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ALVAREZ EX REL. ALVAREZ v. FOUNTAINHEAD

May 14, 1999

JEREMY ALVAREZ, THROUGH HIS NEXT FRIENDS LYNN AND JOSE ALVAREZ, LYNN ALVAREZ, AND JOSE ALVAREZ, PLAINTIFFS,
v.
FOUNTAINHEAD, INC., ANA SUAN, SARAH ZIMMERMAN, AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: James, United States Magistrate Judge.

                    ORDER GRANTING, IN PART, PLAINTIFFS'
                           MOTION FOR PRELIMINARY
                                 INJUNCTION

Pending before this Court is Plaintiffs' Motion for a Preliminary Injunction, filed on April 7, 1999. On May 13, 1999, this matter was heard on the Court's calendar, at which time oral argument was presented by the parties' counsel and by Ryan E. Warren, trial attorney for the Civil Rights Division of the United States Department of Justice as amicus curiae in this case. After careful consideration of the written briefs, oral argument, and evidence submitted by the parties, and Good Cause Appearing, the Court grants, in part, Plaintiffs' Motion for a Preliminary Injunction.

BACKGROUND

This action was filed by the parents of Jeremy Alvarez, a four-year old child with an asthma condition, on his behalf and on the basis of their own claims, against Fountainhead, Inc., the owner and operator of Fountainhead Montessori Schools, a private school program with branches in Orinda, Moraga, Danville, Pleasant Hill, and Dublin, California. Plaintiffs desired that Jeremy attend the Fountainhead Montessori preschool in Dublin. Jeremy's name was placed on a waiting list at the Dublin school, and in November of 1998, Fountainhead notified Jeremy's parents that a space would be available for him as of January 4, 1999. Plaintiffs allege that they were then informed that Fountainhead has a "no medications" policy that does not allow Jeremy to bring his hand-held Albuterol asthma inhaler to preschool. Plaintiffs contend that Fountainhead's failure to modify their "no medications" policy constitutes a violation of Title III of the ADA and state law.

On April 7, 1999, Plaintiffs filed the instant motion for a preliminary injunction, arguing that because of Fountainhead's "no medications" policy, Jeremy is currently losing the opportunity to attend preschool where he can learn and play with children his own age. Plaintiffs seek a preliminary injunction directing Fountainhead to: (1) rescind the "no medications" policy in every form at all five of its schools; (2) within one week, have its staff who will supervise Jeremy participate in a free training lasting less than one hour on asthma and the use of inhalers; and (3) allow Jeremy to enroll at Fountainhead with his inhaler from 9:00 am to 2:00 pm on Mondays, Tuesdays, and Fridays immediately after the training is completed.

DISCUSSION

To obtain a preliminary injunction, Plaintiffs must demonstrate either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions of law are raised and the balance of hardships tips sharply in plaintiffs favor. Cadence Design Sys. v. Avant! Corp., 125 F.3d 824, 826 (9th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998). These two standards form a sliding scale, in which the "critical element in determining the test to be applied is the relative hardship to the parties." Half Moon Bay Fishermans' Mktg. Ass'n. v. Carlucci, 857 F.2d 505, 507 (9th Cir. 1988). The Court also considers the public interest in ruling on a motion for preliminary injunction. See Chalk v. United States Dist. Court Cent. Dist., 840 F.2d 701, 711 (9th Cir. 1988).

I. Possibility of Irreparable Injury

Plaintiffs contend that a preliminary injunction is necessary because by the time this action is decided on the merits, Jeremy will be old enough for kindergarten and will have lost his opportunity to attend preschool. At oral argument, Plaintiffs indicated that Jeremy will start kindergarten this Fall, leaving him with only a few more months in which to attend preschool. Plaintiffs argue that by refusing to accommodate Jeremy, Fountainhead is depriving Jeremy of the opportunity to get a head start on his education, and learn and play with other children his same age. In support of their motion, plaintiffs submit a report of the State Superintendent's Universal Task Force that outlines the social and academic benefits of preschool to three-and four-year olds such as Jeremy. (Plfs.' Ex. T to Overson Declaration). Plaintiffs further explain that it would be difficult, if not impossible, to place Jeremy in another preschool immediately, due to a number of factors, including the fact that many preschools have waiting lists for admission. Fountainhead does not appear to dispute that Jeremy will suffer irreparable injury if he cannot attend Fountainhead preschool. The Court finds that Plaintiffs have demonstrated the possibility that Jeremy faces an immediate and irreparable harm in being prevented from attending the Fountainhead preschool with his inhaler.

II. Probability of Success on the Merits

Title III of the ADA prohibits a place of public accommodation from discriminating against an individual on the basis of disability. 42 U.S.C. § 12182(a). For purposes of Title III, "disability means with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 28 C.F.R. § 36.104. In the instant case, the parties agree that Plaintiff Jeremy Alvarez, who suffers from asthma, is a "person with a disability" and is entitled to the protections of Title III of the ADA. The parties further agree that the Fountainhead Montessori School is a "public accommodation" covered under Title III of the ADA, as the statute explicitly lists child care centers as covered public accommodations. 42 U.S.C. § 12181(7)(k).

Discrimination is defined under Title III to include a denial of the opportunity to participate in or benefit from a public accommodation's goods and services. 42 U.S.C. § 12182(b)(1)(A)(i). Title III requires a place of public accommodation to make reasonable modifications to its policies, practices, and procedures where necessary to ensure full and equal enjoyment of its services by individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii). However, the reasonable modifications requirement is subject to the following limitations: First, modifications are not required where they would "fundamentally alter" the nature of the public accommodation's goods and services. 42 U.S.C. § 12182(b)(2)(A)(ii). Second, modifications are not required if the entity can demonstrate that taking such steps would result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii). Significant difficulty or expense in making an accommodation constitutes an undue burden. 28 C.F.R. § 36.104. Third, modifications are not required if doing so would pose a "direct threat" to the health or safety of others. 42 U.S.C. § 12182(b)(3).

In the instant case, Plaintiffs seek the following modifications to the Fountainhead Montessori School's program: (1) that school's the "no medications" policy be rescinded in every form at all five of its schools; (2) within one week, have its staff who will supervise Jeremy participate in a free training lasting less than one hour on asthma and the use of inhalers; and (3) allow Jeremy to enroll at Fountainhead with his inhaler from 9:00 am to 2:00 pm on Mondays, Tuesdays, and Fridays immediately after the training is completed. In opposition to Plaintiffs' motion, Defendants argue that providing these accommodations would fundamentally alter ...


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