Title III of the Americans with Disabilities Act (the “ADA”) prohibits discrimination against individuals with disabilities in “places of public accommodation”—i.e., establishments that service the public, including restaurants, hotels, retail stores, and commercial facilities. Under the ADA, both landlords and tenants are required to provide full and equal enjoyment of the premises to individuals with disabilities. While the concept is fairly straightforward, the responsibilities under the act are not necessarily as clear. The California Court of Appeals recently clarified some of
these responsibilities in Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260 (9th Cir. 2015).
In Kohler, Chris Kohler, a paraplegic customer who required the assistance of a wheelchair, sued Bed Bath & Beyond (“BB & B”), a tenant in a retail shopping center. In his complaint, Kohler alleged architectural barriers, both within the restroom of the store and in the parking lot of the shopping center, impeded his ability to fully use and enjoy the premises. Specifically, Kohler claimed that BB & B’s restroom did not have sufficient wall space from the hinge of a pull-open door to allow him to maneuver his wheelchair, and that the parking lot of the shopping center contained slopes and cross-hatching in violation of the ADA. The district court granted summary judgment in favor of BB & B on each of these claims, and Kohler appealed.
The Broad Strokes of Title III
Title III of the ADA prohibits anyone who owns, leases, or operates a place of public accommodation from implementing policies and practices or building structures that prevent individuals with disabilities from fully using or enjoying the goods, services, facilities, privileges, advantages, or accommodations of the premises. Additionally, anyone who owns, leases, or operates a place of public of public accommodation must actively remedy, and, when necessary, provide alternatives to, any existing discriminatory policies, practices, or structural barriers. Thus the ADA imposes compliance obligations on landlords as owners of the property and also on tenants as lessees or operators of the property.
ADA Accessibility Guidelines
Kohler first contended that the district court erred in concluding that BB & B’s restrooms did not violate the ADA. Kohler claimed that the restroom had insufficient wall space on the pull-side of the door, which prevented him from being able to maneuver his wheelchair, and that this was a violation of the ADA Accessibility Guidelines (the “Guidelines”) that set out the requirements for physical structures. However, as explained by the appellate court, the Guidelines require only a certain amount of floor space on the pull-side of a door, not a certain amount of wall space. Since BB & B’s restrooms had the requisite amount of floor space, the restrooms were not in violation of the Guidelines. As such, BB & B could not be held liable under the ADA.
Common Area Violations
In the second claim addressed by the appellate court, Kohler contended that the district court erred in concluding that BB & B, as a tenant, was not liable for ADA violations in the shopping center’s common area parking lot. BB & B argued that it was not liable for ADA violations in the parking lot because, under its lease, the landlord was responsible for the operation, maintenance, and repair of the entire shopping center parking lot. Kohler, however, argued that BB & B had obligations under the ADA that it could not contract away. Kohler’s argument was based on the California Court of Appeals decision in Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000), which held that the ADA imposed concurrent obligations on landlords and tenants, and that a lease between the two could not transfer all liability for ADA compliance to the tenant. Kohler contended that the Botosan decision prevented tenants, as well as landlords, from contracting away their responsibilities under the ADA.
The claim in Botosan was very similar to the claim inKohler—a paraplegic customer who required the assistance of a wheelchair alleged ADA violations in the common area parking lot. However, in Botosan, the claim at issue was brought against the landlord, not the tenant. The defendant landlord, like the defendant tenant in Kohler, argued that it was not liable for ADA violations in the parking lot under its lease. In the Botosan case, the lease allocated all responsibility for ADA compliance in the shopping center parking lot to the tenant. Despite the lease, however, the Botosan court held the landlord liable for the ADA violations in the common area parking lot. As the court explained, a contractual agreement between two parties has no effect on pre-existing duties owed to third-parties. The ADA imposes compliance obligations on owners, lessors, and operators of places of public accommodation. Since the landlord in Botosan owned the common area parking lot, it was responsible for ADA compliance therein no matter what the lease said.
On the other hand, in Kohler, the court held that BB & B, as the tenant, was not liable for ADA violations in the common area parking lot, distinguishing the decision from that in Botosan on the grounds of control. The Kohlercourt reiterated that the ADA imposes compliance obligations on anyone who owns, leases, or operates a place of public accommodation. Absent a lease, a landlord remains in full control of the property as the owner. The existence of a lease that delegates some of that control has no effect on the landlord’s pre-existing obligations under the ADA. Conversely, absent a lease, a tenant has no control of the property. The Kohler court explained that BB & B, as the tenant, did not own the parking lot and, therefore, did not have pre-existing obligations under the ADA. Further, under its lease, the landlord was given sole responsibility for, and control of, the parking lot. As such, BB & B did not operate or lease the parking lot, and therefor BB & B was not liable for those ADA violations.
UPDATE ON AB 1103
Assembly Bill 1103, which requires owners and landlords of certain buildings to disclose their building’s energy usage data prior to selling, leasing, or financing the entire building, will be repealed January 1, 2016. We previously told you about these disclosure requirements in our September 2012 and November 2013 Dirt Reports. AB 1103 will be replaced with Assembly Bill 802, which will eventually require utility companies to disclose energy usage data upon request.