                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-2345
                                     ___________

Charlotte Klingler; Charles Wehner;   *
Shelia Brashear,                      *
                                      *
             Appellees,               *
                                      * Appeal from the United States
       v.                             * District Court for the Western
                                      * District of Missouri.
Director, Department of Revenue,      *
State of Missouri,                    *
                                      *
             Appellant.               *
                                 ___________

                               Submitted: September 13, 2005
                                  Filed: January 17, 2006
                                   ___________

Before WOLLMAN, ARNOLD, and MELLOY, Circuit Judges.
                         ___________

ARNOLD, Circuit Judge.

        This is our third pass at this case, which requires us to decide whether the State
of Missouri violated the American with Disabilities Act (ADA) by charging an annual
fee for the use of windshield placards that allow disabled people to park in reserved
spaces. The plaintiffs, disabled persons who have purchased the placards, claim that
the fee is a discriminatory surcharge prohibited by the ADA and its regulations. In
our first opinion, we held that the eleventh amendment barred the plaintiffs from
seeking monetary damages, but that they could pursue declaratory and injunctive
relief against the state. Klingler v. Director, Dep't of Revenue, 281 F.3d 776, 777 (8th
Cir. 2002) (per curiam) (Klingler I). In our second opinion, after the district court1 on
remand entered summary judgment in favor of the plaintiffs, we reversed, holding that
the commerce clause did not authorize Congress to prohibit states from collecting
such fees. Klingler v. Director, Dep't of Revenue, 366 F.3d 614, 617-20 (8th Cir.
2004) (Klingler II). The plaintiffs petitioned for review of that decision by the
Supreme Court, which granted certiorari, vacated our judgment, and remanded the
case for reconsideration in light of Tennessee v. Lane, 541 U.S. 509 (2004), and
Gonzales v. Raich, 125 S. Ct. 2195 (2005). Klingler v. Director, Dep't of Revenue,
125 S. Ct. 2899 (2005) (mem.).

       Missouri has now abandoned its constitutional challenge, leaving us with only
one issue to resolve, namely, whether Missouri’s collection of the annual fee for the
parking placards is a discriminatory surcharge. We conclude that it is and affirm.

                                           I.
       As we recounted in a previous opinion, Missouri has enacted a statutory scheme
under which political subdivisions and private businesses may reserve parking spaces
close to the entrances of buildings for use by physically disabled people. See
Klingler II, 366 F.3d at 616. In order to park in these spaces lawfully, a vehicle must
display either a specially marked license plate, see Mo. Rev. Stat. § 301.142.7, or a
removable windshield placard, see Mo. Rev. Stat. §§ 301.142.8, 301.142.10. Mo.
Rev. Stat. § 301.143.4. Although the special license plates are available to qualified
vehicle owners at no extra charge, see Mo. Rev. Stat. § 301.142.9, Missouri collects
a fee for the windshield placards. When the plaintiffs filed this action, the fee was
$2.00 per year, see Klingler II, 366 F.3d at 616; it has since been changed to a $4.00
biennial fee, see Mo. Rev. Stat. § 301.142.11.


      1
       The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, sitting by consent of the parties. See 28 U.S.C. 636(c);
see also Fed. R. Civ. P. 73.

                                          -2-
        The plaintiffs moved for summary judgment in the district court, arguing that
Missouri's collection of the fee for the windshield placards violated Title II of the
ADA and a regulation promulgated pursuant to the ADA. The ADA authorizes the
Department of Justice to promulgate regulations to implement and enforce the ADA.
42 U.S.C. § 12134(a). Among those regulations is 28 C.F.R. § 35.130(f), which
prohibits public entities from placing "a surcharge on a particular individual with a
disability or any group of individuals with disabilities to cover the costs of measures
... that are required to provide that individual or group with the nondiscriminatory
treatment required by the Act or this part." Id.

       The district court granted the plaintiffs' motion for summary judgment, agreeing
that Missouri's collection of fees in exchange for the placards constituted a
discriminatory surcharge. The court concluded that the reservation of parking spaces
close to entrances of building was necessary to provide the access that the ADA
required, and that providing removable placards ensured that disabled people could
use the spaces. We review the district court's grant of summary judgment de novo.
Barstad v. Murray County, 420 F.3d 880, 883 (8th Cir. 2005).

                                            II.
        Missouri, having abandoned its constitutional arguments, advances only one
defense to the plaintiffs' claims: it contends that the placard program is not required
by the ADA, but instead is simply a "special" benefit offered to disabled individuals.
If this were true, the ADA would not prohibit Missouri from charging those who use
the placards, because the fee would not be imposed to cover measures "that are
required to provide that individual or group with the nondiscriminatory treatment
required by the [ADA]," 28 C.F.R. § 35.130(f). We begin, then, by determining what
the ADA and its regulations require from Missouri with respect to disabled parking.

      The separate titles of the ADA focus on separate types of conduct: Title I
prohibits discrimination in employment against qualified individuals with disabilities.

                                         -3-
See 42 U.S.C. § 12112. Title II prohibits "public entities" from excluding disabled
individuals from or denying them the benefits of programs, activities, or services, and
from otherwise discriminating against them. See 42 U.S.C. § 12132. Title III
prohibits discrimination or the denial of "full and equal enjoyment" of goods, services,
and other benefits provided by "places of public accommodation" operated by private
entities. See 42 U.S.C. §§ 12181(6), (7), 12182. The ADA's definition of a "public
entity" includes "any State or local government." 42 U.S.C. § 12131(1)(A). It is plain
that Missouri qualifies as a "public entity" for purposes of the ADA and that as a
result it is bound by Title II of the Act.

       Neither the ADA nor its regulations specifically require states to offer
removable parking placards to disabled individuals: Title II itself forbids only
exclusion from or discrimination in the "services, programs, or activities of a public
entity." 42 U.S.C. § 12132. The regulations enacted pursuant to Title II also employ
broad language, requiring each service, program or activity, "when viewed in its
entirety," to be "readily accessible." 28 C.F.R. § 35.150(a). Rather than imposing a
uniform, one-size-fits-all method of compliance, the regulations provide flexibility by
authorizing a variety of ways for public entities to provide accessibility to disabled
people. See 28 C.F.R. § 35.150(b).

       While the ADA and its regulations do not specifically require Missouri to
maintain a placard system, they do anticipate the use of reserved parking spaces near
the entrances to buildings that have parking lots open to the public. See, e.g., ADA
Accessibility Guidelines for Buildings and Facilities, Appendix A to 28 C.F.R. Ch. I,
Pt. 36, at § 4.6.2; 28 C.F.R. § 35.151(c). The commentary accompanying these
regulations, moreover, states that "a public entity should provide an adequate number
of accessible parking spaces in existing parking lots or garages over which it has
jurisdiction." 28 C.F.R. Ch. I, Pt. 35, Nondiscrimination on the Basis of Disability in
State and Local Government Services, 56 Fed. Reg. 35,694, 35,710 (July 26, 1991),
reprinted in Appendix A to 28 C.F.R. Ch. I, Pt. 35; see also Americans with

                                          -4-
Disabilities Act Title II Technical Assistance Manual, at § 5.4000. These agency
interpretations, which are entitled to some deference, see TeamBank, N.A. v. McClure,
279 F.3d 614, 619 n.4 (8th Cir. 2002), recognize that some disabled people will find
it difficult, if not impossible, to gain access to public facilities safely if they do not
have enough room to unload a wheelchair from their vehicle, or if they must traverse
the full length of a parking lot.

       Missouri's legislature has also recognized that reserved parking spaces help
ensure access to disabled people. The state has authorized governments and private
business to reserve parking spaces for use by disabled persons. See Mo. Rev. Stat.
§ 301.143.2. These reserved spaces must meet the design requirements of the ADA
and its related regulations. Mo. Rev. Stat. § 301.143.5; see 28 C.F.R. § 36.304(a),
(b)(18). As we have said, Missouri has taken steps to assure the availability of
reserved spaces by requiring any person who parks in them to display either a
specially marked license plate or the removable placard. See Mo. Rev. Stat.
§§ 301.142.7, 301.142.8, 301.142.10. Those who fail to display a placard or a license
plate are subject to a fine of up to $300, and their vehicle may be towed. Mo. Rev.
Stat. § 301.143.4.

       Missouri contends that by providing disabled residents the option of obtaining
specially marked license plates at no additional cost, it has satisfied the ADA's
requirements. We disagree. Not all disabled individuals own cars: some rely upon
friends and family for transportation, while others may borrow or rent vehicles from
time to time. See Klingler II, 366 F.3d at 619. Missouri's statutes limit the availability
of the special license plates to non-disabled individuals; only the owners of vehicles
"operated at least fifty percent of the time by a physically disabled person" or "used
to primarily transport physically disabled members of the owner's household" may
obtain the plates. Mo. Rev. Stat. § 301.142.7. When a disabled person drives or rides
in a vehicle belonging to an individual who does not meet these requirements, the
removable placard is necessary to permit parking in a reserved space.

                                           -5-
       Nor do we believe that Missouri can impose fees for the placards on the basis
that the placard system itself is not "required" by the ADA. It is possible that
Missouri could comply with the ADA's requirements without issuing removable
placards; as we have noted, the ADA purposely offers public entities flexibility in
meeting the Act's standard for program access. This flexibility, however, cannot be
used to render meaningless the surcharge prohibition in § 35.130(f). Although no
particular method of providing access may be required, Missouri is obligated under
Title II to make government services, programs, and activities readily accessible to
disabled individuals. However Missouri chooses to meet this obligation, it must
comply with § 35.130(f). We think that a program is "required," as that word is used
by the statute, if in fact it discharges an obligation imposed by the ADA. Missouri has
elected to use parking placards to ensure that disabled people have access to
government programs. Having made that decision, Missouri is prohibited from
imposing a surcharge on disabled people for placards that are necessary to use
reserved parking spaces.

       We note that the placard program not only helps Missouri meet its own Title II
obligation to make government programs accessible, it also helps private entities meet
their obligations under Title III to provide "full and equal" accommodations to
disabled persons. See 42 U.S.C. § 12182. This is because the placards are required
to park in reserved spaces at private facilities. See Mo. Rev. Stat. § 301.143.2.
Although the ADA and its implementing regulations do not require Missouri to police
reserved spaces set aside by private businesses, we think that its decision to do so
obligates it to provide the spaces free of charge. The relevant regulation prohibits
Missouri from levying a surcharge to cover the cost of any measure required "by the
Act or this part." 28 C.F.R. § 35.130(f) (emphasis added). It does not distinguish
between Title II and Title III obligations, but prohibits public entities from singling
out the disabled to pay the cost of any ADA compliance efforts.




                                         -6-
       This makes sense. If the surcharge prohibition applied only to the costs
incurred by a public entity fulfilling its Title II obligations, a public entity could
relieve private entities of the costs of Title III compliance by voluntarily assuming
those costs and then passing them on to disabled people. We do not read the
regulation to permit the State of Missouri, say, to install wheelchair ramps, elevators,
and accessible bathroom fixtures at a department store, and then recoup those costs
through a surcharge on disabled people. It likewise does not permit the State of
Missouri to charge disabled people for a placard that is necessary to park in reserved
spaces at both government and private facilities.

       Rather than distributing the cost of ensuring accessible parking among all of its
citizens, Missouri's scheme imposes a fee upon those disabled persons who require the
removable placards. We conclude that this is a surcharge that violates § 35.130(f).
In doing so, we join a number of courts that have invalidated similar fee-for-placard
systems in other states. See Dare v. California, 191 F.3d 1167, 1172-73 (9th Cir.
1999), cert. denied, 531 U.S. 1190 (2001); Thompson v. Colorado, 29 F. Supp.2d
1226, 1232 (D. Colo. 1998), vacated on other grounds, 278 F.3d 1020 (10th Cir.
2001); Thorpe v. State of Ohio, 19 F. Supp.2d 816, 824-25 (S.D. Ohio 1998).

      Because Missouri's collection of the fee for removable placards violates
§ 35.130(f), we affirm the district court's judgment granting the plaintiffs' request for
declaratory and injunctive relief.

                                            III.
       The plaintiffs ask us to reinstate their monetary claim, in light of the Supreme
Court's instruction to reconsider this case in light of Lane. Our previous rejection of
the plaintiffs' monetary claim was based upon our decision in Alsbrook v. City of
Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc). See Klingler I, 281 F.3d at 777.
Another panel of this court has already had the opportunity to reconsider Alsbrook in
light of Lane. In Bill M. ex rel. William M. v. Nebraska Dep't of Health and Human

                                          -7-
Servs. Finance and Support, 408 F.3d 1096, 1100 (8th Cir. 2005), the panel
determined that Alsbrook remained good law except when a plaintiff alleges that he
or she has been denied access to the courts. Because we are unable to discern any
basis for distinguishing the instant case from Bill M., and because we are bound by
that holding, we decline the plaintiffs' invitation to reinstate their claim for monetary
damages.

                                         IV.
      For the reasons stated, we affirm the district court's grant of the plaintiffs'
summary judgment motion and its award of declaratory and injunctive relief, and we
remand the case to the district court for entry of a judgment consistent with this
opinion.
                           ______________________




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