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Travel law: Alleged discrimination on Napa Valley Wine Train

Travel law: Alleged discrimination on Napa Valley Wine Train

In this week’s article we examine the case of Johnson v. Napa Valley Wine Train, Inc., 2016 WL 493229 (N.D. Cal. 2016) wherein eleven women asserted four causes of action against the defendants including allegations of racial discrimination, disability discrimination and conspiracy to interfere with civil rights. This case is instructive of the types of claims that may arise during group tour programs.

Terror Targets Update

Europe

In Indiscriminate attacks: Europol warns about more ISIS terror threats in Europe, eturbonews.com (12/2/2016) it was noted “In a report released on Friday, the European Union’s law enforcement agency has outlined the high probability of more attacks by the Daesh terrorists in some European countries. Europol warned the EU countries participating in the US-led coalition fighting Daesh in Syria and Iraq are most susceptible to the terrorist attacks”.


France

In France to extend state of emergency until July 2017, eturbonews.com (12/12/2016) it was noted that “The state of emergency was declared across France after the deadly 2015 Paris attacks. Initially imposed in November last year, the state of emergency has already been extended four times as the French government considers the risk of terror attacks to remain high.
The emergency rules were adopted after the terror assaults… which were claimed by the Daesh group, left 130 people dead and 350 injured”.

Istanbul, Turkey

In Chaos at Istanbul stadium after explosions and gunshots, eturbonews.com (12/10/2016) it was noted that “Ambulances and police were sent to the scene where it has been reported that at least 20 police officers were injured. Initial reports indicated that there were two explosions followed by gunshots, and it is believed the riot police were the target of the attack”.

Cairo, Egypt

In Double terror attack in Cairo, eturbonews.com (12/11/2016) it was noted that a terror explosion at Egypt’s main Coptic Christian cathedral on Sunday has left at lease 26 people dead and another 25 injured, Egyptian media reported…Security sources have said that the terrorist was a woman who carried the 6kg (13lb) explosive device in her handbag and deposited it in the cathedral before leaving and detonating the bomb remotely”.

Philippines

In Marcus, ‘If You Resist, You Get Hurt, or Die’: Filipinos Praise Duterte’s Antidrug Campaign, nytimes.com (12/9/2016) it was noted that “Many Filipinos say President Rodrigo Duterte’s brutal antidrug campaign, which has killed thousands of people suspected of being dealers or addicts, is a welcome antidote to the fear that say gripped the Philippines for decades”. See also: The Editorial Board, nytimes.com (12/10/2016) it was noted
that “In the name of eliminating drug crime, President Rodrigo Duterte has plunged the Phillippines into a nightmare of brutal slaughter. The police say that since July 1, they have killed more than 2,000 people suspected of drug-related crimes. In addition, more than 3,000 homicides remain unsolved, many at the hands of unknown vigilantes”.

Los Angeles, California

In ‘Very specific’ terror attack threat to Los Angeles metro system investigated, eturbonews.com (12/6/2016) it was noted that “Los Angeles Police Department and the Federal Bureau of Investigation are investigating a terror threat to the Los Angeles metro system, after receiving information on Monday suggesting that an attack was set to be launched on a station used to visit Universal Studios on the network’s Red Line on Tuesday, officials say”.

Zika, Zika, Zika

In Alvarez, No New Local Zika Transmissions in Florida, Governor Says, nytimes.com (12/6/2016) it was noted that “Four months after Zika roiled Miami-Dade County and put the rest of Florida on alert, Gov. Rick Scott announced on Friday that mosquitoes were no longer actively transmitting the virus in South Florida. Shortly after the announcement, the (CDC) lifted its strictest advisory urging pregnant women not to travel to the heart of South Beach, a popular tourist destination. Instead it suggested caution”.

Air Crash In Pakistan

In 48 killed in Pakistan International Airlines plane crash, eturbonews.com (12/7/2016) it was noted that “A Pakistan International Airlines (PIA) airplane with 48 people on board crashed on its approach to Islamabad from a popular tourist region of Chitral…’All of the bodies are burned beyond recognition. The debris is scattered’, said Taj Muhammrad Khan”.

Uber Before The European Court

In Scott, Uber, Seeking to Expand, Defends Itself at Europe’s Highest Court, nytimes.com (11/29/2016) it was noted that “Uber asserted on Tuesday that it was helping to bolster Europe’s digital economy as part of its defense in a long-awaited hearing to decide how the popular ride-hailing service should be able to operate across the region. The case at the European Court of Justice comes as the company continues to push aggressively into overseas markets, often butting heads with local lawmakers and taxi associations that say the company flouts transportation and competition rules. Uber has expanded into more than 300 cities across six continents and has an estimated value of $68 billion. Europe’s legal challenge represents a direct attack on how Uber operates in the region, one of its most important markets. It also raises questions about the company’s growth plans as it looks to expand beyond ride-hailing to food delivery and other online services…At the heart of the European court case-a ruing is not expected until April, at the earliest-is whether Uber should be considered a transportation service or a digital platform, which acts independently to connect third-party drivers with passengers”.

European Parliament Bans Ivory Trade

In European Parliament calls for ivory trade ban, penalties against wildlife trafficking, eturbonews.com (11/26/2016) it was noted that “Members of European Parliament (MELPs) advocate a full and immediate ban on ivory and rhinoceros horn trade, and call for common sanctions at EU level against wildlife trafficking, in a resolution voted on Thursday”.

Hotel Management Expenses

In Soloway & Mohler, Lifting the Veil on Hotel Management Expenses, New York Law Journal (8/16/2016) it was noted that “Historically, New York City has not had enough hotel rooms to meet demand. More recently, however, a construction boom has resulted in additional rooms coming online at a furious pace that is expected to continue until the end of this decade. Driven by the low cost and availability of financing, and local government initiatives designed to spue growth in the city’s tourism industry that have eased the approval and permitting process, not to mention the perceived long-term investment stability for hotels, developers are adding hotel rooms all over Manhattan, as well as in areas not traditionally known as lodging destinations such as downtown Brooklyn. Despite this sharp increase in supply, occupancy rates remain strong and industry experts expect occupancy to continue to outpace supply until at least 2018. This dynamic also is in play in southern Florida and other ‘hot spots’ across the country. One consequence of this market environment is that many investors and developers without significant hospitality industry experience are jumping into the hotel business for the first time…What is often overlook, however, is the cost structure built into hotel management agreements (HMAs)…This article explains the common HMA cost structure and explores some common related pitfalls, and the factors a developer should consider during the due diligence and negotiation process”.


Hotel Breakfast Tax Credit Case

In Campbell, NY Hotel Can’t Get Tax Credit For Providing Breakfast, law360.com (7/28/2016) it was noted that “A New York tax court has ordered the Washington Square Hotel in Manhattan and its owner to pay more than $500,000 in back taxes after affirming an administrative law judge’s decision that they wrongly claimed a tax credit on continental breakfasts provided to guests…’Property used in providing a hotel service is not resold as such to guests, but it inseparably connected to the provision of the service’, the (state Tax Appeals Tribunal) said. ‘Petitioner thus did not resell the continental breakfasts as such, but provided them as part of its hotel service. Accordingly, petitioner may not gain the benefit of a resale exclusion’. The Washington Square Hotel has long purchased food from a restaurant on its premises and provided it to customers as a free continental breakfast, according to the opinion…’Where as here, a hotel provides a continental breakfast along with a room, the division’s regulations provide that ‘the entire charge is subject to tax as rent for the occupancy of the room’ whether or not there is a separately stated charge for the breakfast’, the tribunal said”. See In the Matter of the Petition of Washington Square Hotel LLC, State of New York Tax Appeals Tribunal, DTA Nos. 825405, 825505 & 825821, Decision dated July 15, 2016.

Allegiant Air Mechanical Problems

In Unger, Allegiant Air’s Planes Are 4 Times More Likely to Fail, smattravel.com (11/3/2016) it was noted that “In a stunning and comprehensive report, the Tampa Bay Times uncovered systemic mechanical problems on Allegiant Air’s planes. The Times states that its investigation, ‘which included a first-of-its-kind analysis of federal aviation records-has found that the budget carrier’s planes are four times as likely to fail during flight as those operated by other major U.S. airlines’. Here are some of the key findings uncovered by the Times, which were not disputed by the airline: (1) ‘Forty-two of Allegiant’s 86 planes broke down in mid-flight at least once in 2015. Among them 15 were forced to land by failing engines, nine by overheating tail compartments and six by smoke or the smell of something burning”. (2) “Eighteen times last year, key parts such as engines, sensors and electronics failed once in flight, got checked out and then failed again, causing another unexpected landing’, (3) ‘Allegiant relies most heavily on McDonnell Douglas MD-80s, an aging model retired by all but two other major U.S. carriers. The company’s MD-80w fail twice as often as those operated by American Airlines and three times as often as those flown by Delta’. According to the Times, Allegiant officials initially declined to comment on the story, and in fact had remained mostly silent as anecdotal evidence of the airline’s woeful safety record accumulated. But when the Times presented Allegiant with its findings, they agreed to talk and, ultimately, acknowledged that change is needed”.

Uber App Redesign eturbonews.com

In della Cava, Uber to give upfront pricing in biggest app redesign since 2010 launch, usatoday.com (11/2/2016) it was noted that “Uber has radically revamped its ride-hailing app, putting a premium on making it both easy and entertaining. But perhaps the biggest change is the addition of upfront pricing and arrival time predictions pegged to each level of Uber service. More than just eliminating price shock, the feature could begin steering more consumers toward Uber’s carpool, UberPool. ‘Around 40% of rides (in San Francisco) are with UberPool, and we think that if you might arrive at the same time with it, but by paying far less, more people might start using it’, CEO Travis Kaanick told a small group of reporters at a demo the day before Wednesday’s global rollout. From its ability to suggest the most efficient street pickup spots to pinpointing the location of friends-a feature Kalanick dubbed ‘people as a destination’-the new app targets the leap in smartphone features made since Uber’s debut six years ago”.

Travel Law Article: The Johnson Case

In Johnson v. Napa Valley Wine Train, Inc., the Court noted that “The following factual allegations are taken from Plaintiffs’ First Amended Complaint (FAC) and are therefore accepted as true for the purposes of this motion (to, inter alia, dismiss and strike)”.

Sistahs On The Reading Edge

“Plaintiffs are eleven women, ten of whom are African-American, belonging to a book club called ‘Sistahs on the Reading Edge’. The group purchased tickets to ride the Napa Valley Train (‘Wine Train’) for the book club’s annual Napa outing on August 22, 2015. The President of the book club, Plaintiff Lisa Johnson, made reservations by phone for nine of th book club’s members on December 1, 2014 (and) requested group seating to accommodate their large group, and stated that some of the group members have ‘mobility restrictions’. The reservations agent assured her that ‘Wine Train would be happy to accommodate the group and their requests and requirements…At this time, she reiterated the size of the group and that the Wine Train should ‘expect noise level commensurate with eleven people discussing the merits of the book assigned for reading, while eating and drinking wine and having fun’. As with the previous phone call, he reservations agent assured Plaintiff Neal that the group would be accommodated and that ‘it was normal for the [Wine] Train to have various noisy groups. Plaintiff Neal contacted the Wine Train a third time…to confirm their reservations and to inform the reservations agent ‘that she underwent knew [sic] surgery recently and that he mobility was restricted’”.

Arrival At The Wine Train

“When Plaintiffs arrived at the Wine Train…there were no attendants present to help the Neal Plaintiffs board the steps to train. Instead, Plaintiffs had to assist the mobility-impaired members of the group in boarding the train themselves. Plaintiffs also discovered that they were not given group seating as they were promised, but were instead seated in the ‘Bar Car’ which was the last car on the train, in an ‘L’ shaped configuration that made group discussion difficult”.

Tone It Down

“Before the Wine Train left Napa, Defendant (Ms. X), the Wine Train’s maitre d’hotel, ‘approached the group and admonished them saying ‘tone down your noise level because you’re being offensive to other passengers’…Plaintiff Lisa Johnson told (Ms. X) that the group would try to ‘tone it down’ but it would be difficult given the large group and the seating arrangement. (Ms. X) approached the group again about 45 minutes into the train ride, telling them that they were offending other passengers and that she would have to ask them to leave the Wine Train if they didn’t ‘tone it down’…Plaintiff Johnson asked neighboring passengers if the group was offending them, and the passengers responded that they were actually enjoying the company of the book club…Plaintiff Johnson then asked (Ms. X) why their group was being singled out, when they were not any louder than other passengers; (Ms. X) responded only that the police were waiting to escort them off the Wine Train when it arrived in St. Helena”.

Escorted Off The Wine Train

“When the train arrived in St. Helena…The Wine Train staff then walked Plaintiffs through all six cars to exist the train, while some seated passengers snickered at them. The Neal Plaintiffs had physical difficulty walking through the train, but were given no assistance by Wine Train staff and were instead told ‘to hurry up’ despite their mobility limitations. Upon exiting the train, four police officer-one Wine Train rail officer and three officers from the St. Helena Police Department-spoke to Plaintiffs outside for about twenty minutes and then escorted them to a van to be driven back to Napa. The entire ordeal was humiliating and distressing for Plaintiffs”.

Wine Train Facebook Page

“Shortly after the incident, a comment was posted on the Wine Train Facebook page, which stated in part: ‘Following verbal and physical abuse toward other guests and staff, it was necessary to get our police involved…Many groups come on board and celebrate. When those celebrations impact our guests, we do intervene’. The post ‘went viral’ on the Internet within minutes of being posted, and was read by thousands of people nationwide”.

The Causes Of Action

“On the basis of these allegations, Plaintiffs filed the FAC (advancing) four federal causes of action: race discrimination under 42 U.S.C. 2000d et seq (Title VI); disability discrimination under 42 U.S.C. 12181 et seq. (Title III); conspiracy to interfere with civil rights under 42 U.S.C. 1985 (Section 1985); and race discrimination under 42 U.S.C. 1983 (Section 1983)(and) six state law causes of action…race, age and gender discrimination under Cal. Civ. Code 51 (Unruh Civil Rights Act); libel; slander; intentional infliction of emotional distress; breach of contract; and breach of the covenant of good faith and fair dealing”.

Motions To Dismiss

“In ruling on a motion to dismiss, a court must ‘accept all material allegations of fact as true ad construe the complaint in a light most favorable to the non-moving party”. In so doing the Court found that Plaintiffs failed to state a claim under either under 42 U.S.C. 1983 or 42 U.S.C. 1985. However, the Court found that the FAC stated claims for racial and age discrimination as follows:

Title VI Racial Discrimination

“Plaintiffs pleaded sufficient facts to state a claim for racial discrimination under Title VI (which provides that) ‘No person in the United states shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance’. Defendants advance four reasons that Plaintiffs fail to state a claim under Title VI. For the reasons set forth below, these arguments fail as to all claims except any gender-or age-based discrimination claims”.

Title III Americans With Disabilities Act

“Plaintiffs Deborah Neal and Katherine Neal bring the second cause of action under Title III of the Americans with Disabilities Act (ADA) (which) prohibits disability discrimination by places of public accommodation…Contrary to Defendants’ representations, however, the FAC does allege that plaintiff informed the Wine Train of the Neal’s mobility impairments and that the Neals were promised an accommodation… The FAC therefore alleges, in detail, that despite being promised accommodations for their mobility restrictions, none were provided to the Neal Plaintiffs…The Court therefore finds that Plaintiffs have alleged sufficient factual content to enable the Court to draw the reasonable inferences that Defendants failed to make reasonable modifications of their policies, practices or procedures in violation of the ADA”.

Motion To Strike

“Plaintiffs’ tenth cause of action is a state law claim for ‘Breach of Implied Covenant of Good Faith and Fair Dealing’… Defendants contend that punitive damages and emotional distress are not available for breach of the covenant f good faith and fair dealing ad accordingly move to strike Paragraph 149 in its entirety without leave to amend…the Court…hereby Dismisses with prejudice the damages sought in Paragraph 149″.

Conclusion

“For the reasons set forth above, the Court hereby (inter alia)…Grants in part and denies in part Defendants’ Motion to Dismiss and Grants Defendants’ Motion to Strike.”

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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