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Theodore v. 99 Restaurant, LLC

United States District Court, D. New Hampshire

October 2, 2019

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.


          Steven J. McAuliffe, United States District Judge.

         Plaintiffs, 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.

         For the reasons discussed, plaintiffs' motion for partial summary judgment (document no. 36) is denied, and defendants' motion for summary judgment (document no 42) is granted.

         Standard of Review

         When 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).


         Defendants' 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.

         After 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 compliance expert.

         Defendants 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.

         A 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 area.”[1]

         Defendants 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.


         I. Accessible Parking Spaces.

         In 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).

         Defendants 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.

         Pursuant to the 2010 ADA Standards for Accessible Design, [2] 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.

         Plaintiffs 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 customers.”).

         Such 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 ...

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