People ex rel. Deukmejian v. CHE, Inc.

Opinion

The People and the Director of the State Department of Rehabilitation (plaintiffs) appeal a summary judgment for CHE, Inc., doing business as the Chart House Restaurant, City of Oceanside and its Director of Building and Housing, Fritz Stagliano, on their complaint seeking to compel CHE to provide a legally sufficient access for the physically handicapped and to mandate the city and Stagliano to enforce compliance with legal requirements. Applicable statutory and regulatory schemes and the circumstances of this case show there are several remaining triable issues of fact. We reverse.

Factual and Procedural Background

In August 1976, CHE leased a parcel of unimproved waterfront property from the Oceanside Smallcraft Harbor District (District) upon which to

Shortly after the restaurant opened for business a handicapped person complained. On January 12, 1978, Stagliano received a letter from the Department of Rehabilitation (Department), stating the locked employee entrance was neither equivalent facilitation nor a primary entrance because it should remain unlocked during business hours, be appropriately designated to depict access, and the interior hallway should be decorated so as to be attractive and appealing to all patrons. By letter dated six days later, Department advised Stagliano: “Access via the locked employee entrance is not equivalent facilitation and is through a secondary entrance. Access shall be provided to the restaurant through the existing primary entrance (ASA 5.2.1) or through another primary entrance [italics added] that meets the requirements and specifications of the current California Access Laws and Standards.”

Originally, when the restaurant obtained its temporary building permit, the building inspector directed it to request in writing approval for using the north door as the handicapped entrance. Its request was denied by Stagliano, who later ordered the restaurant to make modifications regarding signs, doors, and decoration to comply with state laws concerning access for the handicapped. Although CHE made modifications costing approximately $15,000, Stagliano refused to issue a permanent occupancy permit because CHE had not yet complied fully with the modifications it agreed to make to comply with handicap requirements outlined by the Attorney General’s Office. The changes were not made. Stagliano issued the permanent occupancy permit because the Oceanside City Attorney determined CHE had complied with the purpose and intent of the laws requiring access for the handicapped to the Chart House Restaurant. CHE promptly reneged on its agreement with the Attorney General, stating it would not install a new elevator at the restaurant to provide a primary entrance for the handicapped. CHE has ignored the state’s demand for compliance with applicable law and its agreement and now operates a restaurant the handicapped may not enter

CHE also contends it is exempt under section 19956 because a reasonable portion of all facilities and accommodations normally sought and used by the public in its restaurant are accessible to and useable by the physically handicapped.

Alternatively, CHE claims it was properly granted an exception from the literal statutory requirements due to hardship pursuant to section 19957. Plaintiffs argue the former is inapplicable to the present circumstances and, not only does CHE not qualify for a statutory exemption, there is a triable issue of fact regarding whether such an exemption was ever granted.

Statutory Scheme and Applicable Rules of Statutory Construction

In 1968, the Legislature enacted two statutory schemes to avoid discriminating against the physically disabled. Government Code section 4450 et seq. is designed to guarantee access and use of all public buildings. Section 4450 directed the State Architect to adopt and submit proposed building standards for approval. During the interim, Government Code section 4451 required builders adhere to the American Standards Association specifications A117.1/1961. The Legislature created these temporary standards as “minimum requirements to insure that buildings, structures and related facilities covered by this chapter are accessible to, and functionable for, the physically handicapped to, through, and within their doors, without loss of function, space, or facility where the general public is concerned.” (Gov. Code, § 4452, italics added.) ASA specification 5.2.1 provides: “At least one primary entrance . . . shall be useable by individuals in wheelchairs.

“Note: Because entrances also serve as exits, some being particularly important in case of an emergency, and because the proximity of such exits to all parts of buildings and facilities, in accordance with their design and function, is essential [citation] it is preferable that all or most entrances (exits) shall be accessible to, and useable by, individuals in wheelchairs and individuals with other forms of physical disability herein applicable.” (Italics added.)

The second statutory scheme enacted by the Legislature during the same year was Civil Code section 54 et seq., declaring the physically disabled are entitled to the same right as the able-bodied to full and free use of streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places (Civ. Code, § 54), and declaring they were “entitled

The Legal Standard for Accessibility for the Handicapped

Our construction of the legislative schemes commences with Civil Code section 54 et seq. which declares, in part, that all physically handicapped are entitled to the same right as the able-bodied to full and free use of public facilities and places (§ 54), requiring operators of such facilities to “open its doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.” (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881 , 892 [ 134 Cal.Rptr. 844 ]; Civ. Code, § 54.1, subd. (a).) To give meaning to the public accommodation law prohibiting discrimination against the handicapped, the Legislature enacted Government Code section 4450 et seq. providing for the establishment of standards for buildings constructed with public funds designed to insure accessibility by the handicapped. A year later, the Legislature expanded these requirements to facilities constructed with private funds (§ 19955 et seq.) and, with certain limited exceptions, required conformance with the same standards set forth within Government Code section 4450 et seq. The underlying legislative intent of these statutory schemes is to require affirmative conduct so as to guarantee access to the physically handicapped upon construction of new facilities or with the repair and alteration of existing facilities. (Marsh v. Edwards Theatres Circuit, Inc., supra, at p. 888.) The Supreme Court explained in In re Marriage of Carney (1979) 24 Cal.3d 725 , 738 [ 157 Cal.Rptr. 383 , 598 P.2d 36 , 3 A.L.R.4th 1028 ], these statutory schemes were part of “a growing body of legislation intended to reduce or eliminate the physical impediments” to “their participation in community life.”

The parties do not dispute section 19956 expressly incorporates the legal standard for access for handicapped persons set forth within Government Code section 4450 et seq.; which in turn describes its purpose as assuring the construction of public facilities which are accessible to and useable by the physically handicapped, and establishes the specific standard of compliance as that set forth within the American Standards Associations Specifications A117.1/1961. These latter specifications, like the express purpose

Reading these provisions in harmony, we conclude the latter two statutory schemes regarding access to public buildings and facilities were enacted to provide substance to the full and equal access right of the handicapped, setting forth the legal standard requiring at least one primary entrance be accessible to and useable by the physically handicapped. Where a second primary entrance is necessary in order to satisfy this requirement, it need not be identical in character; however, it must satisfy our construction of the phrase “primary entrance” (infra), because the statutory and regulatory law, read as a whole, is designed to guarantee safe access for the physically disabled while permitting them to function as equals to the maximum extent feasible within every aspect of society. Consequently, exception to the literal statutory and regulatory requirements is warranted only when equivalent facilitation and protection are not denied. (ASA, spec. I.2; § 19957.) Thus, equality, at minimum, requires access free from difficulties or obstacles (see American Heritage Dict. (New College ed. 1976) p. 469, col. 2) and potential hazards which would endanger even the most cautious physically handicapped.

In construing the phrase “primary entrance,” we accord the word “primary” its usual, ordinary, and common sense meaning. (In re Rojas (1979) 23 Cal.3d 152 , 155 [ 151 Cal.Rptr. 649 , 588 P.2d 789 ].) Black’s Law Dictionary (5th ed. 1979) at page 1071, column 2, defines primary as: “[f]irst; principal, chief; leading. First in order of time, or development, or in intention . . . .” This definition only leads us to a determination a primary entrance constitutes a principal entrance, one first in importance. However, there is further guidance in the regulations on handicapped access promulgated by the State Architect in 1981 (eff. 12-31-81) within the State Building Code, California Administrative Code, title 24, section 2-101 et seq. There, a primary entrance is defined as “any entrance to a facility which has a substantial flow of pedestrian traffic to any specific major function of the facility.” (Cal. Admin. Code, tit. 24, § 2-417(k).) We are entitled to rely on this definition, because it constitutes a clarifying regulatory amendment to the statutory schemes in controversy which from their enactment incorporated by reference the phrase “primary entrance.”

We reject CHE’s apparent argument the statutory and regulatory scheme always authorizes separate primary entrances for handicapped and nonhandicapped patrons. Because we find the required primary entrance must necessarily be burdened by a substantial flow of pedestrian traffic, a public restaurant entrance used by no patrons other than the physically handicapped cannot realistically be a “primary entrance.”

The prohibition against discrimination of the handicapped within Civil Code section 54 et seq., the enactment of Government Code section 4450 et seq. and section 19955 et seq., and the incorporation by reference of the phrase “primary entrance” within applicable specifications, reflect a legislative sensitivity to the hardships suffered by those afflicted with a wide range of physical disabilities. They are part of an expanding legislative effort to attain “the commendable goal of total integration of handicapped persons into the mainstream of society . ...” (In re Marriage of Carney, supra, 24 Cal.3d 725 , 740.) The Legislature has declared “[i]t is the policy of this state to encourage and enable disabled persons to participate fully in the social and economic life of the state . . . .” (Gov. Code, § 19230, subd. (a).) These legislative responses are designed to lessen their entire burden, by guaranteeing equal and full access to public buildings, facilities, and accommodations, without jeopardizing their safety. We believe the law is intended to promote accommodation of the physically handicapped by insuring them access to public restaurants without facing the unnecessary,

In Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171 , 179 [ 165 Cal.Rptr. 38 ], the court summarized the law in point: “People v. Rath Packing Co. (1974) 44 Cal.App.3d 56 , 65 [ 118 Cal.Rptr. 438 ], discussed the effect of the presumption that ‘official duty has been regularly performed’ (Evid. Code, § 664), which is a presumption ‘affecting the burden of proof’ (Evid. Code, § 660), and concluded that it did not relieve the moving party ... of the necessity to ‘demonstrate that there is no possible way in which [the opposing party] can claim error in the weighing procedures used . . . .’ (People v. Rath Packing Company, supra, 44 Cal.App.3d at p. 65.) Consequently, the court concluded that in the face of such a presumption, ‘the resisting party need only demonstrate a “possibility” of being able to rebut the presumed . . .’ fact. (Ibid.)

“The ruling in Rath is consistent with the holding of Barnes v. Bluehaven Pools (1969) 1 Cal.App.3d 123 , 127 [ 81 Cal.Rptr. 444 ], which states: ‘There is nothing in the statute which lessens the burden of the moving party simply because at the trial the resisting party would have the burden of proof on the issue on which the summary judgment is sought to be predicated. In such a case, on the motion for summary judgment, the moving party must generally negative the matters which the resisting party would have to prove at the trial. [Citations.]’ Since the placement of the burden of proof does not affect the showing required for summary judgment, it is obvious that a presumption affecting the burden of proof is likewise irrelevant in that respect.”

Here, as illustrated above, plaintiffs have sufficiently demonstrated the possibility of being able to rebut the presumed fact and defendants have failed to negate all matters which plaintiffs would have to prove at trial. As to the exemption, there are no facts showing Stagliano ever granted one. Moreover, to warrant an exemption, equivalent facilitation and protection must be provided. Plaintiffs submitted the declaration of the chief of the mobility barrier section of the Department of Rehabilitation who, upon personal investigation, concluded the north door did not satisfy this requirement. Consequently, a triable issue of fact remains regarding whether the north entrance constitutes equivalent facilitation. Further, there is a triable issue of fact regarding whether the facts establish practical difficulty, un