## Facts

- Margo Neff, a wheelchair user, alleged that two franchised Dairy Queen stores in San Antonio contained architectural barriers that denied full and equal access.
- The stores were owned and operated by R & S Dairy Queens, Inc., a franchisee, not by American Dairy Queen Corporation (ADQ), the franchisor.
- Neff sued ADQ under Title III of the Americans with Disabilities Act (ADA), seeking injunctive and declaratory relief and attorneys’ fees based on alleged failures to remove architectural barriers where readily achievable.
- ADQ moved for summary judgment, asserting it did not “own, lease (or lease to), or operate” the stores within the meaning of 42 U.S.C. § 12182(a).
- ADQ supported its motion with an affidavit and franchise agreements showing ADQ’s retained rights largely concerned trademark protection, uniformity, and standards rather than day-to-day control of store operations or physical configuration.
- The district court granted summary judgment for ADQ and denied class certification as moot; Neff appealed only the summary judgment ruling.

## Issues

1. Whether a franchisor that does not own or lease franchisee premises can be liable under ADA Title III as an “operator” of a place of public accommodation based on franchisor rights in a franchise agreement.
2. Whether the evidence created a genuine dispute that ADQ exercised sufficient control over accessibility-related modifications to qualify as an “operator” under 42 U.S.C. § 12182(a).

## Decision

- The Fifth Circuit affirmed summary judgment for ADQ.
- The court held ADQ was not an “operator” of the franchised stores for purposes of ADA Title III.
- ADQ’s contractual rights were characterized as typical franchisor oversight aimed at brand protection and uniform standards, not operational control over accessibility and barrier removal.
- Neff failed to present evidence that ADQ actually exercised control to prevent or decide upon accessibility modifications, such as rejecting proposed changes intended to improve access.
- Under summary judgment standards, ADQ’s evidence shifted the burden to Neff to produce specific facts showing a triable issue on “operator” status; she did not do so.

## Legal Principles

- ADA Title III applies to discrimination by any person who “owns, leases (or leases to), or operates” a place of public accommodation. 42 U.S.C. § 12182(a).
- A franchisor is not an ADA Title III “operator” solely because it imposes brand, quality, appearance, and maintenance standards typical of franchise systems.
- “Operator” status turns on functional control relevant to ADA compliance, particularly control over decisions and modifications needed to remove architectural barriers.
- A contractual right to approve or disapprove changes, without evidence of meaningful control over accessibility decisions or use of that authority to block access improvements, is insufficient to establish “operator” liability.
- On summary judgment, once the movant shows the absence of evidence supporting a required element (here, “operator” control), the nonmovant must produce specific facts showing a genuine issue for trial.

## Conclusion

The Fifth Circuit ruled that ADQ’s franchisor-level oversight did not make it an ADA Title III “operator” of the franchisee stores, and without evidence of direct control over accessibility-related modifications, ADQ could not be held liable for alleged architectural barriers at those locations.


Neff v. Am. Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995)