(Original Article – Law360) By Jeff Zalesin
Law360, New York (September 1, 2015, 3:26 PM ET) — The company behind the Corner Bakery Cafe franchise violated the Americans with Disabilities Act by installing the transaction counters in a restaurant too high for a wheelchair user to access, even though it also provided customers a lower surface, a California federal judge ruled Monday.
U.S. District Judge Cormac J. Carney granted summary judgment to plaintiff Gilbert Salinas, finding that CBC Restaurant Corp. must take steps to comply with the ADA and pay Salinas $8,000 in statutory damages under California law. The judge concluded that a 34-inch-high counter jutting out toward the customer beneath the 46-inch-high transaction counter didn’t alleviate the accessibility problem at the Long Beach restaurant, one of more than 100 CBC locations.
“Even when a customer decides to utilize the lower counter for some purpose, every single transaction must occur over the higher counter,” the judge said.
Therefore, Judge Carney said, the counter design violated an implementing regulation under the ADA mandating that retail stores have at least one transaction counter no higher than 36 inches.
He also said that under California’s Unruh Civil Rights Act, Salinas is entitled to $4,000 for the violation he experienced at the restaurant and another $4,000 for being deterred from returning to the location.
Salinas, a paraplegic who uses a wheelchair, sued CBC in August 2014 after visiting the Long Beach restaurant the previous year. According to court documents, Salinas said he liked the restaurant’s food but found it “frustrating and somewhat embarrassing” that he couldn’t access the cashier’s counter and needed his wife to handle the transaction.
The plaintiff said he planned to return to the restaurant, but not until it was fixed to make the transaction counter accessible.
The complaint initially named Pacific Castle Newport I LLC, the owner or lessor of the property where the restaurant is located, as defendant. But Pacific Castle was released by a stipulation in October, leaving only claims against CBC.
In an August filing, CBC argued that the suit should fail because the 34-inch counters met the standard laid out in the ADA regulation Salinas has cited.
But Judge Carney rejected that view, finding that the lower counter couldn’t be called a “portion” of the higher counter on which the cash register sat. The lower counter could be used for signing a check or resting a wallet, but not for completing the transaction itself, he said.
Mark Potter, an attorney for Salinas, told Law360 on Tuesday that the counter setup used in CBC’s Long Beach restaurant appeared to be a common design used in many of the franchise’s locations. CBC has almost 190 locations, according to its website.
Potter added that at least some other businesses seem to have similarly designed counters. Because of Judge Carney’s decision, he said, those businesses may be have to reevaluate their ADA compliance.
“This case says that’s not good enough, because the transaction is necessarily taking place over whatever is the highest thing between the cashier and the customer,” he said.
David Peters, an attorney for CBC, told Law360 that he was planning to speak with his client before deciding on any next step, such as a motion for reconsideration or appeal to the Ninth Circuit.
“I respectfully disagree with the decision,” he said.
Salinas is represented by Ray Ballister Jr., Mark Potter, Phyl Grace and Dennis Price of the Center for Disability Access.
CBC is represented by David Peters of California Justice Alliance APC.
The case is Salinas v. CBC Restaurant Corp., case number 8:14-cv-01233, in the U.S. District Court for the Central District of California.
–Editing by Patricia K. Cole.
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