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Smith v. Golden China of Red Wing, Inc.

United States District Court, D. Minnesota

July 22, 2019

SCOTT SMITH, Plaintiff,
v.
GOLDEN CHINA OF RED WING, INC., and VU THU LAM, Defendant.

          PADRAIGIN BROWN, BROWNE LAW LLC, FOR PLAINTIFF.

          BRIAN J. LINNEROOTH, EDWARD P. SHEU, BEST & FLANAGAN LLP, FOR DEFENDANTS.

          FILED UNDER SEAL MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         Plaintiff Scott Smith brought this action against Golden China of Red Wing, Inc. (“Golden China”) and Vu Thu Lam[1] for violations of the Americans with Disabilities Act (“ADA”). Both parties have filed Motions for Summary Judgment and motions to exclude each side's expert testimony. Because Smith failed to show that bringing the Golden China parking lot into compliance is readily achievable, the Court will grant Defendants' Motion for Summary Judgment and deny the Motions to exclude each parties' experts as moot.

         BACKGROUND

         Scott Smith, a Burnsville, Minnesota resident, suffers from arthrogryposis and uses a wheelchair for mobility. (Am. Compl. ¶¶ 8-9, Oct. 31, 2017, Docket No. 42 Decl. of Edward Sheu (“Sheu Decl.”) ¶ 2, Dec. 14, 2018, Docket No. 91, Ex. 1 (“Smith Dep.”) at 4, Dec. 14, 2018, Docket No. 91-1.) Golden China is a restaurant owned and operated by George Lam since 1995. (Am. Compl. ¶¶ 10-11; Decl. of George Lam ¶ 2.)

         Smith alleges that Defendants are not and were never in compliance with the ADA, the American with Disabilities Act Accessibility Guidelines (the “ADAAG”), and the Minnesota Human Rights Act (“MHRA”). (Am. Compl. ¶ 29.) This Court dismissed the MHRA claim on July 6, 2018. (Mem. Op. Order at 11, July 6, 2018, Docket No. 79.)

         On May 25, 2017, Smith traveled from his Burnsville, Minnesota home to Red Wing, Minnesota-a roughly fifty mile trip. (Decl. of Scott Smith (“1st Smith Decl.”) ¶ 5, Dec. 11, 2017, Docket No. 55; Smith Dep. at 10.) Smith made this trip with Peter Hansmeier, a paralegal at the law firm that represents Smith in the instant action, specifically to test businesses in the Red Wing area for ADA compliance. (Smith Dep. at 8, 10.) Smith visited Golden China during this trip and noted that there were no fully compliant accessible parking spaces. (1st Smith Decl. ¶¶ 6-7.) Smith requires fully compliant accessible parking spaces to safely transfer between his car and wheelchair. (Id. ¶ 7.) Smith did not attempt to exit his vehicle and use the ramp to enter the restaurant building. (Id. ¶ 12.) Instead, Smith determined based on his experience that he “would have been unable to enter the premises and dine or order on an independent basis, and [he] was deterred from attempting what [he] concluded would have been an unsafe and futile attempt to enter.” (Id.) Smith plans to return to Golden China once it is fully compliant with the ADA. (Id. ¶ 16.)

         Smith is not a fan of Chinese food and does not eat it when he is at home in Burnsville. (Smith Dep. at 9.) Smith asserts that he is in and around the Red Wing area “often” and that, although he is not a fan of Chinese food, he would return to Golden China if his family and friends patronized it. (Id. at 28-29.) Smith states that he is in the area “fairly frequently” because his brother lives in Winona and he visits his brother. (See Id. at 11.) He also testified that he is in the area when he visits Treasure Island Casino. (Id.)

         Smith identified several ADA violations, including: (1) the signage indicating accessible space was posted too low to the ground; (2) there was an insufficient number of accessible parking spaces; (3) there was insufficient striping for accessible spaces; (4) the accessible space lacked an adjacent access aisle; and (5) the ramp near the reserved parking space had impermissible slopes and landing. (Am. Compl. ¶¶ 13-17.) Because Golden China remedied 1, 3, and 4, the Court dismissed those issues as moot. Smith v. Golden China of Red Wing, Inc., Civil No. 17-1862, 2018 WL 3325907 at *3 (D. Minn. July 6, 2018). The Court also found that Golden China was only required to provide one accessible space-which it did-and dismissed this issue. Id. The only issue remaining is whether the incline leading from the parking lot to the walkway in front of the restaurant is ADA compliant.[2]

         Defendants concede that the incline leading from the parking lot to the walkway does not strictly comply with ADA standards, however, Defendants assert that bringing the parking lot into strict ADA compliance is not readily achievable. (See Decl. of Julee Quarve-Peterson ¶ 9, Oct. 12, 2017, Docket No. 22.) Defendants solicited bids from area contractors and found that bringing the ramp into compliance would require $29, 000 to $39, 000 worth of construction. (See Decl. of Gerald Aslakson (“Aslakson Decl.”) ¶ 8, 10, Dec. 14, 2018, Docket No. 97.) Golden China only received one bid, as other contractors in the area declined to provide one. (Decl. of Julee Quarve-Peterson (“Quarve-Peterson Decl.”) ¶ 12, Dec. 14, 2018, Docket No. 96.) This bid included the costs of razing and resurfacing the parking lot, and substantial site planning to redirect the parking lot's drainage. (Aslakson Decl. ¶¶ 7-11 & Ex. 1 at 2, Docket No. 97-1.) Linda Cheung, representative for Golden China, testified that making the renovations will likely put Golden China out of business. (Sheu Decl. ¶ 8, Ex. 7 (“Cheung Dep.”) at 46, Dec. 14, 2018, Docket No. 92.)

         Smith asserted that the Golden China property is worth over $ Xxxxx. (Sheu Decl. ¶ 17, Ex. 16 at 1, 7, Dec. 14, 2018, Docket No. 91-13.) He also asserted that there is no mortgage on the property. (Cheung Dep. at 27-28.) Further, Smith alleged that Defendants could possibly qualify for two tax benefits: the Disabled Access Credit, worth up to $5, 125 per year, 26 U.S.C. § 44, and another deduction of up to $4, 750 from their income, 26 U.S.C. § 190; (Pl.'s Mem. in Supp. at 16, Jan. 7, 2019, Docket No. 104.)

         Golden China's income and other financial information is summarized in the table below.

Year

Gross Income

Gross Profits

Net Income

Salary Paid to Vu Thu Lam

Rent paid to Vu Thu Lam

2015

Xxxxx

Xxxxx

Xxxxx

Xxxxx

Xxxxx

2016

Xxxxx

Xxxxx

Xxxxx

Xxxxx

Xxxxx

2017

Xxxxx

Xxxxx

Xxxxx

Xxxxx

Xxxxx


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