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 Plaintiff’s conclusions of law address only the Unruh 1

Civil Rights Act. The court treats this as an election of

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

Plaintiff, No. Civ.S-04-690 DFL JFM

v.

 FINDINGS OF FACT AND 

 CONCLUSIONS OF LAW 

NORBRECK LLC dba JOHNNY

CARINOS et al.,

Defendants. 

_____________________________/

This matter came on for trial by the court, sitting without

a jury, on August 1, 2006. Having heard oral testimony and

received documentary evidence, the court now makes the following

findings of fact and conclusions of law pursuant to Rule 52(a) of

the Federal Rules of Civil Procedure. 

I.

Wilson is a disabled person who brings claims for damages

and injunctive relief under the Americans with Disabilities Act

(ADA”) and the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.

Code §§ 51 et seq.. Defendants own and operate the Johnny 1

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damages under the Unruh Act as opposed to the Disabled Persons

Act, Cal. Civ. Code § 54.1(a)(1).

2

Carino’s restaurant in Fairfield, California. Johnny Carino’s is

a place of public accommodation under the relevant statutes. 

Wilson’s claims are based upon his patronage of the restaurant on

several occasions in 2003 and 2004.

Title III of the ADA provides that “No 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 Unruh Act incorporates the ADA. Cal. Civ. Code § 51(f). 

Under the ADA, the Department of Justice is instructed to

issue regulations providing substantive standards for public

facilities subject to the ADA. These regulations are known as

the ADAAG (ADA Accessibility Guidelines) and are found at 28

C.F.R. Part 36, Appendix A. All parties agree that the ADAAG

standards define whether an architectural or other feature of a

facility is a “barrier” that discriminates against disabled

persons in violation of the ADA. The parties further agree that

the California Building Code (“CBC”), Cal. Code of Regs., Title

24, provides substantive standards for violations of the Unruh

Act in addition to the ADAAG. 

The court has federal question jurisdiction of the ADA claim

and supplemental jurisdiction of the state law claim.

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3

The parties stipulated to the following facts in the Pretrial Order:

1. Wilson is a sixty-nine year-old married male who has

been disabled since 1993;

2. Wilson has severe degenerative joint disease in his

neck, legs, shoulder, and spine. He has an irregular heartbeat,

multi-joint arthritis, post-traumatic arthritis, peripheral

neuropathy, slight foot drop, and limited range of motion of

upper extremities.

3. Wilson uses a walking cane or wheelchair (or both) when

traveling in public.

4. Wilson drives a van without a wheelchair lift.

5. Wilson has a disabled placard, which has been issued by

the State of California, Department of Motor Vehicles.

6. Two days after Wilson’s first visit, he hand wrote a

letter to the restaurant detailing the barriers he remembered

encountering.

7. The restaurant is a sales establishment (open to the

public) where patrons (i.e. – the public) are invited to dine.

8. Defendant FairBreck, LLC is the owner and lessor of the

land and the facility located at 1640 Gateway Court, Fairfield,

CA 94533.

9. Defendant NorBreck, LLC is the operator and lessee of

the restaurant.

10. Defendants have never applied for, nor received, a

hardship exemption for the restaurant.

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11. Defendant NorBreck, LLC provides goods, services,

facilities, privileges, advantages, and accommodations at the

restaurant.

12. Construction of the restaurant was completed on

September 16, 2002.

13. Defendant NorBreck, LLC has been the operator of the

restaurant located at 1640 Gateway Court, Fairfield, CA 94533

since it opened.

Following the summary judgment motions, the following issues

remained for trial: 

a. Whether sufficient accessible seating is available in

the bar area; 

b. Whether the toilet paper dispenser violates the

California Building Code (“CBC”) by not being within 12” of the

front edge of the toilet seat;

c. Whether the wastebaskets encroach on the clear floor

space under the sink;

d. Whether the entrance door pressure exceeds 5 pounds of

pressure;

e. Whether the bar area is accessible; and

f. Whether the restaurant has a sufficient number of fixed

tables with the necessary 19” knee clearance.

II.

A. Placement of Toilet Paper Dispenser

At the close of Wilson’s case in chief, Norbreck moved for 

judgment pursuant to Fed. Rule Civ. Pro. 52(c) as to issue (b),

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placement of the toilet paper dispenser. Wilson claims that the

location of the toilet paper dispenser violates ADAAG 4.16.6

because it is not “within reach” and CBC § 1115B.9.3 because it

is not within 12 inches of the front edge of the toilet seat. 

The Court granted defendants’ motion on the basis that the

evidence did not show the exact placement of the toilet paper

dispenser in relation to the front edge of the toilet seat. 

Because no evidence was offered by plaintiff as to the exact

distance between the dispenser and the front edge of the toilet,

insufficient evidence was shown to find a violation of the CBC. 

As to the ADAAG, the court could not infer that the toilet paper

dispenser was “out of reach” on the basis of Wilson’s testimony,

in which he explained that, in fact, he could reach the dispenser

by leaning forward. Moreover, it should be noted that while

Wilson uses a wheelchair much of the time, he is able to walk

considerable distances and to stand. He is not paraplegic. The

placement of the toilet paper dispenser was not a barrier to him.

Therefore, as to this claim under the Unruh Act and the ADA,

Wilson failed to carry his burden of proof. 

 B. Accessible Seating in Bar and Restaurant 

Plaintiff claims that the accessible “dining seating” in the

bar area is inadequate because five percent of the seating must

be adequate under ADAAG 5.1 and CBC § 1104B.5.4. He claims that

the one accessible seat at the bar lacks adequate knee clearance

and counter space. He also claims that the other tables in the

bar area lack accessible seating because the knee clearance is

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inadequate. The defense expert, Kim Blackseth, testified that,

according to his measurements, the knee clearance in the nearby

tables satisfied the applicable ADAAG and CBC minimums. 

 This particular dispute turns on (1) which tables should be

considered part of the bar seating area, and (2) whether the

tables provide accessible seating if the disabled person sits in

between the table legs, centered on one side of the table. As to

the first issue, the court finds that plaintiff has not shown

that the “bar area” is a discrete eating area limited to the

seats at the actual bar and the booths across from the bar. 

Rather, the seating includes the tables in the adjoining space

and in the so-called “fireplace room” which is not distinct or

closed off from the bar.

As to the second issue, the court finds that the knee space

clearance complies with all applicable regulations concerning

height, width and depth under ADAAG 4.32.3 and CBC § 1122B.3. A

disabled person may sit on one side of the table in between the

table supports. Apparently plaintiff’s expert did not consider

this possibility and did not make his own measurements of this

part of the table. For this reason, on the very eve of trial,

Wilson himself went to the restaurant to measure the tables. His

measurements differ from those taken by the defense expert and

would suggest inadequate knee space. However, the plaintiff

admitted that he had an attack of neuropathy while attempting the

measurement. Further, he used an inexact expandable ruler to

make the measurement. It is notable that plaintiff’s expert did

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not make a measurement of the space between the supports but only

measured the space from the support to the end of the table. 

Given that both parties consider that an expert should make such

measurements, and given that the defense expert made this precise

measurement as part of his examination of the facility, and for

the further reasons noted above, the court finds that Blackseth’s

measurement is the more reliable. Therefore, even if the one

accessible seat at the bar is not counted, there are numerous

accessible places at the tables in the immediately adjoining

space, including the fireplace area, such that the 5% requirement

is easily met at what can fairly be described as the “bar area.” 

Accordingly, plaintiff fails to show by a preponderance of the

evidence that there was inadequate accessible seating at the bar

area.

The court’s finding that the non-booth tables provide

accessible seating, in compliance with applicable regulations,

also addresses plaintiff’s claim that the restaurant as a whole

lacks sufficient accessible seating. Given that the tables

provide accessible seating, the restaurant as a whole meets the

5% requirement for accessible seating.

C. Encroachment by Wastebaskets

 Wilson asserts that the two wicker wastebaskets in the men’s

restroom obstructed his access to the sinks in violation of ADAAG

4.19.2 and CBC § 1115B.2.1.1. However, his testimony in this

respect was imprecise as to which visit he encountered the

wastebaskets and their exact placement and size. He was unable

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to say whether the smaller version of the wastebasket was in

violation of the applicable codes. Given this imprecision, the

court finds that plaintiff has failed to establish a violation by

a preponderance of the evidence. 

Moreover, the wastebaskets are light in weight. The defense

expert, himself a disabled person in a motorized wheelchair,

credibly testified that the wastebaskets present no barrier to a

disabled person. Accordingly, the court finds that the wastebaskets are easily moved to provide any needed access to the

sinks. If the wastebaskets are in the way, which has not been

established, the vast majority of disabled persons, including

Wilson, could with little effort slide them a few inches to the

side. For all of these reasons, the court finds that the

wastebaskets were not a barrier or impediment to plaintiff and

did not violate the applicable code sections. Further, and for

the same reasons, the court rejects plaintiff’s suggestion that

the wastebaskets constitute a discriminatory “policy,” if not a

barrier.

D. Entrance Door Pressure

 Wilson claims that the entrance door pressure violates ADAAG

4.13.11 and CBC § 1133B.2.5 because it requires more than five

pounds of force to open. 

There are two issues here. The first issue is one of law: 

what is the applicable upper limit on door pressure,

specifically, is it 5 pounds or 8 pounds? The second issue is

one of fact: did the door pressure present a barrier to plaintiff

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Wilson.

The ADAAG does not specify a particular pressure for

exterior doors. However, state law does specify a maximum

pressure. The 1999 standard prescribes a maximum pressure of 8.5

pounds. The 2001 CBC lowered the maximum to 5 pounds. Because

the building permit was issued and plans approved prior to the

effective date of the 2001 CBC (November 2002), the court finds

that the 8.5 standard is controlling for purposes of state law. 

 It was the policy of defendants to maintain the door

pressure at 5 pounds of pressure. However, the evidence

indicates that the door pressure varied during the relevant time

period from 5 to 8 pounds. 

Plaintiff’s testimony on the door pressure during his

particular visits was imprecise. Based on his testimony, the

court could not find that the front door pressure exceeded 5

pounds on any identified visit. For this reason alone, the claim

fails.

 The court finds further that at all relevant times the

exterior door pressure varied from 5 to 8 pounds and therefore

complied with the applicable state standard. As to the federal

standard, the court further finds that plaintiff Wilson’s

disability is not so severe that a door pressure in this range

presents a barrier to him. Finally, the court rejects plaintiff’s

claim that a door pressure over 5 pounds constitutes a

“discriminatory policy.” In fact, defendants’ policy is to

attempt to maintain the door pressure at 5 pounds. 

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E. Accessibility of Bar Area

To the extent that this claim presents an issue distinct

from bar seating, it fails. There is one accessible seat at the

bar with a lowered counter. The measurements of the knee

clearance, counter length, and counter height comply with CBC §

1104.5(4). The concrete curb has been removed. Neither the CBC

nor the ADAAG require seating for two at the bar itself. 

Finally, the ADAAG requires either an accessible counter of 60"

or accessible tables in the same area. The latter requirement is

met as explained in section II(B).

 For these reasons, the court finds that the bar itself is

accessible. 

III.

For the above stated reasons, the court find that plaintiff

Wilson has failed to prove violations of the ADA or the Unruh

Civil Rights Act. 

Judgment shall enter for defendants.

IT IS SO ORDERED.

Dated: 9/14/2006

DAVID F. LEVI

United States District Judge

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