Kornblau v. Dade County

                  United States Court of Appeals,

                          Eleventh Circuit.

                            No. 95-4100.

              Barbara KORNBLAU, Plaintiff-Appellant,

                                     v.

  DADE COUNTY, a Political Subdivision of the State of Florida,
Defendant-Appellee.

                           June 20, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-655-CIV), Donald L. Graham, Judge.

Before TJOFLAT,   Chief   Judge,     and   RONEY   and   PHILLIPS*,   Senior
Circuit Judges.

     RONEY, Senior Circuit Judge:

     The district court granted summary judgment in this case for

Dade County and against the plaintiff, who, by this suit, sought

access as a disabled person to a parking space in a private

employee parking lot that she would not have been entitled to use

even if she were not disabled.       We affirm.

     There is no issue of fact.       The decision turns on the proper

interpretation of a federal statute and its regulations.

     Plaintiff Barbara Kornblau, by virtue of her difficulty in

walking due to arthritis, is a disabled person entitled to the

benefits of Title II of the American with Disabilities Act, 42

U.S.C. § 12132.    The regulations that implement the Act provide

that where parking is provided for a public building, a certain

number of spaces must be provided for the disabled, located on the

shortest   accessible   route   of   travel   to   the   entrance     of   the

     *
      Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
building.   28 C.F.R. pt. 36, app. A, § 4.6.2.

        Metropolitan    Dade    County's   Government   Center   Building

provides several public parking lots where plaintiff is entitled to

park.   These parking lots meet the requirements for the number and

location of disabled parking spaces.         The parking lot closest to

the entrance to the building, however, is reserved with marked

spaces for the county commissioners and certain senior management

officials of the County.       Plaintiff, who is not a County employee,

wants the County to provide a disabled parking space in that

employees' private lot that would be available to her, basing that

claim upon the ADA.

        The ADA was enacted to provide a national mandate "for the

elimination      of    discrimination      against   individuals     with

disabilities."    42 U.S.C. § 12101(b)(1).     Although the Act must be

broadly construed, Kinney v. Yerusalim, 812 F.Supp. 547, 551

(E.D.Pa.), aff'd 9 F.3d 1067 (3d Cir.1993), cert. denied, --- U.S.

----, 114 S.Ct. 1545, 128 L.Ed.2d 196 (1994), nothing in the Act,

its purpose, or the regulations can reasonably be read to give

disabled parkers access to areas that would not be available to

them if they were not disabled.      The purpose of the Act is to place

those with disabilities on an equal footing, not to give them an

unfair advantage. In re Rubenstein, 637 A.2d 1131 (Del.1994). The

discrimination that must be eliminated is the discriminatory effect

that results because of the disability.        As Judge Ryskamp said in

a decision granting a preliminary injunction enforcing the Act in

another context, to show a violation of Title II the plaintiff must

show disability, the denial of a public benefit, and that such
"denial      of   benefits,       or    discrimination         was   by   reason     of   the

plaintiff's disability."                Concerned Parents to Save Dreher Park

Ctr.    v.    City    of     West       Palm   Beach,      846       F.Supp.     986,     990

(S.D.Fla.1994).

        Plaintiff seeks to gain an advantage over non-disabled

parkers through a confused interpretation of the Accessibility

Guidelines        adopted    as    a    part   of   the    Department       of   Justice's

Regulations with regard to Title II of the ADA, contained in

Appendix A to Part 36 of the Code of Federal Regulations, referred

to as "ADAAG."          Regulations promulgated by the Department of

Justice      interpreting         the    ADA    are,      of    course,     entitled       to

considerable weight.              Noland v. Wheatley, 835 F.Supp. 476, 483

(N.D.Ind.1993).        See also, Parker v. Bowen, 788 F.2d 1512, 1518

(11th Cir.1986);            Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d

Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 64, 133 L.Ed.2d 26

(1995);       Thurber v. Browner, 3 AD Cases 1257, 1994 WL 395007

(N.D.Ill.1994).        While we note the regulations cannot require more

than a reasonably interpreted Act can require,                            see Robbins v.

Bentsen, 41 F.3d 1195 (7th Cir.1994);                     Natural Resources Defense

Council, Inc. v. United States Envtl. Protection Agency, 25 F.3d

1063 (D.C.Cir.1994), it is not necessary to fall back on that

principle here.        The regulations here simply do not require what

the plaintiff claims they require.

       We    are     satisfied          that   Judge      Graham       made      a   proper

interpretation of the regulations which we set forth in full as

follows:

            The dispositive issue in this case is whether Dade County
       is required by the ADA to provide disabled parking spaces for
visitors to the Government Center Building in an adjacent
parking lot reserved for County Commissioners and Senior
Management Officials. To determine this issue, the Court must
review the regulations contained in Appendix A to 28 C.F.R.
Part 36.

     Kornblau argues that Dade County is not in compliance
with 28 C.F.R. Pt. 36, App. A § 4.6.2 and, therefore, is in
violation of the ADA. 28 C.F.R. § 4.6.2 provides:

     Accessible parking spaces serving a particular building
     shall be located on the shortest accessible route of
     travel from adjacent parking to an accessible entrance.
     In parking facilities that do not serve a particular
     building, accessible parking shall be located on the
     shortest accessible route of travel to an accessible
     pedestrian entrance of the parking facility.         In
     buildings with multiple accessible entrances with
     adjacent parking, accessible parking spaces shall be
     dispersed and located closest to the accessible
     entrances.

While Kornblau does not dispute Dade County's argument that
this section distinguishes between employee and visitor
parking, she insists that the regulations require that
disabled parking be provided at the shortest accessible route
which in this case would be the employee parking reserved for
the County Commissioners and Senior Management Officials.

     Dade County contends that 28 C.F.R. § 4.6.2 must be read
in conjunction with 28 C.F.R. § 4.1.2(5)(a) which provides in
pertinent part:

     If parking spaces are provided for self-parking by
     employees or visitors, or both, then accessible spaces
     complying with 4.6 shall be provided in each such parking
     area in conformance with the table below.          Spaces
     required by the table need not be provided in the
     particular lot.    They may be provided in a different
     location if equivalent or greater accessibility, in terms
     of distance from an accessible entrance, cost and
     convenience is ensured.

     The starting point in statutory construction must be the
language of the statute itself. Gonzalez v. McNary, 980 F.2d
1418, 1420 (11th Cir.1993). A statute should be construed so
that effect is given to all its provisions, so that no part of
it will be inoperative or superfluous, void or insignificant.
Id.   It is a court's duty to give effect, if possible, to
every clause and word of a statute.     Id.   This Court must
review both sections 4.6.2 and 4.1.2(5)(a).

     With regard to section 4.1.2(5)(a), the first sentence
states "[i]f parking spaces are provided for self-parking
     employees or visitors, or both,       then accessible spaces
     complying with 4.6 shall be provided in each such parking area
     in conformance with the table below.'       The following two
     sentences in this section are logically conditioned on the
     rule contained in the first sentence. The second sentence
     need not be discussed because it refers to a table showing the
     minimum number of accessible spaces require.        The third
     sentence, "[t]hey may be provided in a different location if
     equivalent or greater accessibility, in terms of distance from
     an accessible entrance, cost and convenience is ensured' is
     referring to the spaces provided for employees or visitors in
     compliance with the first sentence.

          The regulations do not prohibit having separate lots for
     employees and visitors. In fact, the regulations allow the
     provision of three separate lots, one for employees, one for
     visitors or one for both employees and visitors.      Parking
     spaces for the disabled must be provided in each lot on the
     shortest accessible route of travel from adjacent parking to
     an accessible entrance. Therefore, for example, if a lot is
     reserved for employees, a handicapped space must be reserved
     within the lot. If a handicapped space is not reserved within
     the lot, then it must be reserved at a location which is
     equivalent or has greater accessibility in distance, cost and
     convenience from the reserved lot.

          The court finds that Dade County is in compliance with
     section 4.6.2 as it provides accessible parking spaces for the
     government center on the shortest accessible route of travel.
     Dade County is also in compliance with section 4.1.2(5)(a).
     Accordingly, summary judgment in favor of Dade County is
     appropriate.

Kornblau v. Dade County, [No. 94-0655-CIV-Graham, slip op. at 6-8]

(S.D.Fla.1994).

     In sum, to base a claim on the ADA, plaintiff must first show

she was denied a public benefit.   She has failed to do that.

     Two points are worth noting. First, although plaintiff has no

standing to claim that disabled parking places should be available

for the senior officials and county commissioners in their parking

lot, the ADA Technical Assistance Manual addresses this type of

parking facility.   The Technical Assistance Manual on ADA's Title

III was published by the Justice Department in January 1993 and

prepared pursuant to ADA's Title IV, § 12206(c)(3).      Technical
Assistance Manual's Section III—7.4300 reads in pertinent part:

     Parking (ADAAG § 4.1.2(5)(b)).

          ADAAG provides a table with the number of accessible
     parking spaces required dependent on the size of the lot....

          If a lot is limited to the exclusive use of employees,
     and none of the employees are individuals with disabilities
     requiring accessible parking, accessible spaces may be
     assigned to employees without disabilities.

     Second, plaintiff Kornblau, a lawyer, is a volunteer member of

the Dade County Commission on Disability Issues.       It holds monthly

meetings.   She   is   entitled   to   park   in   several   visitor   and

visitor/employee lots, all of which provide the requisite number of

disabled parking spaces.   In addition, she may attend the meetings

by riding the Metrorail or Dade County's Special Transportation

Services without charge.     The Special Transportation Services,

using mini-vans, sedans, lift equipment vans and small buses,

provides portal to portal transportation for Dade County residents

who are unable or who do not care to use the Metrorail.                It

provides service to the Government Center seven days a week from

4:30 A.M. to 2:30 A.M.

     The argument that plaintiff is entitled to valet service for

her car is frivolous and needs no comment.

     AFFIRMED.