Free Complaint - District Court of California - California

Case 3:07-cv-04815-WHA

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THOMAS N. STEWART, III - #88128 ATTORNEY AT LAW 369 BLUE OAK LANE, 2nd FLOOR CLAYTON, CA 94517 TELEPHONE (925) 672-8452 TELEFAX (925) 673-1729 Attorneys for Kim R. Blackseth UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KIM R. BLACKSETH, Plaintiff, v. COMMODORE CRUISES & EVENTS, INC., Defendant. __________________________________/ Plaintiff, Kim R. Blackseth, alleges: FIRST CLAIM FOR RELIEF: DAMAGES AND INJUNCTIVE RELIEF FOR DENIAL OF FULL AND EQUAL ACCESS TO A PUBLIC ACCOMMODATION: PUBLIC FACILITIES AT A CHARTERED YACHT (Civil Code §§ 51, 54.1) 1. Plaintiff is a quadriplegic and is a "person with a disability" and "physically COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AND DAMAGES: DENIAL OF CIVIL RIGHTS AND PUBLIC FACILITIES TO PHYSICALLY DISABLED PERSONS (CIVIL CODE §§ 54, 54.1 AND 55; INJUNCTIVE RELIEF PER TITLE III, AMERICANS WITH DISABILITIES ACT OF 1990 Case No. C 07 4815 JCS Civil Rights

handicapped person". Plaintiff requires the use of a wheelchair for locomotion and is either unable to use portions of public facilities which are not accessible to disabled persons who require the use of a wheelchair or is only able to use such portions with undue difficulty. 2. Commodore Cruises & Events, Inc. (Commodore) is a company based in Alameda,

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California, which owns and operates yachts and supporting facilities which are available to the to the public for cruises on the San Francisco Bay. 3. Summary of facts: This case involves the denial of access to Defendant's yacht for a cruise on June 30, 2007. Plaintiff was denied equal protection of the law and was denied Civil Rights under both California law and federal law, as hereinbelow described. Plaintiff was denied his rights to full and equal access to the yacht. An inaccessible path of travel from the landing to the yacht was a barrier which prevented Plaintiff from getting onto the yacht, in violation of disability laws, which made the yacht not properly accessible to Plaintiff or to others similarly situated. Plaintiff seeks injunctive relief to require Defendants to modify the path of travel and entrance to one or more of its yachts so that people in wheelchairs have equal access to the Defendant's yachts. Plaintiff is informed, and believes and alleges, that numerous features of Defendant's yachts (such as paths of travel, tables, counters, views and sanitary facilities) are not in compliance with State and Federal access laws. Therefore, Plaintiff also seeks an order requiring Defendants to modify all aspects of its yachts to the extent that State and Federal access laws require. Plaintiff also seeks an order requiring Defendant's sales office to become accessible. Plaintiff seeks the recovery of damages for his personal damages involved in the discriminatory experiences on June 30, 2007, all of which Plaintiff will donate to charity. Plaintiff also seeks recovery of reasonable attorney's fees and litigation expenses and costs according to statute. 4. Jurisdiction: This Court has jurisdiction of this action pursuant to 28 USC § 1331 for violations of the Americans with Disabilities Act of 1990, 42 USC 12101 et seq. Pursuant to supplemental jurisdiction, attendant and related causes of action arising from the same facts are COMPLAINT 2

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also brought under California law, including but not limited to violations of California Civil Code §§ 51, 54, 54.1 and 55. 5. Venue: Venue is proper in this Court pursuant to 28 USC 1391(b) and is founded on the fact that the location where Plaintiff experienced his discrimination is located in this district and that Plaintiff's causes of action arose in this district. 6. Intradistrict: This case should be assigned to the San Francisco intradistrict because the incident occurred in, and Plaintiff's rights arose in, San Francisco, which is within the San Francisco intradistrict. 7. Commodore is a "public accommodation or facility" subject to the requirements of California Civil Code § 51, 54, 54.1 and 55. 8. Placeholder. 9. Defendants are and were the owners, operators, managers, lessors and lessees of the subject cruise company at all times relevant herein. Plaintiff is informed and believes that each of the Defendants is and was the agent, employee or representative of each of the other Defendants, and performed all acts and omissions stated herein within the scope of such agency or employment or representative capacity and is responsible in some manner for the acts and omissions of the other Defendants in proximately causing the damages complained of herein. 10. Plaintiff and others similarly situated are disabled persons who require the use of a wheelchair and are unable to use public facilities on a "full and equal" basis unless each such facility is in compliance with the provisions of the Americans with Disabilities Act of 1990 and the regulations thereof. Under Civil Code §§ 51 and 54.1, Defendants were required to comply with the requirements of the Americans with Disabilities Act of 1990 and the federal COMPLAINT 3

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regulations adopted pursuant thereto. The acts and omissions of which Plaintiff complains took place on the path of travel and entrance to one of Commodore's yachts. 11. Civil Code §§ 51 and 54, et seq., were enacted to prohibit discrimination against people with disabilities and to encourage the full and free use by people with disabilities of public facilities and other public places. CC §§ 51 and 54(c) state that a violation of the Americans with Disabilities Act of 1990 is a "violation of this section"; CC § 54.1(a) states that individuals with disabilities are entitled to "full and equal access" to public accommodations and that such access means that which meets the standards of Titles II and III of the Americans with Disabilities Act of 1990 and federal regulations adopted pursuant thereto; CC § 52 states that Plaintiff is entitled to his actual damages and minimum damages for discrimination are $4,000 for each occurrence of discrimination; CC § 54.3 states that Plaintiff is entitled to his actual damages with minimum damages for discrimination of $1,000 for each occurrence of discrimination; CC § 54.3 states that a defendant who denies or interferes with a disabled person's rights of access is liable for actual damages and attorneys' fees. 12. Health & Safety Code § 19955 was enacted "To ensure that public accommodations or facilities constructed in this state with private funds adhere to provisions of Chapter 7 (commencing with § 4450) of Division 5 of Title 1 of the Government Code." Such public accommodations include those which are the subject of this action. On information and belief, Title 24 California Code of Regulations, formerly known as the California Administrative Code, was in effect at the time of construction and of each alteration of work, all of which occurred after July 1, 1982, thus requiring access complying with the specifications of title 24 for all such construction and for each such "alteration, structural repair or addition". COMPLAINT 4

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13.

In late spring 2007, one of Plaintiff's close friends decided to charter a San Francisco

Bay cruise on one of Defendant's yachts for a party on June 30, 2007. It was important to Plaintiff's friend that Plaintiff be able to attend the cruise. Therefore, on approximately June 15, 2007, Plaintiff's friend met with Defendant's representative and asked if the cruise were accessible to people in wheelchairs. In that conversation, Defendant's representative assured Plaintiff's friend that the cruise was accessible to people in wheelchairs. At the time when Plaintiff arrived to board Defendant's yacht on June 30, 2007, the path of travel from the landing into defendant's yachts requires had a gap of 6" to 10" wide, and rise of approximately 1'. Plaintiff only travels in a power wheelchair. Plaintiff is unable to travel over 6" gaps or up 1' rises. On June 30, 2007 Plaintiff presented himself on the landing at the entry to the path of travel onto Defendant's yacht. It was obvious to Plaintiff that he would not be able to wheel his wheelchair into the yacht, because if he tried to do so he would have become stuck in the wide gap and been unable to go up the 1' rise. Moreover, there was a danger that if Plaintiff attempted to do so, he might have fallen into the Bay. Two of Defendant's employees offered to carry Plaintiff over the gap and up the rise. Lifting Plaintiff in such a manner would have caused Plaintiff indignities. More important was the fact that Plaintiff in his wheelchair weighs approximately 350 lbs. If Plaintiff had allowed the employees to lift him, there was a real danger that Defendant's employees might drop Plaintiff into the Bay. From Plaintiff"s position on the dock, Plaintiff could see that if he could have gotten onto the yacht, he would have been subjected to numerous barriers in the path of travel, COMPLAINT 5

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counters, eating facilities and sanitary facilities. As a consequence, Plaintiff decided to go home. As a result, Plaintiff was humiliated and embarrassed, all to Plaintiff's damages in an amount according to proof. 14. Defendants' failure to have remove all readily achievable barriers, institute policies in furtherance of accessibility or at least have an alternate policy to enable Plaintiff to use the goods and services offered to the non-disabled public without having to suffer the indignities, as aforesaid, was a violation of the Americans with Disabilities Act and federal regulations adopted pursuant thereto, and as a consequence, was a violation of Civil Code §§ 51 and 54, et seq. 15. Injunctive relief: Plaintiff seeks injunctive relief to prohibit the acts and omissions by Defendants as stated above, which appear to be continuing, and which have the effect of wrongfully excluding Plaintiff and others similarly situated from using the cruises. Plaintiff also seeks injunctive relief to assure that Defendant's sales office complies with applicable access laws. Plaintiff lives in Oakland, California, and intends to go on Defendant's cruises once they are accessible. Such acts and omissions are the cause of humiliation and mental and emotional suffering of Plaintiff in that these actions continue to treat Plaintiff as an inferior and second class citizen and serve to discriminate against Plaintiff on the sole basis that Plaintiff is a person with a disability and requires the use of a wheelchair for movement in public places. Plaintiff is unable so long as such acts and omissions of Defendants continue, to achieve equal access to and use of these public facilities. The acts of Defendants have proximately caused and will continue to cause irreparable injury to Plaintiff if not enjoined by this Court. 16. Damages: As a result of the denial of equal access to the yacht and due to the acts and COMPLAINT 6

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omissions of Defendants and each of them in owning, operating and/or leasing the yacht and cruise company, Plaintiff suffered a violation of Civil Rights including but not limited to rights under Civil Code §§ 51, 54 and 54.1, and suffered mental and emotional distress, embarrassment and humiliation, all to Plaintiff's damages. Defendant's actions and omissions to act constituted discrimination against Plaintiff on the sole basis that Plaintiff was physically disabled and unable to use the facilities on a full and equal basis as other persons. Plaintiff seeks actual damages and the minimum damages of $4,000 pursuant to CC § 52, or $1,000 pursuant to CC §54.3 for the occasion that he patronized Commodore. Plaintiff also seeks trebling of all of the actual damages as provided by Civil Code § 54.3. Whatever damages Plaintiff receives, Plaintiff will either ask that they be paid directly to "Able Flight, Inc.", a 501(c)(3) non profit organization, or if this is not possible, will turn over all of such damages to Able Flight, Inc. 17. Fees and costs: As a result of Defendant's acts, omissions and conduct, Plaintiff has been required to incur attorney's fees, litigation expenses, and costs as provided by statute, in order to enforce Plaintiff's rights and to enforce provisions of the law protecting access for disabled persons and prohibiting discrimination against disabled persons. Plaintiff therefore seeks recovery of all reasonable attorney's fees and costs, pursuant to the provisions of Civil Code §§ 52 and 54.3. Additionally, Plaintiff's lawsuit is intended not only to obtain compensation for damages to Plaintiff, but also to force the Defendants to make their facilities accessible to all disabled members of the public, justifying "public interest" attorney's fees, litigation expenses and costs pursuant to Code of Civil Procedure § 1021.5. 18. Wherefore, Plaintiff asks this Court to preliminarily and permanently enjoin any COMPLAINT 7

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continuing refusal by Defendants to comply with the requirements of the California Building Code, the Americans with Disabilities Act of 1990 and regulations adopted pursuant thereto with respect to access of disabled persons to the Defendant's cruises; for minimum damages pursuant to CC § 52 or 54.3; for actual and treble damages pursuant to CC §§ 52a and 54.3, and for attorneys' fees and costs pursuant to CC §§ 52, 54.3 and 1021.5. SECOND CLAIM FOR RELIEF: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990 42 USC §§ 12101 FF 19. Plaintiff realleges the allegations of paragraphs 1-18 hereof. 20. Pursuant to law, in 1990 the United States Congress made findings per 42 USC §12101 regarding physically disabled persons, finding that laws were needed to more fully protect "some 43 million Americans [with] one or more physical or mental disabilities"; that "historically society has tended to isolate and segregate individuals with disabilities"; and that "such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem"; that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living and economic self sufficiency for such individuals"; and that "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous ..." 21. Congress stated as its purpose in passing the Americans with Disabilities Act (42 USC §12101(b)): It is the purpose of this act COMPLAINT 8

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(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal government plays a central role in enforcing the standards established in this act on behalf of individuals with disabilities; and (4) to invoke the sweep of Congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities (emphasis added). 22. As part of the Americans with Disabilities Act, Public Law 101-336 (hereinafter the "ADA"), Congress passed "Title III - Public Accommodations and Services Operated by Private Entities" (42 USC 12181 ff). Among "private entities" which are considered "public accommodations" for purposes of this Title is a cruise line which is open to the public (Regulation 36.104). 23. Pursuant to §302, 42 USC §12182, "No 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 by any person who owns, leases or leases to, or operates a place of public accommodation." 24. Among the specific prohibitions against discrimination were included: §12182(b)(2)(A)(ii): "A failure to make reasonable modifications in policies, practices or procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities ..."; §12182(b)(A)(iii): "a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied service, segregated, or otherwise treated differently than

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other individuals because of the absence of auxiliary aids and services ..."; §12182(b)(A)(iv): "A failure to remove architectural barriers and communication barriers that are structural in nature, in existing facilities ... where such removal is readily achievable"; §12182(b)(A)(v): "Where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable". The acts and omissions of Defendants set forth herein were in violation of Plaintiff's rights under the ADA, Public Law 101-336, and the regulations promulgated thereunder, 28 CFR Part 36ff. 25. The removal of each of the barriers complained of by Plaintiff as hereinabove alleged, were at all times herein mentioned "readily achievable" under the standards of the Americans With Disabilities Act. Because the cruises were accessible, Defendants had an obligation to have some sort of plan which would have allowed Plaintiff to enjoy the Defendant's cruises without having to suffer the indignities as aforesaid. 26. Pursuant to the Americans with Disabilities Act, 42 USC 12188ff, §308, Plaintiff is entitled to the remedies and procedures set forth in §204(a) of the Civil Rights Act of 1964, 42 USC 2000(a)-3(a), as Plaintiff is being subjected to discrimination on the basis of disability in violation of this Title or has reasonable grounds for believing that he is about to be subjected to discrimination in violation of §12182. On information and belief, Defendants have continued to violate the law and deny the rights of Plaintiff and of other disabled persons to access this public accommodation since on or before the June 30, 2007. Pursuant to §12188(a)(2), "In cases of violations of §12182(b)(2)(A)(iv) ... injunctive relief shall include an order to alter COMPLAINT 10

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facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this title." 27. Plaintiff seeks relief pursuant to remedies set forth in §204(a) of the Civil Rights Act of 1964, (42 USC 2000(a)-3(a), and pursuant to Federal Regulations adopted to implement the Americans with Disabilities Act of 1990. Plaintiff is a person for purposes of Section 12188(a) of the ADA who is being subjected to discrimination on the basis of disability in violation of Title III and who has reasonable grounds for believing he will be subjected to such discrimination each time that he may attempt to enjoy one of Defendant's cruises. Wherefore Plaintiff prays for relief as hereinafter stated: PRAYER 1. Issue a preliminary and permanent injunction directing Defendants to modify its facilities as required by law to comply with the ADAAG and the CBC where required, remove all barriers where it is readily achievable to do so, institute policies in furtherance of accessibility, such as notifying potential customers of the extent to which the yachts are accessible, or at least have an alternate policy to enable Plaintiff to use the goods and services offered to the non-disabled public so that it provides adequate access to all citizens, including persons with disabilities; and issue a preliminary and permanent injunction directing Defendants to maintain its facilities usable by plaintiff and similarly situated persons with disabilities in compliance with federal regulations, and which provide full and equal access, as required by law; 2. Retain jurisdiction over the Defendants until such time as the Court is satisfied that Defendants' unlawful policies, practices, acts and omissions, and maintenance of inaccessible COMPLAINT 11

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public facilities as complained of herein no longer occur, and will not recur; 3. Award to Plaintiff all appropriate damages, including but not limited to statutory damages, treble damages, general damages and special damages in an amount within the jurisdiction of the Court, all according to proof, and as to whatever damages Plaintiff receives, either direct that all such damages be paid directly to "Able Flight, Inc.", a 501(c)(3) non profit organization, or if this is not possible, Plaintiff will turn over all of such damages to Able Flight, Inc. 4. Award to Plaintiff all reasonable attorneys' fees, all litigation expenses, and all costs of this proceeding as provided by law; and 5. Grant such other and further relief as this Court may deem just and proper. Date: September 17, 2007 _S/Thomas N. Stewart, III_____ By: THOMAS N. STEWART, III Attorney for Plaintiff

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