United States District Court, D. Colorado
ORDER DENYING DEFENDANTS' MOTIONS TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motions to
Dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(1)
and 12(b)(6). (Doc. ## 13, 22.) For the reasons discussed
herein, the Court denies the Motions.
Carlos G. Brito is paraplegic and requires the use of a
wheelchair to ambulate. (Doc. # 1 at ¶ 12.) Defendants
JP Antlers, LLC and Wyndham Hotels and Resorts, LLC
(“Defendants, ” collectively) own and operate a
hotel, located at 4 S. Cascade Avenue, Colorado Springs,
Colorado 80203 (“Premises”). (Doc. # 1 at
¶¶ 5- 8.) On August 14, 2017, Plaintiff commenced
this suit seeking injunctive relief under Title III of the
Americans with Disabilities Act (“ADA”), after
encountering “multiple violations of the ADA that
directly affected his ability to use and enjoy” the
Premises “on or about April 24-25, 2017.” (Doc. #
1 at ¶ 13.) Plaintiff contends he lives near the
Premises, has frequented the area for “pleasure
purposes, ” and intends to return within four months
from the date of filing his Complaint. (Doc. # 1 at ¶
October 12 and November 8, 2017, Defendants moved to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. ## 13,
Defendants argue for dismissal because, they allege,
Plaintiff failed to exhaust his administrative remedies and
lacks standing. The Court addresses each argument in turn.
ADMINISTRATIVE EXHAUSTION UNDER TITLE III
argue the Court lacks subject-matter jurisdiction because
Plaintiff failed to exhaust his administrative remedies
pursuant to 42 U.S.C. § 12188, which, Defendants
contend, requires Plaintiff to give notice of the alleged
violations to the Colorado Civil Rights Coalition
(“CCRC”) thirty days before filing his Complaint.
Plaintiff's failure to give notice is uncontested.
III of the ADA provides that “[t]he remedies and
procedures set forth in section 2000a-3(a) of this title are
the remedies and procedures this subchapter provides to any
person who is being subjected to discrimination on the basis
of disability.” 42 U.S.C. § 12188(a)(1). In turn,
42 U.S.C. § 2000a-3(a) provides that an aggrieved
individual may bring “a civil action for preventive
relief, including an application for a permanent or temporary
injunction, restraining order, or other order.” §
2000a-(3)(a). Defendants propose that, although not expressly
referenced in § 12188(a)(1), Title III plaintiffs are
also subject to the notice requirement in § 2000a-3(c),
[N]o civil action may be brought under subsection (a) of
[§ 2000a-3] before the expiration of thirty days after
written notice of such alleged act or practice has been given
to the appropriate State or local authority by registered
mail or in person, provided that the court may stay
proceedings in such civil action pending the termination of
State or local enforcement proceedings.
42 U.S.C. § 2000a-3(c).
are split on whether § 2880a-3(c) is incorporated into
Title III by way of § 12188(a)(1), i.e. whether notice
is required before filing suit under Title III. Some courts
have held that pre-suit notice is not required.
See, e.g., Botosan v. Paul McNally
Realty, 216 F.3d 827 (9th Cir. 2000); Iverson v.
Comsage, Inc., 132 F.Supp.2d 52 (D. Mass. 2001);
Disabled in Action of Metro. New York v. Trump Int'l
Hotel & Tower, No. 01-cv-5518, 2003 WL 1751785
(S.D.N.Y. Apr. 2, 2003); Love v. Omni Netherland
Plaza Hotel, No. 1-00-700, 2001 WL 1842450
(S.D. Ohio May 10, 2001); Zimmerman v. GJS Grp.,
Inc., No. 2-17-cv-00304, 2017 WL 4560136 (D. Nev. Oct.
11, 2017). Other courts have held otherwise-that pre-suit
notice is required under Title III. See,
e.g., Spicer v. Auraria Campus Bookstore, No.
12-cv-00245, 2012 U.S. Dist. LEXIS 28295, at *4 (D. Colo.
Mar. 5, 2012); Tanner v. Wal-Mart Stores, Inc., No.
99-44-JD, 2000 WL 620425 (D.N.H. Feb. 8, 2000); Snyder v.
San Diego Flowers, 21 F.Supp.2d 1207, 1208-11 (S.D. Cal.
1998); Mayes v. Allison, 983 F.Supp. 923, 924-25 (D.
Nev. 1997). Indeed, courts in this District are divided.
Compare Howard v. Cherry Hills Cutters, Inc., 935
F.Supp. 1148, 1150 (D. Colo. 1996) (Howard I)
(notice required under Title III); Howard v. Cherry Hills
Cutters, Incorporated, 979 F.Supp. 1307, 1308-09 (D.
Colo. 1997) (Howard II) (affirming
Howard I); Lillard v. Sunflower Farmers Mkt.,
Inc., No. 12-cv-1497-JLK, 2012 WL 5936543 (D. Colo. Nov.
27, 2012) (notice required under Title III); Jones v.
Reg'l Transp. Dist., No. 10-cv-01535-JLK, 2010 WL
3341205 (D. Colo. Aug. 23, 2010) (same) with Mize v. Kai,
Inc., No. 17-cv-00915-NYW, 2017 WL 5195203 (D. Colo.
Nov. 9, 2017) (notice not required); Abreu v. Tavin Food,
Inc., No. 16-cv-00432-MEH (D. Colo. Nov. 14, 2016)
(same); Frederick v. Coffee House Holdings, Inc.,
No. 17-cv-00409-MEH, 2017 U.S. Dist. LEXIS 75857, at 13 (D.
Colo. May 11, 2017) (same). The Tenth Circuit has not yet
addressed the issue.
support of its argument that notice is required, Defendants
rely on a series of cases decided by the Honorable John L.
Kane. First, in Howard I, Senior Judge Kane held,
“By making § 2000a-3 applicable to enforcement
actions under 42 U.S.C. § 12188, Congress has imposed a
state law exhaustion requirement on disabled individuals
seeking to enforce their rights under Subchapter III of the
ADA.” 935 F.Supp. at 1150. Judge Kane affirmed this
holding in Howard II, and further explained his
reasoning in Lillard, 2012 WL 5936543, wherein he
concluded that the plain language of 42 U.S.C. § 12188
compels this construction. He explained:
42 U.S.C. § 12188(a)(1) states, ‘the remedies
and procedures set forth in . . . 42 U.S.C. 2000a-3(a)
are the remedies and procedures of this title.'
(emphasis added). Section 2000a-3(a) sets forth the
remedies and authorizes aggrieved parties to
commence a civil action for injunctive relief. Section
2000a-3(c) sets forth the procedure for commencing a
civil action and imposes a pre-suit notice requirement on
claims for relief under § 2000a-3.
If Congress intended only to incorporate the . . . remedies,
and not the procedures, it would have excluded the word
‘procedures' from 42 U.S.C. § 12188(a)(1).
Accordingly, §2000a-3(a) is, in turn, limited by ...