for itself the merits of jurisdictional claims. Moreover, the
plaintiff will have the burden of proof that jurisdiction does
in fact exist." Mortensen, 549 F.2d at 891.
Title III of the ADA prohibits places of public accommodation
from discriminating against individuals on the basis of their
disability. This includes discrimination which obstructs a
disabled person from sharing the "full and equal enjoyment" of
the services and facilities offered at the public place.
42 U.S.C. § 12182(a).
A violation under Title III can be based on the "failure to
make reasonable modifications in policies, practices, or
procedures, when such procedures are necessary to afford such
goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities. . . ."
42 U.S.C. § 12182(b)(2)(A)(ii). Moreover, if removal of an
architectural or structural barrier is not readily achievable,
the statute defines discrimination to include the failure to
"make such goods, services, facilities, privileges, advantages,
accommodations available through alternative methods if such
methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(v).
The defendant's instant motion to dismiss rests on the claim
that Title III of the ADA requires exhaustion of administrative
remedies before a plaintiff may file a civil suit. The
Plaintiff contends that Title III of the ADA does not require
administrative exhaustion. This dispute stems from differing
interpretations of the enforcement provision of Title III of
Instead of drafting a separate enforcement provision for
Title III of the ADA, Congress chose to borrow from the Title
II of the Civil Rights Act of 1964. 42 U.S.C. § 12188 provides
that the "remedies and procedures set forth in § 2000a-3(a) of
this title are the remedies and procedures this subchapter
provides to any person who is being subjected to discrimination
on the basis of disability in violation of this subchapter.
. . ."
Section 2000a-3(a) of Title 42 provides that an aggrieved
person may seek injunctive relief to terminate or prevent the
discrimination prohibited under Title II. However, in the
context of Title II, Section 2000a-3(a) is limited by section
2000a-3(c) which requires an aggrieved party to first seek
relief from the appropriate state or local body before filing
a federal law suit, if a state or local law prohibits the same
discriminatory act or practice prohibited by federal law.
It is undisputed that the NJLAD prohibits the same
discriminatory conduct as Title III of the ADA. N.J.S.A.
10:5-12(f)(1) prohibits "any owner, lessee, proprietor,
manager, superintendent, agent, or employee of any place of
public accommodation directly or indirectly to refuse, withhold
from or deny to any person any of the accommodations,
advantages, facilities or privileges thereof, or to
discriminate against any person in the furnishing thereof.
. . ." Therefore, the defendant argues that 42 U.S.C. § 2000a-3(c)
requires the Plaintiff to first seek relief from the
New Jersey Division of Civil Rights before filing this suit.
The Plaintiff disputes Defendant's interpretation of section
12188 and argues that the ADA enforcement provision explicitly
adopts § 2000a3(a) only and that the administrative exhaustion
provision of § 2000a-3(c) is inapplicable to Title III cases
brought pursuant to the ADA. The Third Circuit has not yet
addressed this issue, and the Courts that have addressed the
issue have produced split opinions. Compare Guzman v. Denny's,
Inc., 40 F. Supp.2d 930, 934 (S.D.Ohio 1999) ("To hold that the
entirety of § 2000a-3 is adopted is to impermissibly render
the explicit textual reference to § 2000(a)-3(a)"); Botosan v.
Fitzhugh, 13 F. Supp.2d 1047, 1050 (S.D.Cal. 1998) ("By its
clear, express terms, the ADA adopts only § 2000a-3(a), which
says nothing about exhausting administrative remedies"); Lewis
v. Aetna Life Insurance Co., 993 F. Supp. 382, 387 (E.D.Va.
1998) ("For claims brought under ADA Title I, there is an
administrative exhaustion requirement which would toll the
statute. However, for Title III claims, there is no exhaustion
requirement"); Doukas v. Metropolitan Life Ins. Co., No. CIV.
4-478-SD, 1997 WL 833134 (D.N.H. Oct.21, 1997) ("the court
assumes that Congress's reference to paragraph (a) excludes
paragraph (c)"); Bercovitch v. Baldwin Sch., 964 F. Supp. 597,
604 (D.Puerto Rico 1997) rev'd on other grounds,
133 F.3d 141 (1st Cir. 1998) ("Given that Congress specifically referred
to § 2000a-3(a) when outlining the available remedies under
Title III, we believe that, had it wanted to make written
notice to state authorities a requirement under this title, it
would have explicitly done so") with Burkhart v. Asean Shopping
Center, Inc., 55 F. Supp.2d 1013, ___, 1999 WL 482302, at *4
(D.Ariz. 1999) ("because § 2000a-3(c) sets forth notice
requirements for parties who like ADA claimants have been
harmed by discrimination albeit based on race or gender rather
than disability, it is plausible to conclude that Congress
intended the same notice requirement to apply to both groups");
Snyder v. San Diego Flowers, 21 F. Supp.2d 1207, 1210 (S.D.Cal.
1998) ("Although reasonable judges could reach different
results on this question, this Court holds that 42 U.S.C. § 12188(a)
does incorporate the requirements of 42 U.S.C. § 2000a-3(c)
for civil actions under the ADA"); Mayes v. Allison,
983 F. Supp. 923, 925 (D.Nev. 1997) ("keeping with legislative
intent . . . . we hold that 42 U.S.C. § 2000a-3(c) applies in
this case"); Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148,
1149 (D.Colo. 1996) ("any claim for injunctive relief
under Subchapter III of the ADA must comply with the applicable
state law exhaustion requirement set forth in 42 U.S.C. § 2000a-3(c)").
This Court agrees with those Courts that have found that a
party is not required to exhaust state administrative remedies
before filing a civil suit under Title III of the ADA. This
decision stems from traditional tenets of statutory
construction which suggest that the ADA does not incorporate
the administrative exhaustion requirements of § 2000a-3(c).
All questions of statutory construction must start with the
plain language of the text itself. The "first step in
interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case." Robinson v. Shell Oil Co.,
519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997); see also
United States v. Robinson, 167 F.3d 824, 830 (3d Cir. 1999)
("Where, as here, Congress' language is `plain and
unambiguous,' we simply apply the language of the statute as
written") (citations omitted). This inquiry "must cease if the
statutory language is unambiguous and `the statutory scheme is
coherent and consistent.'" Robinson, 519 U.S. at 340, 117 S.Ct.
843 (citing United States v. Ron Pair Enterprises, Inc.,
489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)).
This Court finds that the language of 42 U.S.C. § 12188 is
clear and unambiguous and should be given its plain meaning.
The statute incorporates § 2000a-3(a) only and not the rest of
section 2000a-3. To find that Congress intended to adopt the
entirety of § 2000a-3 would violate the rules of statutory
construction by impermissibly rendering superfluous the
explicit textual reference to § 2000a-3(a). See Idahoan Fresh
v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)
("In interpreting a statute, courts should endeavor to give
meaning to every word which Congress used and therefore should
avoid an interpretation which renders an element of the
To find that Congress intended to include the remaining
subsections of 2000a-3 by specifying only -3(a) flies in the
face of settled cannons of statutory construction. "The canon
of expressio unius est exclusio alterius means that explicit
mention of one thing in a statute implies a congressional
intent to exclude similar things that were not specifically
mentioned." Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225,
232 (3d Cir. 1998). If Congress had intended to include the
exhaustion requirement of section 2000a-3(c) in Title III of
the ADA, Congress would not have specified -3(a). Therefore,
the plaintiff was not required to exhaust administrative
remedies by filing a complaint with the New Jersey Division of
Civil Rights before instituting this action.
Because this Court finds that the plain meaning of the
statute is clear and unambiguous and does not require
administrative exhaustion, it is unnecessary to inquire into
the legislative history of 42 U.S.C. § 12188.
For the reasons stated above, this Court finds that the
plaintiff was not required to exhaust administrative remedies
prior to filing the instant claim against the defendant.
Therefore, defendant's motion to dismiss is denied. An
appropriate order will be issued on an even date herewith.