Ms. Wheelerchair California Pageant, Inc. et al v. Starline Tours of Hollywood, Inc.

MEMORANDUM in Support of MOTION for Summary Judgment 115

C.D. Cal.December 23, 2011

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paula D. Pearlman, State Bar No. 109038 paula.pearlman@lls.edu Shawna L. Parks, State Bar No. 208301 shawna.parks@lls.edu Rebecca A. Craemer, State Bar No. 274276 rebecca.craemer@lls.edu DISABILITY RIGHTS LEGAL CENTER 800 South Figueroa Street, Suite 1120 Los Angeles, CA 90017 Telephone: (213) 736-1334 Facsimile: (213) 736-1428 Guy Ruttenberg, State Bar No. 207937 guy.ruttenberg@kirkland.com Ali-Reza Boloori, State Bar No. 271489 ali-reza.boloori@kirkland.com Jason Kelly, State Bar No. 274144 jason.kelly@kirkland.com KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 680-8400 Facsimile: (213) 680-8500 Attorneys for Plaintiffs and Class Counsel UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MS. WHEELCHAIR CALIFORNIA PAGEANT, INC., an organization, and LILLIBETH NAVARRO, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. STARLINE TOURS OF HOLLYWOOD, INC., a business entity, Defendant. CASE NO. CV 11-2620-JFW (CWX) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Hearing Date: January 23, 2012 Hearing Time: 1:30 p.m. Judge: The Honorable John F. Walter Courtroom: Courtroom 16 Discovery Cut-Off: January 9, 2012 Pre-Trial Conference: March 2, 2012 Trial Date: March 20, 2012 Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 1 of 30 Page ID #:2834 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i TABLE OF CONTENTS Page I. BACKGROUND FACTS ............................................................................... 2 A. Starline Is A Private Sightseeing Tour Operator That Offers Tours To The General Public. ......................................................................... 2 B. Plaintiffs’ Experiences With Starline. ................................................... 3 C. The Vast Majority of Starline’s Vehicles Are Inaccessible And, To The Extent Starline Provides Service To People With Disabilities At All, The Service Is Inferior And Unsafe. ......................................... 3 1. The overwhelming majority of Starline’s vehicles are not accessible to wheelchair and electric scooter users. ................... 4 2. Starline imposes service limitations on passengers with disabilities that it does not impose on other customers. ............. 6 3. Starline does not adequately provide the public information regarding wheelchair accessibility of its tour services. .............. 7 4. Starline does not properly train its employees about providing service to people with disabilities. ............................. 9 II. ARGUMENT................................................................................................. 10 A. The ADA’s Statutory And Regulatory Scheme As Applied To Starline ................................................................................................ 11 B. Starline Is In Violation Of Section 12182 Of The ADA. ................... 13 1. Starline discriminates against people with disabilities in violation of the ADA’s general prohibitions. ........................... 14 2. Starline discriminates against people with disabilities in violation of section 12182(b)’s specific prohibitions. .............. 15 a. Starline’s eligibility criteria and failure to make reasonable modifications in policies. ............................. 16 b. Failure to remove barriers that are readily achievable. .. 17 C. Starline Is In Violation Of § 12182’s Transportation-Specific Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 2 of 30 Page ID #:2835 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Protections For People With Disabilities . .......................................... 19 1. Starline operates both fixed route systems and demand responsive systems. ................................................................... 19 2. Starline’s fixed route systems violates section 12182(b)(2)(B). ......................................................................... 20 3. Starline’s demand responsive systems violate § 12182(b)(2)(C). ...................................................................... 21 D. Even If Starline Is Subject to Section 12184, Starline Discriminates Against Wheelchair Users, As A Matter Of Law, In Violation Of Section 12184. ..................................................................................... 23 1. Starline would be subject to § 12184. ....................................... 23 2. Starline has violated section 12184’s anti-discrimination protections for people with disabilities. .................................... 24 3. Starline’s purchase of inaccessible new vehicles is discriminatory under section 12184(b)(3). ............................... 24 E. Starline Has Violated California’s Disability Rights Statutes. ........... 25 III. CONCLUSION ............................................................................................. 25 Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 3 of 30 Page ID #:2836 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii TABLE OF AUTHORITIES Page(s) Cases Lentini v. Cal. Center for the Arts, 370 F.3d 837 (9th Cir. 2004) ..................................................................................... 10 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005) ............................................................................................. 13, 18 Statutes 42 U.S.C. § 12101 ......................................................................................................... 11 42 U.S.C. § 12102 ......................................................................................................... 10 42 U.S.C. § 12131 ......................................................................................................... 13 42 U.S.C. § 12181 .................................................................................................. passim 42 U.S.C. § 12182 .................................................................................................. passim 42 U.S.C. § 12184 ................................................................................................... 23, 24 42 U.S.C. § 12186 ......................................................................................................... 12 Other Authorities Cal. Civ. Code § 51 ....................................................................................................... 25 Cal. Civ. Code § 54 ....................................................................................................... 25 Rules 36 C.F.R. § 1192.3 ........................................................................................................ 20 49 C.F.R. Part 37 ................................................................................................... passim 49 C.F.R. Part 38 ................................................................................................... passim Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 4 of 30 Page ID #:2837 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiffs Ms. Wheelchair California Pageant, Inc. and Lillibeth Navarro (“Plaintiffs”) brought this lawsuit, on behalf of a certified nationwide class of wheelchair and electric scooter users, to ensure that Defendant Starline Tours of Hollywood, Inc. (“Starline”), the “oldest and largest sightseeing tour company in Los Angeles, California,” lives up to its obligations under Title III of the Americans with Disabilities Act (“ADA”). The undisputed facts and unrebutted expert testimony demonstrate that Starline has failed to do so in a variety of ways. First, Starline has denied service to people with disabilities like the named Plaintiffs here. Second, the vast majority of Starline’s vehicles (including new vehicles purchased by Starline) contain no accessibility features whatsoever. And even those few vehicles in Starline’s fleet that do have some accessibility features are also in violation of the ADA. While Starline has recently (during the course of this litigation) included some makeshift ramps and securements areas, for example, these features fall short of the ADA’s minimum requirements and may pose a safety hazard to people with disabilities who actually succeeded in boarding a Starline bus. Third, to the extent Starline allows Class Members to board its vehicles, it provides them with an inferior level of service, imposing notice requirements to book tours that are not imposed upon able-bodied passengers, and providing different tours on different vehicles than able-bodied passengers can experience. And finally, Starline fails to meet the minimum requirements of the ADA for training their employees about how to accommodate disabled passengers. Starline does not meaningfully dispute any of these facts. Starline has not, for example, provided an expert report in response to Plaintiffs’ expert report. Instead, Starline seems to believe that the law allows it to operate an inaccessible fleet of vehicles, provide either non-existent or sub-par service to the disabled community, and not train its employees. Starline’s reading of the law is wrong. While there are various competing statutory provisions of the ADA (as well as implementing regulations) that could potentially apply to Starline and its various tours, the result is Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 5 of 30 Page ID #:2838 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 the same regardless of which provisions and regulations apply: Starline has violated the ADA (and, by extension, corresponding California statutes). Summary judgment should be granted in favor of Plaintiffs and the Class, and further proceedings should be held to determine the scope of the injunction to which the Class is entitled. I. BACKGROUND FACTS A. Starline Is A Private Sightseeing Tour Operator That Offers Tours To The General Public. Starline is a privately-owned corporation based in Los Angeles, California that is in the business of providing sightseeing tours. Statement of Uncontroverted Facts (“SUF”) ¶¶ 7-9, 12. Starline has been in business since 1992. SUF ¶ 10. Today, Starline serves as many as 1 million passengers annually. SUF ¶¶ 13. It promotes its tours internationally and services passengers from outside California and the United States. SUF ¶¶ 15-17. Starline offers dozens of tours in California, including about 40 packages in southern California alone, and offers to pick-up passengers from most Los Angeles hotels for free. SUF ¶¶ 14, 18-19. These tours have predetermined start times, durations, and departure locations that Starline advertises. SUF ¶ 20. Passengers may board the vehicle at the start location, take the tour, and then are returned to the start location or their hotel. SUF ¶ 20. The Movie Stars’ Homes Tour, for instance, is a 2 hour tour that runs year-round and departs from Grauman’s Chinese Theater daily every 1/2 hour from 9:30 a.m. to sundown. SUF ¶ 21. While the routes for theses tours, like the Movie Stars’ Homes Tour and Grand City Tour of Los Angeles, are not publicized on Starline’s website or materials, drivers for these tours have run on the same route for years. SUF ¶¶ 31-34. Starline also offers a “Hop-on, Hop-off” tour, whose “nature . . . is a bit different” from Starline’s other tours. SUF ¶¶ 22-23. The Hop‐on, Hop‐off tour uses vehicles, including open-top London-style Double-Decker buses, that operate on prescribed routes and fixed schedules. SUF ¶¶ 24, 25. Starline offers 4 Hop-on, Hop- Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 6 of 30 Page ID #:2839 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 off routes—red, yellow, purple, and blue—that it advertises through its salespeople and website. SUF ¶¶ 26-28. Vehicles for all four routes follow the route maps and timetables identified in Starline’s promotional materials. SFU ¶ 29. Starline makes available to the general public a map that highlights the current routes for the Hop-on, Hop-off Tour, as well as each route’s timetable. SUF ¶¶ 28, 30, 37. Each route of the tour stops at various predetermined locations where passengers can “hop‐on” or “hop‐off” the vehicle. SUF ¶ 36. Passengers may, for a 24 or 48 hour-period—depending on which ticket they purchase—ride the Hop‐on, Hop‐off tour vehicle, “hop‐off” at the predetermined stop, explore the area near the stop location, and then “hop‐on” the next vehicle that comes by. SUF ¶¶ 35, 146. This gives passengers the freedom to create their own experience on the tour. SUF ¶ 35. B. Plaintiffs’ Experiences With Starline. Plaintiff Lillibeth Navarro uses a wheelchair for mobility as a result of contracting polio at the age of five months. SUF ¶ 1. In September 2010 and May 2011, Starline employees told Ms. Navarro, when she sought to take a Starline tour, that its vehicles could not accommodate her because of her wheelchair. SUF ¶¶ 2-3. Plaintiff Ms. Wheelchair California is an organization that advocates on behalf of women who use wheelchairs and generally represents the interests of people with disabilities (SUF ¶ 4), and was told by Starline in 2006, 2007, and 2009 that Starline could not accommodate wheelchairs. SUF ¶ 5. In February 2011, a Ms. Wheelchair California board member attempted to ride the Hop-on, Hop-off Tour and was told by Starline that a reservation is required and that she would not be permitted to “hop-on” or “hop-off” the van during the tour. SUF ¶ 6. C. The Vast Majority of Starline’s Vehicles Are Inaccessible And, To The Extent Starline Provides Service To People With Disabilities At All, The Service Is Inferior And Unsafe. Plaintiffs’ experiences with Starline were not isolated incidents. Discovery in this case, including an inspection of Starline’s vehicle fleet by an expert in the ADA, Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 7 of 30 Page ID #:2840 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 has revealed that Starline systematically fails to meet its obligations under the ADA and state statutes. Most of Starline’s vehicles have no accessibility features, and those that do are not accessible under the meaning of the ADA. To the extent Starline allows people with disabilities to board some of its vehicles, it offers inferior service to those passengers. And Starline fails to train its employees as to the ADA’s requirements. 1. The overwhelming majority of Starline’s vehicles are not accessible to wheelchair and electric scooter users. Starline provides tours using a number of vehicles that are inaccessible to people who use wheelchairs or electric scooters for mobility. SUF ¶ 38. Starline owns or leases all the vehicles in its fleet. SUF ¶ 42. Starline’s fleet for the Hop-on, Hop-off tour is comprised of 25 vehicles (including double-decker buses), none of which were acquired before 2007. SUF ¶ 39, 40. Starline admits that 13 of these vehicles are inaccessible to disabled people. SUF ¶ 41. None of the double-decker vehicles have any mechanism that provides a wheelchair user to get onto the second level of the vehicle. SUF ¶ 43. Of the 12 remaining vehicles, 2 are out-of-service and partly disassembled. SUF ¶¶ 44-45. Based upon the unrebutted expert inspection and findings, 2 of the 25 vehicles used for the Hop-on, Hop-off tour have wheelchair lifts (SUF ¶¶ 86, 92), and 8 have ramps. SUF ¶¶ 47, 52, 57, 61, 63, 65, 76, 81. Only two of the vehicles with ramps on them had those ramps at the time Starline acquired them. SUF ¶ 80. The other six vehicles have a manual ramp that Starline installed after acquiring the vehicle (the “Starline Ramp”). SUF ¶¶ 83, 95. Prior to 2011, none of the double-decker vehicles used by Starline for the Hop-on, Hop-off Tour were wheelchair accessible. SUF ¶ 144. Starline’s Bus Conversion Manual indicates that these ramps were acquired from a company called Discount Ramps (www.discountramps.com). SUF ¶ 97. The Starline Ramp is a quad-fold, manual aluminum ramp that must be unfolded and secured to the vehicle floor by the driver through two pins. SUF ¶¶ 95, 96. When fully deployed, the ramp is less than 30 inches long, has side barriers that Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 8 of 30 Page ID #:2841 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 are less than 2 inches high, and has a gap running down the entire center of the ramp that would be hazardous to people with disabilities (particularly, users of 3-wheeled electric scooters). SUF ¶¶ 98, 99. The Starline Ramp is not easy to use or operate. See SUF ¶ 58. Labels on the ramp indicate that the operator needs various training before deploying the ramp, and also state that a passenger can use the ramp only with the help of a “qualified assistant.” SUF ¶ 100. Finally, there is no way to know whether the ramp is too steep to use safely without going through physical process of manually setting up the entire Starline Ramp. SUF ¶ 101. Each of these vehicles that have the Starline Ramp also do not have the required amount of wheelchair securement locations, adequate securement systems, or seatbelt systems, making them unsafe for people with disabilities to ride. E.g., SUF ¶¶ 49-50, 53-54, 59, 62, 66-67. Starline uses 71 vehicles—vans, mini-buses, and transit buses—to provide all of its non-Hop-on, Hop-off tours.1 SUF ¶ 102. 57 of these vehicles are admittedly inaccessible to wheelchair and electric scooter users, and one has an inoperable wheelchair lift. SUF ¶¶ 103, 125-26. The remaining vehicles lack the necessary equipment, including up-to-date securement systems and seatbelt systems, for wheelchair users to safely access the vehicle. E.g., SUF ¶¶ 108, 110-113, 116-17, 119-23. For instance, the securement locations on Trolley#2 and Trolley#3 use wheel clamp securement systems that can secure only limited types of wheelchairs and electric scooters, and they do not have seatbelt systems. SUF ¶¶ 109-113. The securement location on Trolley#2 is also side-facing. SUF ¶ 110. The lift on Vehicle #2218 has a spring-loaded end barrier that reduces the usable portion of the lift platform during loading, and requires continuous pressure on the spring in order to load onto the lift. SUF ¶ 121. Vehicle #321 does not have a seatbelt system for a passenger. SUF ¶ 117. And Vehicles #72 and #73 do not have wheelchair securement straps or seatbelt systems to accommodate all the securement areas on 1 Four of these vehicles are used for Hop-on, Hop-off Tours (#56, #57, #58, #72). SUF ¶¶ 39, 102. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 9 of 30 Page ID #:2842 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 them. SUF ¶¶ 94, 107-08. Based on the unrebutted expert inspection, even the vehicles with lifts on them lack necessary securement equipment and remain unsafe. 2. Starline imposes service limitations on passengers with disabilities that it does not impose on other customers. Unlike other members of the public, Starline requires that all wheelchair or electric scooter using passengers provide Starline with an unclear amount of advanced notice to take any tour, with contradictory statements from Starline indicating a notice period ranging from 24-hours to one week. SUF ¶¶ 128, 131, 133. In June 2010, Starline said it required at least one week of advanced notice for disabled people to schedule a tour, although this information was not available on any of Starline’s marketing materials. SUF ¶ 133. At various times in 2011, Starline has indicated that it requires that a wheelchair user provide at least 24 to 48 hours notice to make a reservation for a Starline tour. SUF ¶¶ 129, 130. This is a different condition than the policy applied to able-bodied people. SUF ¶ 131. In fact, Starline requires less notice for a next-day hotel pick-up than it does a tour for people in wheelchairs. SUF ¶ 132. This difference in service is even more notable with respect to the Hop-on, Hop-off Tour. While able-bodied people are free to ride the tour without making any reservation or providing any advanced notice, Starline, as a policy, requires all people with disabilities who intend to ride the Hop-on, Hop-off tour to provide at least 24 hours advanced notice (or up to one week, as explained above). SUF ¶¶ 134, 145. But even if such advanced notice is provided, individuals using a wheelchair or electric scooter are unable to receive anywhere near the same type or quality of service provided to the general public. The Hop-on, Hop-off Tour Starline provided to people with disabilities—assuming they were actually offered service—was a tour consisting of riding a separate van that did not follow the Hop-on, Hop-off Tour. SUF ¶¶ 135-36. It also operated only twice a day and would not permit passengers to “hop- on” or “hop-off” the vehicle at stops (which, as the name suggests, is the purpose of the tour). SUF ¶¶ 135-36. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 10 of 30 Page ID #:2843 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Since this litigation commenced, Starline changed its Hop-on, Hop-off service for people with disabilities, but the tour provided remained a substantially different— and inferior—experience. Starline still required advanced notice only from people with disabilities. SUF ¶ 137. If wheelchair users wanted to “hop on” a bus at any stop and one of the few accessible vehicles was not around, the wheelchair user would need to find a Starline driver, tell the driver to call a dispatcher to send an accessible vehicle, and then wait for that vehicle to arrive. SUF ¶ 138. Starline believes that this process would take “half an hour to 45 minutes”, although given the dearth of vehicles with accessibility features, even this estimate is questionable. SUF ¶ 138. Only one vehicle on any given route would be wheelchair accessible. SUF ¶ 139. Today, Starline still requires at least 24 hours advance notice for people who use wheelchairs; no such requirement is imposed on other passengers. SUF ¶ 140. Starline now claims at least every other bus on its Hop-on, Hop-off tour is wheelchair accessible.2 SUF ¶ 141. Even assuming half of Starline’s Hop-on Hop-off vehicles are accessible (which is not borne out by the expert inspection), the Class would only be able to “hop-on” or “hop-off” half as many times as other passengers, visit only half as many locations as other passengers, and have half the flexibility as other passengers. Further, Starline advertises that passengers of the Hop-on, Hop-off tour can enjoy the tour’s unique open-air experience from atop the double-decker vehicles. SUF ¶¶ 142, 143. Wheelchair or electric scooter users, however, still cannot enjoy this unique and highly-touted experience. SUF ¶ 43. 3. Starline does not adequately provide the public information regarding wheelchair accessibility of its tour services. Starline fails to adequately disclose to people who use wheelchairs or electric scooters that they are subject to unique and onerous conditions when using or attempting to use Starline’s services. Indeed, prior to the filing of this lawsuit, 2 Plaintiffs dispute the “accessibility” of these vehicles, however, based on their physical inspection of the vehicles in Starline’s fleet. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 11 of 30 Page ID #:2844 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Starline did not disclose or advertise on any of its promotional materials—including brochures, pamphlets, and its website— that people with mobility disabilities are required to provide at least 24 to 48 hours’ notice to take a tour. SUF ¶ 149. Likewise, Starline did not disclose at its physical locations or through any public signage that it imposes these conditions on people with disabilities. SUF ¶ 148. Starline’s employees also told the general public that Starline could not accommodate wheelchair users because of their disabilities. E.g., SUF ¶ 151. People were also told by Starline’s employees that they should contact TourCoach, Starline’s sister company, to see if TourCoach could provide service in lieu of Starline. SUF ¶ 150. Even after receiving Plaintiffs’ complaint on March 29, 2011, Starline did not begin to disclose these requirements. Recently, Starline has begun to disclose on its website that people who “require special accommodations” must provide Starline at least 24 hours advanced notice. E.g., SUF ¶ 134. Starline’s Hop-on, Hop-off Tour’s promotional materials still, however, do not tell people with disabilities when they can expect to get service from wheelchair accessible vehicles. SUF ¶ 180. But Starline’s advertisements on third-party promotional materials state affirmatively that none of Starline’s services can accommodate people who use wheelchairs or electric scooters for mobility. Starline advertises its tours on Hollywood CityPASS, an organization of which Starline is a part. SUF ¶¶ 170, 71. Months after this litigation started, for at least one tour, Starline still advertised that “[p]assengers [are] required to ascend a few steps to board tour buses; lifts not available. Wheelchairs may be checked at the Starline office for the duration of the tour.” SUF ¶ 173. Indeed, even today, Starline’s advertising, through CityPASS and other third-parties, still states that “[p]assengers [are] required to ascend a few steps to board tour buses; lifts not available.” SUF ¶¶ 174-76. Starline continues to inform the disabled community, just as it informed Plaintiffs, that they must be able to climb steps in order to ride Starline vehicles. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 12 of 30 Page ID #:2845 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 4. Starline does not properly train its employees about providing service to people with disabilities. Starline does not provide proper, basic training to its employees on whether or how Starline’s employees should provide service to wheelchair or electric scooter users (“ADA training”). See SUF ¶ 152. There is no set method for determining what the training should entail or when it should take place. SUF ¶¶ 153-56, 169. Further, Starline does not administer any test or assessment to determine whether employees have an adequate understanding of ADA-related issues. SUF ¶ 157. Prior to early 2011, the only training Starline provided was to drivers about how to operate wheelchair lifts; no other employees received any ADA training. SUF ¶ 158. Only since Plaintiffs filed suit has Starline begun to provide any ADA training to its non-driver employees. SUF ¶ 159. Gwen Slaughter and Kim Faulkner are responsible for providing training to Starline’s employees, but Starline did not require either receive any training or certification relating to ADA training. SUF ¶¶ 160-61. The extent of Starline’s ADA training is limited to the document: “Starline Tours & TourCoach Policy on Transporting ADA Passengers” (“ADA Policy”). SUF ¶¶ 163, 168. Kim Faulkner, the safety manager and administrative assistant, created the ADA Policy between 2010 and 2011 using, in part, materials from an old policy book from a company she used to work for that handled school buses. SUF ¶¶ 164, 165. Kim Faulkner trains only Starline drivers and supervisors, while Gwen Slaughter trains other Starline employees. SUF ¶ 166. Starline cannot identify any written policy regarding ADA training that it had prior to the creation of this “ADA Policy.” SUF ¶ 167. This “ADA Policy” does not reference Starline’s own 24 hour policy for individuals with disabilities. See SUF ¶ 163. Nor does it include any specific information about Starline’s specific tours and vehicles and their accessibility. See SUF ¶ 163. Nor does it reference how an individual who uses a wheelchair or electric scooter would be able to book a tour on an accessible vehicle, or how administratively Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 13 of 30 Page ID #:2846 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 such vehicles would be reserved or supplemented into Starline’s services has Starline as claimed. See SUF ¶ 163. In fact, Starline’s “ADA Policy” does not contain information about what different types of Starline employee are required to learn if Starline’s services are to function as Starline has claimed. See SUF ¶ 163. Starline’s inadequate training likely stems from its belief that it has no legal obligation to train its employees regarding handling passengers with mobility disabilities. SUF ¶ 162. II. ARGUMENT. To prove a violation of the ADA, a plaintiff must show that he or she is an individual with a disability and that, because of the disability, the person was denied participation in or the benefit of a service provided by the defendant. Lentini v. Cal. Center for the Arts, 370 F.3d 837, 846-47 (9th Cir. 2004). There is no dispute that the named Plaintiffs and the Class here are individuals with disabilities as defined in 42 U.S.C. § 12102(1)-(2); indeed this Court has already so found. Dkt No 57 at 2; Dkt No. 25 ¶ 3; see also Dkt. No. 57 at 4 (certifying a class of “All persons who use wheelchairs or electric scooters for mobility who are denied physical access to Starline Tours of Hollywood, Inc.’s services on the basis of disability”). With respect to the second part of the analysis—determining whether Starline has discriminated against Plaintiffs and the Class in violation of the ADA—the particular standards that Starline must satisfy under the ADA will depend on certain legal determinations that this Court must make (including whether Starline is or is not “primarily engaged” in the business of transporting people, and whether certain tours are “fixed route” or “demand responsive”). But while there may be some dispute about which statutory provision applies to which tour, there is no meaningful dispute about the facts: (1) Starline has failed to provide service to people who use wheelchairs or electric scooters for mobility; (2) to the extent Starline actually allows people with such disability to board its buses, it does so only by imposing discriminatory conditions, and then provides them with inferior service; (3) Starline’s fleet of vehicles is inaccessible to people with Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 14 of 30 Page ID #:2847 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 disabilities, and to the extent the vehicles have any accessibility features at all, they do not meet the minimum requirements of the ADA and pose safety hazards; and (4) Starline does not provide basic training to its employees as to how to deal with customers with disabilities. Even under the least stringent standard for which Starline might argue for here, each of these failures on Starline’s part amounts to an independent violation of the ADA. The argument proceeds in three parts below. First, Plaintiffs explain the ADA’s statutory and regulatory scheme as it applies to Starline. Second, Plaintiffs apply the statutory provisions and regulations that govern Starline, and explain that, based on undisputed facts and unrebutted expert testimony, Plaintiffs are entitled to summary judgment on their claim under the ADA (and by extension, their claims under state law). And third, Plaintiffs address why, even under alternative standards that could potentially apply to Starline (and under which certain Starline’s vehicles or tours might arguably fall), Plaintiffs are still entitled to summary judgment. A. The ADA’s Statutory And Regulatory Scheme As Applied To Starline The ADA intends to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities” in “critical areas” such as “public accommodations [and] transportation.” 42 U.S.C. § 12101. Discrimination under the ADA includes “outright intentional exclusions, the discriminatory effects of architectural [and] transportation . . . barriers, [and] failure to make modifications to existing facilities and practices.” 42 U.S.C. § 12101(a). Sections 12182 and 12184 of the ADA prohibit discrimination against people with disabilities, including wheelchair and electric scooter users, by private entities engaged in transportation services, like Starline. Both prohibit private entities that provide transportation from discriminating against individuals with disabilities in the acquisition and use of inaccessible vehicles, the failure to maintain accessible features in vehicles, the failure to make accessibility modifications when readily achievable, Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 15 of 30 Page ID #:2848 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 the failure when making alterations to ensure that those alterations are accessible, the failure to ensure that all staff are trained to proficiency in the requirements of the ADA and overall, and the failure to provide the service provided to all members of the public to individuals with disabilities in a manner that does not exclude or reduce individuals with disabilities to a different level of service. Both sections 12182 and 12184 have specific provisions detailing the extent to which vehicles must be made accessible based on the different types of transportation system used by the entity, fixed route, demand responsive, or over-the-road. Both sections 12182 and 12184 apply to operators of fixed route and demand responsive transportation systems. Additionally, the Department of Transportation (“DOT”) and Department of Justice (“DOJ”) have both promulgated regulations providing further interpretation and standards interpreting sections 12182 and 12184. See 42 U.S.C. § 12186. The distinction between these two sections largely lies on whether the private entity is “primarily engaged” in the business of transporting people. This makes a difference in the specific requirements for each vehicle used by the private entity, depending on what transportation system it uses. Starline is subject to, and in violation of, section 12182 because it is not “primarily engaged” in the business of transporting people. As the regulations clarify, “[t]ransportation service provided by public accommodations is viewed as being provided by private entities not primarily engaged in the business of transporting people.” 49 C.F.R. Part 37, App. D § 37.37. This is consistent with Starline’s multi- faceted services, wherein transportation is only one of the components. Because Starline is not primarily engaged in the business of transporting people, Starline is subject to section 12182(b)(2)(B) and (C). But even if Starline were primarily engaged in the business of transporting people, it would still be subject to and violating § 12184(a)-(b) of the ADA. Starline has failed to modify its policies and practices in order to accommodate wheelchair users, has not removed physical barriers that are readily achievable, has acquired Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 16 of 30 Page ID #:2849 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 vehicles that are not accessible to wheelchair users, and operates a transportation system that does not provide people with and without disabilities equivalent level of service. Starline is, based on either of these two statutes, subject to and in violation of the Department of Transportation’s ADA regulations in 49 C.F.R. Parts 37 and 38. B. Starline Is In Violation Of Section 12182 Of The ADA. Section 12182 provides general and specific prohibitions against discriminating against people with disabilities that apply to Starline. It prohibits any person “who owns, leases (or leases to), or operates a place of public accommodation” from discriminating against individuals with disabilities “in the full and equal enjoyment” of the services, facilities, privileges, and accommodations of “any place of public accommodation.” 42 U.S.C. § 12182(a). Starline is a public accommodation and the vehicles its uses are places of public accommodation. See 42 U.S.C. § 12181(7). Public accommodation covers a broad range of private entities whose operations affect commerce, as evidenced by the wide range of businesses in the term’s statutory definition. See 42 U.S.C. § 12181(7). Starline meets these requirements.3 See 42 U.S.C. § 12182 (prohibiting “Discrimination by Public Accommodations” and expressly covering operators of vehicle transportation systems). First, Starline is a privately owned for-profit company. See 42 U.S.C. §§ 12131(1), 12181(6); SUF ¶ 7. Second, Starline’s operations affect commerce by serving upwards to 1 million passengers a year. See 42 U.S.C. § 12181(1); SUF ¶ 13. Starline solicits business through international conventions, and the majority of its passengers come from out of state or are international. SUF ¶¶ 15-17. And finally, the vehicles Starline operates to provide tour services fall within the statutory definition of “public accommodation.” See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 129-30 (2005). 3 The Department of Justice, based on its investigation of Starline for violations of section 12182, appears to agree that Starline is subject to, and in violation of, section 12182. See SUF ¶ 183. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 17 of 30 Page ID #:2850 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 There is no genuine dispute of material fact that Starline violates § 12182’s anti-discrimination provisions. Section 12182 prohibits discriminating against individuals with disabilities in places of public accommodations. It also specifically encompasses private entities that operate transportation systems as places of public accommodation with specific standards based on the type of transportation system that private entity is operating. See 42 U.S.C. § 12182(b)(1)-(2). Plaintiffs begin by showing that Starline has violated these prohibitions imposed by section 12182 before addressing the transportation-specific violations. 1. Starline discriminates against people with disabilities in violation of the ADA’s general prohibitions. Forms of discrimination by public accommodation that section 12182 prohibits include denying people with disabilities opportunity “to participate in or benefit from” an entity’s services, affording such people service “that is not equal to that afforded to other individuals,” and providing such people service “that is different or separate from that provided to other individuals, unless such action is necessary.” 42 U.S.C. § 12182(b)(1)(A)(i)-(iii). Starline has violated all three of these protections by denying wheelchair and electric scooter users service, denying equal service, and providing different levels of service. Starline has done this by acquiring and using inaccessible vehicles, refusing to maintain accessible features so they are useable and safe, failing to make accessibility modifications that are readily achievable, and, when making such alternations, ensuring that those alterations are accessible. Physical access for individuals with disabilities is measured by whether something is “readily accessible to and usable by individuals with disabilities.” See 49 C.F.R. §§ 37.7(a). Starline’s services and vehicles have not been accessible Starline has denied service to wheelchair users. It concedes that its employees have told disabled persons that Starline’s tours cannot accommodate them because they use wheelchairs. E.g., SUF ¶¶ 150-51, 184. Starline’s employees referred these people to TourCoach on the basis of disability. SUF ¶¶ 150-51, 179. This is the same Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 18 of 30 Page ID #:2851 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 discrimination that Ms. Wheelchair California was subject to. SUF ¶¶ 178-79. Starline also has stated that people with disabilities must provide Starline with anywhere from 24 hours to one week advanced notice to take any tour when the same requirements are not imposed on able-bodied passengers. E.g., SUF ¶¶ 128-30, 133- 34. People with disabilities, assuming Starline actually does serve them, are afforded an inferior type and level of service. SUF ¶¶ 131, 134-38. This is especially evident with the Hop-on, Hop-off Tour. Previously, Starline provided only an entirely different and inferior level of service—ride in a separate, disabled passenger-specific vehicle and tour, cannot leave the vehicle, no open-air views, and tour runs only twice a day. SUF ¶¶ 135-36. Today, the experience remains unequal, as the most important and publicized characteristics of the tour—open-air views, unique perspective from the top-deck, flexible schedules, no need to provide advanced notice—are denied to people with disabilities. SUF ¶¶ 43, 137-38, 140-46. 2. Starline discriminates against people with disabilities in violation of section 12182(b)’s specific prohibitions. Section 12182 also identifies specific forms of discrimination that are prohibited by § 12182(a). It is discriminatory: • to impose “eligibility criteria” that tends to screen out people with disabilities from “fully and equally enjoying” any services, privileges, or accommodations, “unless such criteria can be shown to be necessary” to provide such service; • to fail “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford” such services, privileges, or accommodations to individuals with disabilities, “unless the entity can demonstrate that making such modifications would fundamentally alter the nature” of such services, privileges, or accommodations; or • to fail “to remove . . . transportation barriers in existing vehicles . . . used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles . . . by the installation of a Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 19 of 30 Page ID #:2852 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 hydraulic or other lift), where such removal is readily achievable.” If the entity can demonstrate that such barrier removal is not “readily achievable,” then it still discriminatory to fail to make he services, privileges, or accommodations “available through alternative methods if such methods are readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(i)-(ii), (iv)-(v). There is no genuine dispute of material fact that Starline has discriminated against people who use wheelchairs and electric scooters for mobility by violating these protections afforded by section 12182(a). a. Starline’s eligibility criteria and failure to make reasonable modifications in policies. Starline has imposed unlawful eligibility criteria and failed to make reasonable modifications to its policies and procedures relating to people with disabilities. First, Starline’s requirement that people “ascend a few steps to board” Starline’s vehicles is an unlawful eligibility criteria that screens wheelchair and electric scooter users from “fully and equally enjoying” Starline’s services. SUF ¶¶ 170-76. While some people who use wheelchairs due to disabilities may be able to ascend a few steps to get onto a vehicle, others—including Ms. Navarro and members of Ms. Wheelchair California— cannot, and are thereby screened out from enjoying any of Starline’s service. The same applies to Starline’s use of eligibility criteria by failing to make the top deck of its highly-touted double-decker vehicles accessible. SUF ¶¶ 43. Second, Starline has required people with disabilities to schedule tours anywhere from 24 hours to one week in advance when no such requirement is imposed on people without disabilities. E.g., SUF ¶¶ 128-30, 133-34. Indeed, it has imposed this advanced notice requirement on its Hop-on, Hop-off Tour—a tour that is designed to provide passengers the freedom to be flexible and not provide Starline any advanced notice or reservations. SUF ¶¶ 137-38, 140, 145-46. Third, Starline has failed to implement a training program that would ensure people with disabilities access to Starline’s services. Private entities operating transportation systems must “ensure that personnel are trained to proficiency, as Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 20 of 30 Page ID #:2853 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities.” 49 C.F.R. § 37.173. Starline’s training program falls far short. Starline’s ADA training was created by Ms. Faulkner who has not received any ADA-related training for over 15 years and believes Starline is not subject to DOT regulations because its vehicles do not travel inter-state.4 SUF ¶¶ 161, 180. No steps are taken to quality control the materials used for training—the content of the ADA training document Starline uses was made in part on searches of public websites and an out-dated manual from a school bus operator. SUF ¶¶ 164-65, 180. There is no method to training or retraining employees. SUF ¶¶ 153, 155. In fact, the first instance of ADA training provided to Starline drivers includes providing the driver to read Starline’s ADA Policy while waiting alone at a drug testing center during the hiring process. SUF ¶ 181. Whether a Starline employee needs training is up to the judgment of the general manager, who makes the decision based on her own discretion. SUF ¶¶ 154-56, 161. There is no written training regarding the specific lifts, ramps, securements, and accessibility features on Starline’s vehicles. See SUF ¶ 163. No ADA training documents specific to Starline’s actual policies for providing access to people with disabilities. And no training specific to the different roles of each employee for implementing Starline’s policy toward people with disabilities. b. Failure to remove barriers that are readily achievable. Title III requires modifications to vehicles that bring them into compliance with the minimum guidelines provided by 49 C.F.R. Part 38 when “readily achievable.” See 42 U.S.C. § 12182(b)(2)(A)(iv)-(v ). This is defined as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). The “readily achievable” standard is based on facts including the “nature and cost of the action,” the resources available to the entity, and “the impact . . . upon the 4 This is in sharp contrast to what Starline says in its motion for summary judgment. See Dkt. No. 99 at7 (“Defendant Starline’s vehicles are covered by [ ] DOT regulations . . . . The DOT regulations relevant to his action are codified at 49 C.F.R. Parts 37 and 38.”). Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 21 of 30 Page ID #:2854 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 operation of the facility.” See 42 U.S.C. § 12181(9); see also Spector, 545 U.S. at 135 (stating that “Title III does not define ‘difficulty’ in § 12181(9)”). Starline has not removed all barriers that are readily achievable, as required by Title III. Starline has the capability and resources to make more if its vehicles accessible to wheelchair users, but it has not done so. E.g., SUF ¶ 82. Starline concedes that there are many vehicles in its fleet that it cannot identify any reason for not taking steps to make accessible. E.g., SUF ¶¶ 84-85. Vehicle #DD313, for instance, is admittedly inaccessible to wheelchair users at the moment. SUF ¶ 41. But Starline has no reason for not making the vehicle accessible. SUF ¶ 69. The same goes for Vehicles #DD315 and #DD316. SUF ¶¶ 71-72. Some vehicles, in fact, Starline has said it plans to make wheelchair accessible. SUF ¶ 73. This demonstrates that removal of barriers is readily achievable. Relatedly, Starline has put ramps on some of its double-decker vehicles, but many are still without ramps. E.g., SUF ¶¶ 41, 83. That fact that Starline has installed all these ramps since this litigation began evidences that these modifications can and should have been done. In fact, Starline has the capability in-house to make vehicles accessible. SUF ¶¶ 91, 182. It admittedly is capable of making Vehicle #57 wheelchair accessible, and admits that there is no reason why it could not make these modifications now. SUF ¶¶ 90-91. Finally, many of Starline’s vehicles that have ramps or wheelchair lifts do not have adequate, or any, securement areas, securement mechanisms, or safety belt systems that are required by 49 C.F.R. Part 38. E.g., SUF ¶¶ 49-50, 59, 87-88. These are used to ensure that passengers with disabilities and their mobility aids are secured to the vehicle for their safety. Many of the barriers that need to be removed derive from improperly maintained, missing, or non-operable equipment. E.g., SUF ¶ 108 Modifying these deficiencies is readily achievable, as they are inexpensive and can be done with minimal effort. SUF ¶ 189. For instance, the barriers created by an insufficient number or size of Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 22 of 30 Page ID #:2855 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 securement areas could be removed by abstracting a row of seats in a vehicle to make room for a wheelchair. In a number of vehicles there were an adequate number of securement areas, but Starline has installed additional seating over existing securement areas. E.g., SUF ¶¶ 89, 116. For those vehicles, the locking mechanisms for the securements are already in place and Starline would only need to remove the seating it installed. There are a number of transportation barriers whose removal could be readily achieved, as required by Title III of the ADA, but have not been removed. C. Starline Is In Violation Of § 12182’s Transportation-Specific Protections For People With Disabilities . Section 12182(b)(2)(B) and (C) makes it unlawful for any private entity to discriminate against people with disabilities when it is not primarily engaged in the business of transporting people and it operates either a fixed route or demand responsive system. See 42 U.S.C. § 12182(b)(2)(B)(i), (C)(i). 1. Starline operates both fixed route systems and demand responsive systems. Starline operates both fixed route and demand responsive systems. A fixed route system is “a system of providing transportation of individuals (other than by aircraft) on which a vehicle is operated along a prescribed route according to a fixed schedule.” 42 U.S.C. § 12181(4). There is no genuine issue of material fact that Starline operates a fixed route tour—namely, the Hop-on, Hop-off Tour. The Hop-on, Hop-off Tour transports individuals by bus, including open-top London Double-Decker buses. SUF ¶ 25. Starline operates along a prescribed route. The tour includes four distinct routes—red, yellow, purple, and blue—that Starline advertises on its promotional materials and website through a map that highlights the routes for each Hop-on, Hop-off tour. SUF ¶¶ 24, 26-30. Third, the tour operates according to a fixed schedule. Each of the four routes follows a timetable that Starline makes available to the general public, along with the tour route, through its salespeople, promotional materials, and website. SUF ¶¶ 24, 26-30. These materials Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 23 of 30 Page ID #:2856 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 identify the specific location and times for each stop on the Hop-on, Hop-off tour. In contrast, a demand responsive system is defined as any non-fixed route system. 42 U.S.C. § 12181(3) (“[A]ny system of providing transportation of individuals by a vehicle, other than a system which is a fixed route system.”). Starline’s other tours are demand responsive system. Each of these tours has fixed start times, start locations, and durations, but do not necessarily have prescribed routes. See SUF ¶¶ 31-34. 2. Starline’s fixed route systems violates section 12182(b)(2)(B). It is discrimination for a private entity “to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after [August 25, 1990], that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” 42 U.S.C. § 12182(b)(2)(B)(i); 49 C.F.R. § 37.101(b). A vehicle is “accessible” when it complies with the requirements of 49 C.F.R. Parts 37 and 38. See 49 C.F.R. § 37.3. Part 37 implements the transportation-related provisions of the ADA, while Part 38 provides the minimum accessibility guidelines and requirements for Part 37. 49 C.F.R. §§ 37.1, 38.1; see also 36 C.F.R. § 1192.3. For example, Part 38 provides that vehicles must have a wheelchair lift or ramp (49 C.F.R. § 38.23(a)), must have two securement locations and devices if the vehicle is over 22 feet in length (id.), and must have a passenger seat belt and shoulder harness that is not used in lieu of a device which secures the wheelchair itself (49 C.F.R. § 38.23(d)(7)). Further, the securement systems must “limit the movement of an occupied wheelchair [ ] to no more than 2 inches in any direction under normal vehicle operating conditions” (49 C.F.R. § 38.23(d)(5)), at least one securement location must be forward facing (49 C.F.R. § 38.23(d)(4)), and so forth. All but one of Starline’s vehicles used for the Hop-on, Hop-off Tour (#V72) seats over 16 passengers (SUF ¶¶ 39, 185, 187), are owned or leased by Starline (SUF ¶ 42), and were solicited after August 25, 1990 (SUF ¶ 40). Section 12182(b)(2)(B)(i) Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 24 of 30 Page ID #:2857 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 requires that each of these vehicles comply fully with the minimum guidelines in Part 38. These vehicles, however, are not compliant, as stated in the undisputed expert report. E.g., SUF ¶¶ 46-54,57-59, 61-67. Indeed, there is no dispute that the vehicles that Starline concedes are not accessible to wheelchair users do not comply with 49 C.F.R. Part 38. Further, those vehicles that have wheelchair lifts and ramps also are not compliant with Part 38’s minimum guidelines. The Starline Ramp, for instance, is less than 30 inches wide, when 49 C.F.R. § 38.23(c)(2) requires ramps “have a clear width of 30 inches,” and has side barriers of 1.5 inches, when 49 C.F.R. Part 38.23(c)(4) requires each side of the ramp be “at least 2 inches high” to prevent wheelchairs from slipping off. SUF ¶ 99. Vehicle #DD322, like many other Starline vehicles, lacks a lap and shoulder seatbelt system, which 49 C.F.R. § 38.23(d)(7) requires. E.g., SUF ¶¶ 50, 59, 62, 67, 77. These precise failings are laid out in the unrebutted inspection report of expert. E.g., SUF ¶¶ 50, 59, 62, 65, 67. There is no issue of disputed fact that Starline’s Hop-on, Hop-off Tour vehicles violate the ADA. 3. Starline’s demand responsive systems violate § 12182(b)(2)(C). Section 12182 details two prohibitions specific to private entities that operate a demand responsive system that differ from §12184. See 42 U.S.C. § 12182(b)(2)(C). The first makes it unlawful for that entity to fail to operate the demand responsive system “so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities.” 42 U.S.C. § 12182(b)(2)(C)(i). Eight factors are used to determine whether equivalent level of service is being provided. 49 C.F.R. § 37.105. For a demand responsive system, the factors are: response time, fares, geographic area of service, hours and days of service, availability of information, reservation capability, constraints on capacity or service availability, and restrictions priorities based on trip purpose. Id. Starline’s demand responsive system does not provide equivalent level of Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 25 of 30 Page ID #:2858 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 service based on these factors. Starline’s inability to respond timely to requests from people with disabilities is evidenced by failures to provide service to customers absent significant advance notice. See SUF ¶ 6. Between Starline’s poor ADA training and the limited accessibility of its fleet, Starline cannot provide reasonable response time or service capacity. E.g., SUF ¶¶ 102-03. This limited supply of vehicles is directly relevant to Starline’s policy that people with disabilities make advanced reservations. This advance reservation requirement is unique to people with disabilities and makes equal level of service in this case unrealistic. SUF ¶¶ 145-46. But without imposing such a requirement, Starline’s demand responsive system would be a logistical nightmare—so few vehicles with lifts and ramps to supply so many tours and routes. E.g., SUF ¶¶ 41, 49-50, 53-54, 59, 62, 66-67, 103. Even more daunting is the fact that there are so many wheelchair lift-equipped vehicles that lack the seatbelts and restraints necessary to ensure passenger safety. E.g., SUF ¶¶ 41, 49-50, 53-54, 59, 62, 66-67, 103. While Starline’s fleet is large enough to absorb a high volume of customers, its fleet of accessible vehicles cannot. E.g., SUF ¶¶ 41, 103. Starline’s demand responsive system, based on the findings of the undisputed expert report, cannot provide equivalent level of service, as required by § 12182. Second, it is unlawful under section 12182(b)(2)(C) for that entity to purchase or lease—when solicitation was made after August 25, 1990—any “vehicle with a seating capacity in excess of 16 passengers (including the driver)” that “is not readily accessible to and useable by individuals with disabilities (including individuals who use wheelchairs).” 42 U.S.C. § 12182(b)(2)(C)(ii). Starline has violated this provision as well. The undisputed expert report demonstrates that Starline uses vehicles acquired after 1990, with passenger capacity beyond 16 (SUF ¶ 185) that are not “readily accessible” as defined by 49 C.F.R. Parts 37 and 38, in its demand responsive systems (SUF ¶¶ 102, 185). For instance, Starline’s Trolley #1 has a seating capacity above 16 passengers (SUF ¶ 185), was acquired after 1990, and is admittedly not accessible to wheelchair Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 26 of 30 Page ID #:2859 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 users (SUF ¶ 103). Trolley #3 also has a seating capacity above 16 passengers (SUF ¶ 185), was acquired after 1990, and does not comply with 49 C.F.R. Part 38 (SUF ¶ 113), thereby making it not readily accessible and usable by individuals with disabilities. It lacks, for instance, an lap and shoulder belt system. SUF ¶ 113; see 49 C.F.R. § 38.23(d)(7). Starline’s demand responsive system violates section 12182. D. Even If Starline Is Subject to Section 12184, Starline Discriminates Against Wheelchair Users, As A Matter Of Law, In Violation Of Section 12184. Alternatively, if this Court finds that Starline is primarily engaged in the business of transporting people, and thus subject to section 12184 rather than 12182, there still remains no dispute that Starline is still violating the ADA. 1. Starline would be subject to § 12184. Section 12184 prohibits discrimination against people with disabilities in the full and equal enjoyment of specified public transportation services provided by any “private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.” 42 U.S.C. § 12184(a). This provision applies to entities that are private, “whose operations affect commerce,” that provide “specified public transportation services,” and that are “primarily engaged in the business of transporting people.” See 42 U.S.C. § 12184(a). There is no dispute that Starline is a private entity whose operations affect commerce. See section I.A, supra. And Starline provides “specified public transportation services.” The ADA defines this as transportation by non-aircraft conveyances (like bus) “that provides the general public with general or special service (including charter service) on a regular and continuing basis.” 42 U.S.C. § 12181(10). Starline provides the general public transportation services, and has so continuously for years, through sightseeing tours and charter services on a daily basis. SUF ¶¶ 8, 12, 20, 188. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 27 of 30 Page ID #:2860 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 2. Starline has violated section 12184’s anti-discrimination protections for people with disabilities. Section 12184 makes it unlawful for a private entity primarily engaged in the business of transporting people to discriminate by: • imposing eligibility criteria that tends to screen out individuals with disabilities “from fully enjoying the specific public transportation services provided by the entity,” unless such criteria can be shown to be necessary.” 42 U.S.C. § 12184(b)(1). • failing to make reasonable modifications, consistent with § 12182(b)(2)(A)(ii), to policies, practices, or procedures when necessary to afford its services, privileges, and accommodations to individuals with disabilities. 42 U.S.C. § 12184(b)(2)(A); see also 42 U.S.C. § 12182(b)(2)(A)(ii). • failing to remove barriers consistent with § 12182(b)(2)(A), including architectural and transportation barriers where such removal is readily achievable and use of alternative methods if removal is not readily achievable. 42 U.S.C. § 12184(b)(2)(C); see also 42 U.S.C. § 12182(b)(2)(A)(iv)-(v). Because provisions do not differ from those in section 12182(b)(1)-(2), with the exception that they apply to entities primarily engaged in the business of transporting people, the same reasons detailed above demonstrate that Starline has violated these provisions. See section II.B.1, supra. 3. Starline’s purchase of inaccessible new vehicles is discriminatory under section 12184(b)(3). It is discriminatory for an entity covered by section 12184 to purchase or lease a new vehicle (with a seating capacity of 8 or more passengers), when solicitation occurs after August 25, 1990), that is used “to provide specified public transportation” when the vehicle “is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” 42 U.S.C. § 12184(b)(3). If the Court finds that Starline is primarily engaged in the business of transporting Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 28 of 30 Page ID #:2861 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 people, Starline has violated this provision. The most obvious example of Starline’s violation of this provision concerns Vehicle #DD322.5 Vehicle #DD322 is used for the Hop-on, Hop-off, its seating capacity is over 8 passengers, and it was new when Starline acquired it. SUF ¶¶ 39, 74, 185. The solicitation occurred after August 25, 1990, and Starline uses it to provide specific public transportation—just as it does with its other vehicles. SUF ¶¶ 39-40. Based on the undisputed expert inspection, Vehicle #DD322 is not readily accessible to and usable by people with disabilities because the vehicle does not comply with 49 C.F.R. Part 38. SUF ¶¶ 76-78. Specifically, a vehicle over 22 feet in length (which Vehicle #DD322 is) must have 2 securement locations on it; Vehicle #DD322 has only one. SUF ¶ 77. Securement locations also must have lap and shoulder seatbelts for passengers with disabilities; Vehicle #DD322 has no such seatbelt securements.6 Id. E. Starline Has Violated California’s Disability Rights Statutes. Finally, Starline’s violations of the ADA also constitute a violation of the Unruh Civil Rights Act and the Blind and Other Physically Disabled Persons Act under California law. Cal. Civ. Code §§ 51(f), 54(c). Starline’s violations of the ADA constitute independent violations of these statutes. III. CONCLUSION For all the foregoing reasons, this Court should grant Plaintiffs’ motion for summary judgment and hold that Starline has violated the ADA, the Unruh Civil Rights Act, and the Blind and Other Physically Disabled Persons Act. DATED: December 23, 2011 By: /s/ Guy Ruttenberg Paula D. Pearlman Shawna L. Parks Rebecca Craemer DISABILITY RIGHTS LEGAL 5 This is not, however, the only violation, as at least two of Starline’s large double- decker vehicles were acquired new. SUF ¶ 11. 6 The exception to this provision in section 12184(b)(3) does not apply to Vehicle #DD322, because this vehicle is used on the Hop-on, Hop-off Tour, which is a fixed route system. Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 29 of 30 Page ID #:2862 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 CENTER 800 S. Figueroa St., Suite 1120 Los Angeles, CA 90017 Tel: (213) 736-1334 Guy Ruttenberg Ali-Reza Boloori Jason Kelly KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Tel: (213) 680-8400 Attorneys for Plaintiffs and Class Counsel Case 2:11-cv-02620-JFW -CW Document 126 Filed 12/23/11 Page 30 of 30 Page ID #:2863