Here's some allies.
Lawsuit over wheelchair access at Torrey Pines Gliderport
http://www.sandiegoreader.com/news/2013 ... rey-pine/#"The unlawful and discriminatory barriers at the Gliderport have caused Plaintiffs difficulty, anger, frustration and embarrassment and made them feel unwelcome and like second-class citizens," reads the lawsuit. "The Gliderport is a place of exhibition or entertainment, and therefore a place of “public accommodation” for purposes of Title III of the [Americans with Disabilities Act].
Considered the "Kitty Hawk of the West" by glider enthusiasts (says Wikipedia), the gliderport is located on city-owned property and is privately operated by Air California Adventure. The site has been the hang glider hangout since 1930, when it was first "established as a soaring site."
But improvements on the land aren't easy to accomplish, says owner and flight director Robin Marien. He says the permitting process is arduous and he isn't sure what can be done on city park land, contiguous to Torrey Pines State Preserve.
"We've been doing a lot of improvements since [March] and as far as doing more, well, there isn't much we can do about it."
According to the complaint, Schutza and Karczewski filed a claim with the City of San Diego's Risk Management Department in May of this year. Those claims, however, were denied.
"Plaintiffs intend to return to the Gliderport in the future, to watch the sailplanes, hang gliders and paragliders. Until the unlawful and discriminatory barriers at the Gliderport are remedied by Defendants, Plaintiffs will continue to be denied full and equal access to the goods, facilities, programs, services and activities offered by Defendants to the general public, and will suffer ongoing discrimination by being prevented and deterred from returning there."
The complaint says that until those improvements are made the Gliderport should be shut down. In addition, the two men are asking they be awarded general, compensatory, and statutory damages."
Marien declined to comment further about the complaint.
The lawsuit PDF
http://www.sandiegoreader.com/documents ... t-lawsuit/[headers removed]
Case 3:13-cv-02992-CAB-KSC Document 1 Filed 12/12/13
CENTER FOR DISABILITY ACCESS
Mark Potter, Esq., SBN 166317
Phyl Grace, Esq., SBN 171771
Mail: PO Box 262490
San Diego, CA 92196-2490
Delivery: 9845 Erma Road, Suite 300 San Diego, CA 92131
(858) 375-7385; (888) 422-5191 fax
phylg@potterhandy.comUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Scott Schutza and John Karczewski,
Plaintiffs,
v.
City of San Diego; Air California
Adventure, Inc., a California Corporation Doing Business as
Torrey Pines Gliderport; and Does 1-10, Inclusive,
Defendants.
Case No.
Complaint For Damages And
Injunctive Relief For Violations
Of:
1. Title II of the American’s With
Disabilities Act, 42 U.S.C. §12131 et seq.;
2. Title III of the American’s With
Disabilities Act, 42 U.S.C.
§12182 et seq.;
3. California’s Unruh Civil Rights
Act, Cal. Civ. Code 51 et seq. and
4. California’s Disabled Persons
Act, Cal. Civ. Code § 54.1 et seq.
'13CV2992 CAB KSC
Plaintiffs Scott Schutza and John Karczewski (collectively “Plaintiffs”)
complain of Defendants City of San Diego; Air California Adventure, Inc., a
California Corporation Doing Business as Torrey Pines Gliderport; and Does
1-10, Inclusive, (collectively “Defendants”) and allege as follows:
INTRODUCTION
1. The Americans with Disabilities Act (“ADA”) was passed over 2
decades ago with a principal goal of integrating people with disabilities into
the country’s economic and social life. 42 U.S.C. § 12101(a). Despite this
long-standing mandate, Defendants have failed to ensure that individuals
with disabilities have full and equal access to the goods, facilities, programs,
services and activities offered to members of the public at the Torrey Pines
Gliderport (“Gliderport”). Specifically, Defendants have constructed and/or
failed to remove architectural barriers that prevent individuals who use
wheelchairs from having full and equal access to the public facilities at the
Gliderport, thus subjecting Plaintiffs to discrimination on the basis of their
disabilities in violation of Title II and III of the ADA and related California
civil rights laws.
2. As a result of Defendants’ discriminatory acts and omissions,
Plaintiffs have suffered, and will continue to suffer, damages, and have been,
and will continue to be, prevented and deterred from accessing the goods,
facilities, programs, services and activities offered at the Gliderport
independently and in a manner equal to their able-bodied peers.
3. Through this lawsuit, Plaintiffs seek an injunction requiring
Defendants to provide them, and similarly situated persons, “full and equal”
access to Defendants’ public facilities as required by law. Plaintiffs also seek
damages and reasonable attorneys’ fees, costs and litigation expenses for
enforcing their civil rights.
PARTIES
4. Plaintiffs Scott Schutza (“Schutza”) and John Karczewski
(“Karczewski”) are, and at all times relevant herein were, California residents
with physical disabilities. Schutza and Karczewski are both unable to walk or
stand independently as the result of paraplegia, and use wheelchairs for
mobility. Schutza and Karczewski are, and at all times relevant herein were,
individuals with disabilities as those terms are defined under the ADA and its
implementing regulations (42 U.S.C. § 12102; 28 C.F.R. § 35.104; 28 C.F.R.
§ 36.104) and California law (Cal. Gov. Code § 12926).
5. Defendant City of San Diego (“City”) is, and at all times relevant
to herein was, a public entity within the meaning of Title II of the ADA. At all
times relevant herein, the Regents owned, controlled, maintained and/or
exercised dominion over the Gliderport, located at 2800 Torrey Pines Scenic
Drive, in the City of La Jolla, California.
6. Defendant Air California Adventure, Inc. (“ACA”), a California
corporation doing business as Torrey Pines Gliderport, is a corporation
incorporated under the laws of California, with its principal place of business
located at 2800 Torrey Pines Scenic Drive, in the City of La Jolla, California.
ACA is, and at all times relevant herein was an owner, operator, lessor and/or
lessee of the Gliderport, located at 2800 Torrey Pines Scenic Drive, in the
City of La Jolla, California.
7. Plaintiffs are currently unaware of the true identities of Does 1-
10, inclusive, and will seek leave to amend when their true names, capacities,
connections, and responsibilities are ascertained.
8. Plaintiffs are informed and believe that each of the Defendants
is the agent, ostensible agent, alter ego, master, servant, trustor, trustee,
employer, employee, representative, franchiser, franchisee, lessor, lessee,
joint venturer, parent, subsidiary, affiliate, related entity, partner, and/or
associate, or such similar capacity, of each of the other Defendants, and was
at all times acting and performing, or failing to act or perform, within the
course and scope of such similar aforementioned capacities, and with the
authorization, consent, permission or ratification of each of the other
Defendants, and is personally responsible in some manner for the acts and
omissions of the other Defendants in proximately causing the violations and
damages complained of herein, and have participated, directed, and have
ostensibly and/or directly approved or ratified each of the acts or omissions of
each of the other Defendants, as herein described.
9. This Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 and § 1343(a)(3) & (a)(4) for violations of the
ADA.
10. Pursuant to pendant jurisdiction, attendant and related causes
of action arising from the same facts are also brought under California law,
including, the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. and the
Disabled Persons Act, Cal. Civ. Code § 54.1 et seq., both of which expressly
incorporate the Americans with Disabilities Act. Cal. Civ. Code §§ 51(f),
54.1(d).
11. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b)
and is founded on the fact that the real property which is the subject of this
action is located in this district and that Plaintiffs’ causes of action arose in
this district.
JURISDICTION & VENUE
FACTUAL ALLEGATIONS
12. The Gliderport is a city-owned private-use glider airport located
approximately 12.5 miles northwest of the central business district of San
Diego.
13. The Gliderport was first established as a soaring site in 1930
and is the home to hang gliding, paragliding, radio-controlled model
sailplanes, and full-scale man-carrying sailplanes. It is listed as a National
Landmark of Soaring of the National Soaring Museum and a Model Aviation
Landmark of the Academy of Model Aeronautics. It is considered by glider
enthusiasts of all types to be the "Kitty Hawk of the West."
14. Full-scale sailplanes are operated by the Associated Glider Clubs
of Southern California (AGCSC), only during special permit windows
between February and April, while models, hang gliders, and paragliders fly
any time the wind permits.
15. On March 11, 2013 and March 13, 2013, Plaintiffs visited the
Gliderport, seeking to join other spectators in watching the sailplanes, hang
gliders and paragliders. On both days, Plaintiffs encountered barriers
including:
a. Parking: There is no designated accessible parking;
b. Restrooms: There are no accessible restroom facilities;
c. Pedestrian Paths of Travel: The pedestrian paths of travel
are not safe and accessible to wheelchair users; and
d. Consessions/Snack Bar: The snack/concessions area is
inaccessible to wheelchair users as the counters are too
high; there is no accessible path of travel to and from the
area; and the seating is all picnic table style.
16. The barriers encountered by Plaintiffs at the Gliderport violate
the ADA Standards for Accessible Design (ADA Standards), 28 C.F.R. pt. 36,
app. D, and the Title 24 of the California Code of Regulations, the California
Building Code.
17. The unlawful and discriminatory barriers at the Gliderport have
caused Plaintiffs difficulty, anger, frustration and embarrassment and made
them feel unwelcome and like second-class citizens.
18. On information and belief, there are additional access barriers
and discriminatory policies that exclude and deter Plaintiffs and other
similarly situated individuals who use wheelchairs from enjoying full and
equal access to and use of the goods, services, facilities, privileges,
advantages, and accommodations offered by Defendants to the general
public at the Gliderport. Additional access barriers will be confirmed by
Plaintiffs through a noticed site inspection, at which time they will amend his
Complaint.
19. Plaintiffs intend to return to the Gliderport in the future, to
watch the sailplanes, hang gliders and paragliders. Until the unlawful and
discriminatory barriers at the Gliderport are remedied by Defendants,
Plaintiffs will continue to be denied full and equal access to the goods,
facilities, programs, services and activities offered by Defendants to the
general public, and will suffer ongoing discrimination by being prevented and
deterred from returning there.
20. The nature of Defendants’ discrimination constitutes an
ongoing violation, and unless enjoined by this Court, will result in ongoing
and irreparable injury to Plaintiffs and other similarly disabled persons.
GOVERNMENT CLAIM FILED
(With regard to claims for damages under California Law)
21. Plaintiffs timely filed claims pursuant to § 910 et seq. of the
California Government Code with the City of San Diego on May 10, 2013.
Their claims were rejected on June 18, 2013.
FIRST CAUSE OF ACTION
TITLE II OF THE AMERICANS WITH DISABILITIES ACT OF 1990
42 U.S.C. §§ 12131 et seq.
(On behalf of Plaintiffs and against Defendant City)
22. Plaintiffs re-plead and incorporate by reference the allegations
contained in each of the foregoing paragraphs, and incorporate them herein
as if separately re-pled.
23. Title II of the ADA provides in pertinent part: “[N]o qualified
individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132.
24. At all times relevant to this action, Defendant was a “public
entity” within the meaning of Title II of the ADA, offering programs, services
and/or activities to the general public at the Gliderport.
25. Plaintiffs are, and at all times relevant herein were, qualified
individuals with disabilities within the meaning of Title II of the ADA, and
meet the essential eligibility requirements for the receipt of the services,
programs, or activities offered by Defendant to the public at the Gliderport.
26. Defendant’s acts and omissions as herein alleged have
prevented and/or denied Plaintiffs from having full and equal use and benefit
of the programs, services and activities it offers to the public at the
Gliderport, in violation of Title II and its implementing regulations. The
Defendant’s discriminatory conduct includes, inter alia:
a. Denying Plaintiffs the opportunity to participate in or
benefit from the aids, benefits, or services offered by
Defendant to members of the public, on the basis of their
disabilities (28 C.F.R. § 35.130(b)(1)(i));
b. Affording Plaintiffs an opportunity to participate in or
benefit from the aids, benefits, or services offered by
Defendants to members of the public that is not equal to
that afforded their non-disabled peers (28 C.F.R. §
35.130(b)(1)(ii));
c. Providing Plaintiffs with an aid, benefit, or service that is
not as effective in affording equal opportunity to obtain
the same result, to gain the same benefit, or to reach the
same level of achievement as that provided to others (28
C.F.R. § 35.130(b)(1)(iii));
d. Otherwise limiting Plaintiffs in the enjoyment of any
right, privilege, advantage, or opportunity enjoyed by
others receiving the aids, benefits, or services offered by
Defendant to members of the public (28 C.F.R. §
e. Utilizing methods of administration that have the effect of
subjecting Plaintiffs to discrimination on the basis of their
disabilities (28 C.F.R. § 35.130(b)(3)(i)); and
f. Failing to make reasonable modifications in policies,
practices, or procedures where necessary to avoid
discrimination against Plaintiffs on the basis of their
disabilities (28 C.F.R. § 35.130(b)(7)).
35.130(b)(1)(vii));
27. Defendant’s duties under Title II are mandatory, well-
established and long-standing. Defendant is deemed to have had knowledge
of its duties at all times relevant herein; its failure to carry out said duties was
willful and knowing and/or the product of deliberate indifference.
28. Pursuant to 42 U.S.C. §§ 12133 and 12205, Plaintiffs pray for
judgment as set forth below.
VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
CAUSE OF ACTION
TITLE III - 42 U.S.C. §12101 et seq.
(On behalf of Plaintiffs and against Defendant ACA)
29. Plaintiffs re-plead and incorporate by reference the allegations
contained in each of the foregoing paragraphs, and incorporate them herein
as if separately re-pled.
30. Title III of the ADA provides that “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.” 42
U.S.C. § 12182(a).
31. Among the “private entities” which are considered “public
accommodations” for purposes of this title is “a motion picture house,
theater, concert hall, stadium, or other place of exhibition or entertainment”.
42 U.S.C. 12181(7)(C).
32. The Gliderport is a place of exhibition or entertainment, and
therefore a place of “public accommodation” for purposes of Title III of the
ADA.
33. Defendant has discriminated against Plaintiffs on the basis of
their disabilities in violation of Title III of the ADA. Defendant’s
discriminatory conduct includes, but is not limited to:
a. Directly, or through contractual, licensing, or other
arrangements, excluding or denying Plaintiffs goods, services,
facilities, privileges, advantages, accommodations, and/or
opportunities, on the basis of their disabilities. 42 U.S.C. §
12182(b)(1)(A)(i);
b. Providing Plaintiffs goods, services, facilities, privileges,
advantages, and/or accommodations that are not equal to those
afforded non-disabled individuals. 42 U.S.C. §
12182(b)(1)(A)(ii);
c. Failing to design and/or construct facilities built for first
occupancy after January 26, 1993 so that they are readily
accessible to and usable by individuals with disabilities in
accordance with the ADA Standards. 42 U.S.C. § 12183(a)(1);
d. Since January 26, 1992, failing to make alterations in such a
manner that, to the maximum extent feasible, the altered
portions of the facilities are readily accessible to and usable by
individuals with disabilities in accordance with the ADA
Standards. 42 U.S.C. § 12183(a)(2);
e. Since July 26, 1991, failing to comply with the ongoing
obligation to remove barriers, and/or provide path of travel
upgrades to remove barriers at facilities where such removal is
“readily achievable.” 42 U.S.C. § 12182(a)(2)(A)(iv); and
f. Failing “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, unless the
entity can demonstrate that making such modifications would
fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations.” 42 U.S.C. §
12182(b)(2)(A)(ii).
34. Pursuant to the remedies, procedures, and rights set forth in 42
U.S.C. § 12188 and 42 U.S.C. § 12205, Plaintiffs pray for judgment as set
forth below.
THIRD CAUSE OF ACTION
UNRUH CIVIL RIGHTS ACT
California Civil Code §§ 51 et seq.
(On behalf of Plaintiffs and against all Defendants)
35. Plaintiffs re-plead and incorporate by reference the allegations
contained in each of the foregoing paragraphs, and incorporates them herein
as if separately re-pled.
36. Defendants are business establishments and, as such, must
comply with the provisions of the Unruh Civil Rights Act, Cal. Civ. Code § 51
et seq.
37. The Unruh Act guarantees, inter alia, that persons with
disabilities are entitled to full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments of every kind
whatsoever within the jurisdiction of the State of California. Cal. Civ. Code §
51(b).
38. The Unruh Act also provides that a violation of the ADA, or of
California state accessibility regulations, is a violation of the Unruh Act. Cal.
Civ. Code § 51(f).
39. Defendants have violated the Unruh Act by, inter alia, denying,
or aiding or inciting the denial of, Plaintiffs’ rights to full and equal use of the
accommodations, advantages, facilities, privileges, or services offered at the
Gliderport.
40. Defendants have also violated the Unruh Act by denying, or
aiding or inciting the denial of, Plaintiffs’ rights to equal access arising from
the provisions of the California state accessibility regulations and the ADA.
41. Pursuant to the remedies, procedures, and rights set forth in Cal.
Civ. Code § 52, Plaintiffs pray for judgment as set forth below.
FOURTH CAUSE OF ACTION
VIOLATION OF THE CALIFORNIA DISABLED PERSONS ACT
California Civil Code §§ 54.1 et seq.
(Statutory damages and attorneys’ fees only)
(On behalf of Plaintiffs and against all Defendants)
42. Plaintiffs re-plead and incorporate by reference the allegations
contained in each of the foregoing paragraphs, and incorporate them herein
as if separately re-pled.
43. The Disabled Persons Act (“DPA”) provides that “[i]ndividuals
with disabilities shall be entitled to full and equal access, as other members of
the general public, to accommodations, advantages, facilities, ... and
privileges of all ... places of public accommodation, amusement, or resort,
and other places to which the general public is invited....” Cal. Civ. Code §
54.1(a).
44. Defendants’ acts and omissions, described herein, violate the
rights of Plaintiffs under the DPA.
45. A violation of the ADA is also a violation of the DPA. See Cal.
Civ. Code, § 54.1(d).
46. Pursuant to the remedies, procedures, and rights set forth in Cal.
Civ. Code § 54.3(a), Plaintiffs pray for statutory damages and attorneys’ fees
under Cal. Civ. Code § 54.3(a).
PRAYER
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Issue an injunction:
a. Ordering Defendants to alter their facilities to make such
facilities readily accessible to and usable by individuals
with disabilities; and
b. Prohibiting operation of the Gliderport until Defendants
provide full and equal access to individuals with physical
disabilities, and requiring that such access be immediately
provided.
c. Note: the Plaintiffs are is not invoking section 55 of the
California Civil Code and is not seeking injunctive relief
under the Disabled Persons Act.
2. Award Plaintiffs general, compensatory, and statutory damages
3. Award Plaintiffs attorneys’ fees, litigation expenses and costs of
4. Award such other and further relief as the Court may deem just
in an amount within the jurisdiction of this court;
suit, as provided by law; and
and proper.
Dated: December 10, 2013 Center For Disability Access
By:
Mark Potter, Esq.
Attorneys for Plaintiff
