In fact, whether Starline is subject to section 12182 and/or section 12184, Starline is subject to and must comply with regulations promulgated by the DOJ. This conclusion is consistent with what Congress provided in section 12186(a)(3). By its terms, section 12186(a)(3) does not limit the rule- making authority for sections 12182 (b)(2) and 12184 to the DOT. Rather, it states that the rules promulgated by the DOT shall include certain standards (e.g., the DOJ’s regulations in 49 C.F.R. Part 38). Case 2:11-cv-02620-JFW -CW Document 141 Filed 12/30/11 Page 14 of 28 Page ID #:

• 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 42 U.S.C. § 12182(b)(1) (listing general prohibit

65 See 42 U.S.C. §12182(b)(2)(A)(iii). 66 See 42 U.S.C. §12182(7)(e). 67 Target Corporation, “Store Locator”, http://target.com/storelocator (last visited May 4, 2006).

Public accommodations must also provide reasonable modifications to policies, practices and procedures when needed to provide equal access to people with disabilities, 42 U.S.C. § 12182(b)(2)(A)(ii), and to provide auxiliary aids and services when needed to ensure equally effective communication with people with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii). These general prohibitions, in concert with the ADA’s specific testing discrimination prohibitions, reflect congressional intent to provide broad protection against disability-based discrimination, toward eliminating unnecessary barriers to full and equal opportunity for all persons with disabilities.

See Brief of the United States Department of Justice as Amicus Curiae in Support of Appellant, Hooks v. OKBridge, Inc., 232 F.3d 208 (5th Cir. 2000) (available at http://www.usdoj.gov/crt/briefs/hooks.htm); see also Letter from the Assistant Attorney-General for Civil Rights to Senator Tom Harkin (September 9, 1996) (10 NDLR 240 available at http://www.usdoj.gov/crt/foia/cltr204.txt). See also Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of [42 U.S.C. §12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site or other facility (whether in physical space or electronic Case 3:06-cv-01802-MHP Document 28 Filed 06/12/2006 Page 16 of 40 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 National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiffs’ Opposition to Defendant Target Corporation’s Motion To Dismiss 10 D IS A B IL IT Y R IG H TS A D V O C A TE S 20 01 C EN TE R S TR EE T, T H IR D F LO O R B ER K EL EY , C A LI FO R N IA 9 47 04 -1 20 4 51 0. 66 5.

The ADA provides a detailed scheme for the identification of discrimination depending on the age of the building or the time of alteration, the provision of different or separate goods, services, and accommodations, and an exception for the modification of policies, practices, and procedures when they would “fundamentally alter” the nature of the goods or accommodations. 42 U.S.C. §§ 12182(b)(1)(A), 12182(b)(2)(A)(ii)-(iv), 12183(a). The Case 1:08-cv-00225-PLF Document 9 Filed 03/24/2008 Page 18 of 27 13 DCHRA’s general provision addresses none of these issues.

Subdivision 12182(b)(2)(A)(iii) generally requires public accommodations “to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services” unless doing so results in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii). The duty to provide auxiliary aids and services pursuant to this specific prohibition “is a flexible one.

The statute provides further that “when entity can demonstrate that the removal of a barrier...is not readily achievable, (discrimination includes) a failure to make such goods, services and facilities available through alternative methods, if such methods are readily achievable”. 42 USC §12182(b)(2)(A)(V). The ADA names four (4) non exclusive factors to be taken into account to determine if a change is readily achievable: (A) The nature and cost of the action needed ...; (B) The overall financial resources of the facility, or facilities involved in the action; (C) The number of persons employed at such facilities; (D) The effect on expenses and resources, or the impact otherwise of such action on the operation of the facility; (E) The overall resources of the covered entity; (F) The overall size of the business of the covered entity with respect to its number of employees; the number, type and location of its facility; and, (G) Type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity; the geographic separateness, administrative relationship of the facility, or facilities in question to the covered entity.

C. RESPONSE TO AFFIRMATIVE DEFENSES 1. Plaintiff states a claim and relief can be granted As demonstrated above, Plaintiff states a claim under 42 U.S. Code § 12182, and the Washington Law Against Discrimination. Relief can be granted.