United States District Court, N.D. Illinois, Eastern Division
A.C., a minor, through his father, Buster Carter, as next friend, Plaintiff,
TAURUS FLAVORS, INC., MARIAN A. McAFEE, MORE FLAVORS INC., and DOES 1-5, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
minor, through his father, Buster Carter, has filed suit
seeking injunctive relief under Title III of the Americans
with Disabilities Act, 42 U.S.C. §12181, specifically an
order directing Taurus Flavors, Inc., Marian A. McAfee, and
More Flavors Inc. to remove or correct architectural barriers
that limit access to Taurus Flavors Restaurant in Dolton,
Illinois. All of the defendants have moved for summary
has a trademark license agreement with More Flavors and
McAfee for use of Taurus's name and logo for a restaurant
McAfee owns located at 115 East 75th Street in Chicago.
Taurus Mem. in Support of Mot. for Summ. J. at 2, ¶ 6.
McAfee is the owner of More Flavors, which also owns and
operates the Taurus Flavors restaurant at 770 East 142nd
Street in Dolton, which the Court will refer to as the Dolton
restaurant. McAfee Mem. in Support of Mot. for Summ. J. at 2,
¶ 7. The Dolton restaurant is a place of public
accommodation that is covered by Title III of the ADA.
visited the Dolton restaurant during the months of June,
July, and August 2015. Pl.'s Ex. G (Carter Aff.) ¶
7. A.C., who gets around by way of a wheelchair, contends
that he experienced serious difficulty accessing the at the
Dolton restaurant due to several architectural barriers on
the property. Second Am. Compl. ¶¶ 4, 14. A.C. says
that he could not access the facilities because there was no
handicap parking; there were potholes and indentions in the
parking lot; and the door knob of the restaurant's front
door required tight grasping that he could not perform.
Carter Aff. ¶ 8. A.C. alleges that he intends to visit
the restaurant in the future but fears that he will continue
to have trouble accessing the restaurant's facilities.
Second Am. Compl. ¶¶ 15-16.
has moved for summary judgment, arguing that it cannot be
held liable under the ADA because it is neither the owner nor
the operator of the Dolton restaurant. More Flavors and
McAfee have also moved for summary judgment, arguing that
A.C. cannot establish an entitlement to relief under the ADA.
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
A genuine dispute as to any material fact exists if "the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court
views the evidence in the light most favorable to the
nonmoving party and draws reasonable inferences from the
evidence in that party's favor. Bluestein v. Cent.
Wis. Anesthesiology, S.C., 769 F.3d 944, 950 (7th Cir.
III of the ADA states that "[n]o 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. Discrimination
under Title III includes "a failure to remove
architectural barriers . . . where such removal is readily
achievable." Id. § 12182(b)(2)(A)(iv). The
statute states that injunctive relief is available to
"any person who is being subjected to discrimination on
the basis of disability in violation [of Title III] or who
has reasonable grounds for believing that such person is
about to be subjected to discrimination." Id.
§ 12188(a)(1). In the case of a violation of section
12182(b)(2)(A)(iv), "injunctive relief shall include an
order to alter facilities to make such facilities readily
accessible to and usable by individuals with disabilities . .
. ." Id. § 12188(a)(2).
Taurus's motion for summary judgment and
argues that no reasonable fact finder could find that it
violated the ADA because A.C. cannot show that it "owns,
leases (or leases to), or operates" the Dolton
restaurant. Id. § 12182(a). Taurus says that
the only evidence A.C. presents on this point is a 2003
trademark license agreement between Taurus and McAfee for use
of Taurus's trademark at a different property,
specifically the restaurant at 115 East 75th Street in
Chicago. Taurus argues that this is insufficient to permit a
finding that it has any authority regarding the Dolton
restaurant, let alone that it owns or operates that
on the other hand, argues that the agreement shows or
supports the proposition that Taurus and McAfee are in a
franchisor-franchisee relationship that spans several
properties, including the Dolton restaurant. According to
A.C., Taurus and McAfee are "two peas in a pod,
especially given the fact that the [Dolton] property shines
brightly in the regalia, signs, colors, and marks of Taurus
Flavors." Pl.'s Resp. to Taurus Mot. for Summ. J. at
2. A.C. contends that terms in the licensing agreement tend
to show that Taurus has control over the Dolton restaurant.
interpretation is, as a general rule, a question of law.
"If the words in the contract are clear and unambiguous,
they must be given their plain, ordinary and popular
meaning." Thompson v. Gordon, 241 Ill.2d 428,
441, 948 N.E.2d 39, 47 (2011). The terms in the 2003
franchise agreement between Taurus and McAfee unambiguously
state that the agreement is meant to govern the relationship
between Taurus and McAfee regarding More Flavors #3 d/b/a
Taurus Flavors, which is the restaurant on 75th Street in
Chicago. The introductory paragraph of the agreement states:
"This Agreement, between Taurus Flavors, Corporation at
the above address, has agreed to permit MORE FLAVORS
#3 located inside Park Manor Bowl, 115 East 75th St.,
Chicago, Illinois ONLY do business as Taurus
Flavors." Taurus Ex. 3 (emphasis in original). This
paragraph of the agreement is rather inartfully written, but
it makes it clear that the agreement concerns the 75th Street
restaurant, not the Dolton restaurant. And despite A.C.'s
contentions otherwise, one cannot reasonably infer from this
agreement that Taurus must have a similar agreement with More
Flavors or McAfee regarding the restaurant in Dolton.
one could properly infer that Taurus and the other defendants
have a similar franchise agreement for the Dolton restaurant,
the terms of the agreement do not grant Taurus authority over
structural modifications to the restaurant. That, it appears,
is the critical factor in determining the liability of a
franchisor under Title III of the ADA. Though the Seventh
Circuit has not addressed the point, the several courts of
appeal have concluded that the "relevant inquiry . . .
is whether [the franchisor] specifically controls the
modification of the franchises to improve their accessibility
to the disabled." Neff v. Am. Dairy Queen
Corp., 58 F.3d 1063, 1066 (5th Cir. 1995); see also
Celeste v. E. Meadow Union Free Sch. Dist., 373
F.App'x 85, 91 (2d Cir. 2010) (relying on Neff
to adopt the Title III definition of "operates" to
include "control."); Lentini v. Calif. Center