MULLEN v. CONCORD HOSPITALITY ENTERPRISES COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BARTLEY MULLEN, individually and on )

behalf of all others similarly situated, ) No. 2:20-cv-01530-RJC

)

Plaintiff, )

) Judge Robert J. Colville

vs. )

)

CONCORD HOSPITALITY ENTERPRISES )

COMPANY, LLC, )

)

Defendant. )

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is the Motion to Dismiss (ECF No. 10) filed by Defendant Concord

Hospitality Enterprises Company, LLC (“Concord”). Concord asserts that the Class Action

Complaint for Declaratory and Injunctive Relief (“Complaint”) (ECF No. 1) filed by Plaintiff

Bartley Mullen (“Plaintiff”) should be dismissed with prejudice pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Mot. 1, ECF No.

10. The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331. Concord’s Motion to

Dismiss has been fully briefed and is ripe for disposition.

I. Factual Background & Procedural History

Plaintiff claims that Concord has engaged in illegal disability discrimination in violation

of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189, by failing

to provide beds or sleeping surfaces that are readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs, in Concord’s “accessible” rooms at the

hotels Concord owns, manages, and/or operates. Compl. ¶¶ 72-73, ECF No. 1. In the Complaint,

Plaintiff sets forth the following factual allegations relevant to the Court’s consideration of

Concord’s Motion to Dismiss:

Plaintiff is a Pennsylvania resident who is dependent upon a wheelchair for mobility as the

result of an illness that necessitated the above-the-knee amputation of his legs. Compl. ¶¶ 1; 40,

ECF No. 1. Concord owns, manages, and/or operates hotels throughout the United States, and

provides, as a part of its operations, hotel rooms that contain beds to its customers. Id. at ¶¶44-45.

The seat height of a standard wheelchair is approximately eighteen to twenty inches from

the floor or ground, and the seat height of Plaintiff’s wheelchair is approximately eighteen inches

from the floor or ground. Compl. ¶ 2, ECF No. 1. Plaintiff can safely, easily, and independently

transfer from his wheelchair to horizontal surfaces, such as dining chairs, toilet seats, benches,

lower passenger vehicle seats, and bed surfaces, that are approximately the same height as

Plaintiff’s wheelchair seat. Id. at ¶ 49. It is difficult and dangerous for Plaintiff to transfer from

his wheelchair to horizontal surfaces that are significantly higher than his wheelchair seat, as

Plaintiff must lift his bodyweight up to the height of a higher surface relying primarily on upper

body strength. Id. at ¶ 50. When transferring to such higher horizontal surfaces, Plaintiff risks

injury due to falling or straining his shoulders, and Plaintiff has previously fallen while attempting

to transfer from his wheelchair to a hotel bed. Id. at ¶ 51.

When Plaintiff stays at a hotel, he stays in an accessible room that includes special features

calculated to accommodate his mobility impairment. Compl. ¶ 3, ECF No. 1. Over approximately

the last decade, hotel room bed height, measured from the floor to the height of the top of the

sleeping surface, has increased from approximately twenty-one inches to approximately twenty-

five to thirty inches, including in otherwise accessible hotel guest rooms. Id. at ¶¶ 4-5. This

increase in hotel room bed height can cause it to be virtually impossible for an individual such as

Plaintiff, who relies on a wheelchair for mobility and who has limited use of his arms and legs, to

independently transfer from his wheelchair to the hotel room bed surface due to the disparity

between the height of a typical wheelchair and the height of the mattress surface. Id. at ¶ 6.

Plaintiff avers that this increase in bed height results in a purportedly accessible hotel room

becoming utterly inaccessible to individuals with disabilities. Id. at ¶ 7.

During the timeframe relevant herein, Plaintiff contacted a hotel, specifically the Hyatt

House Pittsburgh, that is owned, managed, and/or operated by Concord. Compl. ¶¶ 46; 53, ECF

No. 1. At that time, Plaintiff was informed by Concord’s agent that the Hyatt House Pittsburgh

provides accessible rooms for its guests, but that the height of the beds in these “accessible” rooms

is approximately twenty-seven inches from the floor. Id. at ¶ 46. “The sleeping surfaces of the

beds in [Concord’s] accessible rooms at the Hyatt House Pittsburgh are sufficiently high that they

would render it difficult if not impossible for Plaintiff to independently transfer from his

wheelchair to the bed.” Id. at ¶ 48. Other hotels under Concord’s management and/or operation

offer accessible rooms that provide beds that range in height from twenty-five to thirty-one inches

from the ground, and that, accordingly, are also not readily accessible to Plaintiff and the proposed

class. Id. at ¶ 52.

Plaintiff brings this action on behalf of himself and a proposed class of individuals “who

use wheelchairs or scooters for mobility and who have been, or in the future will be, denied the

full and equal enjoyment of accessible sleeping surfaces (i.e. beds) at hotels owned, operated

and/or controlled by [Concord].” Compl. ¶ 60, ECF No. 1. Plaintiff seeks, inter alia, declaratory

relief in the form of a finding that Concord has violated Title III of the ADA, and a permanent

injunction requiring that:

a) [Concord] offers the required number of accessible rooms with accessible

sleeping surfaces (i.e. beds) at each of the hotels that it manages and/or operates,

consistent with the ADA’s room dispersal requirements; and

b) [Concord] changes its policies and practices necessary to afford all offered

goods, services, facilities, privileges, advantages and accommodation to individuals

with disabilities related to the provision of accessible sleeping surfaces (i.e. beds)

at each of the hotels that it manages and/or operates.

Id. at ¶ 18.

Plaintiff initiated this action by filing the Complaint on October 9, 2020. Concord filed its

Motion to Dismiss, along with a Brief in Support (ECF No. 11), on November 4, 2020. Plaintiff

filed a Brief in Opposition (ECF No. 16) on December 4, 2020. Concord filed its Reply Brief

(ECF No. 17) on December 17, 2020. On June 7, 2021, Plaintiff filed a Notice of Supplemental

Authority (ECF No. 20) advising the Court that the United States of America had filed a Statement

of Interest (ECF No. 20-1) in the case of Migyanko v. Aimbridge Hospitality, LLC, No. 2:20-cv-

01095-NR (W.D. Pa.), a case pending before the Honorable J. Nicholas Ranjan in this District that

involves similar claims and arguments to those that have been raised in the present action.1

Concord has not filed a response to Plaintiff’s Notice of Supplemental Authority.2 Upon review

of the Notice of Supplemental Authority and the attached Statement of Interest, the Court agrees

with Plaintiff that the United States’ Statement of Interest directly addresses arguments raised in

1 This Statement of Interest was filed in response to arguments made by the Migyanko defendant in support of its

motion to dismiss, which remains pending in that case at this time.

2 The Court notes that the defendant in Migyanko filed a response to the United States’ Statement of Interest. While

these cases are materially similar, the Court will not impute arguments made in a different action by an entity that is

not a party in this case, i.e. the Migyanko defendant, to a party, i.e. Concord, in this case, especially where Concord is

represented by the same counsel and chose not to file anything on the docket in this case in response to the Notice of

Supplemental Authority. That said, the Court has reviewed the Migyanko defendant’s response to the Statement of

Interest, and notes that the Court is familiar with the authorities cited therein, and that the arguments raised in the

Migyanko defendant’s response are entirely consistent with the arguments that have been raised in this action.

Migyanko that are materially identical to arguments that have been raised by Concord in this case.

In light of the same, the Court acknowledges the filing of the United States’ Statement of Interest

in Migyanko, and will consider the arguments set forth and case law cited therein in resolving the

issues presently before the Court, especially in the absence of any stated objection by Concord.

II. Legal Standard

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In

deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail

on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled

factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S.

Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need

detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide

more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to 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, 554 (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.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). The Supreme Court of the United States has explained:

The plausibility standard is not akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted unlawfully. Where a

complaint pleads facts that are “merely consistent with” a defendant’s liability, it

“stops short of the line between possibility and plausibility of ‘entitlement to

relief.’”

Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing

the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d

780, 787 (3d Cir. 2016). The court explained:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.”

Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they

are no more than conclusions, are not entitled to the assumption of truth.” Id. at

679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)

(“Mere restatements of the elements of a claim are not entitled to the assumption of

truth.” Finally, “[w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly give rise

to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Connelly, 809 F.3d at 787. “Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).

In addition to reviewing the facts contained in the complaint, a court may consider “matters

of public record, orders, exhibits attached to the complaint and items appearing in the record of

the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).

When a document integral to or relied upon in the complaint is included, the court may also

consider that document. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997).

III. Discussion

Concord’s Motion to Dismiss presents a single legal issue that is appropriate for resolution

at this stage of the proceedings: whether Plaintiff’s failure to allege a violation of the ADA

Standards for Accessible Design (“ADA Standards”) necessarily establishes that he cannot state a

claim under Title III of the ADA against Concord related to Concord’s hotel rooms. Both Plaintiff

and the United States argue that a court’s analysis does not end with the ADA Standards where

the ADA Standards fail to address a specific issue, and further assert that, in cases such as this, a

court must also look to whether Plaintiff has stated a claim under the general nondiscrimination

requirements of Title III of the ADA. See Statement of Interest 5, ECF No. 20-1 (United States

arguing that, “because the ADA Standards do not address hotel bed height, the next step in the

analysis is to look to the ADA’s general nondiscrimination requirements, including the obligation

to make reasonable modifications.”).

The ADA sets forth, as a general rule, that: “[n]o 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). The ADA prohibits public accommodations from denying individuals with disabilities

an opportunity to participate in or benefit from the goods, services, facilities, privileges,

advantages, or accommodations of an entity, 42 U.S.C. § 12182(b)(1)(A)(i), and further prohibits

public accommodations from providing individuals with disabilities with goods, services,

facilities, privileges, advantages, or accommodations that are not equal to, or that are different or

separate from, those provided to other individuals, 42 U.S.C. §§ 12182(b)(1)(A)(ii)-(iii).

Discrimination also includes a failure 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).

In describing the purpose of the ADA, the United States Court of Appeals for the First

Circuit has explained:

The purpose of the ADA is to “invoke the sweep of Congressional authority . . . in

order to address the major areas of discrimination faced day-to-day by people with

disabilities,” 42 U.S.C. § 12101(b). The ADA was enacted to “provide a clear and

comprehensive national mandate for the elimination of discrimination against

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The purpose of Title III of

the ADA, is “to bring individuals with disabilities into the economic and social

mainstream of American life . . . in a clear, balanced, and reasonable manner.”

H.R.Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 99 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 382. In drafting Title III, Congress intended that people with

disabilities have equal access to the array of goods and services offered by private

establishments and made available to those who do not have disabilities. S.Rep.

No. 116, 101st Cong., 1st Sess. at 58 (1989).

Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19

(1st Cir. 1994). To state a claim under Title III of the ADA, a plaintiff must allege: “(1)

discrimination on the basis of a disability; (2) in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages or accommodations of any place of public

accommodation; (3) by the public accommodation’s owner, lessor or operator.” Anderson v.

Macy’s, Inc., 943 F. Supp. 2d 531, 542–43 (W.D. Pa. 2013) (quoting Harty v. Burlington Coat

Factory of Pa., L.L.C., No. 11–01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011)).

Congress charged the Attorney General with implementing Title III of the ADA by

promulgating regulations, issuing technical assistance, and bringing suits in federal court to

enforce the statute. 42 U.S.C. § 12186(b)-(c); Statement of Interest 1, ECF No. 20-1. With respect

to the ADA Standards, the United States’ Statement of Interest explains:

The ADA regulations on physical accessibility standards detail how places of

public accommodation are “to be designed, constructed, and altered in compliance

with the accessibility standards” set out in the regulations. 28 C.F.R. § 36.101(a).

Issued with the Title III regulation, the ADA Standards set out the relevant

standards for ADA compliance as to the physical accessibility of certain

architectural elements. See 42 U.S.C. §§ 12183, 12186; 28 C.F.R. §§ 36.102;

36.304(d), and Subpart D. The ADA Standards must be consistent with the

minimum guidelines and requirements of the Architectural and Transportation

Barriers Compliance Board, now known as the Access Board. 42 U.S.C. §§

12186(b)-(c). The ADA Standards include both the 1991 Standards and 2010

Standards.

Statement of Interest 4, ECF No. 20-1 (footnote omitted).

Initially, the parties and the United States agree that the ADA Standards themselves do not

set forth a bed height requirement for hotel guest rooms. Section 806 of the ADA Standards, titled

“Transient Lodging Guest Rooms,” sets forth the following requirements with respect to hotel

rooms:

806.1 General. Transient lodging guest rooms shall comply with 806. Guest rooms

required to provide mobility features shall comply with 806.2. Guest rooms

required to provide communication features shall comply with 806.3.

806.2 Guest Rooms with Mobility Features. Guest rooms required to provide

mobility features shall comply with 806.2.

806.2.1 Living and Dining Areas. Living and dining areas shall be accessible.

806.2.2 Exterior Spaces. Exterior spaces, including patios, terraces and balconies,

that serve the guest room shall be accessible.

806.2.3 Sleeping Areas. At least one sleeping area shall provide a clear floor space

complying with 305 on both sides of a bed. The clear floor space shall be positioned

for parallel approach to the side of the bed.

Exception: Where a single clear floor space complying with 305 positioned for

parallel approach is provided between two beds, a clear floor or ground space shall

not be required on both sides of a bed.

806.2.4 Toilet and Bathing Facilities. At least one bathroom that is provided as part

of a guest room shall comply with 603. No fewer than one water closet, one

lavatory, and one bathtub or shower shall comply with applicable requirements of

603 through 610. In addition, required roll-in shower compartments shall comply

with 608.2.2 or 608.2.3. Toilet and bathing fixtures required to comply with 603

through 610 shall be permitted to be located in more than one toilet or bathing area,

provided that travel between fixtures does not require travel between other parts of

the guest room.

806.2.4.1 Vanity Counter Top Space. If vanity counter top space is provided in

non-accessible guest toilet or bathing rooms, comparable vanity counter top space,

in terms of size and proximity to the lavatory, shall also be provided in accessible

guest toilet or bathing rooms.

806.2.5 Kitchens and Kitchenettes. Kitchens and kitchenettes shall comply with

804.

806.2.6 Turning Space. Turning space complying with 304 shall be provided

within the guest room.

806.3 Guest Rooms with Communication Features. Guest rooms required to

provide communication features shall comply with 806.3.

806.3.1 Alarms. Where emergency warning systems are provided, alarms

complying with 702 shall be provided.

806.3.2 Notification Devices. Visible notification devices shall be provided to alert

room occupants of incoming telephone calls and a door knock or bell. Notification

devices shall not be connected to visible alarm signal appliances. Telephones shall

have volume controls compatible with the telephone system and shall comply with

704.3. Telephones shall be served by an electrical outlet complying with 309

located within 48 inches (1220 mm) of the telephone to facilitate the use of a TTY.

36 C.F.R. Pt. 1191, App. D, § 806. Section 806’s only discussion of beds or sleeping areas

provides:

806.2.3 Sleeping Areas. At least one sleeping area shall provide a clear floor space

complying with 305 on both sides of a bed. The clear floor space shall be positioned

for parallel approach to the side of the bed.

Exception: Where a single clear floor space complying with 305 positioned for

parallel approach is provided between two beds, a clear floor or ground space shall

not be required on both sides of a bed.

36 C.F.R. Pt. 1191, App. D, § 806.2.3. The ADA Standards clearly provide no requirement with

respect to hotel bed height specifically, and, outside of the floor space surrounding a hotel bed, do

not provide any requirement with respect to hotel beds/sleeping surfaces generally.3

3 The Court notes that an Appendix published with the 2010 ADA Standards did discuss hotel bed height as follows:

Additionally, many commenters urged the Department to regulate the height of beds in accessible

hotel guest rooms and to ensure that such beds have clearance at the floor to accommodate a

mechanical lift. These commenters noted that in recent years, hotel beds have become higher as

Concord asserts that, because the ADA Standards provide certain accessibility

requirements for hotel rooms, and because Plaintiff fails to allege a violation of these requirements,

Plaintiff fails to state a claim under the ADA. Generally speaking, the Court’s review of the case

law cited and arguments set forth by the parties and the United States in their briefing tends to

confirm that, where the ADA Standards specifically set forth a design requirement for physical

accessibility, compliance with that specific provision of the ADA Standards establishes

compliance with the ADA as to the design element discussed in that provision.4 Plaintiff argues,

however, that, because the ADA Standards do not set forth any requirements for sleeping surfaces

or bed height, the Court must look to Title III’s general nondiscrimination requirements, including

the requirement to make reasonable modifications, in determining whether Plaintiff has stated a

claim in this action. See Compl. ¶¶ 17; 34, ECF No. 1; Br. in Opp’n 7 n.3, ECF No. 16; see also

Statement of Interest 5-6, ECF No. 20-1.

hotels use thicker mattresses, thereby making it difficult or impossible for many individuals who

use wheelchairs to transfer onto hotel beds. In addition, many hotel beds use a solid-sided platform

base with no clearance at the floor, which prevents the use of a portable lift to transfer an individual

onto the bed. Consequently, individuals who bring their own lift to transfer onto the bed cannot

independently get themselves onto the bed. Some commenters suggested various design options

that might avoid these situations.

The Department intends to provide specific guidance relating to both hotel beds and aquatic

wheelchairs in a future rulemaking. For the present, the Department reminds covered entities that

they have the obligation to undertake reasonable modifications to their current policies and

procedures and to undertake barrier removal or provide alternatives to barrier removal to make their

facilities accessible to persons with disabilities. In many cases, providing aquatic wheelchairs or

adjusting hotel bed heights may be necessary to comply with those requirements.

28 C.F.R. pt. 36, App. A, at 884 (2020). The Court notes that the possibility that the Department of Justice may, at

some unspecified time, eventually promulgate requirements for hotel beds does not constitute a reason for delay in

consideration of Plaintiff’s claim in this matter. See Reed v. 1-800-Flowers.com, Inc., 327 F. Supp. 3d 539, 548–49

(E.D.N.Y. 2018) (“Although the Court understands the Defendant’s desire to wait until more definitive guidance from

the DOJ exists, the Court must also consider the Plaintiff’s right to a prompt adjudication of her claim. Therefore, the

Court will not delay the resolution [of] this matter until the DOJ decides to take up the issue again.”).

4 By way of example, the United States provides: “[I]f an accessible hotel room contains a bathroom with grab bars

that are between 33 and 36 inches high, where required by the ADA Standards, the hotel has met its ADA obligation

as to that element. See 36 C.F.R. Pt. 1191, App. D, §§ 607.4, 609.4. Individuals with disabilities could not premise

an ADA claim on an allegation that they need grab bars that are 30 inches high instead.” Statement of Interest 5 n.3,

ECF No. 20-1.

Initially, it is clear, and seemingly undisputed, that Plaintiff has sufficiently alleged the

following: (1) Plaintiff is an individual with a disability; (2) Concord is an entity that operates

places of public accommodation, specifically hotels; and (3) Plaintiff and similarly situated

individuals with disabilities are unable to utilize the beds/sleeping surfaces provided by Concord

because the sleeping surfaces of the beds contained within Concord’s “accessible” rooms are of

such a height that it is virtually impossible for individuals with disabilities who utilize wheelchairs

for mobility to safely transfer from their wheelchair to the hotel bed surface. The only issue

presented by Concord’s Motion to Dismiss is whether Concord’s failure to provide usable beds to

individuals with disabilities can constitute discrimination under the ADA where the ADA

Standards set forth certain requirements for hotel rooms, but do not address bed height.

In the absence of any mention of hotel rooms in the ADA Standards, it is clear that

Plaintiff’s Complaint would survive at this stage of the proceedings under the general

nondiscrimination requirements of the ADA and the ADA’s overarching equal access mandate.

Plaintiff alleges that Concord’s purportedly accessible hotel rooms deny individuals with

disabilities equal access to and the use of one of the, if not the, most basic and fundamental goods,

services, facilities, privileges, advantages, or accommodations provided by a hotel guest room, an

accessible bed/sleeping surface upon which an individual can sleep. Concord argues that, even if

Plaintiff’s allegations are true, only the Department of Justice can remedy this situation by

promulgating updated ADA Standards that incorporate a bed height requirement.5 Br. in Supp. 7-

9, ECF No. 11. As noted above, Concord asserts that Plaintiff’s failure to allege a violation of the

ADA Standards for hotel rooms necessarily establishes the absence of an ADA violation with

5 Concord’s interpretation of the ADA and the ADA Standards, taken to its logical extreme, would seemingly permit

Concord, without violating the ADA, to provide “accessible” hotel rooms that exclusively contain beds that are of

such a height that they are entirely unusable by individuals with disabilities, unless and until new ADA Standards are

promulgated. Such a result would seemingly fly in the face of the ADA’s well-recognized purpose.

respect to Concord’s accessible hotel room sleeping surfaces/beds, which Concord asserts

constitute a design element of a hotel room.

“A public accommodation that ‘complies with [the ADA Standards]’ is deemed

‘accessible.’” Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1220

(10th Cir. 2014) (citing 1991 Standard 3.5).6 As previously noted, Concord asserts that, in this

case, “Plaintiff has challenged a design element controlled by the [ADA Standards].” Reply 4,

ECF No. 17 (emphasis omitted). As acknowledged by the parties and the United States, however,

the ADA Standards do not address the height of beds in hotel rooms and, outside of the floor space

around beds, do not address hotel room beds whatsoever. This is not a situation where the Court

is tasked with interpreting a specific provision of the ADA Standards to determine whether

Concord’s beds and sleeping surfaces comply with specific accessibility requirements set forth

therein. In that way, this case is readily distinguishable from Colorado Cross-Disability Coal. v.

Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014), Lara v. Cinemark USA, Inc., 207 F.3d

783 (5th Cir. 2000), and U.S. v. Nat’l Amusements, Inc., 180 F. Supp.2d 251 (D. Mass. 2001).

Each of those cases involved interpretation of a requirement set forth in the ADA Standards that

addressed the specific design elements at issue in those cases, specifically accessible seating in

assembly areas in Lara and National Amusements and accessible entrances in Colorado Cross-

6 The Colorado Cross-Disability Coalition court also explained that:

The commentary provides that:

A private entity that renders an “accessible” building inaccessible in its operation,

through policies or practices, may be in violation of [42 U.S.C. § 12182]. For

example, a private entity can render an entrance to a facility inaccessible by

keeping an accessible entrance open only during certain hours (whereas the

facility is available to others for a greater length of time). A facility could

similarly be rendered inaccessible if a person with disabilities is significantly

limited in her or his choice of a range of accommodations.

Colorado Cross-Disability Coal., 765 F.3d at 1220 (quoting 28 C.F.R. pt. 36, app. C, at 914 (guidance to 28 C.F.R. §

36.401)).

Disability Coalition, and the courts in those cases thus did not look to the ADA’s general

nondiscrimination requirements. Again, and importantly, this is not a case where the Court can

look to the ADA Standards to determine whether Concord has provided an accessible or usable

bed/sleeping surface in its purportedly accessible hotel rooms, as the ADA Standards contain no

requirement as to this aspect of hotel rooms whatsoever.

The Court further notes that some of the cases relied upon by Concord are readily

distinguishable and irrelevant in this matter for the reasons discussed in the United States’

Statement of Interest. See Statement of Interest 9, ECF No. 20-1 (“Rather, they stand for the

straightforward proposition that a plaintiff cannot use alleged violations of state law, and more

specifically state building codes, to establish an ADA violation where the ADA Standards already

address the alleged barrier.”).

In the present case, Plaintiff alleges that Concord maintains a policy and practice of

providing purportedly accessible hotel rooms at the hotels it operates that exclusively contain beds

whose sleeping surface height renders the beds inaccessible to and unusable by individuals with

disabilities, such as Plaintiff, who use wheelchairs or scooters for mobility. Compl. ¶¶ 17; 55,

ECF No. 1. Concord offers no true argument at this juncture that it provides beds/sleeping surfaces

in its accessible hotel rooms that are accessible to or usable by Plaintiff or similarly situated

individuals, but rather argues that it is not required to provide a usable bed in its purportedly

accessible hotel rooms because it has complied with the ADA Standards for hotel rooms.7 Plaintiff

seeks relief in the form of a modification of Concord’s policy and practice of providing

7 The Court notes the same only for the purpose of illustrating the extraordinary breadth of Concord’s argument at this

juncture, as Concord seemingly argues that it has carte blanche to provide beds of whatever height it chooses in its

purportedly accessible hotel rooms, regardless of whether such a practice denies its guests with disabilities the benefit

of a bed/sleeping surface. The Court acknowledges that it would be inappropriate for Concord to assert the argument

that it, in fact, does provide accessible beds/sleeping surfaces in its accessible hotel rooms, at this stage of the

proceedings, and recognizes that Concord has not waived the opportunity to assert the argument at a later date.

inaccessible beds in its purportedly accessible hotel rooms. Id. at ¶ 18. In this case, Plaintiff has

alleged that Concord maintains a policy and practice of providing its guests with purportedly

accessible hotel rooms that, while perhaps compliant with the existing ADA Standards, deny

individuals with certain disabilities a usable bed. The Court finds that, in this manner, Plaintiff’s

claim is materially similar to the “operational use” claim discussed in the case of Kalani v.

Starbucks Corp., 117 F. Supp. 3d 1078 (N.D. Cal. 2015).

In Kalani, a plaintiff who utilized a wheelchair for mobility asserted that, while the

defendant’s wheelchair accessible tables may have technically complied with the applicable

requirements of the ADA Standards, the defendant’s use and arrangement of those tables violated

the ADA’s more general requirements because it necessarily resulted in any customer who utilized

a wheelchair being required to sit facing a wall, with their back to the defendant’s store interior,

when visiting the defendant’s store. The United States District Court for the Northern District of

California explained in Kalani that “mere compliance with applicable ADAAG regulations does

not preclude the possibility that a place of public accommodation may deny an individual the ‘full

and equal enjoyment’ of the goods or services the public accommodation provides.”8 Kalani v.

Starbucks Corp., 117 F. Supp. 3d 1078, 1085 (N.D. Cal. 2015), aff’d in relevant part, vacated in

part, Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th Cir. 2017). With respect to whether

a plaintiff must assert a violation of the ADA Standards to state a claim under the ADA, the Kalani

court explained:

In the instant case, like the cases discussed above, Plaintiff does not challenge

Defendant’s compliance with ADAAG governed elements of a building’s design,

but instead challenges Defendant’s prevention of the plaintiff’s “full and equal

enjoyment,” 42 U.S.C. § 12182(a), of the goods and services that Defendant offers.

8 The Court notes that the Kalani court’s references to the “ADAAG” are functionally equivalent to this Court’s

references to the “ADA Standards.” See Kohler v. In-N-Out Burgers, No. CV 12-5054-GHK JEMX, 2013 WL

5315443, at *1 n.1 (C.D. Cal. Sept. 12, 2013) “(It is the ‘Standards,’ codified at 28 C.F.R. Part 36, that constitute the

legally binding regulation. Nevertheless, the term ADAAG is often used.”).

See Fortyune, 364 F.3d at 1085; [Baughman v. Walt Disney World Co., 685 F.3d

1131, 1135 (9th Cir. 2012)]. Although Plaintiff’s claim involves a regulated design

element in so far as the ADAAG prescribes certain height and width requirements

for accessible tables, Plaintiff’s claim is not about the design of the accessible

tables, but rather Defendant’s operational use of those tables. Like the plaintiffs in

Baughman and Fortyune, Plaintiff claims that Defendants’ use, policy, and practice

with respect to its interior accessible tables prevent Plaintiff from having “full and

equal enjoyment,” 42 U.S.C. § 12182(a), of Defendant’s goods and services by

depriving Plaintiff of an “experience comparable to that of able-bodied patrons,”

Baughman, 685 F.3d at 1135; see Trial Tr. at 78:24–79:4.

Accordingly, the Court finds that Plaintiff does not need to show a violation of the

ADAAG to state a claim under the ADA. See Fortyune, 364 F.3d at 1085;

Baughman, 685 F.3d at 1135. Instead, Plaintiff may state claims under the

antidiscrimination provisions of Title III of the ADA. See [Celano v. Marriott Int’l,

Inc., No. C 05-4004 PJH, 2008 WL 239306, at *14 (N.D. Cal. Jan. 28, 2008)].

Kalani, F. Supp. 3d at 1086–87. The Kalani court further held that the defendant, “through the

orientation and positioning of its interior accessible tables, has afforded Plaintiff an opportunity to

both participate in and benefit from the abovementioned goods and services that was ‘not equal to

that afforded to other individuals[,]’” and that the same “constitutes discrimination under Title III

of the ADA.” Id. at 1088 (quoting 42 U.S.C. § 12182(b)(1)(A)(ii)).

The Kalani court is not alone in holding that a plaintiff may state a claim under Title III in

the absence of an asserted violation of the ADA Standards. See Fortyune v. Am. Multi-Cinema,

Inc., 364 F.3d 1075, 1085 (9th Cir. 2004) (“But in cases such as Fortyune’s, which concern a

public accommodation’s policy regarding the use of that design (e.g., the use and availability of a

companion seat), the provisions of the ADAAG are not controlling.”); see also id. at 1085 n.4

(explaining: “This is not to say that the ADAAG is irrelevant. Policies effectuating the ADAAG

may be required to fulfill the statutory purpose of 42 U.S.C. § 12182. For instance, the ADAAG

requires that hotels provide a minimum number of accessible rooms and rooms with roll-in

showers. See 28 U.S.C. Pt. 36, App. A, Guideline 9.1.2. The regulation implementing 42 U.S.C.

§ 12182(b)(2)(A)(ii), illustrates that a hotel does not fulfill its obligations under the ADA simply

by complying with this design and construction guideline. In addition, ‘a hotel may need to adopt

a policy of keeping an accessible room unoccupied until an individual with a disability arrives at

the hotel . . . .’ 28 C.F.R. Pt. 26, App. B, § 36.302.”); Celano v. Marriott Int’l, Inc., No. C 05-

4004 PJH, 2008 WL 239306, at *14 (N.D. Cal. Jan. 28, 2008) (in a case where a defendant

maintained a policy at its golf courses of providing golf carts to golfers but argued that it was not

required by the then-current ADA Standards to maintain and provide accessible golf carts to

golfers with disabilities, the United States District Court for the Northern District of California

held: “Marriott’s current policy does not provide plaintiffs, mobility-impaired golfers, with an

experience that is functionally equivalent to that of other non-disabled golfers. Plaintiffs here have

presented overwhelming evidence that they are unable to golf at Marriott’s courses under the

current policy. By contrast, non-disabled golfers can simply show up at the course and Marriott

will provide them with a functional cart as part of the cost of their round of golf. Accordingly,

Marriott provides golf carts for able-bodied golfers, but does not provide accessible carts for

mobility-impaired golfers like plaintiffs. Because Marriott’s policy places plaintiffs in a distinctly

unequal situation, as compared to their able-bodied counterparts, it is discriminatory under the

ADA.”); Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (“Public

accommodations must start by considering how their facilities are used by non-disabled guests and

then take reasonable steps to provide disabled guests with a like experience.”); Thomas v. Kohl’s

Corp., No. 17 C 5857, 2018 WL 704691, at *3 (N.D. Ill. Feb. 5, 2018) (rejecting a defendant’s

argument that “because there is no express spacing requirement for moveable display racks under

the ADA, [plaintiff] cannot state a Title III claim as a matter of law.”).

Plaintiff alleges that Concord, as an operator of hotels, offers, provides, and “uses” both its

non-accessible hotel rooms and its accessible hotel rooms, as well as the beds/sleeping surfaces

contained therein, to provide its guests with a sleeping surface (i.e. a bed) upon which the guest

can sleep when they stay at a Concord hotel. Compl. ¶ 45, ECF No. 1. In this action, Plaintiff

does not assert that Concord failed to comply with the applicable ADA Standards when it designed

its accessible hotel rooms. Plaintiff has alleged, however, that Concord’s alleged policy and

practice of exclusively placing only inaccessible and unusable beds inside of its purportedly

accessible hotel rooms denies individuals with disabilities, and specifically those who utilize

wheelchairs and scooters for mobility, the use and availability of an accessible sleeping

surface/bed for sleeping, i.e. a good, service, facility, privilege, advantage, or accommodation that

Concord provides as a hotel operator to other individuals. In summary, Plaintiff has alleged that

Concord maintains a policy and practice that denies individuals with disabilities equal access to

Concord’s goods, services, facilities, privileges, advantages, or accommodations.

“[I]f an entity constructs an ‘accessible’ facility, but takes affirmative steps to bar disabled

persons from enjoying it, then it has violated the ADA’s prohibition of providing a separate benefit

‘on the basis of a disability.”’ Colorado Cross-Disability Coal., 765 F.3d at 1220 (citing 42

U.S.C. § 12182(b)(1)(A)(iii)). That is precisely what Plaintiff has alleged in this case. Plaintiff

alleges that Concord’s relatively recent policy and practice of offering only inaccessible and

unusable beds in Concord’s purportedly accessible hotel rooms has barred Plaintiff and similarly

situated individuals with disabilities from being able to enjoy one of the most basic services or

accommodations offered by a hotel room operator, a bed upon which an individual can sleep. In

light of the Court’s analysis above, the Court finds that Plaintiff’s Complaint sufficiently alleges

disability discrimination under 42 U.S.C. §§ 12182(b)(1)(A)(i)-(iii) and 42 U.S.C. § 12182

(b)(2)(A)(ii), and further finds that the Complaint states a claim under the general

nondiscrimination requirements of Title III of the ADA.

Though distinguishable, the Court also finds instructive the case of Reed v. 1-800-

Flowers.com, Inc., wherein the United States District Court for the Eastern District of New York

addressed a situation where the ADA Standards set forth no specific requirements for website or

mobile application accessibility whatsoever. The Reed court explained: “[T]he statutory mandate

of Title III provides the Defendant ample notice of its duty not to discriminate. DOJ regulations

may amplify or augment the ADA’s general mandate. The absence of those regulations does not

displace the affirmative obligation created by the statute.” Reed, 327 F. Supp. 3d at 549. The

Court again notes that, in this case, it is abundantly clear and undisputed that, while the ADA

Standards set forth certain design requirements for hotel rooms, they do not address, in any relevant

manner, bed height specifically or even sleeping surfaces generally. This lack of a specific

requirement for hotel room bed height might mean that Concord’s compliance with the ADA could

be achieved in a more flexible manner than where the ADA Standards provide for a strict, specific

requirement. 9 In this Court’s estimation, it does not establish, as Concord would have this Court

9 In its Statement of Interest, the United States explained:

Of course, in the absence of specific requirements for bed height, hotels have some degree of

flexibility in making reasonable modifications to provide usable beds for a person with a disability.

This flexible standard is inherently fact-specific. For example, some hotels might be able to use a

combination of lower profile mattresses, box springs, and bed frames to lower the beds permanently

in some of their rooms. Or, some hotels could perhaps provide lower beds upon request in a room

by using rollaway beds, removable bed frames, adjustable height bed frames, or bed frames on

removable risers. Such flexibility could allow hotels to continue to use higher beds for guests that

prefer them, if they so choose.

Statement of Interest 10, ECF No. 20-1; see also Reed v. CVS Pharmacy, Inc., No. CV 17-3877-MWF (SKX), 2017

WL 4457508, at *5 (C.D. Cal. Oct. 3, 2017) (“CVS’ contention amounts to a request to refrain from enforcing

business’ obligations under the ADA until the DOJ promulgates what it deems to be specific enough guidelines, a

requirement that would eviscerate the ADA. The DOJ’s position that the ADA applies to websites being clear, it is

no matter that the ADA and the DOJ fail to describe exactly how any given website must be made accessible to people

with visual impairments. Indeed, this is often the case with the ADA’s requirements, because the ADA and its

implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s

requirements. This flexibility is a feature, not a bug, and certainly not a violation of due process. However, it was

demonstrably clear to CVS that if it chose to offer a website or mobile app in connection with its brick-and-mortar

stores, those services were required to be accessible to people with disabilities, unless the requested auxiliary aids and

services were too burdensome to implement.”)

find, that Concord can effectively refuse to provide its services altogether to individuals with

disabilities such as Plaintiff who, due to their disabilities, allegedly cannot use the beds in

Concord’s hotel rooms. See Reed, 327 F. Supp. 3d at 549. (“The lack of specific regulations [does]

not excuse non-compliance with the ADA.”); see also Robles v. Domino’s Pizza, LLC, 913 F.3d

898, 908 (9th Cir. 2019) (“While we understand why Domino’s wants DOJ to issue specific

guidelines for website and app accessibility, the Constitution only requires that Domino’s receive

fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.”).

The Court also notes that it has not been tasked, especially at this juncture, with

determining what, if any, form of injunctive relief may be appropriate should Plaintiff prove

successful in this action. Concord advances no argument as to this issue at this stage of the

proceedings, and any such argument would, in any event, be premature.10

The Court finally notes that it is not opining on whether Plaintiff will likely prevail on the

merits of his claim, or whether he may prove successful or unsuccessful in eventually moving to

certify a class in this matter. Rather, Concord’s Motion to Dismiss has tasked this Court with

determining whether the factual allegations in the Complaint, accepted as true, are sufficient to

state a claim against Concord for a violation of Title III of the ADA. “The ADA requires public

accommodations to take reasonable steps to provide an experience comparable to that afforded to

10 See Reed, 327 F. Supp. 3d at 551 (“Lastly, the Court separately notes that the Defendant’s concerns about the

accessibility standard to-be applied are premature. The Court need only consider the appropriate remedy in the event

that the Plaintiff establishes that a violation of Title III occurred. If the Plaintiff prevails, the Defendant will have

ample opportunity to be heard about the appropriateness of any remedy.”); see also Access Now, Inc. v. Blue Apron,

LLC, No. 17-CV-116-JL, 2017 WL 5186354, at *6 (D.N.H. Nov. 8, 2017) (“Whether a modification is ‘reasonable,’

too burdensome, or a fundamental alteration to the nature of the service or accommodation ‘will vary depending on a

plaintiff’s disability and a defendant’s goods, services, accommodations, and resources—a modification that works

for a certain plaintiff may not work for all plaintiffs and may not be a reasonable request to make of every defendant.’

Andrews v. Blick Art Materials, LLC, No. 17–CV–767, 2017 WL 3278898, at *18 (E.D.N.Y. Aug. 1, 2017). Whether

the particular accommodations requested by the plaintiffs to permit their equal enjoyment of Blue Apron’s website

fall into these categories is a fact-dependent question better addressed with a developed factual record not present at

this stage of the proceedings.”).

non-disabled patrons.” Kalani v. Starbucks Coffee Co., 698 F. App’x 883, 886–87 (9th Cir. 2017).

The Court finds that Plaintiff has very clearly set forth a cause of action under the general

nondiscrimination requirements of the ADA, and Concord does not truly advance any argument

to the contrary. The only argument raised by Concord in its Motion to Dismiss is that Plaintiff’s

failure to allege a violation of the ADA Standards necessarily establishes that Plaintiff cannot set

forth a claim for a violation of the ADA with respect to Concord’s hotel rooms. As discussed

above, the Court disagrees with Concord’s contention, and will deny Concord’s Motion to

Dismiss.

IV. Conclusion

For the reasons discussed above, the Court will deny Concord’s Motion to Dismiss. An

appropriate Order of Court follows.

BY THE COURT:

s/Robert J. Colville

Robert J. Colville

United States District Judge

DATED: February 1, 2022

cc: All counsel of record