i'd like to start by saying basically distilling down what the defendants are saying pickering represents they proposed that picture and represent that a disabled plaintiff only has standing to challenge those and i understand that i would just i would whatever they were going to have to abide by all correct i mean you're welcome to make your record on it but i would like to add one or two points because i had the privilege of the i'll argue pickering in front of this court in two thousand and two  and i can say without reservation the issue of an encounter barriers discovered after the filing of the complaint was before this panel i was asked specifically about that and i discussed the district of hawaii case par vs l m l dr and at length because they had come to the decision that i think it need not encounter a barrier to have standing to excusing challenges and i discovered part length and i think this is significant because the pickering case in addition to citing staker repeatedly also cited  particularly this issue was very much in front of this court they were discussing an encounter barriers discovered by duran's experts fifteen months after the final last year so it is your argument to us that you were disappointed that they didn't more fully up a little bit yes the easiest way to explain that is to start with a van accessible sign now only one space in eight asked to accommodate a van they have the extra wide access side so the laws very specifically it says there will be an additional sign on the post that says that an excess of them doesn't say additional words the sign that says an additional sign when someone enters a parking lot from a distance driving a van because they need eight feet four foot for their lift floor for their wheelchair they look first for signage directing them to the general area that they might park and then they look for that second sign that says van excessive but they don't always have to see the sign they just have to see the second sign so they had their are we talking about are sixteen with the picture of the sign on the fence that's one of the things we're talking of and your position is they have to be completely separate that they can't be on the same placard they can be on the same post but they can't be on the same sign because from the back side you wouldn't be able to tell if the space was banned accessible or not because you've only seen one sign and where where do you get that requirement out of the regulations i get that requirement out of four point six point four that says an additional sign and california has a very specific a day four point six point four ok as very specific rules so the point i'm trying to make is if you don't see that then accessible sign then you would have no way of knowing if you can park your van there but if you could read the sign not from the back here's the point i can't tell from the picture on  sixteen but it appears to be a cycling fans and their peers that the ban on the other side of the fence but i can't tell from this picture whether the patrons of the store would actually be encountering the parking lot from the other side of sense or not well the issue is if you enter from the southern end of the store you can see that sign anyway if somebody is parked in the spot because it's pie so so the argument is not that it's a combined crime but it's just not post that high and that's one of the arguments but you can get by with a combined sign and the reason that you can't get by with a combined sign is very simple from a distance if you don't see two signs then you look right down below that second sign and if somebody is in that parking space and only one space out of date has to be then excess supply then you drive way out to the north forty or you can take two parking spaces one for the van and one to the list and then you take the accessible route in which should be marked crossings across the vehicle or way that's why you need the second sorry and there was a record made that the van accessible sign was not there and then later they put one in that wasn't correct ok but she wasn't complaining about the fact that when she pulled into the parking lot she couldn't tell which  recognition issue from a distance ok then the next issue comes up about accessible route she got stuck at the store because the aisles were too narrow but she wanted to use the restroom and this kind of tie is the end to this title three standing to raise it if you look a wheelchair a sign and an arrow pointing to the rest and photograph forty three shows there's twenty one inches to get to that restroom wheelchairs don't fit through the twenty one inch opening there is a big column that this stops of so she can never ever bind the defendant's argument she could never raise title three standing about the bathrooms in the barriers because she can't get to it there's no way to get to the bathroom it your choice the court john bilheimer for the defendants wall and carolyn bridges i received a notice and ford are saying that the party should limit their discussion or argument to the issue of standing and with regard to the council in white versus richie to discuss the path of travel issues within the store and my hearing the court correctly that they don't want to take argument on fun standing you're welcome to make whatever record you want i just i just wanted counsel to be aware of the fact that so far as this panel is concerned we are trailing behind the duran panel on the standing issue gets decided by the duran panel were going to be found by ok i'll be brief phone do some bullet points and i'll go straight to we have your briefs and i think both sides did a good job of briefing the issue but i just want you to understand that we are not go have the final word or the let me put the controlling word on the standing issue ok well there may be some input saw hit it quickly and move on to the thirty six wild issue standings measured at the time of the filing of the complaint it's not to be dispensing engross and the supreme court has repeatedly said we're not going to relax our rigid standing principles for purposes of judicial  s the court has also stated that the remedy must be limited to the adequacy that caused the defect so if we look at sherry wife's  complaints at the time of the filing of her of her complaint she didn't have actual injury as a result of those purported defects that she neither knew of  nor encounter and when you take those four principles that have been a non si aided by the supreme court it's it's difficult it's almost at the plaintiff almost asks for an exception to standing rules and that's what it should be called is an exception to the standing rules the supreme court's most recent pronouncement on the issue in hind versus freedom from religion is once again a strict and plaintiffs must allege and i quote personal injury to fairly traceable to the defendant's allegedly unlawful conduct and addressing the one issue  at some time prior to nine hundred ninety eight doran visited the paradise store and encountered the architectural barriers of which he now complains in alleged violations of eight x four point three four point three three and figure seven a and b and and and quoted no excess will rue true store at least one aisle is less than thirty six inches wide defendants brought a motion for summary judgment after they had their expert complex to come in and do its best to fix the purported problems we introduce evidence at the summary judgment stage all interior aisles between shelves of goods in defendant's stores are thirty six is inches wide or greater that's s b r o o two five that's our evidence in opposition this is the evidence that we get hit with access inside the river mart between shelving serving both sides of the retail area does not provide forty four inch minimum with which violates california building code eleven thirty three b six two and that's the are thirty two now the trial court has stopped right there and said you didn't meet their what they had to talk about they were talking about a thirty six inch mitt minimum and they get a declaration that says all aisles are not forty four inches or greater but the trial court didn't the trial court then goes to the pictures which are there's not a great deal of foundation laid for the pictures and the excerpts of the record on page eighty eighty one eighty two are found these pictures these photos show three aisles that are greater than thirty six inches and one area that is less than thirty six inches immediately below the photo in large print it's state code violation at i all access does not provide forty four inch minimum with for aisle serving both sides and once again the trial court could stop right there and says wait we're talking about a thirty six inch minimum here why are we talking about the california building codes especially the two thousand and one california buildings of and so i think the trial court would have been ok in stopping right there but it didn't it considered pictures and it said three of these pictures present aisles that are thirty six inches or greater hence that there's two reasons that that suffice and one is that a dead compliant four point three point two says you have to have one is at least one accessible route thirty six inches or greater and to the picture there's not evidence an island which merchandise is being displayed for public consumption every other picture if you'll note on eighty eighty one and eighty two shows goods being exhibited on both sides of the aisle this one does not and plaintiff concedes the point in her declaration in her supplemental declaration of page one eleven paragraph six that well who cares if there are thirty six i need forty four and aided four point three point two states at least one accessible room shall connect accessible buildings facilities elements and spaces that are on the same site and accessible roof must be thirty six inches in width if your interpretation of the h g regulations that as long as a display case has goods that are being offered to the public at the store then each aisle must be at least thirty six inches in width throughout the store no it's not that is not my interpretation doesn't that violate the statutory forensic files that the premises owner has to complied with a day you had yourself a safe harbor number two is they there are alternatives to barrier removal for instance  retrieving merchandise from inaccessible shelves or racks is permitted that's twenty nine c f r thirty six point three zero five and on appeal white posits that more than one accessible room may be needed if it is impossible to connect all of these elements with a single roof as is the case here now if you're going to make that argument you have to present evidence below that these three thirty six inch aisles did not connect the basic spaces elements and facilities of the store the court can't the trial court you have to lay a foundation for if if you're faced with evidence that says all aisles are thirty six inches and you show one picture without explanation the trial court could disregard that as wholly lacking in foundation which  and you have to argue below you have to put in some testimony from somebody that can fog a mirror and say there were these files do not connect these elements so we have something to shoot at we have to have a target so we can attempt to meet that target and then move the case and white ms white never presented that sort of evidence that these isles do not connect them they argue that now for the first time on  that there's no merchandise or picture of merchandise on that side and on the left you can see gas cans on the left of that photo you'll see gas cans janitorial and and so in answer to your question is if you have one let's just assume there were goods on both sides i go to a day and it says at least  d if that if that's the construction but it says it doesn't just say every single aisle must be thirty six inches it says accessible routes and then it's a find what inaccessible route is nice and it says spaces elements facilities buildings and jaycee's if you didn't show which i say that picture doesn't show and it's and they have to give me evidence so i can at least get a target that says these three aisles that are thirty six inches they have to say they do not connect with all the facilities and spaces so then i can say huh i've got to check that out and i've got to try to beat that and satisfy their requirement because it's a legitimate issue standing and mr bilheimer has addressed the issues of standing as well as the appellee in the door in case i will only briefly address a couple of points that i would like to add mr bill hemmer quoted the section where the court explicitly stated that mr durrant in the pickering case had actual knowledge that's a fundamental difference between that case and the case can stagger and the case and martina hear the consequences of such a broad interpretation that goes against the plain language answer the barriers he should be able to speak remediation for those barriers that affect his disability the question i have is how are we going to define disability  if mr martinez was in a wheelchair than he should be able to speak remediation for all barriers that affect a person in a wheelchair or mr martina's with paraplegia mr martinez says limitations are going to be different than an individual who is quadriplegic and does not have any mobility or function in his upper body therefore a barrier which a pellet might deem to be affecting a person in a wheelchair will not actually affect that particular plane to us an example might be if you have a door handle that requires tight pinching or grasping well that was one of the barriers that were addressed in the expert report in martina's that would not necessarily affect mr martinez despite the fact that he is in fact in a wheelchair so what blurs the line in the only ability that we had to post some limitations on it it's a follow article three standing and the next problem i see is that it forces play to change it just a little bit for you s suppose instead of being paraplegic with a quadriplegic he's blind and can sure comes in and he falls over something which shouldn't have been there structurally shouldn't be there are you suggesting that the only step that may be other structures like this throughout the store the only one that he can sue for is the one that he can stumble on mom i think it's not by virtue of only seen yet it's that extra element of knowing it and it would actually affect you now with knowing and seeing if he saw it he would know  blind but it won't necessarily affect him for example if he thought that there was not proper signage for a visually impaired person and i recognize that that's a little bit difficult of an assumption to make but if we're seung that he sees the barrier on the women's restroom and he is a metal does not use the women's restroom just because he sees the barrier it affects somebody with his disability that is that he is visually impaired does not mean that he would have standing to seek remediation is that the problem is by defining someone's disability in terms of quote connection to that particular plaintiff there's got to be some connection to that particular plaintiff and yes it could be something that affects his disability and that essentially impaired those that occurs in the restroom then no it does not affect him he does not have standing to speak for remediation as to those items there's got to be something that's more particularized and personal to the particular barriers and actual knowledge of barriers that would actually affect you or injure you in the imminent future and it's not too attenuated you're never going to go back to the place we're not talking about that circumstance then yes that does have to be a limitation otherwise we're opening up the floodgates for for litigation on issues and barriers that do not affect the particular plaintiff and the last point in this regard is that it forces the defendants to try to hit moving targets when we're trying to determine when the knowledge of these barriers came about and suggesting that we should allow them just by virtue of their or their acts burt knowledge of this even though we've got a situation with martina's where he's been to the location regularly and never encountered or was even aware of the barriers that were identified by his expert that he could then remediate those well in martina's we had three separate reports we had a preliminary site inspection we actually had the complaint as well but listed a whole nother set of barriers we had plaintiff's expert that listed a different set of barriers and then finally we had the neutral expert the defendants are forced to continually hit a moving target attention had a moving target the only way to limit that is to find out what this particular plaintiff was affected by and with that morning honors highly technical and mind numbingly boring let's start first by identifying yourself for the record scott hubbard doing the reply in both cases before i began is there any questions that the panel would like to ask me in light of the defendant's comments during their phase will be the one concern i have that to address is the interplay you're arguing that the california code is somehow assimilated into the in order to establish a definition of violations and i'd like to know and maybe i've misunderstood your argument but i'd like you to help me eighty we're not arguing that state building code has absolutely anything to do with the eight day the a dag is its own separate critter i can't remember whether or not we described it in either the white briefs for the or the martinez there's a parallel right that you have under the a d l you have one based on the denial of full and equal enjoyment and use and you have others based on architectural barriers which the department of justice has designed has defined as being a  violation right now if you're filing us seeking relief for a gag violation of the california building code doesn't mean squat you can violate the california building code to your heart's content it's not going to have anything to do with  harbor to a denial of full and equal enjoyment and use so in the case unfortunately it was a movie theater where they said we have enough accessible seating we don't need to buy it wasn't denied full and equal enjoyment and you should have just shown up earlier and the ninth circuit's panel spent a good four or five pages discussing no way mathematically that's not correct he's limited to these two seats you need to have a policy in place so that he can use those two seats and that's the most recent not the best case on the in the circuit to describe the definition between the use in a tag or at least acknowledge it in publication you can have an eight da compliance facility that a stable person can't use for whatever reason and so that's where state law that's where the building code comes into place if you have a building code violation that deny someone full and equal enjoyment and use radically if you look at the congressional record if you look at the d o j regs which i cited to in the brief congress and the department of justice seem to recognize that when california or any state has higher building and then in my mind is one of supremacy and that is if the congressional team was to delegate to the department of justice the authority to promise regulations under the  without regard to whether or not that is a safe harbor is a none the less free to enact building code violations or building code requirements for violation of which a plaintiff in a federal cause of action may look to in order to establish the i think if i understood your question correctly on the repeat it just in my own mind i think you're focusing on two separate  very clever argument it's a it is taking the statutory standard full and equal access to facilities and saying it's can't be full and equal access that violates the california building code even though it i have an excellent example for you and i think it's relevant in the white case exterior door pressure the a diet is silent on a six minutes i wanted to hit some of the technical questions that were raised on why so the  door pressure you could have extra are door pressure one hundred pounds which no one could open the side of the superman normally state law i think the day what's the door pre door pressure is hundred pounds you could have the facility that's technically a day compliant but one must use point of view a disabled person could use it because they couldn't get to the front door because this front door safety code part five point five there is the unfair business practice act business and professions code seventeen two hundred there is the california civil code at section fifty four which damages and injun relief might theoretically be available if the plan to prevail so why do we then have to incorporate that state standard and make it a federally violation for which it injunctive relief and at least four thousand you don't even have to look at the state law you don't even have to look at the building code regulations you don't even have to touch pounds something that i could open but the average quadriplegics like in a smart mr martinez or sherry way you don't even have to look to the state law that's why i mean it's a motive i'd characterize evidence as motive and so far it just doesn't matter well i have three minutes i understand your theory want to move on to the other points if you care enough let me let me just start through very very quickly my father stressed the importance of an accessible sign as having the separate sign spot it from a distance which when you're going to and it's such an important issue that when the where do you get the the spotting part so i understand the obligation on the part of the property owner to make the space available where i had a hard time following your father's argument was how it's a violation of the a da if the patron who is disabled can't determine from a distance of two hundred yards away that  's a space i mean what's the harm in requiring the patron to drive a little closer to the designated parking areas in order to determine which space has been so busy because those eight spaces might not be clumped together so you have to be able to see from a distance which accessible parking space is the one with a van that assumes the need for example drives through the parking lot and look for the others well it's it's i don't know i deal d o j wanted and if you look at four point six four which actually is the section that requires that it palace sizes additional signage i mean my mom we speak from personal experience my mom's a paraplegic she's in a wheelchair  in a wheelchair we drive a van accessible finance we look for that find so that's the importance of it it's it's the it's not the radical going on comments we talked about the with of the i also if you look at the excerpts of record eighty one i've done this long enough i would point out too that they do have a lot of machine there that's there is something online that it is used so it's required to be thirty six inches and even if it wasn't if you look at your positions contrary to the property owners position is that every aisle in the store where a patron my wall are asked to be at least forty four inches wide i would say every aisle because the d o j doesn't say every aisle but it's more than one he would he would say well if he says it is only needs as we have three and so seventy five so he's not supposed to you know i've heard the argument before and it's it's been made before that we only need to provide one accessible route through the store and  is if one is not good for your position is all of them don't have to be equally accessible so something between one and all and where does that leave me in trying to interpret the law here i pause because the six inches wide if you're talking about movable displays or something like macy's where you have one main path and then little by little island that's that's that's out there and so that's was the pas and one last point is the question of that it's under thirty six inches that's a tribal issue a fact of whether or not that was whether or not that well whether or not that word summary judgment i would argue based on those facts warrant summary judgment in our favor but reasonable minds can disagree with the court grant the summary judgment if the district court doesn't know what the law requires in terms of the with of all of the we all the district court knows from looking at exhibit a do you want to read or eighty one is that to congress and the department of justice said that she would set the most stringent standards when you determine the acceptability of us at the facility and we cite to those in our brief the most stringent standards in this case it's forty four inches when our expert went in he operated off of the most stringent standards and at forty four inches of stringent standards from the c d c or from the  but even on the eighty even on the a day it was still only are incorporated into c b c sort of as a second set of regulations under the age you don't want to characterize it you know i do want to characterize it because i think their standard failure to comply with that standard would deny a disabled person full and equal enjoyment under the law it's that first section eighty eight section three zero two and that is the alpha and that is the omega of title three