Plaintiff Sidney Abbott alleges that Defendant Randon Bragdon has violated theAmericans with Disabilities Act ("ADA") by refusing to provide routine, in-office dental care toher because she is HIV-positive. There is no dispute that the refusal occurred and both Abbottand Bragdon have moved for summary judgment. Bragdon has also moved for summary judgment on the grounds that Congress lacks the authority to regulate the discriminatory conductat issue. The United States, as intervenor, has moved for summary judgment on theconstitutional defenses asserted by Bragdon, and as amicus curiae, has urged this Court to grantPlaintiff's motion for summary judgment on liability.This Court should conclude that Bragdon has violated the ADA if it finds (1) that Abbottis an individual with a disability; (2) that Bragdon refused to treat her on account of her disability; (3) that treating her in his office would not constitute a "direct threat" to the health andsafety of others;
and (4) that Congress has the constitutional power to prohibit disability-baseddiscrimination in the transaction at issue here. The material facts necessary to make thesedeterminations are not in dispute. Defendant Bragdon readily concedes that he refused to provide Abbott with routine dental care in his office, solely because she acknowledged testing positive for HIV. Def.'s Sum. Judg. Mem. at 3. In fact, Bragdon admits that if Abbott had notdisclosed her HIV-positive status to him, he would have filled her cavity in his office.1
Because the direct threat provision is an exception to the generalnondiscrimination rule in title III, it is an affirmative defense. Contrary toBragdon's position, he, not Plaintiff, bears the burden of proof on this issue.See United States v. Morvant, __ F. Supp. __, 1995 WL 131093, *4 (E.D. La.March 22, 1995); Cf. F.2d , D.B. v. Bloom, 1995 WL 490481, *3 (D.N.J.1995)(ruling in favor of plaintiff where plaintiff only proved that he was anindividual with a disability, that defendant was a place of publicaccommodation, and that plaintiff was denied services); Howe v. Hull, 873 F.Supp. 72 (N.D. Ohio 1994)(same).