Fenimore v. Lane County Republican Central Committee

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

LAURA C. FENIMORE and BRIAN

HUBBLE, Case No. 6:20-cv-01844-AA

OPINION AND ORDER

Plaintiffs,

vs.

LANE COUNTY REPUBLICAN CENTRAL

COMMITTEE; JOHN E. LARGE; JEFFREY

W. LOZAR; MARIAN TROPE; and DOES 1-

10,

Defendants.

AIKEN, District Judge:

Laura Fenimore (“Fenimore”) and Brian Hubble (“Hubble”) (collectively,

“Plaintiffs”) allege violations under the Americans with Disabilities Act (“ADA”) and

Oregon state law, ORS 659A.142(4) against Defendants Lane County Republican

Central Committee (“LCRCC”) and its members, John Large (“Large”) and others

(collectively, “Defendants”). Defendants move to dismiss Plaintiff’s claims under

Federal Rule of Civil Procedure 12(b)(6). Plaintiffs’ move to strike Defendants’

declarations and exhibits. For the reasons stated below, Defendants’ Motion to

Dismiss (“MTD”), ECF No. 26, is GRANTED and Plaintiffs’ Motion to Strike, ECF

No. 34, is thus DENIED as moot.

BACKGROUND

Fenimore, who has a disability that requires her to use a wheelchair, and

Hubble, her caregiver, were elected by the Republican voters of Lane County to serve

as Precinct Committee Persons (“PCPs”) as members of LCRCC. Defendant Large is

also a PCP and Chairperson of LCRCC. FAC ¶¶ 7, 11, 12, 14,

LCRCC notified its members that it would hold its next meeting outdoors at

Large’s rural residential property, which Fenimore alleges is not wheelchair

accessible. When Fenimore learned that the LCRCC meeting would be held at Large’s

property, she was concerned she would not be able to navigate it. Plaintiffs allege

that they conveyed accessibility concerns in a letter mailed to members of LCRCC,

but that the letter was not well received and that LCRCC did not change the location

of the meeting. FAC ¶¶ 16, 17, 19.

Plaintiffs contend that, when they arrived at the meeting, the site was not flat

and the field was uneven. FAC ¶ 21. Large approached Plaintiffs and asked them to

leave his private property. FAC ¶ 22. Plaintiffs allege that a group of LCRCC

members gathered around Plaintiffs’ van and shouted, “this is private property.”

FAC ¶ 23. Eventually, LCRCC started the meeting on the lawn some distance from

where Plaintiffs remained near their van where they could not participate in the

meeting. FAC ¶ 27.

Plaintiffs filed their Complaint, and later their FAC under Oregon state law

and 42 U.S.C. § 12132 (“Title II”); 42 U.S.C. § 12182 (“Title III”); and the anti-

retaliation provision under 42 U.S.C. § 12203 (“Title V”). Defendants filed the Motion

to Dismiss (“MTD”) now before the Court.1

STANDARD OF REVIEW

To survive a motion to dismiss under the federal pleading standards, the

complaint must include a short and plain statement of the claim and “contain

sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard . . . asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. The court is

not required to accept legal conclusions, unsupported by alleged facts, as true. Id. The

complaint must contain more than “naked assertion[s,]” “labels and conclusions,” or

“a formulaic recitation of the elements of a cause of action” to state a claim for relief.

Bell, 550 U.S. at 555-57.

DISCUSSION

1 The Court did not review or rely on Defendants’ declaration, which Plaintiffs

move to strike, in ruling on Defendant’s MTD.

Plaintiffs allege four claims by which they seek declaratory and/or injunctive

relief and recovery of noneconomic damages and reasonable attorney fees and costs.

Plaintiffs claim that: LCRCC is a public entity which unlawfully discriminated

against Plaintiffs in violation of Title II; alternatively, LCRCC discriminated against

Plaintiffs in a place of public accommodation in violation of Title II; LCRCC and Large

discriminated against Plaintiffs in a place of public accommodation in violation of

ORS 659A.142(4); and against “all defendants” for unlawful retaliation under Title

V.

I. Title II – Whether LCRCC is a Public Entity

To support the claim that LCRCC is a public entity, Plaintiffs allege that

LCRCC is governed by a board of precinct committee persons elected by the voters of

Lane County, Oregon. FAC ¶ 30. Defendants move to dismiss on the basis that

LCRCC is not a public entity within the meaning of the ADA, because it meets none

of the statutory definitions for a public entity. Defendants add that LCRCC is not

transformed into a public entity merely because registered Republicans vote to elect

PCPs from among themselves. MTD at 4-5. Further, Defendants contend that state

regulation in and of itself does not transform the regulated into a public entity. Id.

Title II provides that “no 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. Therefore, “[t]o prove a public program or

service violates Title II of the ADA, a plaintiff must show: (1) he is a “qualified

individual with a disability”; (2) he was either excluded from participation in or

denied the benefits of a public entity's services, programs or activities, or was

otherwise discriminated against by the public entity; and (3) such exclusion, denial

of benefits, or discrimination was by reason of his disability. Weinreich v. Los Angeles

Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (citing 42 U.S.C. §

12132).

The ADA defines a “public entity” as “any department, agency, special purpose

district, or other instrumentality of a State or States or local government.” 42 U.S.C.

§ 12131(1)(B). The Department of Justice issued an ADA Title II Technical

Assistance Memo, II-1.2000 (“Title II Memo”). According to the Title II Memo, there

are four factors helpful to consider to determine whether an entity is a public entity

subject to the requirements of the ADA: (1) whether the entity is operated with public

funds; (2) whether employees of the entity are considered government employees; (3)

whether the entity receives significant assistance from the government in the form of

equipment or property; and (4) whether the entity is an independent board selected

by members of a private organization, or a board elected by the voters or appointed

by elected officials. See Melton v. Orange County Democratic Party, 304 F.Supp.2d

785, 786-87 (2004) (applying the Title II Technical Assistance Memo framework to

analyze whether a political party was a public entity within the meaning of Title II

of the ADA); see also San Francisco Cnty. Democratic Cent. Comm. v. Eu, 826 F.2d

814, 825 (9th Cir. 1987), aff'd, 489 U.S. 214 (1989) (discussing without deciding that

political party was not public entity in First Amendment context).

Here, Plaintiffs’ allegations to support the contention that LCRCC is a public

entity include only that LCRCC elects its PCPs. FAC ¶ 30. Plaintiff does not allege

any facts which meet the statutory definition of “public entity” under 42 USC §

12131(1). Plaintiff’s allegation appears to be based upon the fourth factor published

by the DOJ in its Title II Memo, which is whether the entity is “an independent board

selected by members of a private organization, or a board elected by the voters or

appointed by elected officials.” Plaintiffs do not allege any facts that demonstrate

whether the LCRCC is operated with public funds; whether it has employees that are

considered government employees; whether LCRCC receives significant assistance

from the government in the form of equipment or property

Though Plaintiffs appear to base their allegation on the fourth factor in the

Title II memo, the facts in Plaintiffs’ FAC do not show that the LCRCC, its members,

or PCPs are an independent board “elected by the voters” or “appointed by elected

officials.”

Defendants point out that Plaintiffs cannot allege that the voters elect PCPs,

where Oregon state law dictates “a major political party shall elect from its members

a precinct committeeperson for every 250 electors.” ORS § 248.015(1) (emphasis

added). The statutory language indicates that each PCP represents registered

Republicans in Lane County, and not “voters” at large. Facts in Plaintiffs’ FAC reflect

the practical operation of this law. An elector must first decide to affiliate with the

Republican Party in Lane County before that elector is eligible to a say in the

composition of the LCRCC. Thus factor (4) weighs against Plaintiffs’ argument as

well.

Other courts have taken a comparative approach to supplement analysis under

the Title II Memo. For example, in Melton, the Court discussed organizations which

previous Courts had found to be public entities, including “public universities, state

judicial nominating commissions, boards of trustees of a city police pension fund, city

zoning boards of appeals, and state boards of law examiners.” 304 F.Supp.2d at 788

(internal citations omitted). Characteristics shared by these organizations are that

they were (a) given authority under local law to provide services to the city or state;

and (b) created by the state or local government; or (c) worked for general government

purposes. Id.

Plaintiffs argue facts they alleged in the FAC show “the state created the

LCRCC as an instrumentality for regulating major political parties at the county

level.” Pls.’ Resp. at 9, ECF No. 30. PCPs have some authority under state law, but

that authority is limited to representation of members of the local Republican Party.

See ORS § 248.015(1). Citizens of Oregon must first register as Republicans in order

to have a say in the composition of LCRCC, thus LCRCC is created by Republicans

in Lane County and subsequently regulated by the State. Under Plaintiffs’ factual

allegations, LCRCC also has no authority to provide services to the city or state and

does not work for general government purposes. State regulation alone is an

insufficient ground to show that LCRCC is a public entity.

The Court finds that the facts Plaintiffs alleged, taken as true, are insufficient

to establish that LCRCC is a public entity within the meaning of Title II. Plaintiffs

have not sufficiently sustained a claim under Title II of the ADA.

II. Title III Public Accommodation

Plaintiffs claim that even if LCRCC is not a public entity within the meaning

of Title II of the ADA, it is at least a “place of public accommodation” withing the

meaning of Title III. Consequently, Plaintiffs argue, LCRCC violated the Title III by

discriminating against Fenimore. Title III prohibits discrimination against an

individual on the basis of disability from enjoying “the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation by

any person who owns, leases, or operates a place of public accommodation.” 42 U.S.C.

§ 12182(a).

Under Title III, if an entity is not a public entity, it is a private entity, but only

some private entities are considered public accommodations, “if the operations of such

entities affect commerce.” 42 U.S.C. §§ 12181(6) & (7). In the context of the ADA,

“commerce” is defined as “travel, trade, traffic, commerce, transportation, or

communication among the several states.” 42 U.S.C. § 12181(1)(A) (emphasis added).

If the operations of a private entity affect commerce, then the entity must also fit into

one of 12 statutory categories of private entities which are considered public

accommodations. 42 U.S.C. § 12181(7).

To show that Large’s rural property was a place of public accommodation,

Plaintiffs must first show that LCRCC’s operations on Large’s property affected

commerce. In other words, Plaintiffs must show that by using Large’s property as a

meeting venue, LCRCC affected the market for such meeting venues, and that the

effect was substantial enough to be felt across state lines. The facts Plaintiffs allege

in the FAC do not support this contention.

Plaintiffs argue that although Large’s property is private and residential, it

temporarily became public and thus entered the market for meeting spaces when

Large offered it to LCRCC as a site for members to gather. See Pls.’ Resp. at 13-14,

ECF No. 30. But Plaintiffs do not allege any facts showing that that LCRCC is a

consumer in the market for meeting spaces. Facts in the FAC do not show how

LCRCC is a participant in commerce. Facts in the FAC also fail to show how LCRCC

could have any “‘substantial effect on supply and demand in the national market’” for

meeting venues. Id. (citing Gonzales v. Raich, 545 U.S. 1, 19 (2005)). Thus, Plaintiffs

have not alleged sufficient facts to create a threshold showing that LCRCC’s

operations on Large’s land affected commerce within the meaning of Title III.

The allegations in Plaintiffs’ FAC have not established that LCRCC operations

on Large’s property rendered Large’s property a place of public accommodation, such

that Defendants’ actions toward Fenimore constituted a violation of Title III.

III. Retaliation under Title V

Plaintiffs’’ claim that LCRCC, Large, and other PCPs unlawfully retaliated

against Plaintiffs for voicing concerns about ADA compliance, by behaving in an

intimidating and hostile way. To state a claim under Title V, a claimant must allege

facts tending to show that defendant discriminated against claimant, and that

defendant did so for the reason that plaintiff engaged in a “protected activity.” A

protected activity includes opposition to “any act or practice made unlawful by [the

ADA].” Id.

Plaintiffs argue that a claim for retaliation is independent of a determination

of whether defendants violated Title II or Title III of the ADA. Plaintiffs point to cases

holding that retaliation a claim is justiciable if the claimant has a good faith,

reasonable belief that the violation did occur, whether or not the underlying ADA

violation occurred. See e.g. Daoud v. Avamere Staffing, LLC, 336 F.Supp.2d 1129,

1138 (D. Or. 2004); see also Melendez v. Monroe College, 2006 WL 2882568 (E.D. New

York 2006) (“[A] successful discrimination claim is not a predicate for a retaliation

claim.”). However, cases on which Plaintiffs rely are distinguishable. In those cases,

defendants were public entities under Title II or places of public accommodation

under Title III. Thus, the question in the adjudication of the first instance of

disability discrimination was about what the defendant did, not what the defendant

was. Conduct at issue in a retaliation claim occurs later, in response to the claimant’s

response to an alleged violation.

The question of whether Defendants are subject to the ADA is present here. As

such, precedent Plaintiffs cite to insulate their retaliation claims from the outcome of

Plaintiffs’ Title II and Title III claims is inapplicable. To borrow Defendants’ words,

“power to regulate ‘retaliation’ necessarily assumes some sort of jurisdictional power

over the regulated entity to begin with.” Defs.’ Reply at 11, ECF No. 32. Because

Plaintiffs failed to allege facts to show that the ADA applied to Defendants, either as

a public entity under Title II or a place of public accommodation under Title III,

Plaintiffs also cannot sustain a retaliation claim. The facts in the FAC do not tend to

show that the ADA applies to Defendants at all. Thus, activities Plaintiffs engaged

in were not protected, and no retaliation occurred within the meaning of the ADA.

IV. State Law Claim

Plaintiffs claim that Defendants also violated Oregon state law, which

prohibits “any place of public accommodation … or any person acting on behalf of

such place,” to discriminate against a “customer or patron” based on disability. ORS

659A.142(4). Plaintiff must allege facts which tend to show both that Defendants are

or are acting on behalf of a place of public accommodation, and that Plaintiff is a

customer or patron of Defendants such that ORS 659.142(4) applies to her. The Court

refers to the Oregon’s jurisprudence to determine whether Plaintiff’s claim surmount

this burden.

a. Place of Public Accommodation

Plaintiffs claim LCRCC and Large’s property are places of public

accommodation. Under Oregon law, a place of public accommodation includes “any

place or service offering to the public accommodations, advantages, facilities or

privileges whether in the nature of goods, services, lodgings, amusements,

transportation or otherwise.” ORS 659A.400(1)(a). To qualify as a place of public

accommodation under this Section, an organization must be commercial in nature.

Plaintiffs do not allege sufficient facts in the FAC to show either that LCRCC or that

Large’s property is commercial in nature, and thus do not show that either is a place

of public accommodation. 2

The Oregon Supreme Court most recently addressed the issue of the nature of

a place of public accommodation in 2022, holding that a medical provider operating

within a detention facility was a place of public accommodation. Abraham v. Corizon

Health, Inc., 369 Or. 735, 758 (2022). State courts’ past treatment of the question, the

language of the law, and the legislative history all clarify that a public

accommodation is commercial in nature. See Id. at 745-53.3 Although the law has

been updated, the underlying purpose of the Legislature to “prohibit discrimination

by business or commercial enterprises which offer goods or services to the public”

remains relevant. Id. at 746 (quoting Schwenk v. Boy Scouts of America, 275 Or. 327,

334 (1976)).

2 The Court considers LCRCC and Large’s property as separate entities in light

of the Abraham decision. 369 Or. at 755 (“If defendant qualifies as a place of public

accommodation because of the services that it provides, it does not matter whether it

provides those services at a physical location that independently qualifies as a place

of public accommodation.”).

3 In Abraham, the Oregon Supreme Court dealt not with the issue of whether

the entity in question was commercial in nature, but instead with whether the entity

provided services to a sufficiently broad swath of the public to be considered a public

accommodation. However, the Court’s analysis of legislative history is still relevant

to the question of commercial nature because it reflects the through line of the 1976

legislative purpose to deal with discrimination by businesses and commercial

enterprises. The Abraham decision cites the test from Lahmann v. Grand Aerie of

Fraternal Order of Eagles to solidify this purpose: “[T]he question whether an

organization is a place of public accommodation turns on (1) whether it is a business

or commercial enterprise and (2) whether its membership policies are so unselective

that the organization can fairly be said to offer its services to the public.” 180 Or.App.

420, 434 (2002).

The full language of the ORS 659A.400(1)(a) is also instructive: Sections (1)(b)

and (c) of that statute define other types of places of public accommodation

“regardless of whether the [place or service] is commercial in nature.” But this

language is absent from Section (1)(a), the section under which LCRCC or Large’s

property might fit, since they are neither “a place open to the public and owned or

maintained by a public body” under Section (1)(b) or a “service to the public that is

provided by a public body” under Section (1)(c). The absence of an explicit removal of

a requirement of a commercial nature in Section (1)(a) implies that the requirement

remains in place. An organization must be commercial in nature to be considered a

place of public accommodation under ORS 659A.400(1)(a).

Large’s property is not a place of public accommodation because it is distinctly

not commercial in nature. Large offers no services to the public and has not engaged

in any commercial transaction related to the use of his private residence as a meeting

place. Plaintiff is clear that no money changed hands, and that Large’s property is a

private residence. LCRCC is also not a place of public accommodation because, while

it may provide a service to a subset of the public, that service is not commercial in

nature. If LCRCC provides any service to the public, it is one of a civic, community

nature. As such, Plaintiffs have not alleged any facts which show either Large’s

property or LCRCC meet the definition of a place of public accommodation under

Oregon state law.

b. Customer or Patron

Plaintiffs claim that Fenimore is a customer or patron of LCRCC and Large’s

property. Since neither “customer” or “patron” are defined in the statutory text of

ORS 659A.142(4), Oregon courts look to the “ordinary meaning” of the terms, or the

dictionary definition contemporaneous with the passage of the statute. See e.g.,

Fenimore v. Blachly-Lane Cty. C.E.A., 297 Or. App. 47, 54 (2019) (citing Comcast

Corp. v. Dept. of Rev., 356 Or. 282, 295-96 (2014)). A “customer” is a person who

“‘purchases some commodity or service,’ and ‘one that patronizes or uses the services

(as of a library, restaurant, or theater.)’” Id. (citing Webster’s Third New Int’l

Dictionary 559 (unabridged ed. 2002)).

A “patron” is “‘a steady or regular client, as an habitual customer or

merchant.’” Id. (citing Webster’s at 1656) (see also Abraham v. Corizon Health, Inc.,

369 Or. 735, 741 (2022)). Based on context within the broader statutory scheme and

legislative history, the phrase “customer or patron” has a limited scope and does not

encompass the same broad category of people as the term “person” or “individual.”

Id., at 54-59 (explaining why Oregon’s state disability discrimination statute applies

to a narrower group of people, namely customers and patrons of places of public

accommodation, when compared with the federal analog, the ADA). Plaintiffs did not

allege sufficient facts in the FAC to show that Fenimore was either a customer or a

patron of LCRCC or of Large’s property.

Plaintiffs argue Fenimore was a customer of LCRCC, and by extension Large

and Large’s property, because Fenimore was “using the services that they provided.”

Pls.’ Resp. at 15, ECF No. 30. To support this contention, Plaintiffs emphasize

Fenimore’s position as a PCP and membership in LCRCC, as a fact distinguishing

the case now before the Court from Fenimore’s previous case brought under ORS

659A.142(4) in 2019 (cited above). Id. In that case, Fenimore’s lack of membership in

the C.E.A. (a cooperative electric association) proved dispositive. See Fenimore v.

Blachly-Lane Cty. C.E.A., 297 Or. App. 47, 59-60 (2019). But this was only true

because without membership in the C.E.A., Fenimore also could not use C.E.A.’s

services and thereby could not be a customer of the C.E.A. Id. at 48.

The case now before the Court is distinct from the Oregon Court of Appeals

decision in Fenimore. If the representation provided by LCRCC to the community is

a service, Fenimore’s membership in LCRCC as a PCP would make her a provider of

that service and not a customer or patron. Plaintiffs do not allege any facts showing

that LCRCC provides any other service to anyone. As for Large and his property, any

service he provides is distinctly not commercial, as discussed above. In addition, facts

alleged by Plaintiffs seem to indicate that Plaintiffs’ and LCRCC’s use of Large’s

property is not steady or habitual. Plaintiffs allege no facts in the FAC to show

Fenimore was a customer or patron of LCRCC or of Large and his property. Thus,

Plaintiffs’ claims are not sufficient to show that Oregon law prohibiting

discrimination at places of public accommodation applies.

In sum, it does not appear that Plaintiffs can state a claim for which relief can

be granted under any cause of action Plaintiffs allege.

CONCLUSION

For the reasons explained above, Plaintiff has not alleged sufficient facts to

sustain a claim under the ADA or under Oregon state law. Accordingly, Defendants’

Motion to Dismiss, ECF No. 26, is GRANTED. Plaintiff’s FAC, ECF No. 25, is

DISMISSED without leave to amend. All other pending motions are DENIED as

moot. Judgment shall be entered accordingly.

IT IS SO ORDERED.

Dated this _1_0_t_h_ day of __M__a_r_ch___ 2023.

_________/s_/_A_n_n__ A__ik_e_n_______

Ann Aiken

United States District Judge