August Newsletter (Issue 08-2018)

No Summary Judgment For “Knowing Or Purposeful” Violation Of Sunshine Law Because It Involves State Of Mind – A Question Of Fact

Facts and Procedure: Plaintiff is an attorney who represented the mayor-elect of the City of Kinloch (City), in a charge of misrepresentation of authority and in an impeachment proceeding.  Plaintiff requested that the City provide her with the name, length of service, and salary of each employee, except for police officers of the City of Kinloch (City).  The City responded to the Sunshine request by providing the list of employees names, job titles like the service along with the pay range setting forth the pay range for each of the 29 job titles but failed to provide the actual salary for each employee.  Plaintiff contacted the City two additional times noting that the response to the request did not provide the amount of each employee’s actual salary requesting again that the City provide these documents.

The City engaged legal counsel who consulted twice with the Attorney General who responded that the Sunshine Law does not address the issue of the salary range and simply states that salaries of employees will be made available.  The Attorney General in response to the second inquiry informed the City that its elected officials must make a formal request in order to obtain an advisory opinion from the AG.  City officials then requested a formal opinion from the Attorney General.  The Plaintiff then filed a lawsuit under the Sunshine Law based upon having never received the specific salary information for the employees.

Plaintiff then filed a motion for summary judgment, which was granted in part by the trial court holding that the City violated the Sunshine Law by not providing the records but that the violation was not “knowing or purposeful.”  The trial court also sua sponte granted the City summary judgment on the grounds that the City did not “knowingly or purposefully” violate the Sunshine Law.  Plaintiff then appealed to the Eastern District.

 Opinion: The Eastern District, held that the trial court erred in granting the City summary judgment on the grounds that it did not “knowingly or purposefully” violate the Sunshine Law because the question of whether or not there was a knowing or purposeful violation of the law is a question of fact that involves a party’s state of mind, which cannot generally be determined on a motion for summary judgment.  In this case, the fact-finder must determine whether or not the City’s conduct was “knowing” or “purposeful” as those terms are used in Section 610.027 based upon the City declining to release its employee’s current salary information, while repeatedly seeking advice from the Attorney General.  Petruska vs. City of Kinloch, (ED106154, 07/17/18)

 Comment Howard: This case was remanded to the circuit court to determine whether or not City officials had the requisite intent to show a “knowing or purposeful” violation of the Sunshine Law.  Based on the next case Malin vs. Metro Multi-Jurisdictional Undercover Drug Program, proving a “knowing or purposeful” violation of the Sunshine Law will be no easy matter.  Seems unlikely to me.

Negligence Is Not Sufficient To Prove A “Knowing Or Purposeful” Violation Of The Sunshine Law

A recent circuit court decision involving the of St. Louis in Malin vs. Metro Multi-Jurisdictional Undercover Drug Program provides additional insights as to what constitutes a “knowing or purposeful” violation of Sunshine law by distinguishing “knowing or purposeful” violations from negligence.

Facts and Procedure: On November 26, 2013, Plaintiff Aaron Malin submitted a Sunshine Law request directed to the “St. Louis Metro Drug Task Force Custodian of Records” requesting production of Drug Task Force budgetary documents, documents showing the quantity of weapons and narcotics found by the Drug Test Force, and documents reflecting assets the Drug Task Force seized via civil and criminal asset forfeiture.  Between 2007 and 2014, the St. Louis Police Board (SLPB) provided law enforcement services within the jurisdictional area of the City of St. Louis, a state board appointed by the Governor of the State of Missouri.  Beginning in 2007, the Board entered into an agreement with and MMJUDP to cooperate in the formulation of a multijurisdictional task force dealing with drugs.  In August 2013, the governance of the St. Louis police department radically changed when the police department ceased being a state agency and became an agency of the City of St Louis (City), as a division of the St. Louis Department of Public Safety.  On September 12, 2013, the MMJUDP submitted a contract adjustment naming police chief Samuel Dotson as its new project director and changing its Authorized Official from Mark Lawson to Mayor Francis Slay.

Prior to the change in 2013, Mark Lawson, a lawyer for the Board, was the secretary and general counsel to the SLPD and personally signed each year’s contract on behalf of the Police Board.  Mr. Lawson directly responded to Plaintiff’s records request on December 2, 2013, stating that the City did not have a “St. Louis Drug Task Force”, concluding, “…we have no records responsive to your request.”  After several other requests, Malin finally in April 2014 got the records that he was seeking, some four months after the initial request.  In 2015, Malin filed a lawsuit along with Show-Me Cannabis Regulation alleging that Lawson “knowingly or purposefully” withheld documents for the task force that he knew existed, no matter what it was called, requesting a $5,000 penalty against Lawson and payment of attorneys fees.

After a three-day bench trial the trial court issued its findings of fact and conclusions of law, holding that the police department did not did not “knowingly or purposefully” violate the Sunshine Law; therefore, the trial court did not impose a penalty for a “knowing or purposeful” violation of the Sunshine Law, concluding that the City did not need to reimburse the plaintiff’s for their attorneys fees incurred during the three years of litigation.

Conclusions of Law By The Trial Court: A violation of the Sunshine Law does not require knowledge that the violation is occurring.  However, in order to establish a “knowing” violation of the Sunshine Law, which allows the court to impose a $5000 penalty, the Plaintiff’s must prove that the Defendant’s had actual knowledge that their conduct violated a provision of the Sunshine Law.  In order to prove a “purposeful” violation the standard is greater than that what is required to prove a knowing violation.  To prove a purposeful violation the purposeful conduct must be taken as “acting with a conscious design, intent or plan to violate the law and doing so with awareness of the probable consequences.”  This requires proof of intent to defy the law or achieve some further purpose by violating the law.  Based upon all of the evidence and the credibility of witnesses the trial court found that while there was a violation of Sunshine Law the violation was not “knowing or purposeful.” Lawson’s actions were negligent; therefore, Lawson did not have the requisite intent to show a “knowing or purposeful violation.”  You may access a copy of the circuit court opinion by clicking here:

Comment Howard: This case is extremely useful in drilling down to what facts are necessary to prove a “knowing or purposeful” violation of the Sunshine Law.  The circuit court also strongly suggested that Lawson could have easily avoided the litigation by following best practices by referring the request to the Custodian of Records, a person required to be designated by each public governmental body as the custodian of records under Section 610.023, as responsible for the maintenance of records.  Also, while I recognize that attorneys representing local government may be involved in record production under the Sunshine Law it is better in my mind, to retain the typical attorney-client relationship by using the custodian of records to search and procure the documents in order to avoid being personally sued.  Litigation in this case appeared to be extremely bitter, since it involved imposing upon an attorney a $5000 personal penalty.

TracFone Is A Home Service Provider Subject To City Gross Receipts Business License Tax

Facts and Procedure: TracFone filed a declaratory judgment action against the City of Springfield, Missouri (City) in circuit court, seeking a declaration that it was not subject to City’s gross receipts license tax, which provides as follows:

“Every person engaged in the business of supplying telephones, and telecommunications and telephonic service, and telecommunications services, within the city shall pay as a license tax a sum equal to six percent of the gross receipts from such business.”

The City filed a counter-claim seeking a judicial declaration that TracFone was subject to City’s license tax, requesting damages in the form of back taxes owed by TracFone, that TracFone be enjoined from violating City’s license tax ordinance, and that City be awarded its costs and attorney’s fees.

TracFone and City filed competing motions for summary judgment.  The trial court granted the City’s motion and denied TracFone’s.  The trial court found that there was no genuine issue of material fact that TracFone was subject to City’s license tax.  The trial court found that TracFone was a “home service provider” under the MTSA; therefor, the sole issue remaining was the amount of TracFone’s tax liability.  During a two-day bench trial, City and TracFone adduced conflicting evidence regarding the amount of TracFone’s liability, including expert witnesses.  The trial court found that TracFone is obligated to pay City 6% of its gross receipts from customers as measured by credit card billing addresses within the City, in the amount of $585,278.03.  The trial court excluded in the calculation of TracFone’s gross receipts the amount received by TracFone from customers for internet access for only the period 2013 through 2015 and included in the amount owed to the City from all other periods because TracFone did not adequately respond to City’s timely request for this documentation in advance of trial except for the period 2013-2015. (This was a nice touch.)

In addition the trial court awarded additional damages to City as interest at the rate of 9% per annum on the past due tax obligation, on a quarterly basis for the amounts past due beginning January 2007 through June 2012 and 3% per annum on past due tax obligation on a quarterly basis for the amounts past due beginning June 2012 through June 2016 in the total amount of $95,048.69.  TracFone appealed to the Southern District.

Opinion: On appeal TracFone argued, “[b]ecause TracFone is not authorized by law or contract to provide commercial mobile radio service in Missouri, it has no ‘licensed service area’ in Missouri.  Thus, Springfield cannot encompass a licensed service area for TracFone and cannot impose a tax, charge, or fee on TracFone.”  At oral argument counsel for TracFone admitted that it owed the awarded amount; therefore, the claims of TracFone were denied.  TracFone Wireless, Inc. vs. City of Springfield,  (SD34937 and SD34948 (consolidated), 07/17/18)

Comment Howard: Is your city collecting gross receipts taxes on the business of TracFone, who admitted it was a Home Service Provider?  Maybe there’s some revenue out there that needs to be collected.  It seems to me that admission of TracFone, at oral argument, that it owed the amount is trifling with the court and the City by wasting everybody’s time by appealing the case.  I think that when a party to a case completely wastes the time of court and other parties to the case then attorney fees should be awarded.

Interstate Electrical Transmission Line Not Required To Obtain Permission From Each County Where The Line Is Located

Facts and Procedure: Grain Belt sought to construct a complex, interstate electrical transmission line and associated facilities.  It applied to the Missouri Public Service Commission (“Commission”) for a line certificate of convenience and necessity (“CCN”) pursuant to Section 393.170.1.  The application sought the Commission’s approval of Grain Belt’s proposed construction of an interstate electrical transmission line, which would move wind-generated energy from western Kansas to Missouri and other states farther east.  The overhead, multi-terminal line would cross 206 miles through the following eight Missouri counties: Buchanan, Caldwell, Carroll, Chariton, Clinton, Monroe, Randolph, and Ralls.

The Commission’s report and order denied Grain Belt’s application for a line CCN, concluding it was bound by the court of appeals decision in ATXI.  Because ATXI had held that the Commission could not lawfully grant a CCN without consent from each county affected by a project pursuant to Section 393.170.2 and Section 229.100, the Commission concluded it could not lawfully grant a line CCN to Grain Belt until it submitted evidence of county assent pursuant to Section 229.100.  Four of the five commissioners, joined in a concurring opinion, stating they disagreed with ATXI and would have voted otherwise to grant Grain Belt’s application, but they believed they were bound by its holding.

Grain Belt and the Missouri Joint Municipal Electric Utility Commission (“MJMEUC”) appealed the Commission’s report and order to the Missouri Supreme Court.

Opinion: The Statute Provides Different Procedures For Two Types of CCNs (Line or Area): The question to be resolved on appeal was whether or not consent is required from affected counties before the Commission can issue a line CCN.  In this case, the Missouri Supreme Court held him that a plain simple reading of the language in the statute answered the above question.

Subsection 1 provides:

No gas corporation, electrical corporation, water corporation or sewer corporation shall begin construction of a gas plant, electric plant, water system or sewer system without first having obtained the permission and approval of the commission.

Subsection 2 provides:

No such corporation shall exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities.(Emphasis Added)

The Court held that subsection 1 (Line CCN) did not require prior consent from affected counties before the Commission can grant approval while subsection 2 (Area CCN) specifically required consent from affected counties before the Commission can grant approval.

In addition, when publicly owned county roads are impacted, assent is also required under Section 229.100 from those counties before construction may begin.  Although the provisions in that section are not relevant to the Commission’s decision in issuing a line CCN, Grain Belt acknowledged it will be required to obtain county assent pursuant to Section 229.100 if it intends to construct utilities impacting publicly owned roads.

The Commission’s Reliance On ATXI Was In Error
: The Court distinguished ATXI on the grounds that it was not clear from the opinion in that case if Ameren was seeking an area certificate or if it was proceeding on a line certificate.  The opinion in ATXI does not mention subsection 1 of Section 393.170 and only refers to Subsection 393.170.2 leading the court to conclude that the only subsection analyzed under the ATXI opinion was subsection 2 thereby providing a basis to distinguish it from this case.  Therefore, the Court concluded that the opinion in ATXI should not be followed with respect any application to subsection 1.  Grain Belt Express Clean Line v. Public Service Commission, (SC96993, 07/17/18)

Comment Howard: This case is a big deal because the impact on local government is significant since hundreds of thousands of utility customers get their utilities from co-ops or municipally owned utilities.  Of course, everyone benefits, including privately owned utilities, because the ability to transport electrical power driven by wind energy from the western plains will provide cheaper and cleaner energy.  Well maybe not private utilities that are using coal.

Cell Phone Retrieved By Private Citizen Was Not Protected From A Search Under The Fourth Amendment

Facts and Procedure: The Sioux Falls Police Department received a domestic- disturbance call from a young boy, who reported that a man was harassing his mother. The first officer to respond to the call was Matson, who was flagged down by Michelle Janis, the mother of the boy who placed the call.  Janis can be heard on a recording from Officer Mattson’s body microphone exclaiming that someone had just taken off running.  Officer Mattson asked her what was going on, and she responded: “I wanted to sign a complaint on.  He went and had pictures of my daughter naked, and she’s only 13.”

Janis identified the man as Highbull and informed Officer Mattson that the red Ford Taurus that was left running in front of her building belonged to him.  A license plate check revealed that the Taurus was registered to Highbull at Janis’s address.  Janis then entered the vehicle, and Officer Mattson asked if she was “going to grab the keys.” Although she said yes, Janis merely turned off the car, leaving the keys in the ignition. Rejoining Officer Mattson on the sidewalk in front of her apartment, Janis explained that she and Highbull had been arguing several days earlier because she refused to let him see their infant daughter.  It was during this argument that she looked at Highbull’s phone and saw the naked pictures of her thirteen-year-old daughter, who was not related to Highbull.

At that point, Officer Mattson asked Janis, “Do you have the phone?”

Without explanation, she began walking back toward the Taurus and stammered, “Um, I don’t know if it’s this…I think it’s…I don’t know…I think he does have one.   He probably got rid of it or whatever.”  She then reentered the vehicle just as Officer Mattson’s backup arrived.  The two officers conferred several feet away from the Taurus for the thirty seconds Janis was inside the vehicle.  Officer Mattson testified that he never directed Janis to enter the Taurus or to look for the phone, that he himself neither opened nor entered the car, and that his attention was on the backup officer while Janis was in the vehicle.

After her brief time in the Taurus, Janis emerged with Highbull’s cell phone and handed it to Officer Mattson. She explained that there were nude photos of her daughter on the device but that she could no longer locate them because they were “deeper in the phone.”  When Officer Mattson could not find the pictures, Janis became upset, worrying that nothing was going to be done.  Officer Mattson explained that he could not make an arrest solely on the basis of her statements but that he would take the phone for further investigation.  A subsequent forensic analysis conducted pursuant to a search warrant uncovered the images.

Highbull was later charged with one count of sexual exploitation of a child.  Before trial, he filed a motion to suppress all evidence obtained as a result of what he described as an illegal search of his vehicle.  Among other things, he argued that the Fourth Amendment applied to Janis’s search of the Taurus because she was acting as an agent or instrument of the government.  The motion to suppress was denied and Highbull subsequently entered into a plea agreement in which he reserved the right to challenge the admissibility of the challenged evidence and was sentenced to 300 months’ imprisonment.  He appealed his conviction to the Eighth Circuit, arguing that the district court erred in finding there was no Fourth Amendment violation in Janis’s search of his vehicle and retrieval of his phone.

Opinion: The Fourth Amendment guarantees the right of citizens to be free from “unreasonable searches and seizures” but this protection does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative” unless the private party acted as an instrument or agent of the Government.

The question presented to the court was whether Janis was acting as an agent or instrument of the government when she retrieved the phone from the car and handed it to the police officers.  The test to determine this depends upon the degree of the government’s participation in the private person’s activities, which is based upon all of the circumstances.  The three-part test to determine if she was an agent or instrument is whether the government had knowledge of or acquiesced in the intrusive conduct; whether the citizen intended to assist law enforcement or instead act to further her own purposes; and whether the citizen acted at the government’s request.

The Eighth Circuit determined that the officer knew of and acquiesced in her search of the car.  With respect to the third part of the test the evidence was clear that the officer did not compel or coerce her to conduct the search.  The deciding part of the test was whether she intended to assist the officer or act to further her own purposes.  The court did not err in denying Highbull’s motion to suppress given that Janis did not conduct the search at the government’s request and that there was insufficient “evidence that [she] was motivated solely or even primarily by the intent to aid the officers.”  United States v. Highball, (8th Cir. 17–2728, 07/06/18)

Arresting A Person For Posting A Comment On Facebook About Use Of Assault Weapon Is Protected By The First And Fourth Amendment

Facts and Procedure: James Ross was a 20-year-old resident of Cape Girardeau, Missouri, and an active user of the social media website, Facebook.  Facebook allows users to connect with each other by establishing “friend” relationships and posting items to a personal feed that can be viewed by the user’s friends.  That evening, one of Ross’s Facebook friends posted an image (or meme) that showed a number of different firearms below the title “Why I need a gun.”  Above each type of gun was an explanation of what the gun could be used for—e.g., above a shotgun: “This one for burglars & home invasions”; above a rifle with a scope: “This one for putting food on the table”; and above an assault rifle: “This one for self-defense against enemies foreign & domestic, for preservation of freedom & liberty, and to prevent government atrocities.”  Ross interpreted this post as advocating against gun control measures.  Ross, an advocate in favor of gun control measures, commented on the post: “Which one do I need to shoot up a kindergarten?”

The post (including Ross’s comment) was eventually shared with a member of the City of Jackson Police Department.  It was determined that James Ross had authored the comment and that he worked at the Casey’s gas station.  No one at the Department conducted any additional investigation into either Ross or the post before Henson and Freeman drove to Casey’s and arrested Ross without giving Ross’s an opportunity to explain.

Ross was placed in handcuffs and escorted out of the store to a police car in full view of his co-workers.  Once Ross was in the car, the officers read him his Miranda rights and took him to the police station.  At the station, Ross was questioned and then Ross wrote out a statement explaining what he meant by his comment on the post.  He was then interviewed, wherein Ross was able to further explain what happened.  According to Ross, several officers at the station told him they did not think the case was likely to go any further than the prosecuting attorney’s office.  However, Ross was not allowed to leave.  He was held at the Jackson Police Station until the next day, during which time he was served with a warrant for “Peace Disturbance.”  The next day, he was transferred to the Cape Girardeau County Jail where he was held for another two to three days, until he bonded out by paying $1000 in cash.  At some point during that period, Ross was formally charged with the class B misdemeanor of “Peace Disturbance” under Mo. Rev. Stat. § 574.010(1)(c) (2015), which was later dismissed.

  • 574.010(1)(c) made it a crime to “communicate[] a threat to cause an incident or condition involving danger to life . . . [w]ith reckless disregard of the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.”

In June 2015, Ross filed a lawsuit under 42 U.S.C. § 1983 alleging that the officers had violated his constitutional rights under the First and Fourth Amendments.  After discovery, based on the undisputed facts, both parties moved for summary judgment. The district court granted the officers summary judgment, reasoning that they were entitled to qualified immunity because the rights that Ross asserted had not been clearly established at the time that they were violated.  Ross appealed the district court’s ruling to the Eighth Circuit.

Opinion: Was a Constitutional Right Violated? The Court starts its analysis with the bedrock principle that you cannot arrest a person when the arrest is not supported by probable cause to believe a crime has been committed.  Probable cause is determined upon the reasonable conclusion drawn from the facts known to the arresting officer at the time of the arrest.  The Missouri courts have imposed a narrow construction on Section 574.115 (3) by construing the statute of making a terrorist threat to apply only to “true threats.” (Statute has recently been amended.)  Both the federal and Missouri courts have held that the statement must be a declaratory statement expressing intent to cause an incident involving danger to human life.  Officers are not required to conduct a “mini trial” however in this case even a minimal further investigation would have exonerated Ross.  There were no exigent circumstances that would have ‘prevented the officers from gathering additional information before making the arrest.  In addition, Ross had no history of violence and his political beliefs about gun ownership and control measures supported his view that he was simply expressing his right of free speech to comment about the use of guns.  Ross was not even given an opportunity to explain until he was booked at the police station.

It was clear that the officers went to where Ross worked with the sole intent of placing him under arrest.  Based upon the totality of the circumstances the Eighth Circuit concluded that the officers lacked reasonable suspicion to arrest Ross.  Ross v. City of Jackson, (8thCir., 17–1390, 26/18)

Comment Howard: I see more and more cases involving police officer liability for failure to understand the basics of constitutional law.  No one expects the officers to be experts but in this case it is apparent that there is lack of training and quality control within local police departments, particular smaller ones, over the actions of police officers.  The cost of these lawsuits will take their toll in terms of increased insurance premiums and increased time and effort by police departments on missteps causing an erosion of public trust.

Law of Tasing

Facts and Procedure: After being tazed by a police officer Thompson filed a civil rights lawsuit under 42 U.S.C. Section 1983 alleging use of excessive force in making an arrest; thereby, violating his fourth amendment rights to be free from use of excessive force.  The Plaintiff filed a motion for summary judgment.  The trial court summarized the facts as follows:

“Officer Singleton initiated a stop of three men who were walking on the side of the road at night. Mr. Thompson was suspected of committing a minor, nonviolent crime late at night.  After the stop was initiated, two of the men obeyed Officer Singleton’s commands to stop.  One man, Thompson, did not obey Officer Singleton’s first command.  Officer Singleton then pulled out his taser, and Mr. Thompson stopped walking.  Mr. Thompson then complied with Officer Singleton’s commands by extending his arms, showing his palms, and walking towards Officer Singleton’s patrol car as directed.  At this point, Officer Singleton knew that Mr. Thompson did not have a weapon in his hands.  Mr. Thompson then placed his hands under or inside his coat while he was walking.  Officer Singleton did not instruct Mr. Thompson to take his hands out of his coat or to otherwise show his hands a second time.  Mr. Thompson then turned towards Officer Singleton with both hands visible and outside of his coat, a disputed fact the court must resolve in favor of Mr. Thompson at this stage, and raised one arm to point towards his house.  Officer Singleton then utilized his taser without warning and without providing any additional instructions to Mr. Thompson.”

The district court reasoned that, viewing the facts in the light most favorable to Thompson, Officer Singleton intentionally tasered him, without warning, an individual who was stopped for a nonviolent misdemeanor offense and who was not resisting or fleeing arrest while the individual’s hands were visible.  The district court then explained that, because there remained genuine issues of material fact, it could not conclude that Singleton’s use of the taser was objectively reasonable as a matter of law, and denied his request for qualified immunity, which Singleton appealed to the Eighth Circuit.

Opinion: By December 2010, it was clearly established that intentionally tasering, without warning, an individual who has been stopped for a nonviolent misdemeanor offense and who is not resisting or fleeing arrest while his hands are visible violates that individual’s Fourth Amendment right to be free from excessive force.

“The Fourth Amendment protects citizens from being seized through excessive force by law enforcement officers.” “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.”

Relevant considerations include: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”  The court may also consider whether “the situation is ‘tense, uncertain, and rapidly evolving,’ which would force an officer to make ‘split-second judgments’ about how much force is necessary.” “[F]orce is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.”

The court held that Singleton was not entitled to qualified immunity. Thompson v. Monticello, (8thCir., 16–4080, 07/06/18)

MIA Instructions For Missouri Human Rights Act Revised

The Supreme Court of Missouri recently revised a number of MAI instructions dealing with the Missouri Human Rights Act, which are reprinted in recent July/August 2018 Journal of the Missouri Bar.  For those engaged in employment law, which would seem to include most local government attorneys, these instructions are of great importance and may be of interest.

Temporary Merchandise Displays In Aisles May Violate ADA Accessibility Guidelines

Facts and Procedure: Paralyzed from the waist down, Hillesheim uses a wheelchair.  He alleged that in October 2016, he visited a store owned and operated by Myron’s. He encountered “displays and excess merchandise” in boxes that obstructed the aisles in the store.  This was, he concluded, discrimination under the ADA because the aisles had “a clear width of less than 36 inches,” violating the ADA Accessibility Guidelines (ADAAG), “a comprehensive set of structural guidelines that articulates detailed design requirements to accommodate persons with disabilities.”

Zach Hillesheim sued Myron’s Cards and Gifts, Inc., seeking declaratory and injunctive relief for alleged violations of the Americans with Disabilities Act (ADA, and the Minnesota Human Rights Act.  He also sought state-law damages.  Myron’s moved to dismiss.  Hillesheim did not respond to the motion but instead moving to amend his complaint Hillesheim proposed an amended complaint, alleging he visited the store “approximately 15 times over the last four years.  To the best of his recollection, the aisles were obstructed by displays and excess merchandise each of the times he visited.”  He again pled that “temporary displays and excess merchandise” caused the aisles tohave a width less than 36 inches, violating the ADAAG. He also alleged “extra displays near the entrance of the store narrow[ed] the path of travel.”

Myron’s countered that amendment was futile because, like the original, the proposed complaint alleged that Hillesheimen countered only temporary removable obstructions that (according to Myron’s) do not violate the ADA.  The district court agreed: “temporary objects like excess merchandise blocking a store’s aisles is not an ADA violations.”  It also concluded that Hillesheim’s allegation that he encountered the barriers “approximately 15 times over the last four years” was inconsequential: “Encountering temporary obstructions more often does not change the fact that temporary obstructions do not violate the ADA.” The trial court denied the motion to amend because the amendment would be futile.  Hillesheim appealed to the Eighth Circuit.

Opinion: The opinion starts with the premise that denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated.  The court noted that an amendment would be futile if the amended claim could not withstand a motion to dismiss.

The ADA regulations do permit isolated or temporary interruptions in service or access due to maintenance or repairs.  In addition, the regulations permit temporary interruption of access for restocking shelves.  The obstruction of an accessible route is not isolated or temporary unless it is promptly removed.

Hillesheim proposed amendment alleged that on an October 2016 visit to the store, he encountered “temporary displays and excess merchandise” in boxes that obstructed the accessible routes so they were less than 36 inches wide.  He attached pictures of the alleged obstructions to the complaint.  He also alleged: (1) “To the best of his recollection, the aisles were obstructed by displays and excess merchandise” on 15 visits before October 2016; and (2) Myron’s “violations of the ADA and ADAAG are ongoing.”  Myron’s contended, “it is undisputed that the alleged obstruction is a merchandise shipment temporarily placed in the aisle to restock shelves.”  That, however, is not clear on the face of the complaint (or from the attached pictures); therefore, the court construed all reasonable inferences in favor of Hillesheim, overruling the trial court’s decision to deny the amended petition.  Hillesheim v. Myron’s Cards and Gifts, Inc. (8thCir., 17–1408, 07/27/18)

Comment Howard: I have not seen a case quite like this but I have seen lots of merchandise displays that block aisles making it questionable if they meet ADA handicap accessibility requirements.  You may want to get out your tape measure because if you don’t the ADA police will be checking.  Local government usually ends up in the middle of these disputes.