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J.H. v. Just For Kids, Inc.

United States District Court, D. Utah

March 30, 2017

J.H., by and through her legal guardian, Pam Holman Plaintiff,
JUST FOR KIDS, INC., Defendant.


          Jill N. Parrish United States District Court Judge

         Before the court is a Motion to Dismiss filed by Defendant Just for Kids, Inc. pursuant to Fed.R.Civ.P. 12(b)(6). (Docket No. 6). Defendant asks this court to dismiss Plaintiff J.H.'s complaint under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq., because, inter alia, it is not subject to the prohibitions of the ADA. Recounted below are Plaintiff's well-pleaded allegations, which the court accepts as true and construes in the light most favorable to the Plaintiff. See Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013) (requiring this approach at the motion-to-dismiss stage).


         Plaintiff is an individual with Down syndrome, a genetic disorder that is often associated with developmental delays and some level of intellectual disability.[1] Plaintiff also has diabetes mellitus type 1, which she treats through the use of an insulin pump that regulates her blood glucose level. In order to properly manage her diabetes, Plaintiff must regularly monitor her blood glucose level through self-administered blood samples.

         Defendant is a non-profit corporation based in the State of Utah that administers the Habilitation Independence Vocation Education Socialization (“HIVEs”) program. According to Plaintiff, Defendant uses “its own vans” to provide “educational activity services and transportation services . . . to adult individuals with intellectual disabilities.” (Docket No. 2, at 3). The complaint suggests that the HIVEs program involves supervision and instruction of a group of participants by “HIVEs instructors” or “teachers.” (See id., at 4). In a letter to Plaintiff referenced in the complaint, [2] Defendant describes the HIVEs program as follows:

HIVEs is an educational activity program for adults with disabilities. The mission statement of HIVEs is to promote independent life skills and provide opportunities for adults with disabilities to build self-determination by providing, among other things, a safe, independence-oriented environment for people with disabilities as well as affordable community-based respite for parents of children with disabilities. HIVEs accomplishes these objectives by exposing its participants to various community resources and activities such as swimming at the Lehi Legacy Center, eating out, going to the library, participating in physical fitness activities at the American Fork City recreation center, visiting homes for the elderly, and other activities.
HIVEs does not own any real estate. It does not have a school or similar facility of its own. It operates by picking up program participants from their homes in HIVE[s]-owned vans, which transport them to the various planned activities for the day, and then return them home at the end of the day.

(Docket No. 6-7, at 3).

         Plaintiff has participated in the HIVEs program for approximately ten years. In March of 2016, Plaintiff's mother contacted the director of Defendant and the HIVEs program, Michelle Holbrook, to report her concerns regarding the safety of Plaintiff during her regular blood glucose checks. Plaintiff's mother was primarily concerned that HIVEs instructors were allowing Plaintiff to check her blood glucose levels away from the other participants and without adequate supervision. Ms. Holbrook relayed these concerns to the instructors who supervised Plaintiff's participation in the program and requested a face-to-face meeting with Plaintiff's parents to further discuss “safety and supervision” in the program. However, just prior to the planned meeting, Ms. Holbrook e-mailed Plaintiff's mother and indicated that Plaintiff's “medical needs are beyond the ability of HIVEs instructors to manage.” (Docket No. 2, at 4). Ms. Holbrook informed Plaintiff's mother that their planned meeting was cancelled and that Plaintiff would not be allowed to participate in the program after April 1, 2016.

         Shortly after this exchange, Plaintiff's mother contacted Defendant through counsel, arguing that Defendant's exclusion of Plaintiff from the HIVEs program violated Title III of the ADA and specifically requesting that Plaintiff be allowed to reenter the program. Defendant responded through counsel that Title III's prohibitions were not applicable to the HIVEs program and that the program simply could not accommodate Plaintiff's needs. Plaintiff has not participated in the HIVEs program since April 1, 2016.

         Plaintiff, through her mother and legal guardian, filed a complaint against Defendant on May 2, 2016, alleging that Defendant's conduct in excluding her from the HIVEs program violated Title III of the ADA and requesting declaratory and injunctive relief. (Docket No. 2). On May 31, 2016, Defendant filed the instant Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff's complaint failed to state a claim under Title III. (Docket No. 6). Plaintiff filed a memorandum in opposition to Plaintiff's Motion on July 7, 2016. (Docket No. 9). Defendant filed a reply on July 21, 2016. (Docket No. 10). The court held oral argument on the Motion on October 3, 2016. (Docket No. 16). After oral argument, the court ordered simultaneous supplemental briefing on whether the prohibitions of Title III extended beyond physical places and whether the HIVEs program fell within those prohibitions. (Docket No. 15). Plaintiff and Defendant each submitted a supplemental memorandum on October 17, 2016. (Docket Nos. 19, 20). Each party also submitted a reply to these memoranda on October 24, 2016. (Docket Nos. 21, 22). The court now considers the arguments of the parties under jurisdiction granted by 28 U.S.C. § 1331.


         The ADA was enacted “in 1990 to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879 (2001). Title III of the ADA prohibits discrimination “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). A private entity is considered a “public accommodation” if 1) its operations affect commerce and 2) the entity or its facilities fall into one of twelve general definitional categories. See § 12181(7). Each definitional category includes several enumerated examples of qualifying entities, but these examples “aren't exhaustive; rather they serve as mere illustrations” of the category itself. See Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1230 (10th Cir. 2016) (internal citation omitted). Moreover, because Title III of the ADA is a remedial measure, this court “must construe § 12181(7)[] liberally to afford individuals with disabilities access to the same establishments available to those without disabilities.” See Id. (citing PGA Tour, 532 U.S. at 676-77 and Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002)). Nevertheless, an entity or its facilities must fall within at least one of the general categories listed in § 12181(7) in order to be subject to the prohibitions of § 12182. See U.S. Dep't of Justice, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities § III-1.2000, (last visited Mar. 29, 2017) (“Can a facility be considered a place of public accommodation if it does not fall under one of these 12 categories? No, the 12 categories are an exhaustive list.”); 28 C.F.R. 36, app. C, at 893 (“In order to be a place of public accommodation, a facility . . . must fall within one of these 12 categories. While the list of categories is exhaustive, the representative examples of facilities within each category are not.”).

         Here, Plaintiff argues that the HIVES program falls “squarely within at least two of the established Title III categories of ‘public accommodation.'”[3] (See Docket No. 9, at 3 n.1 (emphasis omitted)). Plaintiff first asserts that the HIVES program can be properly categorized as a “place of education” under 42 U.S.C. § 12181(7)(J), which construes “a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education” as a “public accommodation” for purposes of Title III. In the alternative, Plaintiff insists that the HIVES program may be categorized as a “social service center establishment” under subsection (7)(K). § 12181(7)(K) (defining as a “public accommodation” any “day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment”). Defendant responds that the HIVES program is not a “place of public accommodation” under § 12182(a) because it is not a “place” at all, but a program. (Docket No. 10, at 3 n.3). To determine whether the HIVES program may be properly categorized as a “place of education” or a “social service center establishment, ” the court must first decide whether Title III's definition of “public accommodation” is restricted to physical places. As explained below, the court concludes that Title III's definition is so restricted.

         I. Section 12182(a)'s prohibitions are restricted to physical “place[s] of public accommodation.”

         Plaintiff urges that Title III's definition of “public accommodation” is not restricted to physical places, (Docket No. 19, at 2-6), and invites the court to adopt the reasoning of the First, Second, and Seventh Circuits, which have each held that Title III's prohibitions extend beyond physical places, see Carparts Distribution Ctr., Inc. v. Auto. Wholesalers' Ass'n of New Eng., Inc., 37 F.3d 12, 18-20 (1st Cir. 1994) (holding Title III's definition of “public accommodation” was not limited to physical structures, and therefore encompassed a health benefits plan); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 31-33 (2d Cir. 1999) (holding Title III's prohibitions apply to insurance underwriting practices); Morgan v. Joint Admin. Bd., Retirement Plan of the Pillsbury Co. & Amer. Fed. of Grain Millers, 268 F.3d 456, 459 (7th Cir. 2001) (indicating that “public accommodation” under Title III was not limited to a “physical site” and therefore could extend to the terms of a retirement plan). These Circuits concluded that the physical “site” of service “is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services.” See Morgan, 268 F.3d at 459. The First Circuit, for example, found that the inclusion of “travel service” in § 12181(7)'s list of examples of public accommodations indicated that Title III reached beyond physical structures, reasoning that “[m]any travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services.” Carparts, 37 F.3d at 19. Restricting the definition of “public accommodation” to physical structures or places would exclude such transactions from the prohibitions of Title III and thereby “severely frustrate Congress's intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages, available indiscriminately to other members of the general public.” See Id. at 20. The court explained: “It would be irrational to conclude that persons who ...

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