
(2008)
David BODLEY, an individual, Plaintiff,
v.
MACAYO RESTAURANTS, LLC, an Arizona limited liability company, Defendant.
No. CV07-0876-PHX-DGC.
United States District Court, D. Arizona.
March 4, 2008.

ORDER
DAVID G. CAMPBELL, District Judge.
Defendant has filed a motion for summary judgment. Dkt. # 32. Plaintiff has filed a motion to strike. Dkt. # 36. For the reasons set forth below, the Court will grant in part and deny in part Defendant's motion and will grant Plaintiffs motion.[1]

I. Background.
Macayo's Mexican Kitchen is a two-story restaurant located in Mesa, Arizona. On weekdays during "happy hour," Macayo's offers discounted drink prices and complimentary appetizers. The drinks and food are made available on the upstairs level of the restaurant, which contains a bar and small seating area. The restaurant does not have an elevator. Plaintiff David Bodley, a regular patron of Macayo's, uses a wheelchair and is unable to access the upstairs floor.
In August of 2006, Plaintiff and his wife visited Macayo's hoping to receive the happy hour items and prices. According to Plaintiff, the restaurant permitted Plaintiffs wife to obtain the happy hour food and drinks from the upstairs area, but required them to be seated in the first-floor outdoor patio section of the restaurant even though it was hot outside and other customers were eating in the first floor's inside dining section. Plaintiff also alleges that his access within the restaurant is impeded by several architectural barriers.[2]
Plaintiff filed suit against Defendant, alleging that he was discriminated against during the August 2006 happy hour service and that the restaurant is inaccessible in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq., and the Arizonans with Disabilities Act ("AzDA"), A.R.S. § 41-1492, et seq. Dkt. # 1.[3]

II. Legal Standard.
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment may be entered against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Discussion.
The ADA and AzDA prohibit places of public accommodation from discriminating against individuals with disabilities. See 28 C.F.R. § 36.201(a); A.R.S. § 41-4192.02. The parties do not dispute that Plaintiff is a qualified individual with a disability or that Macayo's is a place of public accommodation.

A. Happy Hour Service.
Plaintiff claims that the treatment he received during his August 2006 visit amounted to unlawful discrimination. See Dkt. # 1. Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation[.]" 42 U.S.C. § 12182(a).
In evaluating Plaintiffs discrimination claim, it is first important to understand what Plaintiff does not argue. Plaintiff does not contend that Macayo's violated the ADA by failing to install an elevator that would transport him to the second floor bar where happy hour drinks and food were available. Nor does Plaintiff contend that he was denied happy hour benefits on the day in question; he admits that he received the drinks and food at happy hour prices. Finally, Plaintiff does not contend that Macayo's discriminated against him by requiring his wife to go to the second floor bar to retrieve the drinks and food. He testified that this "is normal anyway. You self-serve." Dkt. # 35, Ex. 1, p. 53:8.
The crux of Plaintiffs grievance is that he and his wife were seated in the first floor's outside patio, rather than the first floor's inside dining section. Id. at p. 53:9-11. With respect to this claim, the parties present directly conflicting versions of Macayo's policy.
Defendant contends that it has a ten-year-old policy of accommodating requests from disabled patrons to be seated on the first floor during happy hour, inside or outside. Dkt. # 33 ¶¶ 12-15, Exs. 3, 4. Defendant asserts that all of its employees are trained in this policy and that a written version of the policy is now placed throughout the restaurant. Id. Defendant attaches a copy of the written policy to its statement of facts. Id. Ex. 4.
Plaintiff provides two responses to these assertions. First, Plaintiff asks the Court to strike Defendant's written policy because it was not produced during discovery (Dkt.# 36), a request the Court will grant. Second, Plaintiff asserts that Defendant's policy  even if it was in place-has never been followed. To support this assertion, Plaintiff presents his own experience: Plaintiff testified in his deposition that "[n]obody is permitted to sit inside for happy hour unless you go upstairs." Id. at p. 54:13-15 (emphasis added). Although he has been to Macayo's many times over the past twelve years, Plaintiff testified that he has "never observed anybody have happy hour inside" on the first floor. Id. at pp. 54:17-18, 58:14-20 (emphasis added).
The Court is thus presented with two contrasting versions of the policy  either patrons who request happy hour on the first floor are accommodated, including inside seating, or no patron is allowed to receive happy hour specials inside on the first floor. If Plaintiffs version of the policy is accepted, as it must be at this summary judgment stage, then discrimination "on the basis of disability" did not occur at the restaurant. See 42 U.S.C. § 12182(a). Plaintiffs only complaint is that he was required to sit outside while drinking and eating the happy hour specials. Under Plaintiffs version of Defendant's policy, however, this rule applies to all patrons receiving happy hour specials on the first floor, disabled and non-disabled. Plaintiff therefore was provided the same happy hour option afforded any other patron unwilling or unable to visit the upstairs bar  to get the food upstairs and sit on the first-floor patio. While Plaintiff states that other customers were eating inside in August of 2006, he does not contend that they were enjoying happy hour food, drinks, and prices inside. Nor does Plaintiff claim that disabled individuals generally must eat outside. To the contrary, Plaintiff asserts that he has eaten inside on the first floor on many occasions.
Thus, if the Court accepts Plaintiffs description of Defendant's happy hour policy, Plaintiffs request to be seated inside was not a request for a modification that would enable him to enjoy a good or service on equal terms with those who are not disabled. It was a request for preferential treatment  to be seated inside despite the fact that others receiving happy hour drinks and food on the first floor must eat outside. The ADA mandates only equal enjoyment of goods and services offered by a place of public accommodation. See 28 C.F.R. § 36.201(a); 28 C.F.R. § 36.202(b).[4]
In addition, Plaintiff has failed to present evidence that he affirmatively requested an accommodation that was tied to his disability. He testified that he made no such request. Dkt. # 35 Ex. 1 at p. 64:3-5. Although he asserted that his wife made clear she was not happy, he provides no evidence that she made a disability-related request on behalf of her husband to be seated inside. See id. at p. 64:5-7; Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir.2004) ("An individual alleging discrimination under Title III must show that ... the defendant discriminated against the plaintiff based upon the plaintiffs disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiffs disability.") (emphasis added).
Plaintiffs argument that seating outside violates the ADA integration requirement found in 42 U.S.C. § 12182(b)(1)(B) also falls short. This provision ensures that individuals with disabilities are not isolated by places of public accommodation. See Townsend v. Quasim, 328 F.3d 511, 518-19 (9th Cir.2003). If Plaintiffs testimony is credited, any separation was based on whether a customer wished to receive happy hour specials on the first floor, not on disability. That there were no other customers at the time Plaintiff and his wife were seated on the patio does not transform the first floor seating policy into one that is premised on disability-based segregation. Plaintiff has provided no evidence that individuals with disabilities were seated outside regardless of whether they are taking part in the happy hour specials, or that non-disabled persons were permitted to receive happy hour specials inside on the first floor.

B. Accessibility of the Restaurant.
Defendant asserts that Plaintiffs claim regarding the architectural barriers at Macayo's is barred by a two-year statute of limitations. See Dkt. # 32. In support of its argument, Defendant cites Garcia v. Brockway, 503 F.3d 1092 (9th Cir.2007), which held that the statute of limitations in a Fair Housing Act challenge to a building's design and construction begins to run when the design and construction are completed. Id. Even if Garcia could be viewed as applicable to an action under the ADA the Ninth Circuit recently agreed to rehear the case en banc and instructed that the case "shall not be cited as precedent by or to any court of the Ninth Circuit." Garcia v. Brockway, 512 F.3d 1089 (9th Cir.2008). The Court therefore cannot rule in Defendant's favor on the basis of Garcia.
Defendant also contends that Plaintiffs accessibility claim is time-barred because Plaintiff has been visiting Macayo's for at least twelve years and has presumably encountered the alleged barriers during that period. Dkt. # 32 at 9. "Because the ADA does not contain a statute of limitations, the court must apply the statute of limitations of the most analogous state law." Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 n. 2 (9th Cir.2002). The most analogous Arizona law is the two-year limitations period contained in A.R.S. § 41-1492.08(C). That statute provides, however, that "[a] person may file a civil action ... not later than two years after the occurrence or the termination of an alleged discriminatory public accommodation practice [,] which ever occurs last [.]" (Emphasis added.) Because this limitations period would not expire until two years after the termination of the alleged barriers in this case, Plaintiffs claim is not time-barred. See also Pickern, 293 F.3d at 1136-37 (suggesting that existing barriers at a place of public accommodation constitute an ongoing violation of the ADA and that an action to remove them is not time-barred even though the plaintiff may have known about them for some time).
Defendant also appears to suggest that the architectural barriers claim is limited to the barriers specifically identified in the complaint. See Dkt. #33 ¶ 9. The Ninth Circuit has held, however, that an ADA claim may include physical barriers identified through discovery. See Doran v. 7-Eleven, Inc., 506 F.3d 1191, 1198-99 (9th Cir.2007).
As to the accessibility issues themselves, Title III discrimination includes "a failure to remove architectural barriers ... where such removal is readily achievable[.]" 42 U.S.C. § 12182(b)(2)(A)(iv). "Readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." Id. at § 12181(9). Plaintiffs expert has identified several architectural barriers at Defendant's facility.[5]
Plaintiff's expert states that one of Macayo's parking spaces is designated as "van accessible." Dkt. # 33 Ex. 8 at 2. According to the expert, however, the access aisle between the accessible parking spaces is 60 inches, even though the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") require an access aisle to be 96 inches wide for vans. Id.; ADAAG, Fig. 9. The parties' experts also disagree as to whether the accessible parking spaces are "located on the shortest accessible route of travel from adjacent parking to an accessible entrance" in compliance with ADAAG 4.6.2 (see Dkt. # 33 Ex. 6 at 3; Dkt. # 33 Ex. 8 at 2).
Plaintiff's expert has identified an accessibility problem with Macayo's ramp to the patio area. The clear space between the ramp's handrails and the wall is to be 1.5 inches (see ADAAG, 4.8.5(3)), but the expert calculated the clear space to be 3 inches. Dkt. # 33 Ex. 8 at 6. The expert also found that the handrails are mounted at a height of 42 inches, even though ADAAG requires handrails to be mounted between 34 and 36 inches above ramp surfaces (see ADAAG, 4.8.5(5)). Id. Similarly, ADAAG requires certain spaces to provide 80 inches (above the finished floor) of head room. ADAAG, 4.4.2. Plaintiffs expert measured a hanging light fixture to be only 78 inches. Dkt. # 33 Ex. 8 at 8.
Plaintiffs expert found that the restaurant's public telephone can be accessed only by forward approach, and opines that the ADAAG therefore requires that the highest operable part of the telephone be 48 inches above the floor. ADAAG, 4.2.5, 4.31.3. Plaintiffs expert measured the highest operable part of a Macayo's telephone at 55 inches above the floor. Dkt. # 33 Ex. 8 at 9. Defendant's expert disagrees, claiming that Macayo's telephone may be accessible from the side and is mounted properly. Dkt. # 33, Ex. 6 at 6.
Plaintiffs expert further contends that the handrails on Defendant's staircase are not continuous and do not appropriately extend beyond the top and bottom risers. Dkt. # 33 Ex. 8 at 10 (citing ADAAG, 4.9.4(2)). Defendant's expert asserts that the handrails are continuous, but does not discuss the extension of the handrails beyond the risers. Dkt. # 33, Ex. 6 at 4.
With respect to the men's restroom, Defendant's expert admits that the men's stall "does not comply with the preferred ADAAG standard ..., but [states that] it does comply with the less accessible standard... set out in ADAAG 4.17.3." Dkt. # 33 Ex. 6 at 5. Section 4.17.3 enables facilities to provide an alternative accessible stall where providing a standard one "is technically infeasible or where plumbing code requirements prevent combining existing stalls to provide space." There is no indication, however, that these circumstances are present at Defendant's restaurant. The same is true for Plaintiffs claim regarding the larger of the three women's stalls. See Dkt. # 33 Ex. 6 at 6.
Questions of fact preclude summary judgment on each of these accessibility issues. These questions of fact include whether the remedial measures are readily achievable. See Dkt. # 33 Ex. 8 (listing estimated costs of corrective action, including some with no cost at all); see also 42 U.S.C. § 12181(9) (listing factors that may be considered in a "readily achievable" analysis, including the cost of the corrective action and financial resources of the place of public accommodation).
According to Plaintiffs expert, there is an accessible seating location in the main dining area and the patio area "where a minimum of five percent of both areas are required to provide accessible tables." Dkt. # 33 Ex. 8 at 4. ADAAG requires "at least five percent, but not less than one, of the fixed or built-in seating areas or tables" to be accessible. ADAAG, 4.1.3(18). Because Plaintiffs expert provides no information on the total number of tables in the seating area, Plaintiff has failed to present sufficient evidence from which a trier of fact could find that the seating area is insufficient for ADAAG purposes. On this issue, Plaintiff has not presented evidence sufficient to defeat Defendant's motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party").

IV. Mootness and Standing.
Defendant argues that Plaintiffs barriers claim is moot because no barriers exist. As explained above, however, Plaintiff's evidence creates a question of fact at to the existence of barriers.
Defendant also argues that Plaintiff lacks standing. The Ninth Circuit has held that a plaintiff in an ADA barriers case satisfies the injury requirement of standing if he has encountered barriers at the defendant's premises and is deterred from patronizing the facility because of those barriers. See Doran, 506 F.3d at 1195-96 ("Doran has suffered an injury that is concrete and particularized because he alleged that he personally suffered discrimination as a result of the barriers in place during his visits to 7-Eleven and that those barriers have deterred him from continuing to patronize the store."); Pickern, 293 F.3d at 1137-38 ("We hold that in stating that he is currently deterred from attempting to gain access to the Paradise store, Doran has stated sufficient facts to show concrete, particularized injury."). Plaintiff has presented evidence that he has encountered barriers at Defendant's restaurant in the past and usually calls in orders because he is uncomfortable on Defendant's premises. Dkt. # 35, ¶¶ 5, 8. This evidence is sufficient to satisfy the injury requirement of standing.

V. Motion to Strike.
Plaintiff moves to strike Exhibit 4 of Defendant's Statement of Facts. Dkt. # 36. Defendant admits that the exhibit was not produced during discovery. Dkt. # 38 at 2. The Court will grant the motion and has disregarded the exhibit for purposes of ruling on the motion for summary judgment.
IT IS ORDERED:
1. Defendant's motion for summary judgment (Dkt.# 32) is granted in part and denied in part. The motion is granted with respect to Plaintiffs happy hour discrimination claim and the seating areas portion of Plaintiffs accessibility claim. It is denied in all other respects.
2. Plaintiffs motion to strike (Dkt.# 36) is granted.
3. The Court will schedule a final pretrial conference by separate order.
NOTES
[1]  Plaintiff's request for oral argument is denied because the parties have thoroughly discussed the law and evidence and oral argument will not aid the Court's decision. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir.1999). In the future, Plaintiff's counsel should comply with the font and type size requirements of the Court's local rules. See LRCiv 7.1(b)(1). Both the text and footnotes of Plaintiff's filings violate the rules.
[2]  In his response to Defendant's motion. Plaintiff discusses subsequent incidents that are not alleged in his complaint. See Dkt. # 34 at 5. Where new factual theories are introduced for the first time in a response to a motion for summary judgment, these theories do not preclude the entry of summary judgment. See Pickern v. Pier 1 Imports Inc., 457 F.3d 963, 968-69 (9th Cir.2006). The Court's review of Defendant's conduct with respect to its happy hour services therefore is limited to the only incident alleged in the complaint, which took place in August of 2006 (see Dkt. # 1 ¶¶ 8, 17).
[3]  The complaint also alleges that an employee of the restaurant remarked that Plaintiff should "`find a friend' to carry him" should he wish to obtain the happy hour food and drink upstairs. Dkt. # 1 ¶ 17. Plaintiff testified, however, that this single event occurred ten years ago (Dkt. # 33 ¶ C5), well outside of the two-year statute of limitations applicable to this action. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 n. 2 (9th Cir.2002); A.R.S. § 41-1492.08(C).
[4]  One might wonder whether the only people who receive happy hour specials on the first floor are those who are disabled from accessing the stairs to the second floor bar, and whether the practical effect of the policy described by Plaintiff is therefore to relegate only disabled persons to the outside patio. But Plaintiff does not make this assertion or present evidence to support it, and there may be other reasons for individuals to choose not to receive happy hour on the second floor, such as those who prefer not to climb the stairs or those who dislike a bar setting.
[5]  Defendant argues that it is not subject to the new construction and design standards of the Americans with Disabilities Act Accessibility Guidelines, but is subject to the "readily achievable" standard. Dkt. # 32 at 6. Defendant seems to agree. Dkt. # 34 at 8.
