client's appeal in the district court ruling the discord found in denying the motion to him and that it countering temporary obstructions more often does not change the fact that temporary protections you know violate the circuit this statement ignores many of the facts that are alleged in my client's complaint counsel as a predicate matter the definition of architectural which is which is in the governing law  here it's not raised directly but it's kind of hinted at with the temporary barriers point architectural to me implies structural and in fact if you look at the dictionary definitions of talks about structure so why isn't that that's correct that's a good question  as far back as one thousand nine hundred one when the during the passage of the attorney general in talking about this case at the fifty six federal wretch three three thirty five thousand and five forty four at page thirty five  structures such as furniture equipment and display or x additionally in that section he was talking about thirty six point three zero four b which talks about the type of architectural barriers that are presumptively readily achievable to remove number four is states that rearranging tables chairs vending machines display racks and other furniture in order to provide for the removal of architectural barriers to allow for exams so the regulations and the and the architectural barriers so although when we're talking about a path of travel we maybe we might be talking about the space between two what we would consider more permanent structures if there's something there although you could technically move it later but is consistently narrowing that scope that is creating an architectural barrier for a client because although because the functional with is much less than what is required under the and under the regulations thank you so cal sort out you you you are not you did not get the second amended complaint filed right is that the status you asked for it but it was never really done no no your honor we we filed so what happened procedurally in this case there was an answer first i believe is nov twenty passed and we filed one not not a multiple but one attempt to amend the complaint and that is what we are appealing here is the first our first attempt of a complaint yet it is not it was not accepted it was not it was not accepted by the based on an assertion that we are only saying that there is temporary obstructions in temporary obstructions even if they're repeated it's not sufficient to state a climb but i don't cast let me interrupt you i know there are many cases that say that we take the favor both at the motion dismissed stage we take all favorable emphasis you know the law the case yes is there anything that says you take the favorable inferences from the exhibits you filed exhibit a i think there are three pictures here that i found there i'm not sure if that specifically is me addressed but that is part of the complaint and especially a case like this where we're talking about ar went to the same store on multiple occasions and each time that he went there he encountered excess merchandise or seasonal displays that that narrowed the functional with of x the  aisles to below the thirty six inches which is required under twenty ten standards based on that the court found that he had at not only that he had adequately alleged a violation of that of the a d a s but that any expert report provided by the defendants in which on the date their expert went there there was no access merchandise was not enough morning honors me please the court this is a case involving a court's denial of a motion to amend related to a claim related to temporary barriers in the store of a home client myron's cards and gifts the court denied the motion to him and in doing so did not abuse its discretion first of all the court determined that there was no architectural barriers as your honor pointed out the definition of architecture involves a structural beer after the problem then becomes and that's why i asked about this the regulation she cited seven some some language but it also includes things like potted plants and potted plant it's not a structural  item and so it seems to me that you know whatever the real meaning of architectural as the regulations seem to have a much broader accorded a much broader meaning that may be common parlance wide and i agree that the the regulations as they're word talk about those type of things and i think they talk about it in the sense of assess abilities is your honor was talking about assess ability to particular and so if for example if there's an elevator and you have a plant in front of the elevator this is an  regulations and you can't reach to reach the button to push that's an assessor bill of the issue and that's a different thing that is played here what is pled here is an architectural barrier and that they played accessibility to i just ask counsel that well and when  you look at the complaint there's no reference to that statute if you look at it talks about one to one eight two and it talks about the architectural paragraphs in paragraph twenty two of the complaint it's at a p p five if you look in the appendix there you'll see the reference to that and you don't see a specific reference to an s s ability issue related to it so i think that's a little bit different the lead paragraph twenty six of the i think it's the original complaint they do cite the general provision about discrimination and they do say excessive on paragraph twenty eight and they do cite the right statute think yeah they do i think so are you sure that they don't have an accessibility claim here i'm trying to find the original complaint you're referring to because i'm looking i think that's yeah that's what i'm looking at several complaint i'm confident of that now provision yes that they're talking about the general right to general provision in the very beginning which is the basis for but when they actually talk about what they're alleging was wrong they're talking about the architectural barrier component and o talks about the specific architectural barrier and that's what she is specifically alleges if you look in it's paragraph twenty nine how about thirty five an equal access procedure filled equal access because i don't think you have to factual allegations themselves though and that what talks about in the specific factual a geisha ins are these photographs that show these pictures of what's there and you can see from the photographs there's actually labels on the boxes yet in the regulations as we have it what about the pictures where it looks like the seasonal display to get the the wrapping stuff which i bet you there is from the first of november at least through january well the pictures are from according to the complaint from october sixth and if you look at page fifty three of the pelleas appendix you'll see mr evans ins affidavit he attaches the layout for the displays and he says specifically in there that they're going to start putting up the christmas displays on october papers are thirty nine point five inches of space between them in the now which is more than thirty six that are required but you know one of the problems with this is is the amended complaint comes in and says not only do we have the pictures probably have and they got fifteen other times or you know more than a dozen other times he was a store and and he found that there's an accessibility and we have to take that as true at least to the motion to dismiss staged only well i disagree with you there because of the twamley decision and the requirement to bead specific in your facts you just can't make a general statement i don't know we ran into general about that yeah well you're not even fifteen times the last four years of structed but displays in excess merchandise each time that's fairly specific but  doesn't say in there that it was obstructed to be less than thirty six inches there's a difference between having something there and having thirty six inches of space and as the courts of recognize these types of mediate claims sometimes come down to inches and if you don't follow twamley simply bill is kind of things how is there supposed to be a defense to that so so you're going on twamley not on the merits because if we got to the merits we'd be contrary to the chapman case right the chapman case i don't think even hardly discuss it is what i'm trying to say and chairman i want to make sure i'm clear on this so you understand my position my position is that chapman is wrong in their decision right but i also say in the paks facts as alleged here in this particular complaint that they have an fifteen visits you don't think that they make a general allegation later on where they say that there was a hell there was less than thirty six inches of space but they don't say when that was or where  so you can't just that it goes back to the case where you can't just make general additions of what the law is you have to be specific in your factual itself and it's not enough to say for example i difficult visit a store fifteen times and i don't know if this particular individual's in a wheelchair i can't remember but i couldn't get i couldn't get through you know it was inaccessible to me i was there is there are things in my way and i didn't have the space to get through that would be enough well i think if you loads where it was and what he couldn't get through on the the absolute that would be sufficient but i think when you just make a general broad allegation i mean fifteen times frankly over four years so three hundred sixty five days a year fifteen times you know what that averages out to i did the calculations were one percent of the enough to create an inference that these are permanent barriers or or non temporary barriers at that point i would disagree on a retail establishment as a retail establishment you're going to have restocking shelves you've been deterred so many times the restocking the shelves all the time you can't have that i mean fifteen times of the course of one thousand four hundred sixty days well i assume that this particular plan of ten go every day and so maybe maybe your argument is he should have played well i only went twenty five times and fifteen of the times i had stuff in the way i don't piece but it talked about the fact that if you you got to lay out the specifics of what you're alleging was wrong with the actual barrier was so that the party has notice of what the claim is and so you can don't you think the photos do that we're back to the there because they turn over quickly like you know food in a grocery store thought of but if you take a look at the photograph you the photographs are shot from both ends how do we know that's not a story you say it's restocking it looks to me like more like storage and that's really bad thank you your honor with respect to the question regarding the photographs the top photograph shows as you were alluding to wrapping paper that's in a box it's out for sale that same box or perhaps a box that was replaced after the  your own eighty three that are not readily accessible so we talk about it throughout the complaint there are various times we talk about what your best paragraph six says were moving under one twenty one eighty one through one twenty one eighty nine and let's see in paragraph when we're discussing the cause of action and we specifically say although we don't say to the eighty three we do  both the words the allegations in the complaint as well as the photographs both show things that are not even if we were to say that that it was just a very temporary staging area for the restocking of shelves in some of those photographs they merchandise it's in paragraph twelve of the original complaint and i believe it's paragraph fifteen of them and explained as well bill that he found the displays and access merchandise obstructed the aisles and