original complaint were
                                                                   abandoned in an amended complaint filed by Jones on November 27,
                                                                   2001. Count one remains.
No. 01-2335              Jones v. City of Monroe, Michigan                  5    6       Jones v. City of Monroe, Michigan                 No. 01-2335

   When considering a motion for preliminary injunction, the                     Monroe’s alleged discrimination in refusing to provide Jones
district court should consider four factors: (1) whether the                     with “meaningful access” to the parking program and refusing
moving party has a strong likelihood of success on the merits;                   to grant her a reasonable accommodation.
(2) whether the moving party will suffer irreparable injury
without the injunction; (3) whether the issuance of the                             Jones alleges that Monroe’s parking program violates Title
injunction would cause substantial harm to others; and                           II of the ADA,3 which provides that “no qualified individual
(4) whether the public interest would be served by issuance of                   with a disability shall by reason of such disability be excluded
the injunction. Nightclubs, Inc., 202 F.3d at 888. The four                      from participation in or denied the benefits of the services,
considerations applicable to preliminary injunction decisions                    programs, or activities of a public entity, or be subjected to
are factors to be balanced, not prerequisites that must be met.                  discrimination by any such entity.” 42 U.S.C. § 12132.
DeLorean, 755 F.2d at 1228. Moreover, a district court is not                    Section 12131 defines “qualified individual with a disability”
required to make specific findings concerning each of the four                   as “an individual with a disability who, with or without
factors used in determining a motion for preliminary                             reasonable modifications to rules, policies, or practices . . .
injunction if fewer factors are dispositive of the issue. Id.;                   meets the essential eligibility requirements for receipt of
Mascio v. Public Employees Retirement Sys. of Ohio, 160                          services or the participation in programs or activities provided
F.3d 310, 312 (6th Cir. 1998) (affirming the district court’s                    by a public entity.” 42 U.S.C. § 12131. The ADA’s
grant of a preliminary injunction based on the district court’s                  prohibition of discrimination in services, programs, or
conclusion that the plaintiff had demonstrated a substantial                     activities “encompasses virtually everything a public entity
likelihood of success on the merits).                                            does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.
                                                                                 1998). To make out a prima facie case under Title II of the
   Jones argues that the district court erred in finding that                    ADA, a plaintiff must establish that (1) she has a disability;
Monroe’s parking program complies with federal law and                           (2) she is otherwise qualified; and (3) she is being excluded
thereby concluding that Jones had failed to establish a                          from participation in, being denied the benefits of, or being
likelihood of success on the merits of her claim.2 Jones                         subjected to discrimination under the program solely because
further claims that the district court erred in failing to address               of her disability. See Kaltenberger v. Ohio College of
                                                                                 Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also
                                                                                 Burns v. City of Columbus, 91 F.3d 836, 841 (6th Cir. 1996)
    2
      Jones also argues that the district court’s order fails to comply with
                                                                                 (setting forth the prima facie case under the Rehabilitation
the requirements of Rule 52 of the Federal Rules of Civil Procedure.             Act); Doe v. University of Maryland Med. Sys. Corp., 50 F.3d
Despite the somewhat cursory nature o f the district court’s legal analysis,     1261, 1265 (4th Cir. 1995) (finding that in order to establish
we find that the district court’s order complies with the requirements of        disability discrimination under Title II of the ADA, a plaintiff
Rule 52. Moreover, the district court’s opinion is adequate to allow this        must prove: (1) that he has a disability; (2) that he is
court to review the denial of the preliminary injunction. Even if this court
concluded that the district court’s findings of fact and conclusions of law
are inadequate under Rule 52, it would be unnecessary to remand the case
because the record is exceptionally clear. See Urbain v. Knapp Bro. Mfg.             3
Co., 217 F.2d 810, 816 (6th Cir. 1954 ); see also Da vis v. New York City              For purposes of this case, there are no relevant differences between
Hous. Auth., 166 F.3d 43 2, 436 (2d Cir. 199 9); White v. Carlucci, 862          Title II of the ADA and S ection 504 of the Rehabilitation Act. Therefore,
F.2d 1209, 12 11 fn. 1 (5th Cir.1989 )). In addition, b oth parties agree that   a separate ana lysis of Jones’s Se ction 5 04 claim is unn ecessary. See
the record is complete and that this court can address the issue of the          McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459,
injunction witho ut remand for further proceed ings.                             460 (6th Cir.1997) (en banc).
No. 01-2335             Jones v. City of Monroe, Michigan                7    8       Jones v. City of Monroe, Michigan                  No. 01-2335

otherwise qualified for the benefit in question; and (3) that he              parking in the current one-hour spaces would thus have a
was excluded from the benefit due to discrimination solely on                 negative impact on downtown businesses.
the basis of the disability).
                                                                                In specific locations a short distance away from the one-
   The district court did not address whether Jones is disabled               hour parking, Monroe has also provided the benefit of free
or whether she was otherwise qualified for the benefit in                     long-term, all-day parking to all individuals who come
question. Instead, the district court concluded that Monroe is                downtown, for whatever reason. While the all-day parking is
not excluding Jones from participating in or denying her the                  not provided for the specific benefit of individuals who work
benefits of the parking system. In evaluating the correctness                 downtown, they are free to use it.
of this conclusion, we must first examine the nature of the
benefit offered by Monroe.4 Initially, we note that the benefit                 Access to the one-hour and all-day parking places is
is not appropriately defined as free downtown parking                         facially neutral. The one-hour limit applies to individuals
generally, but rather as the provision of all-day and one-hour                with disabilities and those without disabilities. Similarly,
parking in specific locations. See Alexander v. Choate, 469                   both disabled and able-bodied persons may park in all-day
U.S. 287, 303 (1985) (holding that “adequate health care” was                 parking. Both one-hour and all-day parking areas have spaces
too “amorphous” a concept to define the government service                    for disabled and nondisabled individuals.5 The parking
or benefit to which disabled persons may assert a statutory                   limitations do not affect disabled and nondisabled individuals
right of access and accommodation).
  In the one-hour parking area specifically addressed by
Jones, Monroe is offering the benefit of free short-term
parking to individuals who wish to transact retail or other
business in the downtown business district. The short-term,                       5
                                                                                    Jones argues on appeal that she lacks m eaning ful access to the free
one-hour nature of the benefit is designed to help downtown                   all-day parking spaces because the spaces fo r the disa bled are no t in
businesses by making parking spaces in close proximity to                     compliance with the AD A minimum construction and de sign standards.
them more readily available. Monroe quite logically has                       These standards address issues such as proper signage, width of parking
determined that downtown shopping and other downtown                          spaces, and slope of parking spaces. Jones’s claim of denial of a benefit,
business activities are discouraged when patrons cannot easily                however, does not arise from any design and construction flaws in the all-
                                                                              day parking, because Jones admits that she would not use any of the free
obtain parking places close to their destination. All-day                     all-day parking spaces regardless of the alleged design flaws due to the
                                                                              distance of the parking spaces from her place of employm ent. The district
                                                                              court’s opinion is limited to Jones’s request, for herself only, that the
    4
                                                                              court “force the City of Monroe to return to its former policy of not
        W e decline to rea ch any c onclusions regard ing whether Jones has   ticketing the Plaintiff when she leav es her car in a one hour parking space
a disability and whether she is otherwise qualified. Instead, we assume       for the entire work day . . . . Or have the City of Monroe reserve a free
for the sake of this opinion that she meets the first two elements of her     accessible parking space on the street next to her office.” Jones did not
prima facie case and address only the third element: whether she was          seek injunctive relief for other disabled ind ividuals based on lack of
excluded from p articipa tion in or denied a b enefit on the b asis of her    meaningful access. In addition, Jones did not request injunctive relief in
disab ility. See Henrietta D. v. Bloom berg, Nos. 02-7022/7074, 2003 WL       the form of forcing Monroe to bring the free all-day parking spaces into
21308851, at 13-14 (2 d Cir. June 9, 20 03) (noting that “[a]n ADA            compliance with the applicable construction and design standards. For
plaintiff must demonstrate that a den ial of benefits occurs ‘by reason of    purposes of this appeal, therefore, any noncompliance with standards in
. . . disability.’” (quotation omitted)).                                     constructing these spaces is im material.
No. 01-2335              Jones v. City of Monroe, Michigan                  9    10   Jones v. City of Monroe, Michigan           No. 01-2335

differently in any respect.6 Thus, the district court did not err                   Contrary to the dissent’s argument that the Supreme
in determining that Jones was not excluded from parking                          Court’s opinion in Choate supports a finding of
benefits offered by Monroe.                                                      discrimination, a proper application of Choate requires a
                                                                                 finding that Jones has not been denied meaningful access to
   The dissent repeatedly states that Jones is excluded from                     the parking benefit provided by Monroe. In Choate,
the benefit of free downtown parking. However, the dissent                       Medicaid recipients sued the State of Tennessee for
fails to explain how Jones is denied this benefit. Jones has                     declaratory and injunctive relief when the state decided to
equal access to the free downtown parking, and she can park                      reduce, from twenty to fourteen, the number of inpatient
there if she chooses. While the dissent claims to define the                     hospital days that state medicaid would pay hospitals on
benefit at issue as “free downtown parking,” the dissent later                   behalf of a medicaid recipient in each year. 469 U.S. at 289.
identifies the benefit as the ability “to park for free all-day in               The medicaid recipients argued that the fourteen-day rule
spaces that allow them meaningful access to their                                denied them meaningful access to Medicaid services in
destination.” The dissent thus conflates meaningful access to                    Tennessee in violation of the Rehabilitation Act. Id. at 301-
downtown parking with meaningful access to an individual’s                       02. The Court noted that the fourteen-day limitation would
destination of choice. When applied to the facts of the instant                  not deny the medicaid recipients meaningful access to
case, it is apparent that the dissent is defining the benefit at                 Medicaid or exclude them from those services. Id. at 303.
issue as the latter and not the former. Jones has equal access                   The Court held that the benefit provided was the “individual
to free downtown parking. She does not have free downtown                        services offered” and not the amorphous objective of
parking accessible to any destination she selects or,                            ‘adequate health care.’” Id. The Court further stated that the
unfortunately, her workplace. The benefit that Monroe is                         State is not required to alter the definition of the benefit
providing to all of its citizens, including Jones, is free                       offered “simply to meet the reality that the handicapped have
downtown parking at specific locations; it is not free                           greater medical needs.” Id. According to the Court, “[t]he
downtown parking that is accessible to wherever a citizen,                       Act does not . . . guarantee the handicapped equal results from
disabled or non-disabled, chooses to go or work.7                                the provision of state Medicaid, even assuming some measure
                                                                                 of equality of health could be constructed.” Id. at 305.
    6
      Recently, in Henrietta D., the Sec ond Circuit noted that under the           Jones has access to the service offered by Monroe - free
ADA “there m ust be some thing different about the way the p laintiff is         downtown parking in specific locations. She does not have a
treated ‘by reason of . . . disability.’” 2003 WL 21308851, at 12 (quoting       right to free downtown parking that allows her access to her
42 U.S.C. § 12132). In the instant case, Jones has not been treated              destination of choice. The reality of Monroe’s free downtown
differently from no n-disab led individuals or de nied any benefit.              parking system is that not every person is going to have
    7
      The dissent sets forth a lengthy hypothetical purp orting to illustrate
the distinction between what the dissent perceives to be the essence of
Jones’s claim (that she is being denied the benefit of free all-day parking),
and what the majority perceives to be the essence of Jones’s claim (that
the ADA requires Monroe to provide Jones with an all-day parking space
in the location she requests). The hypothetical is distinguishable because
it involves a case where the disabled individual has no access to the
service or benefit by reason of his or her disability, and the o nly available   is not denied access to the benefit, and there are alternative
accommodation is the waiver of the city’s rule. In the present case, Jones       accom mod ations available to Jo nes.
No. 01-2335             Jones v. City of Monroe, Michigan              11     12   Jones v. City of Monroe, Michigan           No. 01-2335

access to his or her workplace or other destination of choice.8                 making the modifications would fundamentally alter the
Monroe provides the benefit of free downtown parking at                         nature of the service, program or activity.
specific locations, and these locations will necessarily be
more accessible to some workplaces than others. As the                        28 C.F.R. § 35.130(b)(7).
Choate Court noted, however, equal results from the
provision of the benefit, even assuming equal results could be                  Jones describes her requested accommodation as “allowing
achieved, are not guaranteed. Id. at 305. The dissent claims                  her to park in one of the 11 parking spaces” adjacent to her
that “Jones has never taken the position that she should be                   office. By contrast, Monroe describes Jones’s requested
able to park wherever she wants.” Yet, that is precisely the                  accommodation as “immunity from prosecution for her
logical result of defining the benefit provided as meaningful                 violations of Monroe’s neutral parking and enforcement
access to one’s destination of choice.                                        ordinances.” Any accommodation on the part of the entity
                                                                              only needs to be “reasonable.” Johnson v. City of Saline, 151
  The essence of Jones’s position is that the ADA requires                    F.3d 564, 571 (6th Cir. 1998). An accommodation is not
Monroe to provide her an all-day parking place in the exact                   reasonable if it imposes a fundamental alteration in the nature
location she requires. Under the ADA, Jones’s individualized                  of the program. See 28 C.F.R. § 35.130. The public entity
need for a particular spot is most appropriately considered in                bears the burden of proving that the accommodation would
determining whether permitting her to park all day in a one-                  fundamentally alter the program. Popovich v. Court of
hour parking place adjacent to her office is a reasonable                     Common Pleas Domestic Relations Div., 227 F.3d 627, 639
accommodation which Monroe must make. The district court                      (6th Cir. 2000), rev’d on other grounds, 276 F.3d 808 (6th
did not specifically rule on this issue in determining that                   Cir. 2002) (en banc). In cases involving waiver of applicable
Jones had not established a likelihood of success on the                      rules and regulations, the overall focus should be on “whether
merits. As noted previously, a “qualified person with a                       waiver of the rule in the particular case would be so at odds
disability” is “an individual with a disability who, with or                  with the purposes behind the rule that it would be a
without reasonable modifications to rules, policies or                        fundamental and unreasonable change.” Dadian v. Village of
practices ... meets the essential requirements for receipt of                 Wilmette, 269 F.3d 831, 838-39 (7th Cir. 2001) (quoting
services or the participation in programs or activities provided              Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181
by a particular entity.” 42 U.S.C. § 12131. The applicable                    F.3d 840, 850 (7th Cir. 1999)).
regulations interpreting Title II state as follows:
                                                                                The purpose of the one-hour limitation is to encourage
  A public entity shall make reasonable modifications in                      patrons to shop at downtown businesses. Waiver of the
  policies, practices, or procedures when the modification                    ordinance limiting parking to one hour in the business district
  is necessary to avoid discrimination on the basis of                        would be “at odds” with the fundamental purpose of the rule.
  disability, unless the public entity can demonstrate that                   By its very nature, the benefit of one-hour free public parking
                                                                              cannot be altered to permit disabled individuals to park all
                                                                              day without jeopardizing the availability of spaces to other
    8                                                                         disabled and nondisabled individuals. Such a waiver would
      The dissent would create a rule under which, if Monroe provides
free parking anywhere in the city, it could arguably be required to provide   also require Monroe to cease enforcement of an otherwise
free parking to disabled individuals anyw here in the city they choose to
go. Und er the d issent’s logic, access to free parking could arguably be
extended to individuals other than those traveling to down town locations.
No. 01-2335             Jones v. City of Monroe, Michigan               13     14   Jones v. City of Monroe, Michigan          No. 01-2335

valid ordinance, which by its very nature requires a                                                       III.
fundamental alteration of the rule itself.9
                                                                                 For all the reasons set forth above, we affirm the district
  In addition, the record contains evidence of alternative                     court’s denial of preliminary injunctive relief.
accommodations available to Jones such as a service which
will pick her up at any Monroe parking lot, based on a
schedule constructed personally for Jones, and take her to the
door of her office building. Accordingly, Jones’s requested
modification, whether characterized as assignment of a
particular parking location or immunity from prosecution, is
not a reasonable accommodation required under the ADA.
The district court’s failure to discuss this issue therefore does
not render its denial of the preliminary injunction an abuse of
discretion.
  Because the district court did not rely upon clearly
erroneous findings of fact, improperly apply the governing
law, or use an erroneous legal standard, it did not err in
denying Jones’s request for a preliminary injunction.




    9
      The dissent relies heavily on the Supreme Court’s opinion in PGA
Tour, Inc. v. Ma rtin, 532 U.S. 661 (2001 ), in concluding that the
modification requested by Jones is not a fundamental alteration. In
Ma rtin, the Court first determined that the requested modification, waiver
of the walking requirement, might co nstitute a fundamental alteration by
(1) altering an essential aspect of the game so that it would be
unacceptable even if it affected all competitors equally, or (2) altering an
aspect of the game that has only a peripheral impact, but nevertheless
gives a disab led player an adva ntage o ver others thereby fundam entally
altering the character of the co mpe tition. Id. at 682. The Court concluded
that the “use of carts is not itself inconsistent with the fundamental
character of the game of golf,” because “the essence of the game has been
shotm aking.” Id. at 683. Parking, however, is hardly analogous to the
game of go lf. Mo reover, the essential element of a one-hour free public
parking area is the time limitation on an individua l’s ability to use a
designated space to park his or her vehicle. Alteratio n of the tim e limit
on spaces designated for one-hour parking is a fundamental alteration of
the parking scheme.
No. 01-2335          Jones v. City of Monroe, Michigan        15    16   Jones v. City of Monroe, Michigan            No. 01-2335

                      _______________                                                          I. Facts

                         DISSENT                                       Jones works as a substance abuse counselor for deaf and
                      _______________                               hearing-impaired individuals. Her multiple sclerosis causes
                                                                    tremors in her arms and legs, and results in severe fatigue.
  R. GUY COLE, JR., Circuit Judge, dissenting. The                  She is not capable of walking long distances and therefore
majority opinion errs in its application of the ADA to the          relies on a wheelchair. Jones’s wheelchair, however, is a
facts of this case, applying the statute in a manner that           manual model, and the exertion required to move long
essentially eviscerates the ADA’s purpose and renders the           distances can also cause her significant fatigue. Jones is able
ADA impotent in its ability to provide recourse for disabled        to drive her car, but she is not able to get her wheelchair in
individuals, such as Helen Jones, who face a form of                and out of the car by herself. Thus, her practice has been to
discrimination which Congress has explicitly prohibited.            park in one of the parking spaces adjacent to her building and
Accordingly, I respectfully dissent.                                walk across the sidewalk to the building, where she has left
                                                                    her wheelchair at the door.
  The majority correctly sets out the three elements of a
prima facie case of discrimination under Title II of the ADA.          Jones’s symptoms become more pronounced as the day
A plaintiff must establish that she: (1) has a disability; (2) is   progresses. As her fatigue increases, she can lose the fine
otherwise qualified to benefit from the public program; and         motor skills necessary to communicate with her deaf clients.
(3) is unable to do so as a result of her disability.               In addition, Jones is unable to walk across an intersection in
Kaltenberger v. Ohio Coll. of Pediatric Med., 162 F.3d 432,         the time that it takes for the light to change, and is unable to
435 (6th Cir. 1998). In my view, Jones has established her          stand, unassisted, on a sidewalk for more than five minutes.
prima facie case, and Monroe is thus required to                    Jones’s treating physician has testified that Jones should
accommodate Jones’s disability by making “reasonable                avoid any unnecessary stress and exertion.
modifications” so long as these modifications would not
“fundamentally alter the nature of the service, program or            Monroe provides free day-long parking in several
activity.” 28 C.F.R. § 35.130(b)(7).                                municipal lots throughout downtown. Other individuals
                                                                    employed in Jones’s office building are able to utilize this
   Monroe does not dispute that Jones has a disability.             service to access their workplace. Within two blocks of
Accordingly, in order to hold that Jones does not have a            Jones’s workplace are several municipal lots providing a total
reasonable likelihood of success on the merits, we must find        of 373 free spaces where individuals are able to park for the
either: (1) that she was not otherwise qualified to benefit from    entire day. Of these 373 spaces, sixteen have been designated
the public service or program and thus does not meet the            as handicapped spaces.
second element of the prima facie case; (2) that she is able to
receive the benefit despite her disability and thus does not          Monroe has limited parking to one hour at an additional
meet the third element of the prima facie case; or (3) despite      110 free parking spaces in the retail district, where Jones
establishing a prima facie case, the modification Jones seeks       works. This time limitation is intended to allow for patron
would fundamentally alter the nature of the service or              parking and to discourage employees from using these
program provided by Monroe.                                         particularly convenient spaces. There are eleven such spaces
                                                                    adjacent to Jones’s building. The closest space is twenty-one
No. 01-2335          Jones v. City of Monroe, Michigan         17    18     Jones v. City of Monroe, Michigan          No. 01-2335

feet from the entrance to her building; the farthest is sixty-five        III. Whether Jones is a Qualified Individual with a
feet. The closest handicapped space in one of the free day-                                   Disability
long lots provided by Monroe is 592 feet from the building –
a distance far too great for Jones to manage.                          Monroe argues that Jones is not a qualified individual with
                                                                     a disability because she is not a person who is contemplated
   The majority notes that the record contains evidence of an        to be served by Monroe’s one-hour parking ordinance. As
alternative accommodation for Jones, stating that she can be         such, she is not protected by the ADA.
picked up at any Monroe lot and taken to the door of her
building. This accommodation is not a viable option for                It is incorrect, however, to address the benefit that Jones
Jones. She often works odd hours, including well into the            claims she is being denied as though it revolves around the
evening, frequently on short notice, and this transit service        one-hour parking ordinance. Jones has never complained that
requires at least twenty-four hours notice to schedule a pick-       she is being denied the benefit of this one-hour ordinance.
up for a disabled individual. In addition, the service stops         Jones argues that Monroe provides all individuals the benefit
running at 5:30 p.m. The Salvation Army has provided its             of free downtown parking, and this is undisputed. The one-
own van on occasion to transport her to and from the lots to         hour ordinance is only relevant insofar as it prevents Jones
her work, but reliance on this private accommodation–which           from enjoying the benefit of the free all-day downtown
is not provided by Monroe–is misplaced. Moreover, this               parking program. Therefore, while the one-hour ordinance
option is no longer available because the Salvation Army van         may be relevant to whether Jones’s requested modification is
is not wheelchair accessible, and its driver was seriously           a fundamental alteration, it is wholly inapplicable to the
injured trying to help Jones out of the vehicle.                     question of whether she is a qualified individual with a
                                                                     disability.
                   II. Standard of Review
                                                                        The majority concludes that “[t]he essence of Jones’s
   The majority states that we are to review the district court’s    position is that the ADA requires Monroe to provide her an
judgment for an abuse of discretion. It is true that this Court      all-day parking space in the exact location she requires.”
generally reviews decisions on whether to grant a preliminary        However, this is not the essence of her claim. Jones has never
injunction for an abuse of discretion. See McPherson v. Mich.        taken the position that she should be able to park wherever
High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir. 1997).         she wants. The “essence” of her claim is that because Monroe
However, if pure legal conclusions are involved, we review           provides free and accessible all-day parking for everyone else,
the judgment of the district court de novo. See id. (stating         it cannot effectively deny her the benefit of this parking
that, in an appeal of a ruling on a preliminary injunction,          program because of her disability.
factual findings are reviewed for clear error, and legal rulings
are reviewed de novo). Jones does not dispute any factual              A hypothetical example may serve to illuminate this issue.
findings made by the district court. Whether the ADA                 Suppose that a city provides the service of a public library for
requires Monroe to provide Jones with the requested                  the enjoyment of its citizens. The library has three separate
modification of its parking policy is strictly a legal question.     entrances, East, West, and South, all of which are equipped
Therefore, we are not to give deference to the judgment of the       with wheelchair ramps. The wheelchair ramp at the South
district court.                                                      entrance is slightly wider than the other two. A certain
                                                                     disabled individual, Ms. Smith, enjoys utilizing the library,
No. 01-2335          Jones v. City of Monroe, Michigan        19    20       Jones v. City of Monroe, Michigan                  No. 01-2335

just as all other disabled and able-bodied individuals are able     ADA when she seeks access to the library itself rather than
to do. Unfortunately for Smith, her particular disability           access to Kiddies Land.1
requires her to use a specially designed wheelchair that is
larger than other wheelchairs, and she therefore cannot access         The Technical Assistance Manual for Title II of the ADA
the library through the East or West entrance.                      sheds further light on the issue of whether Jones is “otherwise
                                                                    qualified.” The manual confronts the question of whether
   After some time, the city decides that it has to do more to      accommodations such as freight elevators can be used to
encourage children to read, and so it converts the South wing       satisfy the program accessibility requirements. See ADA
of the library to “Kiddies Land,” where there are many              TECHNICAL ASSISTANCE MANUA L II-5.1000 (1993). The
activities designed to develop children’s interest in reading.      manual states that such arrangements are permissible, as a last
The city has determined that this plan is beneficial because it     resort, so long as the passageways remain reasonable in
serves not only to encourage children to read, but also to          length, fairly well lit, and generally clean. See id. The
increase the revenues generated by the library. Additionally,       argument asserted by Monroe, however, inescapably conflicts
the city has decided that in order to reap the full benefits of     with the manual. By Monroe’s logic, a disabled individual
Kiddies Land, adult patrons may not use the South wing. As          would not be permitted to use a freight elevator because the
a result, Smith requests that she be permitted to use the South     freight elevator is not intended to transport members of the
entrance without being subject to the monetary fine the city        public. Therefore, the disabled individual would not be
has decided to impose on adults who enter the South wing.           “otherwise qualified.” The example in the Technical
The city rejects her request. Nevertheless, Smith continues to      Assistance Manual exposes the flaw in this logic. It is
access the library through the South entrance, and is severely      therefore clear that Jones has satisfied the second element of
fined each time she does so.                                        her prima facie case by demonstrating that she is otherwise
                                                                    qualified to benefit from the program.
   Smith sues under the ADA, arguing that the city is
providing a service, in the form of a public library, that she is   IV. Whether Jones is Able to Benefit from the Parking
denied the benefit of using due to her disability. She requests                           Program
that the reasonable modification be made to allow her to use
the South entrance. In such a situation, it would make no             The majority asserts that Jones has equal access to the free
sense for the court to hold that Smith is not a qualified           downtown parking, that she can park there if she chooses, and
individual with a disability because the South wing of the          that she therefore is not denied the benefit provided by
library is intended for the benefit of children. Smith is not
complaining that she is not allowed to use Kiddies Land. She             1
is complaining that, due to her rare disability, she is denied             The majo rity’s attemp t to distinguish this hypothetical example from
access to the entire library. The use of the South entrance is      Jones’s case is inapposite. While the majority may assume that Jones has
                                                                    satisfied the second element of her prima facie case, Monroe argues that
merely the reasonable modification she proposes in order to         she has not. I put forth this hypothetical illustration to demonstrate the
have the same library access as other citizens. The city may        futility of Monroe’s argument that Jones is not otherwise qualified to
argue that permitting Smith access through the South wing           benefit from the parking progra m. By stating that S mith’s case is
would fundamentally alter Kiddies Land. It cannot be said,          different from Jon es’s because Jones is not denied access to the b enefit,
however, that Smith is not a qualified individual under the         the majority is attempting to demonstrate why Jones does not meet the
                                                                    third element of her prima facie case - a question I address in Part IV of
                                                                    this opinion, but do not intend to address in this illustration.
No. 01-2335          Jones v. City of Monroe, Michigan        21    22   Jones v. City of Monroe, Michigan           No. 01-2335

Monroe. While it is true that she may park in the free all-day        The majority cites Choate in support of the proposition that
lot if she chooses to do so, this does not mean that she has the    “the benefit is not appropriately defined as free downtown
“meaningful access” that the ADA requires. See Alexander            parking generally, but rather as the provision of all-day and
v. Choate, 469 U.S. 287, 301 (1985) (noting that an otherwise       one-hour parking in specific locations.” This does not clarify
qualified handicapped individual must be provided with              precisely how the majority is defining the benefit, which is
meaningful access to the benefit offered). For Jones to be          critical to this case. The provisions for all-day parking and
able to benefit from Monroe’s parking program, she needs to         one-hour parking are two separate and clearly distinct
be able to have access to the locations which non-disabled          provisions. Jones only claims that she is denied the benefit of
individuals can access from these parking lots. The majority        the former.
accuses me of conflating meaningful access to downtown
parking with meaningful access to an individual’s destination          In Choate, the Court explicitly addressed the issue of
of choice. However, I do not believe that Jones has the right       defining the benefit, and made clear that the approach the
to meaningful access to her destination of choice. I do not         majority takes here is impermissible. It stated, “The benefit
contend that, if Monroe provides free parking anywhere in the       itself, of course, cannot be defined in a way that effectively
city, it must provide free parking to disabled individuals          denies otherwise qualified handicapped individuals the
anywhere in the city they choose to go. Of course, to the           meaningful access to which they are entitled; to assure
extent that free, accessible parking is not provided for non-       meaningful access, reasonable accommodations in the . . .
disabled individuals, it need not be provided for anyone. I do,     benefit may have to be made.” 469 U.S. at 301. The Court
however, believe that she has the right to the benefit of           also noted that “[a]ntidiscrimination legislation can obviously
meaningful access to those locations that–but for her               be emptied of meaning if every discriminatory policy is
disability–would be accessible to her through Monroe’s              ‘collapsed’ into one’s definition of what is the relevant
parking program. I am not conflating this benefit with free         benefit.” Id. at 301 n.21.
downtown parking. Rather, the majority’s attempt to separate
the two is artificial. Parking is only meaningful insofar as it        In determining that the benefit provided in Choate was
provides individuals with access to their destinations.             “individual services offered,” rather than the more amorphous
                                                                    benefit of “adequate health care,” the Court noted that “[t]he
   Returning to the hypothetical illustration, if Ms. Smith were    14-day limitation will not deny [the disabled individuals]
to gain access to the library, only to find that all of the books   meaningful access to Tennessee Medicaid services or exclude
were placed on shelves too high for her to reach from her           them from those services.” Id. at 302-03. In contrast, Jones
wheelchair, the city would be required to accommodate her           is clearly denied meaningful access to parking services, as the
and make sure that she had access to the books she could not        only spaces she is permitted to use are inaccessible to her.
reach. Entry into the library is only meaningful because it         Unlike the plaintiffs in Choate, Jones is therefore altogether
provides individuals with access to the books the library           excluded from meaningful access to the service.
contains. Under the majority’s logic, if Smith were to argue
that the ADA requires that she be given access to the high-           The Choate Court also explained, “The reduction in
shelved books, she would be conflating access to the library        inpatient coverage will leave both handicapped and
with access to the books of her choice.                             nonhandicapped Medicaid users with identical and effective
                                                                    services fully available for their use, with both classes of
                                                                    users subject to the same durational limitation.” Id. While
No. 01-2335          Jones v. City of Monroe, Michigan         23    24   Jones v. City of Monroe, Michigan            No. 01-2335

the durational limitations in the one-hour spaces are certainly      parking program only because it allows them access to their
identical for both classes of individuals, in the present case,      “destination of choice.” It may be true that Monroe’s
unlike Choate, the durational limitation in and of itself is not     downtown parking system requires that not every person is
the problem. Rather, the problem here is that the durational         going to have access to his or her own workplace. However,
limitation renders Jones unable to take advantage of a benefit       it is equally true that Monroe’s downtown parking system
clearly distinct from the durational limitation, that is, free and   provides parking that would be accessible to Jones but for her
accessible, all-day downtown parking.                                disability. The analysis is straightforward. Jones is denied
                                                                     the relevant benefit because, if Jones did not have multiple
   Lastly, in Choate, “[t]he 14-day limitation . . . [did] not       sclerosis, she would be provided with free all-day parking that
exclude the handicapped from or deny them the benefits of            gives her access to the building where she works. Because
the 14 days of care the State [chose] to provide.” Id. In            she has multiple sclerosis, she is not provided with that
contrast, Jones is excluded from the benefits of free and            benefit. There is no question, therefore, that she satisfies the
accessible downtown parking because her disability prevents          third element of her prima facie case, that is, she is unable to
her from utilizing the all-day spaces Monroe chose to provide        benefit from the public program because of her disability.
altogether.
                                                                          V. Whether the Requested Modification is
   It is true that the Supreme Court noted that “Medicaid             Unreasonable or Fundamentally Alters the Nature of
programs do not guarantee that each recipient will receive that                      the Service Provided
level of health care precisely tailored to his or her particular
needs,” id. at 303, but an attempt to claim that Jones is               The majority also finds that to permit Jones to park in one
likewise not guaranteed a parking space precisely tailored to        of the spaces adjacent to her building would fundamentally
her particular needs is wholly unpersuasive. A fair reading of       alter the nature of the service Monroe provides. The majority,
Choate indicates that the Supreme Court would have found a           however, points to nothing about the requested modification
violation of the Rehabilitation Act if Tennessee’s actions had       that would fundamentally alter the service in any way, other
the effect of completely denying any individual access to            than merely pointing out that the requested modification is a
inpatient care. Here, Jones is denied access to all possible         change. But this is precisely what the governing statutes
parking spaces, whether by reason of her disability or               require. If courts were permitted to hold, as the majority does
Monroe’s one-hour restriction. Thus, the difference between          here, that any “modification” fundamentally alters the service
the services provided for others and the services provided for       because it requires that the service be “modified,” the
Jones is a difference in kind, and not merely degree. She is         Rehabilitation Act and the ADA would be rendered
completely denied an effective parking space, and the                ineffectual. It is worth restating that Jones does not complain
language in Choate suggests that the Court would not have            that she is being denied the benefit of the one-hour parking
countenanced this type of discrimination. Thus, a proper             ordinance. Our analysis requires us to consider whether the
application of Choate compels finding for Jones.                     modification Jones requests fundamentally alters the program
                                                                     or service of which she is denied the benefit. Accordingly, it
  The majority’s position is that Jones has access to                is not proper to analyze the fundamental-alteration question
downtown parking just as nondisabled individuals do. This            based on whether the one-hour ordinance is fundamentally
argument ignores the fact that other individuals who work in         altered.
downtown Monroe are able to benefit from Monroe’s free
No. 01-2335          Jones v. City of Monroe, Michigan        25    26       Jones v. City of Monroe, Michigan                 No. 01-2335

   The Supreme Court has explicitly rejected the idea that any      framing in Martin compels us to take the same approach here.
mere alteration of a rule is fundamental. See PGA Tour, Inc.        Here, therefore, we must consider whether waiving the one-
v. Martin, 532 U.S. 661, 689 n.51 (2001) (disapproving of a         hour ordinance for Jones would fundamentally alter the
reading of the ADA that would render the word                       overall parking scheme downtown, not its effect on the one-
“fundamentally” largely superfluous). Requiring public              hour ordinance. Had the Supreme Court utilized the rationale
entities to make changes to rules, policies, practices, or          the majority uses here, it would have simply stated that
services is exactly what the ADA does. Oconomowoc                   waiver of the walking rule “by its very nature” fundamentally
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d           alters the walking rule, and is therefore not required by the
775, 782-83 (7th Cir. 2002). The Court recognized the               ADA.2
administrative burdens that Congress knew it was imposing
when passing the ADA. See Martin, 532 U.S. at 680. The                 Similarly, in the recent case of Dudley v. Hannaford Bros.
majority essentially contends that requiring an entity to make      Co., 333 F.3d 299 (1st Cir. 2003), the First Circuit considered
such changes ipso facto results in a fundamental alteration,        whether a retailer’s policy of never reconsidering a cashier’s
and is therefore not required by the ADA. This is simply not        refusal to sell alcohol to a customer who appeared intoxicated
the case.                                                           violated the ADA. In Dudley, the plaintiff had suffered
                                                                    severe trauma in an automobile accident, and regularly
  Recent Supreme Court precedent compels a finding that the         exhibited characteristics often associated with intoxication.
modification Jones requests is not a fundamental alteration.        Id. at 301. Because he appeared intoxicated, a cashier refused
In Martin, a disabled professional golfer, Casey Martin, sued       to sell him alcoholic beverages. Id. at 302. When the
the PGA for refusing to permit him to ride in a golf cart as a      plaintiff asked to speak to a manager and explained his
modification of its “walking rule.” See Martin, 532 U.S. at         situation, the manager, despite believing that the plaintiff’s
669. The PGA argued that the goal of its tournaments was to
compare the performance of competitors, a task that is
meaningful only if identical substantive rules apply to all              2
                                                                          The majority discounts the instructiveness of Ma rtin, because
competitors. Id. at 686. The PGA claimed that the waiver of         parking “is hardly analogous to the game of golf.” However, I believe
any rule that may alter the outcome of the event necessarily        that Ma rtin’s precedential value extends well beyond the golf course . The
violates this principle, and the reasonable modification Martin     majo rity’s criticism, if valid, could well be directed at their reliance on
sought would therefore be a fundamental alteration. Id.             Choate, as parking benefits are similarly “hardly analogous” to Medica id
                                                                    benefits. My view that both Choate and Ma rtin are instructive here is in
Despite this argument, the Supreme Court held that the              no way ba sed any similarities betwe en M edica id, golf, and parking. A
refusal to grant Martin’s request was discrimination                number of federal circuit courts have applied Ma rtin to ADA cases
prohibited by the ADA, finding that permitting him to ride in       involving factual scenarios similarly different from golf. See, e.g., Dudley
a cart would not fundamentally alter the nature of the golf         v. Hannaford Bros. Co, 333 F.3d 299, 307 (1st Cir. 2003) (relying on
tournaments. Id. at 689.                                            Ma rtin in holding that a retailer’s policy of never reconsidering a refusal
                                                                    to sell alcohol to a custome r violated the A DA ); Kapche v. City of San
                                                                    Antonio , 304 F.3d 493, 498 (5th Cir. 2002) (relying on Ma rtin in holding
  Of particular note is that neither the majority nor the dissent   that an individualized inquiry is required in assessing whe ther a city
in Martin analyzed whether waiving the walking rule would           violated the AD A in deeming an insulin-dependent applicant ineligible for
fundamentally alter that rule itself, rather, they assessed         a position as a po lice officer); Forma n v. Sma ll, 271 F.3d 285, 297 (D.C.
whether waiving the rule would fundamentally alter golf             Cir. 200 1). I believe that Ma rtin and Choate are instructive and
                                                                    precedential because they interpret the relevant statutes and announce
tournaments. The Court’s recognition of the appropriate             legal principles that are directly applicable to this case.
No. 01-2335             Jones v. City of Monroe, Michigan              27     28    Jones v. City of Monroe, Michigan             No. 01-2335

story was plausible, relied on the store’s policy that                        fundamental than the modification requested in Martin. The
management would not revisit a cashier’s refusal to sell                      present action is not such a case. If the ADA requires the
alcohol to a customer. Id. Citing Martin, the First Circuit                   PGA to alter the enforcement of the walking rule to
noted that, because the plaintiff established his prima facie                 accommodate Martin’s disability, it surely must require
case, the defendant had to establish that the requested                       Monroe to alter the enforcement of its one-hour parking
modification, withdrawal of the “refusal to reconsider” policy,               ordinance to accommodate Jones’s disability.
fundamentally altered the nature of its business. Id. at 307-
08. Again, it is important to note that the court did not                       The majority asserts that “[b]y its very nature, the benefit
consider whether withdrawal of the policy fundamentally                       of one-hour free public parking cannot be altered to permit
altered the nature of the policy itself. Of course, the waiver                disabled individuals to park all day without jeopardizing the
of any rule alters that rule tautologically. Rather, the court                availability of spaces to other disabled and nondisabled
assessed whether withdrawal of the policy would                               individuals.” This statement misses the point.
fundamentally alter the nature of its business, and found that
it would not. Id. at 308-09. Again, applying this reasoning to                   First, as the majority recognizes, the ADA requires courts
the present case, it is clear that we should be considering                   to conduct an individualized inquiry. The Supreme Court has
whether exempting Jones from the one-hour ordinance                           stated that “the ADA was enacted to eliminate discrimination
fundamentally alters Monroe’s downtown parking scheme as                      against ‘individuals’ with disabilities . . . . To comply with
a whole, not whether it fundamentally alters the one-hour                     this command, an individualized inquiry must be made to
ordinance itself.3                                                            determine whether a specific modification for a particular
                                                                              person’s disability would be reasonable under the
   I recognize that the precise contours of when an alteration                circumstances.” Martin, 532 U.S. at 688. Jones does not
is properly considered fundamental under an ADA analysis                      contend that Monroe’s parking program should be altered to
may be difficult to define. It is clear, however, that whatever               permit disabled individuals to park all day in the spots most
this standard demands, in order to be a fundamental alteration,               convenient for them. Jones argues only that she should be
the requested modification must result in an alteration more                  able to park in one of the only eleven spots capable of
                                                                              accommodating her needs – not most convenient for her.

    3                                                                           It is fair to say that, on their face, the parking limitations do
      I cannot overstate the importance of applying the proper scope of       not affect disabled and nondisabled individuals differently,
analysis when deciding whether a modification is a fundamental
alteration. In this case, contrary to Martin and Dudley, the majority         and it is also true that most disabled individuals are able to
considers whether waiver of the one-hour ordinance fundamentally alters       comply with the parking limitations and benefit from the
the one-hour ordinance itself, rather than whether it fund amentally alters   parking services. Jones, however, cannot. The ADA requires
Monro e’s downtown parking scheme as a whole. Because I fear that the         the question to be whether the parking limitations affect any
majority opinion may be read to establish a dangerous precedent that          disabled individual differently than they affect the
perm its analyzing whether a requested modification is a fundamental
alteration in a manner that would render virtually all modifications
                                                                              nondisabled. Because of her disability, the parking
“fundamental alterations,” I also wish to note that the majority’s            limitations clearly do affect Jones differently than
discussion of the fundame ntal-alteration issue is merely dicta. Because      nondisabled individuals. Other similarly situated individuals
the majority finds that Jones does not meet the third element of her prima    are able to park for free all-day in spaces that allow them
facie case, there is no need for the majority to assess whether her           meaningful access to their destination, but Jones is not.
requested mod ification is a fundamental alteration.
No. 01-2335         Jones v. City of Monroe, Michigan       29    30   Jones v. City of Monroe, Michigan           No. 01-2335

  Second, whether the requested alteration “jeopardizes the       between this sort of modification and the benign modification
availability” of spaces to other individuals is not the           requested by Jones, is obvious. The alteration to the historic
appropriate legal question. Virtually every accommodation         house is fundamental; the request by Jones is simply an
made for disabled individuals, in one slight manner or            alteration.
another, “jeopardizes” others. Handicapped spaces in
shopping mall parking lots “jeopardize” the availability of         The majority also asserts that providing Jones with her
parking spaces for nondisabled shoppers. Permitting Casey         requested modification would “require Monroe to cease
Martin to ride in a cart during a golf tournament “jeopardizes”   enforcement of an otherwise valid ordinance.” This is not the
other golfers’ chances of winning the tournament. But this is     case. The ADA requires only that Monroe cease enforcement
simply what the ADA requires.                                     of the one-hour ordinance with respect to Jones. Monroe
                                                                  would still be free to enforce the ordinance with respect to
  The appropriate questions are whether the requested             others who violate it. Martin simply held that the individual
modification is unreasonable, and whether the modification        plaintiff must be permitted to use a golf cart in PGA
fundamentally alters the service. Here, the modification is       tournaments, not that the PGA had to permit all golfers to use
clearly reasonable and fundamentally alters nothing.              carts. The PGA only had to cease the enforcement of its rule
Monroe’s one-hour parking program provides 110 free               with regard to Martin. See Martin, 532 U.S. at 689 (stating
spaces. If Jones were accommodated, only 109 would be             that the walking rule could “be waived in individual cases
available during certain times. This simply cannot constitute     without working a fundamental alteration”) (emphasis added).
a “fundamental alteration.”
                                                                             VI. Preliminary Injunction Factors
   The Technical Assistance Manual also proves to be
illuminating on this issue. The manual does not even                 I do not take issue with the four factors noted by the
contemplate that permitting a disabled individual to use a        majority which the district court is to consider when
freight elevator would be a fundamental alteration, despite the   considering a motion for a preliminary injunction. However,
fact that freight elevators are intended to transport freight,    for the reasons detailed above, I believe that Jones has a high
rather than individual members of the public. See ADA             likelihood of success on the merits. In addition, the emotional
TECHNICAL ASSISTANCE MANUA L II-5.1000.                   The     and physical toll that Jones suffers from being denied a
acknowledgment that a freight elevator could be used as an        parking spot is surely irreparable, especially in light of the
accommodation implicitly affirms that permitting such use         severity of her multiple sclerosis. The harm to others in this
does not constitute a fundamental alteration.                     case is negligible. The public interest is clearly served by
                                                                  eliminating the discrimination Congress sought to prevent in
   The manual also provides the following compelling              passing the ADA. In addition, permitting Jones to park
illustration of a modification that would be a fundamental        adjacent to her building improves her capacity to counsel her
alteration: “Installing an elevator in an historic house museum   clients, which also serves the public interest. Thus, proper
to provide access to the second floor bedrooms would destroy      consideration of all four factors requires this Court to grant
architectural features of historic significance on the first      Jones’s request for injunctive relief.
floor.” ADA TECHNICAL ASSISTANCE MANUA L II-5.5000. In
such a situation, the installation of an elevator would indeed
be a fundamental alteration. The sharp contrast, however,
No. 01-2335          Jones v. City of Monroe, Michigan        31    32   Jones v. City of Monroe, Michigan            No. 01-2335

      VII. The District Court’s Abuse of Discretion                                       VIII. Conclusion
  As stated above, I contend that the majority improperly             As the First Circuit has noted, the ADA “did not emerge in
applies an abuse of discretion standard of review in this case,     a vacuum.” Dudley, 333 F.3d at 303. Congress found that
when a de novo standard is required. However, the legal             “society has tended to isolate and segregate individuals with
arguments in favor of Jones in this case are so strong that         disabilities,” creating “a serious and pervasive social
application of a clearly erroneous standard would not change        problem.” 42 U.S.C. § 12101(a)(2). Congress explicitly
the result. As the majority notes, the district court’s             noted that disabled individuals continually encounter
determination will be disturbed only if the district court relied   discrimination that includes, among other things, the
upon clearly erroneous findings of fact, improperly applied         discriminatory effects of architectural and transportation
the governing law, or used an erroneous legal standard.             barriers, failure to make modifications to existing practices,
Nightclubs, 202 F.3d at 888.                                        and relegation to lesser benefits. Id. § 12101(a)(5). In order
                                                                    to ensure full participation of disabled individuals in our
  Because Jones is being denied the benefit of free and             society, Congress enacted the ADA to “address the major
accessible all-day parking due to her disability, and because       areas of discrimination faced day-to-day by people with
the modification she requests is not a fundamental alteration,      disabilities.” Id. § 12101(b)(4).
the district court “improperly applied governing law,” and the
decision was therefore an abuse of discretion.                        The majority decision is in direct conflict with the intent of
                                                                    Congress, the text of the statutes, and the corresponding
   In addition, the district court “used an erroneous legal         regulations, and the decision also violates binding Supreme
standard.” In assessing Jones’s likelihood of success on the        Court precedent. Because the benefit “cannot be defined in
merits, the district court stated only that “[t]he City’s parking   a way that effectively denies otherwise qualified handicapped
plan takes into account the needs of the handicapped and does       individuals the meaningful access to which they are entitled,”
not, on its face, seem to violate the ADA. In short, the City’s     Choate, 469 U.S. at 301; and because we cannot read the
parking plan seems to comply with the federally mandated            ADA in a manner that “renders the word ‘fundamentally’
standard of equal access.” Whether the parking plan, on its         largely superfluous,” Martin, 532 U.S. at 689 n.51, I would
face, seems to violate the ADA is not the appropriate legal         reverse the district court and grant Helen Jones’s motion for
standard, nor is whether the plan seems to comply with the          a preliminary injunction.
standard of equal access. The appropriate legal standards are
whether Jones is being denied a benefit due to her disability,
and whether the modification she seeks is a fundamental
alteration. The district court therefore used erroneous legal
standards in disposing of this case. Accordingly, the
erroneous legal standards used by the district court require
this Court to find the district court’s judgment to be an abuse
of discretion.
