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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ROBERT DODSON, NO. 2:04-cv-1068-MCE-CMK

Plaintiff,

v. FINDINGS OF FACT AND

CONCLUSIONS OF LAW

DOLLAR TREE STORES, INC.;

dba DOLLAR TREE #1203; 98

CENTS‘N DEALS, JASON B.

MATECKI; and DOES 1 through

10,

Defendants.

----oo0oo----

This matter came on for a Court trial on June 28, 2006. 

Mark Emmett and Adams Sorrells from the Law Offices of Lynn

Hubbard appeared for Plaintiff Robert Dodson. Shane Singh from

Kring & Chung, LLP represented Defendant Dollar Tree Stores, Inc. 

After hearing the evidence and arguments, the Court makes the

following Findings of Fact and Conclusions of Law.

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Plaintiff has settled his claims against Defendant Jason B. 1

Matecki, owner of the shopping complex where the Store is

located. In addition, all claims against the other named

Defendant, 98 Cents ‘N Deals, were also dismissed by Court Order

filed December 8, 2004.

2

FINDINGS OF FACT

The Court’s Final Pretrial Order of May 22, 2006 reveals the 

following facts to be undisputed:

1. Defendant Dollar Tree Stores, Inc., a corporation, is

the operator and lessee of the Dollar Tree Store (“the Store”)

located at 5101 Fruitridge Road, Sacramento, California.

2. The Store is a “public accommodation,” as defined by

both the Americans with Disabilities Act (“ADA”) at 42 U.S.C. §

12181(7)(E), and California Health and Safety Code § 19955. The

Store further is a “business establishment” within the meaning of

California Civil Code §§ 51 and 51.5.

3. The Store opened for business of December 10, 1998. 

Construction of the Store occurred 90 days beforehand.

4. Defendant Dollar Tree Stores, Inc. does not own, lease

or control the common areas or the parking lot of the shopping

center.1

5. The Store never sought a hardship exemption to excuse

violations of California’s disability access laws at the Store. 

See Cal. Health & Safety Code § 19957.

In addition, prior to the commencement of trial the parties

stipulated to the following additional facts:

6. Plaintiff, a high C5 paraplegic, is a mobility impaired

individual.

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7. The ISA sign located adjacent to the Store’s sole

functional entrance is placed 28.5 inches from the ground as

measured by Plaintiff’s expert witness, Joe Card.

8. The pictures appended to the reports of both Mr. Card

and the defense expert, Kim Blackseth, are properly authenticated

as depicting areas in and immediately adjacent to the Store.

9. The Store qualifies as a newly-constructed public

accommodation within the meaning of Title III of the ADA, 42

U.S.C. § 12181 et seq., and its implementing guidelines for new

construction and alterations, known as the Americans with

Disabilities Act Access Guidelines (“ADAAG”). See 42 U.S.C. §

12186(a) and 28 C.F.R. Part 36, Appendix A.

The evidence presented at the court trial supports the

following factual findings:

10. Plaintiff is confined to a motorized wheelchair and

relies on that wheelchair for mobility purposes.

15. At all times relevant to this lawsuit, Plaintiff lived

across the street from the Store and has shopped at the Store an

average of one to two occasions per week since February of 2004.

16. Plaintiff testified that he has encountered various

accessibility barriers upon visiting the Store that have remained

similar on each visit.

17. According to Plaintiff, the entrance to the Store is

not automated, requiring him to kick against the door to open it. 

While Plaintiff admitted that the doorway was marked with an

Internation Symbol of Accessibility (“ISA”) sign, which

designates mobility-impaired access, he claims that placement of

the sign was too low for him to see it easily. 

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He also testified that once inside, the Store’s aisles are

frequently cluttered, making them difficult to traverse in his

wheelchair. Finally, Plaintiff alleges that the Store’s single

handicapped-designated checkstand is not always open. Even when

he is able to use the checkstand, Plaintiff asserts that he

cannot pull out the accessible check writing platform, and also

is unable to use the card reading machine for his ATM card.

18. Plaintiff’s expert, Joe Card, testified that he

inspected the Store in August of 2005 and confirmed that the

barriers encountered by Plaintiff were in violation of ADAAG

guidelines. First, as the parties stipulated, the height of the

ISA sign adjacent to the Store’s main entrance, at 28.5 inches. 

Card claims that placement less than 60 inches violates both

ADAAG 4.30.6 as well as the provisions of the California Building

Code, Cal. Code of Regs., tit. 24 (“CBC”) at 1117B.5.7. Second,

Card opined that as of the time of his August 2005 inspection,

the pressure required to open the manually operated doors to the

Store exceeded five pounds, in violation of CBC 1133B.2.5 (Card

measured ingress resistance at 8 pounds, and egress at 30 pounds,

apparently due to the door dragging on a floor mat). Third, with

respect to the Store’s only designated disabled checkstand, Card

found that the checkstand did not display language indicating

that it was “to be open at all times for customers with

disabilities”, as required by CBC 1110B.1.3. In addition,

because the Store has five checkstands, Card testified that two,

as opposed to one, checkstand had to be disability compliant in

any event. 

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Card further found that the check writing platform that had been

installed required gripping to pull out in contravention of ADAAG

4.27.4 and CBC 1117B.6. Fourth, with respect to required

emergency egress from the Store, Mr. Card opined that because a

second main entrance to the store was not used and was blocked

with merchandise, it violated the provisions of ADAAG. Finally,

with respect to the emergency exit itself, Card claimed that its

sign was not properly illuminated, that the door’s strike side

clearance was insufficient, and that the “panic” hardware mounted

on the door was placed too high, all in violation of applicable

provisions of the ADAAG and CBC.

19. Kim Blackseth provided expert testimony on behalf of

the defense. He initially visited the Store in November of 2005

and revisited the facility on June 27, 2006, just before trial,

for purposes of rechecking certain compliance issues. Blackseth

disagreed with Joe Card on placement of the ISA sign adjacent to

the Store’s main entrance, testifying that the ADA did not even

require that particular sign and that the 60 inch placement

designation applied to tactile signs with Braille lettering,

only. Second, Mr. Blackseth measured door resistance at only 5

pounds, or in compliance with ADA/CBC specifications. Third,

with respect to disabled checkstand access, Blackseth agreed that

two checkstands had to be available at the Store under ADAAG’s

new construction standards which the parties agreed applied to

the Store. Blackseth’s most recent inspection, however, revealed

that the checkstand that was available had the required verbiage

despite Joe Card’s claim to the contrary. 

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Blackseth further determined that the checkwriting platform did

not require gripping to operate, and that placement of a velcro

strap for ready use of the ATM machine also did not require a

gripping motion. Fourth, although Blackseth testified that the

second main entrance to the Store was clearly unused, with

merchandise displays permanently blocking the entrance, he

conceded that entrance still had to be accessible under ADAAG new

construction standards. Finally, Blackseth also admitted that

the fire exit door did not comply with ADAAG standards applicable

to new construction.

20. Although Plaintiff complained that the Store’s aisles

were frequently cluttered, Blackseth testified that the only

impediments he observed were related to ongoing merchandise

stocking. According to Blackseth, temporary obstructions of that

nature are not subject to ADAAG guidelines.

21. The Court gives credence to Kim Blackseth’s

measurements of door tension taken just prior to trial and

determines that door resistance for the one set of operational

doors into the Store fell within ADAAG requirements.

22. The Court further determines that signage for the

single disabled checkstand within the Store satisfied the

mandates of both ADAAG and the CBC. In addition, the Court finds

Mr. Blackseth’s testimony persuasive to the extent that both the

checkstand platform and ATM machine provided at that checkstand

were disability complaint. Nonetheless, because the Store was

equipped with five checkstands, under applicable new construction

standards two, and not just one, checkstands must be accessible

to the disabled. 

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ADAAG 4.3 and CBC 1110B2.1 require minimum clearance of 36 2

inches in circulation aisles.

7

23. The Court finds that no permanent obstructions to

aisles were present in the Store that would trigger violations

under the ADAAG or the CBC. Any obstructions were only 2

temporary in nature and for stocking purposes, and accordingly

did not pose any violations. 

CONCLUSIONS OF LAW

1. Pursuant to the parties’ stipulation, the Store

constitutes a newly constructed facility and must therefore

comply with the accessibility standards set forth in the ADAAG. 

28 C.F.R. § 36.406(a); 42 U.S.C. § 12183(a). The Store has not

contended that it should be excused from compliance with those

standards on grounds that it would be “structurally

impracticable” to meet ADAAG requirements. 42 U.S.C. §

12183(a)(1); see Long v. Coast Resorts, 267 F.3d 918, 923 (9th

Cir. 2001).

2. ADAAG 4.1.2(7)(c) requires that in the event all

entrances to a commercial are not accessible, those that are must

be identified by an ISA sign. In this case, because one of the

two main entrances to the Store was permanently blocked by

merchandise and not in use, the single operational public

entrance had to be equipped with an ISA sign. Under ADAAG

4.30.6, that sign constitutes permanent identification and must

be installed 60 inches from floor level. 

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At 28.5 inches, the placement of the sign in this case violated

that provision, as well as the corresponding provision found at

CBC 1117.B5.7. The above-cited ADAAG and CBC provisions do not

apply only to tactile signs as the Store contends.

3. Moreover, and in any event, the experts for both

Plaintiff and the Store agree that both sets of entrance doors

must be accessible under ADAAG new-construction guidelines.

4. While the single disabled checkstand complies with

applicable requirements under both the ADAAG and the CBC, as a

newly-constructed facility two checkstands must be accessible to

the disabled given the five checkstands in place at the Store. 

ADAAG 7.3(2).

5. Both of the experts testifying in this case further

agree that the fire exit door fails to comply with ADAAG and CBC

requirements applicable to new construction. The clearance on

the strike side of the door is less than twelve inches, as

required by ADAAG 4.13.6 and CBC 1133B.2.4.2. The “Exit” egress

sign is not illuminated in accordance with ADAAG 4.1.3 and CBC

1003.2.8.5. Finally, placement of the “panic hardware” for

opening the fire exit is placed at approximately 48 inches above

the finished floor, in violation of CBC 1133B.2.5.2, which

requires that hand-activated door opening hardware shall be

centered between 30 and 44 inches from the floor.

6. Because Plaintiff has dropped his claim for damages

under the Unruh Act at California Civil Code § 52, the remaining

relief sought is injunctive in nature, only under both the ADA

and California Civil Code § 51. 

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The Unruh Act, at California Civil Code § 51(f), makes a 3

violation of the ADA a violation of the Unruh Act as well.

9

As enumerated above, the Court finds that Plaintiff is entitled

to such relief under the ADA and the Unruh Act as to the 3

following issues:

A. Placement of the ISA sign adjacent to the Store’s

entrance is too low;

B. The Store must provide two handicapped-accessible

checkstands;

C. Closure of the second primary entrance to the Store

is in contravention of guidelines applicable to new

construction;

D. The Store’s fire exit door fails to meet

accessibility guidelines. The sign above that door is not

illuminated, clearance on the strike side of the doorway is

insufficient, and the door hardware is placed above levels

mandated by the CBC.

Defendant Store, however, prevails on other issues as

follows:

A. The pressure required to open the entrance door

currently being used is within acceptable tolerances;

B. The disabled checkstand as currently configured

meets all applicable requirements; and

C. There are no permanent impediments to aisle

circulation within the Store that run afoul of either the

ADAAG or the CBC.

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 Judgment shall be entered partially in favor of Plaintiff,

and partially in favor of Defendant Store, in accordance with the

above. 

IT IS SO ORDERED.

DATED: July 25, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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