Original post by Law360 Author: By Kali Hays
Law360, New York (December 11, 2015, 1:38 PM ET) — The Ninth Circuit was told Thursday it should defer to the government’s supportive stance on a paraplegic man’s claims that California car dealers refusing to install hand controls for test driving have violated the Americans With Disabilities Act.
John Karczewski said in a reply brief that the U.S. Department of Justice, through a September amicus brief and other court filings, has clearly established its position that the ADA requires car dealerships to provide hand controls on vehicles to extend test driving privileges to people with disabilities. He went on to say that an argument against deference for the agency’s position by K Motors Inc. “lacks significant merit” because the Ninth Circuit has often held that DOJ interpretations are “controlling” and of “significant weight.”
Karczewski also scoffed at K Motors’ attempt to define a facility, in some of the ADA’s language, as impossible to apply to vehicles because a dictionary definition of the word “is something ‘built, installed or established,’” meaning a facility cannot be anything other than the dealership itself.
“From the very outset of the implementing of Title III of the ADA, the DOJ has defined facilities as including equipment, vehicles and personal property and architectural barriers as including physical elements of such equipment, vehicles or personal property that impede persons with disabilities,” Karczewski said Thursday. “The lack of vehicle hand controls on rented or loaned cars fits well within the regulatory scheme.”
Karczewski in November 2014 had sued California Toyota dealership K Motors in federal court, alleging ADA violations after the dealer refused to install enabling hand controls, forcing him to purchase a new car without ever having the chance to test-drive it.
In the market for a new car, Karczewski claims, several dealerships he visited in California would not install temporary devices that would allow him to test-drive any vehicle. Karczewski is paralyzed from the waist down and is able to drive, but with hand controls instead of foot pedals, according to court records.
He has argued there are temporary hand controls that cost less than $700 and can be installed in any vehicle within 20 minutes by clamping the controls onto the gas and brake pedals with a Velcro strap around the steering column.
However, the district court dismissed Karczewski’s suit in March, finding that a vehicle is a good comprising part of the dealership’s inventory and that to accommodate his desire to test-drive a vehicle, the dealership would have had to alter the nature of its vehicles, according to court documents.
While K Motors has not denied that it did not accommodate Karczewski’s disability, in a late October brief to the Ninth Circuit, the dealer argued that it is not required to accommodate Karczewski’s or a disabled consumer’s “specific needs” under the ADA’s Title III.
The dealer also argued against Karczewski’s supposed claim that there is “one universally prescribed device that meets the needs of all disabled drivers,” saying there is no such thing and if the district court’s ruling is not upheld, an “untenable scenario” will be created.
“Imposing the requirements that appellant advances would not only violate 28 CFR 36.306, but would have the far-reaching effect of essentially requiring every car dealership in the country to maintain every type of adaptive equipment that could conceivably be required or requested by a person with disabilities along with the personnel to safely install such equipment,” K Motors said. “Such a requirement was not intended by the drafters of Title III of the ADA.”
Counsel for Karczewski and K Motors could not be reached Friday for comment.
Karczewski is represented by Russell Handy of the Center for Disability Access.
K Motors is represented by Jane A. Rheinheimer of Rheinheimer + Smigliani APC.
The case is Karczewski v. K Motors Inc. et al., case number 15-55588, in the U.S. Court of Appeals for the Ninth Circuit.
–Additional reporting by Aebra Coe. Editing by Edrienne Su.
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