United States District Court, D. New Hampshire
Dino N. Theodore and Access with Success, Inc., Plaintiffs
99 Restaurants, LLC; 99 West, LLC; and Double 9 Property III, LLC, Defendants
Nicholas S. Guerrera, Esq., James L. Frederick, Esq.,
Laurence B. Cote, Esq.
J. McAuliffe, United States District Judge.
Access with Success, Inc., and one of its directors, Dino
Theodore, determined that various design/architectural
elements in and around defendants' 99 Restaurant in
Salem, New Hampshire, failed to comply with requirements of
Title III of the Americans with Disabilities Act. They sought
“a permanent injunction . . . requiring the defendants
to alter the 99 Restaurant & Pub [in Salem, New
Hampshire] . . . in order to render their restaurant readily
accessible to and useable by individuals with disabilities .
. . to the extent required by the Americans with Disabilities
Act.” Amended Complaint (document no. 22) at 17-18. In
response to plaintiffs' complaint, defendants say they
have since made substantial renovations to the restaurant and
have remedied all alleged ADA violations. Accordingly,
defendants now move for summary judgment, asserting that
plaintiffs' claims are moot. Plaintiffs object and move
for “partial summary judgment, ” vaguely claiming
that unspecified “architectural barriers to equal
access still exist at The 99” and the
“non-compliant conditions have not been
remediated.” Plaintiffs' Memorandum of Law
(document no. 36-1) at 15.
reasons discussed, plaintiffs' motion for partial summary
judgment (document no. 36) is denied, and defendants'
motion for summary judgment (document no 42) is granted.
ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most
favorable to the nonmoving party, and to draw all reasonable
inferences in the nonmoving party's favor.” Block
Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360
(1st Cir. 2016) (citation omitted). Summary judgment is
appropriate when the record reveals “no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In
this context, a factual dispute “is ‘genuine'
if the evidence of record permits a rational factfinder to
resolve it in favor of either party, and ‘material'
if its existence or nonexistence has the potential to change
the outcome of the suit.” Rando v. Leonard,
826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party
opposing summary judgment would bear the burden of proof at
trial, that party may not simply rely on the absence of
evidence but, rather, must point to definite and competent
evidence showing the existence of a genuine issue of material
fact.” Perez v. Lorraine Enters., 769 F.3d 23, 29-30
(1st Cir. 2014). In other words, “a laundry list of
possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more,
is not enough to stave off summary judgment.” Tobin
v. Fed. Express Corp., 775 F.3d 448, 451-52 (1st Cir.
2014). See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
restaurant (the “Salem 99 Restaurant”) is in a
shopping plaza in Salem, New Hampshire. According to the
amended complaint (which defendants do not dispute), the
entire shopping plaza includes roughly 1, 000 parking spaces.
As originally constructed in about 1975, the Salem 99
Restaurant was required, by local zoning ordinance, to
maintain 60 parking spaces for its patrons. In 1992, the
restaurant constructed a 700 square foot addition, which
allows it to currently accommodate 240 customers. When that
addition was built, the Salem zoning ordinance required the
restaurant to increase the No. of parking spaces available to
its customers from 60 to 97. Plaintiffs do not suggest that
the Salem 99 Restaurant is legally required to maintain any
more than those 97 parking spaces.
being served with plaintiffs' complaint in May of 2018,
defendants retained legal counsel, an architect, and an
architectural consultant/ADA compliance expert, to assess the
claims asserted by plaintiffs. Defendants and their retained
experts discussed the ADA violations identified by the
plaintiffs and considered how they might be remedied. By
August of 2018, the architect had completed plans for the ADA
renovation. Those plans were revised in September of 2018,
based upon input from the architectural consultant/ADA
obtained a building permit and construction began in October
of 2018. Changes to the handicapped parking were completed by
the end of that month and most interior renovations were
completed by December 14, 2018. The last of the interior
renovations were completed by January of 2019. Finally, once
the weather permitted, the defendants replaced the concrete
sidewalk in front of the handicapped parking to bring it into
compliance with ADA requirements. In total, defendants spent
approximately $120, 000.00 to bring the interior and exterior
elements of the restaurant and parking area into compliance
with the ADA. According to their ADA compliance expert, every
non-compliant element of the restaurant and parking area
identified in plaintiffs' amended complaint has been
remedied and the 99 Restaurant in Salem, New Hampshire, now
meets or exceeds all ADA accessibility requirements.
pretrial conference was held on September 4, 2019. At that
conference, plaintiffs conceded that most ADA violations
alleged in the amended complaint have been remedied. They do,
however, persist in claiming that:
1. The restaurant still does not have an adequate No. of
handicapped-accessible parking spaces;
2. The restaurant lacks at least one accessible route that
connects all accessible building entrances with all
accessible spaces; and
3. The restaurant lacks adequate accessible seating
appropriately distributed throughout the facility -
specifically, plaintiffs allege that there is no
handicapped-accessible seating in the “bar
say that, with respect to those remaining claims, there are
no genuinely disputed material facts and they maintain that
they have addressed and remedied each and every alleged
deficiency identified in the amended complaint. Defendants
also assert that they are entitled to judgment as a matter of
law on all of plaintiffs' claims.
Accessible Parking Spaces.
their amended complaint, plaintiffs allege that, as of April
of 2018 (i.e., prior to the renovations), the Salem 99
Restaurant maintained only three accessible parking spaces.
Those spaces failed to meet the requirements of the ADA in
terms of absolute number, signage, surface materials, and the
presence of at least one van accessible space. According to
the amended complaint, “parking facilities that require
more than 100 spaces, such as the defendants' parking
facility, must have a minimum of five accessible parking
spaces (at least one of which must be a van parking
space).” Amended Complaint at para. 65. See also
Id. at para. 67 (“The defendants must provide
at least five ADA-compliant parking spaces given the
restaurant's seating capacity, its high daily volume of
guests at peak times, and the No. of spaces required by their
parking facility.”) (emphasis supplied).
respond by noting that they now have five ADA-compliant
handicapped-accessible parking spaces, one of which is van
accessible. Plaintiffs do not dispute this. And, according to
defendants' architectural and ADA compliance expert, when
the restaurant expanded to its current seating capacity of
240 patrons, the town zoning ordinance required that it
provide 97 parking spaces (which it did). Affidavit and
Report of Walter Blair Adams (document no. 42-4) at 2.
Plaintiffs do not dispute this.
to the 2010 ADA Standards for Accessible Design,
facilities that provide between 76 and 100 parking spaces
must maintain a minimum of four accessible parking spaces.
Id. at Section 208 Parking Spaces. See also
Id. at Table 208.2. Given the No. of parking spaces
maintained by defendants for their customers (97), and given
the fact that defendants now provide five
handicapped-accessible parking spaces (including one
van-accessible space), they are in compliance with (and,
indeed, have exceeded) the ADA's requirements.
now argue that defendants should, in fact, maintain six
handicapped-accessible parking spaces (an argument
inconsistent with their amended complaint). The individually
named plaintiff, Mr. Theodore, “estimates” that
“based on personal observation, ” the restaurant
provides more than 150 parking spaces (which would, under the
ADA Standards, require 6 accessible parking spaces). See
Affidavit of Dino Theodore (document no. 36-2) at para. 23.
See also Plaintiffs' Memorandum (document no. 43-1) at 4
(“Based on Mr. Theodore's observations, the
99's parking facility provides more than 150 spaces in
total. His estimate, based on personal observation, is that a
No. closer to 200 parking spaces, more or less, are occupied
on average by vehicles belonging to The 99's
speculation is not sufficient to contradict defendants'
evidence and their expert's affidavit and report. Nor is
it enough to create a genuine dispute as to a material fact.
The undisputed record evidence reveals that: (1) the Salem 99
Restaurant is, by zoning ordinance, required to provide 97
parking spaces; (2) under the ADA Standards, it is,
therefore, required to provide a minimum of ...