April 2013 - Parks & Recreation - 32

L AW R E V I E W

that they were there to play paintball.
Consistent with Route 40's policies,
the Maliszewskis insisted that each
member of the group read, complete,
and sign its waiver form. When the
group members explained that they
could not read the forms and asked
that the forms be read to them, the
Maliszewskis refused.
Miriam Maliszewski explains in her
deposition that she " didn't feel that
that is right " to read the waiver. Julian
stated that he did not believe that he
was obligated to read the waiver and
told them that they would have to
supply their own sighted companion
to read it. It also appears from the record that the Maliszewskis' refusal to
read the waiver form was motivated
by their belief that blind participants
could not safely play paintball unless
assisted by sighted companions.

unable to recall the names of the
facilities at which they had played.
The Maliszewskis did not permit
the group to play paintball but did offer to allow them to fire on the target
range. The group members declined
and brought suit in the federal district
court. Plaintiffs petitioned the federal district court to declare Route 40's
practices in violation of the ADA
and issue a permanent injunction
prohibiting that continued violation.
Equal Enjoyment
As cited by the federal district court,
" Title III of the ADA forbids discriminating against persons with disabilities in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodations " (42 U.S.C. § 12182(a)).

The rule violated the ADA because it would
automatically " deny them the opportunity to
play paintball without [Route 40] first making an
individualized assessment of their individual ability
to safely participate. "
The members of the group attempted to explain to the Maliszewskis how they would be able to
safely play paintball using the specialized navigation skills that they
possessed and that were taught as
part of the CORE program, including the use of their canes, echolocation via sound, and the use of
code words and other auditory signals. The Maliszewskis inquired if
the group members had previously
played paintball, and while some
responded that they had, they were

Parks & Recreation

According to the court, to establish a
claim under this provision, plaintiffs
must show that: (1) they have a disability (in this case, blindness), (2) the
defendant is a place of public accommodation, and (3) plaintiffs were denied full and equal treatment because
of their disability.
In this particular instance, the
court noted that there was no dispute
that the individual plaintiffs were
disabled for purposes of the ADA.
Furthermore, there was no dispute
that Route 40 is a place of public ac-

| A P R I L 2 0 1 3 | W W W. N R PA . O R G

commodation under the ADA. The
issue was, therefore, whether Route
40 denied plaintiffs " full and equal
treatment because of their disability "
in violation of the ADA.
Plaintiffs had alleged Route 40 discriminated against them by " failing
to ensure effective communication of
the park's waiver form in violation of
42 U.S.C. § 12182(b)(2)(A)(iii). " In
so doing, plaintiffs asserted " Route
40 had no Braille or other accessible
copy available, and its staff repeatedly refused to read the form to Plaintiffs. " As a result, plaintiffs claimed
" Route 40 allegedly discriminated
by imposing eligibility criteria that
screened out persons with disabilities
in violation of 42 U.S.C. § 12182(b)
(2)(A)(i) through their waiver form. "
In particular, plaintiffs alleged Route
40 imposed a requirement that had
" no relation to Plaintiffs' ability to
play paintball " by requiring " the independent reading of the form as a
precondition to playing paintball. "
As characterized by the court, the
plaintiffs' ADA claim " challenged Route
40's ultimate decision to deny them the
opportunity to play paintball and to relegate them to the separate and unequal
status and experience of firing on the
shooting range. " Specifically, as evidence
of discrimination, plaintiffs cited Route
40's rule that " [b]lind shooting is not
allowed. Look at what you are shooting. " Plaintiffs contended " the adoption
of this rule is 'facially illicit.' " In other
words, the rule violated the ADA because it would automatically " deny them
the opportunity to play paintball without
[Route 40] first making an individualized
assessment of their individual ability to
safely participate. "
Direct Threat
In response, Route 40 argued " the
ADA permits public accommodations

April 2013 - Parks & Recreation

Table of Contents for the Digital Edition of April 2013 - Parks & Recreation