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BAASKE v. CITY OF ROLLING MEADOWS

March 26, 2002

JOHN A. BAASKE, PLAINTIFF,
V.
CITY OF ROLLING MEADOWS AND CHIEF PHILIP BURNS, CITY OF ROLLING MEADOWS FIRE DEPARTMENT, DEFENDANTS



The opinion of the court was delivered by: James H. Alesia, Judge

  MEMORANDUM OPINION AND ORDER

I. BACKGROUND

In August and September 2000, the City renovated one of its firehouses. Plaintiff John Baaske ("Baaske") has filed this lawsuit, alleging that the firehouse renovation did not conform with the requirements of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Baaske claims that he brings this action as "an individual who has reasonable grounds to believe that a class of disabled individuals has been and will be denied access to a public building and public accommodations and public events and activities." (Compl. ¶ 6.) He purports to bring this case on behalf of a class of individuals with disabilities. However, Baaske's complaint does not allege that he is disabled.

Baaske brings this case against both the City and Burns. Each defendant has filed a motion to dismiss this case. The City raises two arguments in support of its motion to dismiss: (1) Title III of the ADA does not apply to local governments and other public entities and (2) Baaske does not have standing to bring a claim under Title II of the ADA. Burns moves to dismiss Baaske's claims against him on the grounds that those claims are redundant, as claims filed against a municipal officer in his official capacity. Additionally, both defendants ask the court to award them attorneys' fees. First, the court will address the City's motion to dismiss. Second, the court will consider Burns's motion to dismiss. Third, the court will discuss the defendants' claims for attorneys' fees.

II. DISCUSSION

A. Standard for Deciding a Rule 12(b)(6) Motion to Dismiss

In ruling on a motion to dismiss pursuant to Rule I 2(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff Szumny v. Am. Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test the sufficiency of the complaint. Weller v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996). A court will grant a motion to dismiss only if it is impossible for the plaintiff to prevail under any set of facts that could be proven consistent with the allegations. Forseth v. Vill of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

B. The City's Motion to Dismiss

Before evaluating the merits of the City's motion to dismiss, the court must determine which title of the ADA gives rise to Baaske's claims. The ADA is separated into three titles, each of which prohibits disability discrimination in a different context: Title I, 42 U.S.C. § 12111-17, applies to discrimination in employment; Title 11, 42 U.S.C. § 12131-65, applies to discrimination in public services; and Title III, 42 U.S.C. § 12181-89 applies to discrimination in public accommodations. Baaske makes no allegation regarding discrimination in employment and alleges that the City's renovation violates 42 U.S.C. § 12132, 12182, 12183 and 12188. (Compl. ¶ 5.) Therefore, the court's analysis will focus upon Title II and Title III. The City raises two arguments in support of its motion to dismiss: (1) Title III of the ADA does not apply to local governments and other public entities and (2) Baaske does not have standing to bring a claim under Title II of the ADA.

1. Baaske's Title III Claims

The City argues that the court should dismiss Baaske's Title III claims against the City because Title III does not apply to municipalities and other public entities. Baaske does not oppose the City's argument.

Title III prohibits owners and operators of public accommodations from discriminating against persons with disabilities. 42 U.S.C. § 12182 (a). A "public accommodation," under Title III is a private entity whose operations affect commerce. 42 U.S.C. § 12181 (7). A private entity is any entity other than a public entity, as defined by Title II. 42 U.S.C. § 12181 (6). Title II's definition of public entity includes both state and local governments as well as their departments and agencies. 42 U.S.C. § 12131. With this statutory language in mind, the court must determine whether Baaske may bring a Title III claim against the City. Neither the Supreme Court nor the Seventh Circuit has directly resolved this issue; therefore, this case appears to be one of first impression in this circuit. However, the Fifth, Sixth, and Eighth Circuits have ruled on the issue and the court will look to the reasonings of those decisions for guidance in this case.

In Bloom v. Bexar County, the Fifth Circuit held that the ADA does not apply to public entities, including local governments. 130 F.3d 722, 726 (5th Cir. 1997). The Fifth Circuit emphasized the statutory language of the ADA and concluded that because Title III applies only to public accommodations, which are private entities, the public entity defendant could not be held liable under Title III. Id. at 726. The Eighth and Sixth Circuits have reached the same conclusion. See DeBord v. Bd of Educ., 126 F.3d 1102, 1106 (8th Cir. 1997) ("Title III of the ADA applies to private entities providing public accommodations, however, not to public entities. . . . Entities subject to Title III include private schools, but not public ones."); Sandison v. Mich. High Sch. Athletic Ass'n, 64 F.3d 1026, 1036 (6th Cir. 1995) ("Public accommodations are operated by ...


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