Roberts v. Royal Atlantic Corporation ( 2008 )

06-4730-cv
Roberts v. Royal Atlantic Corporation
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2007
4 (Argued: December 11, 2007 Decided: September 18, 2008)
5 Docket No. 06-4730-cv
6 -------------------------------------
7 JUNE ROBERTS, STEPHEN LEE AND SUFFOLK INDEPENDENT LIVING
8 ORGANIZATION (SILO),
9 Plaintiffs-Appellants,
10 ANITA BRADLEY, ELIZABETH GARDNER,
11 Plaintiffs,
12 - v -
13 ROYAL ATLANTIC CORPORATION, ROYAL ATLANTIC NORTH CORPORATION,
14 ROYAL ATLANTIC RESTAURANT CORPORATION, THEMISTOCLES KALIMNIOS,
15 ANTHONY KALIMNIOS, STEVEN KALIMNIOS, OCEAN REALTY HOLDING
16 CORPORATION, DES REALTY CORPORATION, and STAR DEVELOPMENT REALTY
17 HOLDING CORPORATION,
18
19 Defendants-Appellees.
20 -------------------------------------
21 Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.
22 Appeal from a judgment of the United States District
23 Court for the Eastern District of New York (Leonard D. Wexler,
24 Judge), following a bench trial, in favor of the defendants. The
25 court decided that 28 C.F.R. § 36.402(a), promulgated under Title
26 III of the Americans With Disabilities Act, 42 U.S.C. § 12182 et
27 seq., which, under specified circumstances, requires that altered
28 portions of public accommodations be made accessible to the
1 disabled, does not apply because there is no evidence that any
2 part of the defendants' property was altered after 1992, a
3 prerequisite to the applicability of the regulation. The court
4 further concluded that the defendants' statutory obligations
5 under the Act to remove architectural barriers under certain
6 circumstances did not apply because the plaintiffs had not
7 established that their proposals for removal would be "readily
8 achievable" under the terms of the Act.
9 Vacated and remanded.
10 MARTIN J. COLEMAN, Hauppauge, NY, for
11 Plaintiffs-Appellants;
12
13 ALLAN M. CANE, Fairfield, CT, for
14 Defendants-Appellees.
15 SACK, Circuit Judge:
16 The plaintiffs-appellants are disabled individuals --
17 most of whom require a wheelchair for mobility -- and a non-
18 profit organization that provides services for, and advocates on
19 behalf of, disabled persons in Suffolk County, New York. In a
20 complaint filed in the United States District Court for the
21 Eastern District of New York, the plaintiffs allege that the
22 defendants, who own and manage a resort complex in Suffolk County
23 ("Resort"), violate Title III of the Americans With Disabilities
24 Act ("ADA"), 42 U.S.C. § 12182 et seq., because the Resort's
25 rooms and facilities are not wheelchair-accessible. The
26 plaintiffs sought injunctive and declaratory relief, attorneys'
27 fees, and costs. Following a bench trial, the district court
28 (Leonard D. Wexler, Judge) filed Findings of Fact and Conclusions
2
1 of Law and, on the basis thereof, entered judgment in favor of
2 the defendants.
3 For the reasons that follow, we vacate the district
4 court's judgment and remand for further proceedings.
5 BACKGROUND
6 We summarize here those findings of fact relevant to
7 this appeal that were made by the district court judge following
8 the bench trial.
9 The Resort consists of several buildings containing
10 apartment units located on oceanfront property in Montauk, New
11 York. The Resort is organized for legal purposes as distinct
12 residential cooperative corporations. Two of them are among the
13 defendants here -- the Royal Atlantic Corporation ("Royal
14 Atlantic South") and the Royal Atlantic North Corporation ("Royal
15 Atlantic North").
16 Royal Atlantic North owns thirty-nine units of the
17 Resort in a complex of five two-storey buildings. Royal Atlantic
18 South owns ninety-eight units in a complex of six two-storey
19 buildings. None of the buildings has an elevator.
20 Most of the Resort's units are between 250 and 450
21 square feet in area and include a bathroom and small kitchen.
22 Each complex has one pool surrounded by a narrow deck. Each
23 complex also has an associated parking lot. Although there are
24 ramps leading from these lots to the Resort buildings, they are
25 too narrow for a wheelchair to navigate and, for that reason
26 among others, are not ADA-compliant. Both parking lots are
3
1 relatively narrow (approximately fifty feet wide) and have gravel
2 surfaces.
3 The two cooperative corporations also own the Resort's
4 land and buildings. They lease units to individuals and entities
5 known as "proprietary tenants" who are in turn shareholders in
6 one or more of the corporations. Many proprietary tenants rent
7 their units to members of the general public during the summer,
8 although they may, of course, choose to occupy their own units
9 during that period instead.
10 Units available for rent are typically advertised on
11 the Resort's website. Defendant Double K Management Corporation
12 ("Double K") acts as a sales agent for the rentals. Double K
13 also serves as a management agent to provide maid, maintenance,
14 and other services for each unit.
15 Each proprietary tenant leases his or her unit from one
16 of the two corporations on terms that require that the tenant
17 keep the interior of the unit -- anything within its walls -- in
18 good repair. The corporations bear the responsibility for all
19 other maintenance and repair related to the buildings, walkways,
20 surrounding areas, and other common areas.
21 In June 2003, plaintiff Stephen Lee ("Lee"), who
22 because of his disability must use a wheelchair to move about,
23 was a guest at the Resort. Upon his arrival, he had difficulty
24 navigating his wheelchair through the gravel-covered parking lot
25 and was unable to ascend steps leading to the Resort office in
26 order to check in.
4
1 Lee experienced daily frustration and embarrassment
2 during the remainder of his stay. He was unable to use the
3 bathroom in his unit because its doorway was too narrow to
4 accommodate his wheelchair. As a result, he was forced to enlist
5 family members to assist him. Lee was also unable to reach
6 either of the Resort's pool areas in his wheelchair.
7 One of the other plaintiffs, June Roberts, uses a
8 wheelchair and is the director of plaintiff Suffolk Independent
9 Living Organization ("SILO"), a not-for-profit corporation that
10 acts as an advocate for disabled individuals in Suffolk County.
11 Roberts testified that she visited the resort in April 2003
12 hoping to find a suitable location for a SILO conference, found
13 that the Resort was not accessible, and was unable to use a grant
14 for a conference because of the lack of accessible, affordable
15 accommodations in Montauk. In February 2004, Lee and the other
16 plaintiffs filed the complaint initiating this lawsuit.
17 A bench trial began on May 31, 2005. The district
18 court examined the following issues relating to accessibility at
19 the Resort: (1) the creation of accessible routes to Royal
20 Atlantic South and Royal Atlantic North from their respective
21 parking areas by way of ramps; (2) the configuration and
22 modification of the parking areas at the Resort; (3) the creation
23 of accessible parking spaces at Royal Atlantic South and Royal
24 Atlantic North without substantially limiting the number of
25 parking spaces or interfering with maintenance access to a
26 cesspool; (4) access to the pool areas located at the Resort; and
5
1 (5) the modification of some, but not all, of the previously
2 altered apartment units. Roberts v. Royal Atl. Corp., 445 F.
3 Supp. 2d 239, 244, 246 (E.D.N.Y. 2006).
4 At one point in the proceedings, the parties agreed
5 that a report by an independent architect evaluating the
6 feasibility of bringing the resort into compliance with the ADA
7 would be prepared in hopes that it would facilitate a settlement.
8 On August 15, 2006, the court rendered its Findings of
9 Fact and Conclusions of Law. Among the latter, it decided, that
10 Lee had standing to bring this action, and that the Resort was a
11 place of public accommodation under 42 U.S.C. § 12181(7)(A).1
12 As the court further recognized, regulations adopted
13 pursuant to the ADA impose access requirements on alterations
14 made to public accommodations after January 26, 1992. See 28
15 C.F.R. § 36.402(a);2 see also 28 C.F.R. § 36.402(b) (an
1
42 U.S.C. § 12181(7)(A) provides in pertinent part:
The following private entities are considered
public accommodations for purposes of this
subchapter, if the operations of such
entities affect commerce --
(A) an inn, hotel, motel, or other place of
lodging, except for an establishment located
within a building that contains not more than
five rooms for rent or hire and that is
actually occupied by the proprietor of such
establishment as the residence of such
proprietor . . . .
2
Section 36.402(a) provides:
Any alteration to a place of public
accommodation or a commercial facility, after
January 26, 1992, shall be made so as to
ensure that, to the maximum extent feasible,
the altered portions of the facility are
6
1 "alteration" is "a change to a place of public
2 accommodation . . . that affects or could affect the usability of
3 the building or facility or any part thereof"). The court
4 decided, however, that the ADA's access requirements did not
5 apply here because "[t]here was no evidence that the Resort
6 underwent any alteration after 1992" within the meaning of ADA
7 regulations. Roberts, 445 F. Supp. 2d at 247.
8 As the district court also noted, the ADA requires
9 removal of architectural barriers, regardless of whether
10 alterations have been made, "where such removal is readily
11 achievable." 42 U.S.C. § 12182(b)(2)(A)(iv);3 see 42 U.S.C.
readily accessible to and usable by
individuals with disabilities, including
individuals who use wheelchairs.
28 C.F.R. § 36.402(a).
3
Section 12182 provides in pertinent part:
(a) General rule. No individual shall be
discriminated against on the basis of
disability in the full and equal enjoyment of
the goods, services, facilities, privileges,
advantages, or accommodations of any place of
public accommodation by any person who owns,
leases (or leases to), or operates a place of
public accommodation.
. . . .
[(b)(2)(A)]: Discrimination. For purposes of
subsection (a), discrimination includes --
. . . .
[iv] a failure to remove
architectural barriers, and
communication barriers that are
structural in nature, in existing
facilities, and transportation
barriers in existing vehicles and
rail passenger cars used by an
7
1 § 12181(9) ("'[R]eadily achievable' means 'easily accomplishable
2 and able to be carried out without much difficulty or
3 expense.'"). The court concluded, however, that the plaintiffs
4 had the burden of proving that the modifications they sought
5 would be "readily achievable" and that they failed to meet that
6 burden. Roberts, 445 F. Supp. 2d at 248.
7 Based on these conclusions, the court entered judgment
8 in favor of the defendants. The plaintiffs appeal.
9 DISCUSSION
10 On appeal from a judgment after a bench trial, we
11 review the district court's findings of fact for clear error and
12 its conclusions of law de novo. Mixed questions of law and fact
13 are also reviewed de novo. Well-Made Toy Mfg. Corp. v. Goffa
14 Int'l Corp., 354 F.3d 112, 115 (2d Cir. 2003).
15 I. Standing
16 The defendants do not dispute, and we agree with, the
17 district court's determination that Lee had standing to seek all
18 of the relief that he pursued before the district court at trial:
19 wheelchair access to, from, and within the parking lots, pools,
20 and within at least two apartment units. However, we note that
establishment for transporting
individuals (not including barriers
that can only be removed through
the retrofitting of vehicles or
rail passenger cars by the
installation of a hydraulic or
other lift), where such removal is
readily achievable . . . .
42 U.S.C. § 12182 (emphasis added).
8
1 SILO is asserting standing as an organization based on its
2 inability to book hotel rooms in Montauk for its disabled
3 employees and conference participants. In light of the number of
4 disabled SILO employees and conference participants, it may be
5 that SILO's injury as an organization would not be redressed by
6 an injunction requiring Royal Atlantic to bring several units
7 into ADA compliance. Therefore, on remand to the extent that
8 SILO or any other plaintiff seeks relief distinct from that
9 sought by Lee or on different claims than those pursued by Lee,
10 the district court should consider whether each such plaintiff
11 has standing.4 In this connection, we note that 42 U.S.C.
12 § 12188(a)(1) provides that "[n]othing in this section shall
13 require a person with a disability to engage in a futile gesture
14 if such person has actual notice that a person or organization
15 covered by this subchapter does not intend to comply with its
16 provisions."
17 II. Legal Framework
18 Title III of the ADA prohibits discrimination against
19 individuals "on the basis of disability in the full and equal
20 enjoyment of the goods, services, facilities, privileges,
21 advantages, or accommodations of any place of public
4
The relief originally sought by the plaintiffs in their
complaint included, inter alia, "Braille or enlarged font" signs
and restaurant menus for persons with severe, uncorrected visual
impairments. There is no allegation that Lee has a visual
impairment; we therefore doubt he would have standing to seek
such relief. But in the course of the district court proceedings
the plaintiffs abandoned their claims related to this relief. We
need not and do not address those claims here.
9
1 accommodation . . . ." 42 U.S.C. § 12182(a). A Title III claim
2 therefore requires that a plaintiff establish that (1) he or she
3 is disabled within the meaning of the ADA; (2) that the
4 defendants own, lease, or operate a place of public
5 accommodation; and (3) that the defendants discriminated against
6 the plaintiff within the meaning of the ADA. See Camarillo v.
7 Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). There is little
8 dispute that the first two requirements have been met. At issue
9 is the third: whether the inaccessibility of the Resort to
10 wheelchair users constitutes discrimination under the ADA.
11 The ADA describes discrimination in both general and
12 specific terms. Two provisions are relevant to this appeal. The
13 first, which addresses the making of alterations, provides that
14 "discrimination" includes,
15 with respect to a facility or part thereof
16 that is altered by, on behalf of, or for the
17 use of an establishment in a manner that
18 affects or could affect the usability of the
19 facility or part thereof, a failure to make
20 alterations in such a manner that, to the
21 maximum extent feasible, the altered portions
22 of the facility are readily accessible to and
23 usable by individuals with disabilities,
24 including individuals who use wheelchairs.
25 Where the entity is undertaking an alteration
26 that affects or could affect usability of or
27 access to an area of the facility containing
28 a primary function, the entity shall also
29 make the alterations in such a manner that,
30 to the maximum extent feasible, the path of
31 travel to the altered area and the bathrooms,
32 telephones, and drinking fountains serving
33 the altered area, are readily accessible to
34 and usable by individuals with disabilities
35 where such alterations to the path of travel
36 or the bathrooms, telephones, and drinking
37 fountains serving the altered area are not
38 disproportionate to the overall alterations
10
1 in terms of cost and scope (as determined
2 under criteria established by the Attorney
3 General).
4 42 U.S.C. § 12183(a)(2) (emphasis added). The second provides
5 that "discrimination" includes "a failure to remove architectural
6 barriers . . . in existing facilities . . . where such removal is
7 readily achievable." Id. § 12182(b)(2)(A)(iv).
8 We must therefore first determine whether a challenged
9 facility (or part thereof) has been "altered" in "a manner that
10 affects or could affect its usability." If alterations have been
11 made, a defendant "discriminates" if those altered areas -- and
12 paths of travel to altered areas that "contain[] a primary
13 function" -- are not made readily accessible to disabled
14 individuals "to the maximum extent feasible." Id. Even in the
15 absence of alterations, a defendant nonetheless "discriminates"
16 if it fails to remove any existing barriers to accessibility
17 where such removal "is readily achievable." Id.
18 § 12182(b)(2)(A)(iv).
19 A. When Is a Facility "Altered"?
20 The ADA does not expressly define the term "altered."
21 The Department of Justice's implementing regulations, however,
22 define "alteration" as "a change to a place of public
23 accommodation or commercial facility that affects or could affect
24 the usability of the building or facility or any part thereof."
25 28 C.F.R. § 36.402(b). The regulation describes by illustration
26 what constitutes an alteration.
27 Alterations include, but are not limited to,
28 remodeling, renovation, rehabilitation,
11
1 reconstruction, historic restoration, changes
2 or rearrangement in structural parts or
3 elements, and changes or rearrangement in the
4 plan configuration of walls and full-height
5 partitions. Normal maintenance, reroofing,
6 painting or wallpapering, asbestos removal,
7 or changes to mechanical and electrical
8 systems are not alterations unless they
9 affect the usability of the building or
10 facility.
11 28 C.F.R. § 36.402(b)(1) (emphasis added).
12 Under the implementing regulations, then, the concept
13 of "usability" appears to be central to determining whether an
14 alteration has been made. And the Department of Justice has
15 commented that it "remains convinced that the [ADA] requires the
16 concept of 'usability' to be read broadly to include any change
17 that affects the usability of the facility, not simply changes
18 that relate directly to access by individuals with disabilities."
19 Final Rule, Nondiscrimination on the Basis of Disability by
20 Public Accommodations and in Commercial Facilities, 56 Fed. Reg.
21 35,544, 35,581 (July 26, 1991) ("Title III Final Rule"). The
22 absence of a formal definition, however, renders interpretation a
23 challenge. Neither the statute nor the regulation specifies the
24 allocation of burdens of production and persuasion between the
25 parties in establishing whether a facility has been altered.
26 The illustrations provided at section 36.402(b)(1), for
27 example, suggest a distinction between major and minor changes to
28 a facility -- relative to its overall size -- as well as between
29 changes that do and do not affect the activities that can be
30 performed in the facility, particularly those that are dependent
31 on a facility's physical layout.
12
1 The ADA's requirement that "new construction," like
2 altered facilities, be made "readily accessible and usable" to
3 disabled individuals provides a separate and useful reference
4 point. See 42 U.S.C. § 12183(a). The greater the change made by
5 a modification to a facility or portion of a facility, the closer
6 it is, in effect, to new construction. This is consistent with
7 the relativity principle in section 36.402(b)(1): The more a
8 place is altered, the easier and cheaper it becomes, in both
9 absolute and relative terms, to integrate incidentally features
10 that facilitate ADA access. The ADA contemplates that both
11 "alterations" and "new constructions" should be subject to
12 similar accessibility requirements.
13 The concept of alteration seems generally to exclude
14 from "alterations" those modifications that essentially preserve
15 the status and condition of a facility, rather than rendering it
16 materially "new" in some sense. As the cost, degree, or scope of
17 a modification decreases, the likelihood that it approaches the
18 equivalent of "new construction" or is therefore an alteration
19 under the ADA also decreases. Even a relatively inexpensive or
20 localized modification may, however, so fundamentally change the
21 use of a facility that we would regard it as an alteration,
22 particularly if it affects the purpose, function, or underlying
23 structure of the facility.
24 Accordingly, our considerations for determining whether
25 the modifications in this case are alterations under the ADA can
26 (but need not) include factors such as:
13
1 1. The overall cost of the modification
2 relative to the size (physical and
3 financial) of the facility or relevant
4 part thereof.
5 2. The scope of the modification (including
6 what portion of the facility or relevant
7 part thereof was modified).
8 3. The reason for the modification
9 (including whether the goal is
10 maintenance or improvement, and whether
11 it is to change the purpose or function
12 of the facility).
13 4. Whether the modification affects only
14 the facility's surfaces or also
15 structural attachments and fixtures that
16 are part of the realty.5
17 Before making this assessment in the case before us, we
18 must consider who bears the burden to establish that a
19 modification is or is not an alteration. These regulations and
20 commentary indicate that the concept of "alteration" is a
21 relative one, requiring us to consider the nature, cost, degree,
22 scope, and purpose of any alleged alteration. Our analysis is
23 guided by our decision in Borkowski v. Valley Central School
24 District, 63 F.3d 131 (2d Cir. 1995). There, we addressed the
25 allocation of burdens for the analogous task of establishing a
26 "reasonable accommodation" for purposes of the Rehabilitation
27 Act, 29 U.S.C. § 794. See Henry H. Perritt, Jr., Americans with
5
Other cases may of course raise questions not at issue
here, and the list is not meant to be exhaustive. See Final
Rule, Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 Fed. Reg. 35,544,
35,581 (July 26, 1991) ("The Department remains convinced that
the Act requires the concept of 'usability' to be read broadly to
include any change that affects the usability of the facility,
not simply changes that relate directly to access by individuals
with disabilities.").
14
1 Disabilities Act Handbook § 1.02 (4th ed. 2003) ("The definition
2 of disability is identical under the [ADA and the Rehabilitation
3 Act], as are the basic concepts of discrimination, reasonable
4 accommodation, and program and facility accessibility.").
5 In Borkowski, we observed that in applying the
6 Rehabilitation Act and related statutes, our case law bars us
7 from placing both the initial burden of production and the
8 ultimate burden of persuasion on either the plaintiff or the
9 defendant. Instead, we follow a "middle course." Borkowski, 63
10 F.3d at 137. To establish a "reasonable accommodation," a
11 plaintiff "bears only a burden of production" that "is not a
12 heavy one." Id. at 138. That is, it would be "enough for the
13 plaintiff to suggest the existence of a plausible accommodation,
14 the costs of which, facially, do not clearly exceed its benefits.
15 Once the plaintiff has done this, she has made out a prima facie
16 showing that a reasonable accommodation is available, and the
17 risk of nonpersuasion falls on the defendant." Id.
18 We concluded in Borkowski that the plaintiff's burden
19 does not require him or her to furnish exact or highly detailed
20 cost estimates. Because defendants possess superior access to
21 information regarding their own facilities, such as architectural
22 plans, maintenance requirements and history, and the historical
23 and projected costs of repairs and improvements, they are
24 typically in a position far more easily to refute a plaintiff's
25 proposal as unreasonable than is a plaintiff to prove otherwise.
26 As we put it in Borkowski, the defendants have "far greater
15
1 access to information than the typical plaintiff, both about
2 [their] own organization and, equally importantly, about the
3 practices and structure of the industry as a whole." Id. at 137.
4 A similar analysis applies to our determination of
5 whether a facility has been "altered." As in Borkowski and in
6 light of our "alteration" analysis above, defendants can be
7 expected to have superior access to information with which to
8 refute assertions that their facilities have been altered within
9 the meaning of the statute and the applicable regulations and
10 commentary. To establish the existence of an alteration, a
11 plaintiff fulfills his or her initial burden of production by
12 identifying a modification to a facility and by making a facially
13 plausible demonstration that the modification is an alteration
14 under the ADA. The defendant then bears the burden of persuasion
15 to establish that the modification is in fact not an alteration.
16 If we determine that a particular modification is an
17 alteration under the ADA, we must then decide whether the
18 alteration was made readily accessible and usable to disabled
19 individuals to the "maximum extent feasible." 42 U.S.C.
20 § 12183(a)(2).
21 B. When Is an Altered Facility Made Readily Accessible
22 and Usable to the "Maximum Extent Feasible"?
23 As explained by regulation:
24 The phrase 'to the maximum extent
25 feasible' . . . applies to the occasional
26 case where the nature of an existing facility
27 makes it virtually impossible to comply fully
28 with applicable accessibility standards
29 through a planned alteration. In these
30 circumstances, the alteration shall provide
16
1 the maximum physical accessibility feasible.
2 Any altered features of the facility that can
3 be made accessible shall be made accessible.
4 If providing accessibility in conformance
5 with this section to individuals with certain
6 disabilities (e.g., those who use
7 wheelchairs) would not be feasible, the
8 facility shall be made accessible to persons
9 with other types of disabilities (e.g., those
10 who use crutches, those who have impaired
11 vision or hearing, or those who have other
12 impairments).
13 28 C.F.R. § 36.402(c). Section 12183's "maximum extent feasible"
14 requirement does not ask the court to make a judgment involving
15 costs and benefits. Instead it requires accessibility except
16 where providing it would be "virtually impossible" in light of
17 the "nature of an existing facility." 28 C.F.R. § 36.402(c).
18 The statute and regulations require that such facilities be made
19 accessible even if the cost of doing so -- financial or otherwise
20 -- is high. Indeed, in promulgating the implementing
21 regulations, the Department explicitly rejected suggestions that
22 cost be considered with respect to this provision. See Title III
23 Final Rule, 56 Fed. Reg. at 35,581 ("The legislative history of
24 the ADA indicates that the concept of feasibility only reaches
25 the question of whether it is possible to make the alteration
26 accessible in compliance with this part. Costs are to be
27 considered only when an alteration to an area containing a
28 primary function triggers an additional requirement to make the
29 path of travel to the altered area accessible."); id. ("Any
30 features of the facility that are being altered shall be made
31 accessible unless it is technically infeasible to do so.").
17
1 Only if there is some characteristic of the facility
2 itself that makes accessibility "virtually impossible," then, may
3 the provision of access be excused. Even in such cases,
4 accessibility must be provided for all types of disabilities for
5 which nondiscrimination is possible. For example, if a doorway
6 is altered but the hallways leading to and from the doorway
7 remain unaltered and too narrow for wheelchairs, this would seem
8 to be the sort of "technical infeasibility," Title III Final
9 Rule, 56 Fed. Reg. at 35,581, that would excuse a failure to
10 provide accessibility. The owner would nonetheless be required
11 to render maximal accessibility for other kinds of disabilities.
12 Furthermore, because both the statute and regulations require
13 that the alterations themselves be made to provide the maximum
14 feasible accessibility, a court's assessment of feasibility must
15 be made with respect to the state of the facility before the
16 alterations in question were made, rather than the facility's
17 post-alteration state.
18 Although the "maximum extent feasible" standard is not
19 a relative phrase in the same sense as is a reasonableness
20 requirement, the applicable burdens of production and persuasion
21 remain appropriately drawn from Borkowski, for the standard
22 requires a similar degree of reliance on facilities-related
23 information to which defendants would be expected to have
24 superior access. So, once a plaintiff has met an initial burden
25 of production identifying some manner in which the alteration
26 could be, or could have been, made "readily accessible and usable
18
1 by individuals with disabilities, including individuals who use
2 wheelchairs," the defendant then bears the burden of persuading
3 the factfinder that the plaintiff's proposal would be "virtually
4 impossible" in light of the "nature of the facility." 42 U.S.C.
5 § 12183; 28 C.F.R. § 36.402.
6 Section 12183(b), it will be recalled, requires that if
7 a covered entity undertakes an alteration that affects or could
8 affect usability of or access to an area of the facility
9 containing a primary function, the entity must also make the
10 alteration so that, "to the maximum extent feasible," the path of
11 travel to the altered area and certain other facilities --
12 bathrooms, telephones, and drinking fountains serving the altered
13 area, 28 C.F.R. § 36.403 -- are readily accessible to and usable
14 by individuals with disabilities, provided the alterations
15 required by this provision are not disproportionate to the
16 overall alterations in terms of cost and scope or that the
17 original alteration did not affect, nor could have affected, the
18 usability of the facility. The same Borkowski burden-shifting
19 mechanism applies when considering compliance in this regard.
20 The proportionality requirement limits the extent to
21 which supporting areas must be made accessible. This changes the
22 burdens placed on ADA plaintiffs and defendants. A plaintiff
23 challenging the accessibility of the paths of travel, restrooms,
24 telephones, and drinking fountains serving an altered area
25 containing a primary function bears an initial burden of
26 production that the area in question is covered by the statute
19
1 and that the desired access may be achieved with a cost and scope
2 not disproportionate to the overall alteration. This burden may
3 be met with cost estimates that are facially plausible, without
4 reference to design details, and are such that the defendant can
5 assess its feasibility and cost. Once this burden is met, the
6 defendant must persuade the factfinder that the cost and scope of
7 compliance would, in fact, be disproportionate, or that the areas
8 in question are not paths of travel (or restrooms, telephones, or
9 drinking fountains) within the meaning of the statute and
10 regulations.
11 C. When is the Removal of an Architectural Barrier "Readily
12 Achievable"?
13 We conclude that the Borkowski approach is also
14 appropriate when considering the removal of barriers under 42
15 U.S.C. § 12182(b)(2)(A)(iv), which applies even to facilities
16 that are neither new nor altered, and that are not paths of
17 travel, bathrooms, telephones, or drinking fountains serving an
18 altered area. When evaluating a claim under this provision, we
19 require a plaintiff to articulate a plausible proposal for
20 barrier removal, "the costs of which, facially, do not clearly
21 exceed its benefits." Borkowski, 63 F.3d at 138. Neither the
22 estimates nor the proposal are required to be exact or detailed,
23 for the defendant may counter the plaintiff's showing by meeting
24 its own burden of persuasion and establishing that the costs of a
25 plaintiff's proposal would in fact exceed the benefits. Because
26 the concept of "readily achievable" is a broad one, either party
20
1 may include in its analysis, as costs or benefits, both monetary
2 and non-monetary considerations.6
3 III. Wheelchair Access at the Resort
4 We examine the plaintiffs' claims for relief as they
5 have been presented on appeal within the legal framework set
6 forth in Part II of this opinion, above. Our analysis is limited
7 to the same issues considered by the district court regarding
8 wheelchair access within, to, and from the parking areas and pool
9 areas, and the modification of any two units to be usable by
10 wheelchair users. We address only the issues that have been
11 brought before us, which do not, of course, include whether the
12 defendants have other obligations under the ADA.
13 A. Unit Accessibility
14 The first question is whether the units at the Resort
15 have been altered within the meaning of the ADA and applicable
16 regulations. This inquiry is a mixed question of law and fact.
17 We therefore review de novo the district court's conclusion that
18 "[t]here was no evidence that the Resort underwent any alteration
19 after 1992." Roberts, 445 F. Supp. 2d at 247. We review the
20 court's underlying factual findings for clear error.
6
This view of the plaintiff's initial burden departs
somewhat from that expressed by the Tenth Circuit in Colorado
Cross Disability Coalition v. Hermanson Family Ltd. Partnership
I, 264 F.3d 999 (10th Cir. 2001), where the court required that a
plaintiff furnish "precise cost estimates" and "specific design"
details regarding his proposed accommodation. Id. at 1009. We
think that this asks too much of the typical plaintiff,
particularly where defendants can so quickly dispose of non-
meritorious claims by reference to their knowledge and
information regarding their own facilities.
21
1 Based on the record and the district court's findings
2 of fact, we conclude to the contrary, and as a matter of law,
3 that a large fraction of the Resort's rooms were altered in the
4 course of renovations made in 2000 and 2001. The district court
5 did not make any specific findings regarding these renovations,
6 but there is ample evidence to convince us that the affected
7 units were altered then.
8 The minutes of a meeting of shareholders of the Royal
9 Atlantic Cooperative Corporation,7 held December 13, 1999,
10 reported the shareholders' view that the "[b]athrooms and
11 [k]itchens need[ed] to be [r]enovated for the 2001 season." The
12 minutes explained that:
13 In 1995 suggestions were made by owners,
14 management and guests in reference to the
15 condition of the bathrooms and kitchens. At
16 that time management was asked to be aware
17 but not pursue renovations. Through the
18 years, we have done everything possible to
19 repair and maintain these items. At this
20 time their age (23-27 years) and wear are
21 entirely to[o] evident. Their condition has
22 progressed, and only a hand[ful] of rooms are
23 in satisfactory shape.
24 Minutes of the Sixteenth Annual Shareholders Meeting of Royal
25 Atlantic Cooperative Corp., Dec. 13, 1999, at 5 ("1999 Minutes").
26 The estimated costs and scope of the renovations to each unit
27 were described as follows:
28 Bathroom: $3,740.00
29 Complete gut to studs, install wonderboard at
30 tub surround and sheetrock remainder, install
7
The plaintiffs presented evidence of unit alterations
only for those owned by Royal Atlantic South.
22
1 new floor tiles on mud base, wall tiles,
2 shower enclosure, light fixture, tub and
3 shower body, toilet, lavatory and faucet,
4 spackle and paint.
5 Kitchen: $1,364.00
6 Remove and replace linoleum floor, baseboard
7 molding and kitchen cabinets. Replace sink,
8 faucet and stove as needed. Replace electric
9 outlets to G.F.I., spackle and paint.
10 Id. at 6. The minutes stated that these renovations would "start
11 at the end of the 2000 season and [be] completed the spring of
12 year 2001. The actual cost for this project will be billed
13 directly to the unit owners and collected from the rental . . .
14 of the year 2000 season." Id. These renovations, according to
15 the minutes, would "offer our guests yet another reason to
16 continue their patronage at our unique seaside resort." Id. at
17 5-6.
18 The minutes of the shareholder meeting of the following
19 year, 2000, confirmed the progress being made with respect to
20 these renovations. The minutes noted that "[r]enovation is on
21 schedule[.] [A]ll rooms have been gutted and the repair stages
22 are in full swing. The only problems so far ha[ve] been that
23 there appears to have been more rotted floors and joists th[a]n
24 anticipated." Minutes of the Seventeenth Annual Shareholders
25 Meeting of Royal Atlantic Corp., Dec. 11, 2000, at 7. And one
26 year after that, the minutes of the annual meeting noted that
27 during 2001, Royal Atlantic had "[c]ompleted renovations to 100
28 bathrooms, kitchens, and foyers." Minutes of the Royal Atlantic
29 Corp. Stockholders Meeting, Dec. 12, 2001, at 4. The kitchen and
23
1 bath renovations cost a total of $527,095.00, which included the
2 installation of certain ADA-compliant fixtures such as faucets,
3 grab bars, tiles, and linoleum. Id., addendum.
4 There is thus little doubt that the kitchens and
5 bathrooms of the renovated rooms had been "altered" within the
6 meaning of the ADA. First, as a renovation, these modifications
7 easily fall within the illustrative examples of alterations at 28
8 C.F.R. § 36.402(b)(1). By performing a "gut to studs," Royal
9 Atlantic essentially rebuilt the bathrooms and kitchens. The
10 defendants would therefore have had ample opportunity to perform
11 the renovations in a way that would ensure access by the
12 disabled.
13 Moreover, this renovation work affected the vast
14 majority of rooms at Royal Atlantic South. Its extensive nature
15 suggests that the conversion of only a few units to be more fully
16 accessible could have been achieved with a relatively small
17 marginal increase in difficulty and cost compared to the overall
18 cost of the project. It also reflects Royal Atlantic's intent,
19 in undertaking these renovations, to upgrade the facilities,
20 rather than merely maintain them. Having done "everything
21 possible to repair and maintain" the units' bathroom and kitchen
22 facilities, 1999 Minutes at 5, it appears that normal maintenance
23 was no longer sufficient in light of the facilities' age. In the
24 course of updating and renovating these facilities, the
25 defendants changed the usability of the units. The ensuing
24
1 modifications are therefore properly considered alterations under
2 the ADA.
3 Because the renovations physically altered the Resort's
4 units in a manner that affected their usability, the ADA requires
5 that some of these units be made readily accessible and usable by
6 disabled individuals "to the maximum extent feasible." See ADA
7 Accessibility Guidelines ("ADAAG"), 28 CFR Part 36, App. A,
8 revised July 1, 1994, §§ 9.1.2, 9.1.5 ("When sleeping rooms are
9 being altered in an existing facility, or portion thereof," four
10 rooms must be made accessible for every 76 to 100 altered rooms).
11 The plaintiffs satisfied their initial burden of production by
12 demonstrating that the defendants had not complied with the ADA
13 in this regard, and by presenting a feasible proposal for
14 renovating the rooms so as to make them wheelchair accessible.8
15 The burden therefore shifted to the defendants to demonstrate
16 that the prior alterations had been performed so that, "to the
17 maximum extent feasible," the necessary proportion of units were
18 each made readily accessible and usable by the disabled.
19 Although there are reasons to doubt that this burden has been
20 met, a decision on this issue requires a fact-intensive
21 determination that cannot be resolved on the existing record.
22 The district court should address this question in the first
23 instance after taking such additional evidence as deemed
8
Plaintiffs proffered an architect's report suggesting
reasonably priced modifications that would render a typical unit
wheelchair accessible. They would require adding accessories to
the apartment and some renovations, which would enlarge the
bathroom at the modest cost of some living space.
25
1 advisable in order to do so. As we have explained, only if
2 achieving accessibility would be "virtually impossible" in light
3 of the "nature" of the facility under 28 C.F.R. § 36.402(c) may
4 the accessibility requirement be relaxed. On remand, the
5 district court may not consider the comparative cost or scope of
6 the proposed renovations. The feasibility of alterations should
7 be ascertained with respect to the units' pre-alteration
8 configuration, rather than their present state.
9 Similarly, the defendants' assertion that they do not
10 now have the authority to renovate unilaterally specific units
11 for accessibility has little bearing on whether they violated the
12 ADA by renovating the kitchens and bathrooms without making any
13 of them wheelchair accessible. Even if it is true that the
14 cooperative corporation defendants have no unilateral power to
15 interfere with individual proprietary leases, a proposition
16 suggested by Double K in a 2003 letter to shareholders apprising
17 them of this litigation, our inquiry under section 12183(b) is
18 backward-looking. It asks whether, at the time the kitchen and
19 bathroom renovations were performed, the defendants had made
20 maximally feasible efforts to achieve the requisite level of
21 accessibility. And although limitations on the defendants'
22 authority arising from the ownership structure of a facility may
23 be considered in evaluating the feasibility of compliance -- a
24 facility's ownership structure may fairly be encompassed within
25 the "nature" of that facility -- it seems to us that it would be
26
1 a rare case where such limitations could excuse the ADA's
2 accessibility requirement.
3 Some of the factual issues the district court might
4 consider addressing on remand are whether the defendants could
5 have made some rooms wheelchair-accessible in the course of their
6 renovations in 2000 and 2001 by offering to purchase units as
7 they were offered for sale, by asking for volunteers among the
8 individual unit owners whose costs for ADA compliance would be
9 distributed among all owners, by offering additional compensation
10 to those who volunteered their units, or by some other
11 practicable and appropriate, even if costly, mechanism.
12 As explained at 28 C.F.R. § 36.403, "a 'primary
13 function' is a major activity for which the facility is
14 intended." Royal Atlantic's rooms are, of course, the central
15 commercial offering of the facility. The units renovated in 2000
16 and 2001 were therefore undoubtedly areas of "primary function."
17 As will be discussed, the paths of travel, bathrooms, telephones,
18 and drinking fountains serving these rooms are also subject to
19 the accessibility requirements of § 12183(b)(2), to the extent
20 that this accessibility could have been achieved with cost and
21 scope not disproportionate to the overall alteration.
22 B. Parking Area Access and Accessibility
23 We apply a similar analysis to the Royal Atlantic
24 parking areas, asking first whether those areas have been
25 altered. The record is sparse with respect to the modifications
26 made to these lots, beyond evidence that tons of gravel had been
27
1 added in 2000 and 2001. We therefore cannot, based on the
2 existing record, make a determination as a matter of law as to
3 whether the pool or parking areas have been altered. The
4 district court should address this question on remand.
5 Should the district court conclude that the parking
6 lots were altered, the defendants would, of course, be required
7 to establish that they had been made readily accessible and
8 usable to the maximum extent feasible; the plaintiffs have amply
9 demonstrated the lots' inaccessibility to wheelchairs in
10 satisfaction of their initial burden of production.
11 If, on the other hand, the district court concludes
12 that the lots were not altered, then because the rooms were
13 altered, and were areas of primary function, there is a question
14 as to whether the lots are within the "path of travel" to the
15 rooms, or to any other altered portion of the facility. See 42
16 U.S.C. § 12183(a)(2). If so, they must also be made accessible
17 to the maximum extent feasible (provided the costs and scope of
18 doing so are not disproportionate to the room alterations). If
19 not, the less stringent "readily achievable" standard for
20 existing facilities applies.
21 By regulation, a "path of travel" to an altered area
22 includes "a continuous, unobstructed way of pedestrian passage by
23 means of which the altered area may be approached, entered, and
24 exited, and which connects the altered area with an exterior
25 approach (including sidewalks, streets, and parking areas), an
26 entrance to the facility, and other parts of the facility." 28
28
1 C.F.R. § 36.403(e)(1). "An accessible path of travel may consist
2 of walks and sidewalks, curb ramps and other interior or exterior
3 pedestrian ramps; clear floor paths through lobbies, corridors,
4 rooms, and other improved areas; parking access aisles; elevators
5 and lifts; or a combination of these elements." 28 C.F.R.
6 § 36.403(e)(2). Although section 36.403(e) might be read to
7 suggest that parking areas are no more than exterior approaches
8 and not within the "path of travel" contemplated by statute, we
9 think the better interpretation of this regulation is that the
10 exterior approach refers to those structures that adjoin, and
11 provide pedestrian access to, an owner's facilities, but that are
12 not in fact part of those facilities. This interpretation is
13 supported by the inclusion of "parking access aisles" as elements
14 that may make up an accessible path of travel under 28 C.F.R.
15 § 36.403(e)(2).
16 We conclude that the Royal Atlantic parking areas are
17 along the path of travel to the rooms. They connect this area to
18 the public street, which in this case provides the "exterior
19 approach" to the Resort. Even if the parking lots were not
20 "altered," then, they must still be made accessible "to the
21 maximum extent feasible" at the time the alterations were made,
22 subject to the proportionality limitation explained in detail at
23 28 C.F.R. § 36.403(f) and (g). However, because the path of
24 travel for a person traveling by car begins at his or her parking
25 space, this path need not include the entire parking area, only
29
1 the path from an accessible parking space to the areas of public
2 function within the Resort.
3 Also, although we have focused only on the Resort
4 units, there may be other areas of primary function that were
5 altered and whose costs must be considered in determining whether
6 the cost and scope of accessibility would be disproportionate.
7 See 28 C.F.R. § 36.403(h)(2)(i) ("If an area containing a primary
8 function has been altered without providing an accessible path of
9 travel to that area, and subsequent alterations of that area, or
10 a different area on the same path of travel, are undertaken
11 within three years of the original alteration, the total cost of
12 alterations to the primary function areas on that path of travel
13 during the preceding three year period shall be considered in
14 determining whether the cost of making that path of travel
15 accessible is disproportionate."). Should the district court
16 reach this question, a full analysis of alterations made to areas
17 of public function would be required.
18 C. Access to Pool Areas
19 As with the parking lots, we cannot decide as a matter
20 of law based on the existing record whether the Resort's pool
21 areas were altered. This is another subject for the district
22 court to consider upon remand.
23 Pool areas are obviously areas of primary function of a
24 seafront, summer resort. If the district court concludes that
25 they were altered, it would follow that the Resort was required
26 to make paths of travel to these areas wheelchair accessible.
30
1 If the district court determines that the pool areas
2 were not altered, the remaining question will be whether, because
3 the pool was an existing facility, the defendants had failed to
4 remove architectural barriers where such removal would be readily
5 achievable as required under the ADA. In light of our discussion
6 of the proper application of this provision, the district court
7 -- should it reach this question -- must reconsider its prior
8 analysis of the plaintiffs' proposed pool renovations.
9 In its findings of fact, the district court observed
10 that the pool renovation "plan offered by Plaintiffs . . . failed
11 to take into account shifting sands, fencing requirements,
12 interference with balconies and the impact of a large ramp on the
13 number of people allowed by law to enter the pool area."
14 Roberts, 445 F. Supp. 2d at 246. As a consequence, the court
15 concluded that "Plaintiffs failed in [their] burden" "to
16 establish that the modifications sought . . . are readily
17 achievable." Id. at 248.
18 In light of the relative burdens borne by each party,
19 this analysis was flawed. The plaintiffs satisfied their initial
20 burden of production by proffering plans -- proposed themselves
21 or with the aid of the independent architect -- that would permit
22 facially cost-effective wheelchair access to at least one of the
23 pool areas.9 The district court's finding that the plaintiffs
24 had failed to take into account various other factors is of
25 little import, for once the plaintiffs met their initial burden
9
This included a proposal for a ramp leading to the pool.
31
1 of production, it was the defendants' responsibility to prove
2 that the proposals were not readily achievable.
3 D. Requirements If ADA-Compliant Remedial Measures Are "Not
4 Readily Achievable"
5 An ADA regulation provides:
6 If . . . the measures required to remove a
7 barrier would not be readily achievable, a
8 public accommodation may take other readily
9 achievable measures to remove the barrier
10 that do not fully comply with [ADA]
11 requirements. Such measures include, for
12 example, providing a ramp with a steeper
13 slope or widening a doorway to a narrower
14 width than that mandated by the [ADA]. No
15 measure shall be taken, however, that poses a
16 significant risk to the health or safety of
17 individuals with disabilities or others.
18 28 C.F.R. § 36.304(d)(2). The purpose of the regulation is to
19 "maximize the flexibility of public accommodations in undertaking
20 barrier removal by allowing deviations from the [ADA's] technical
21 standards," thereby promoting "certainty and good design at the
22 same time that permitting slight deviations will expand the
23 amount of barrier removal that may be achieved." Title III Final
24 Rule, 56 Fed. Reg. at 35,570. Even if the defendants meet their
25 burden, if one has been placed upon them, of demonstrating that
26 the plaintiffs' proposals for the removal of existing barriers
27 would not be readily achievable, the district court must then
28 determine, under that regulation, whether any of these proposals
29 would be readily achievable if certain ADA requirements were
30 relaxed.
31 There is evidence that application of this rule might
32 overcome some of the objections voiced by the defendants and the
32
1 district court. For example, it appears that the district court
2 has not considered fully the independent architect's testimony
3 that construction of a ramp in the north parking lot might be
4 readily achievable if the ADAAG requirements were relaxed to
5 permit a steeper ramp and the placement of accessible spaces
6 further from the general route of travel than the ADAAG would
7 otherwise allow. Similarly, although the defendants argue that
8 the plaintiffs' proposal for a ramp leading to the north pool
9 area would not comply with the ADA's five-foot width requirement
10 because of the presence of a nearby transformer, the court did
11 not address the architect's assertion that such a problem could
12 be avoided if the ramp were constructed to be narrower than the
13 standard width otherwise mandated by the ADAAG.
14 The flexibility provision changes somewhat the
15 defendants' burden. In addition to establishing that the
16 plaintiffs' proposals would not be readily achievable, defendants
17 must also establish that the proposals would not be readily
18 achievable even if ADA design requirements were relaxed. Both
19 possibilities must be addressed by the district court.
20 E. Relief and Named Defendants
21 The district court expressed doubts as to whether it
22 had the power to order the requested relief in light of the
23 Resort's ownership structure and the defendants' explicit lack of
24 authority to modify certain individual units at the Resort. See
25 Roberts, 445 F. Supp. 2d at 246-47. The plaintiffs in this case
26 named as defendants the cooperative corporations, the managing
33
1 authority, and some (but not all) unit owners, but they did not
2 identify particular units for modification or identify and serve
3 process on the owners of those units.
4 As an initial matter, we observe that the plaintiffs
5 did properly identify at least some -- and perhaps all -- of the
6 defendants contemplated by the ADA for claims under the ADA. In
7 enacting the statute, Congress apparently intended that the
8 prohibition against discrimination "appl[y] to any person who
9 owns, leases . . . or operates a place of public accommodation."
10 H.R. Conf. Rep. 101-558, 101st Cong., 2d Sess. (1990) (emphasis
11 added). Of course, owners and operators of facilities may
12 allocate by lease or contract their relative responsibilities for
13 compliance with the ADA. See Americans with Disabilities Act
14 Handbook at § 6.02. And the Department of Justice has provided
15 informal guidance suggesting that the duty to remove barriers
16 depends on who has legal authority to make alterations, "which is
17 generally determined by the contractual agreement . . . ." Id.
18 (quoting U.S. Dep't of Justice, Questions and Answers (rev. Sept.
19 1992)).
20 We cannot say, however, based on the existing record
21 and factual findings, whether, in this case, the plaintiffs'
22 claims for relief would fail based on the named defendants'
23 potential inability to comply with orders of the district court
24 directing modifications. Perhaps because the court concluded
25 that no relief was available in the first place, it made no
26 findings regarding the cooperative corporations' ability to
34
1 solicit individual unit owners to volunteer their units for
2 renovation on a distributed cost basis or with compensation, to
3 purchase specific units as corporate property as they come onto
4 the market, for corporate owners of second-floor units to swap
5 with owners of first-floor units, or to buy first floor units
6 when they come available, or for the unit owners to take any
7 other action to cause the Resort to become ADA-compliant.
8 If the district court, on remand, concludes that the
9 plaintiffs are entitled to some or all of the relief they have
10 sought, the court should, of course, inquire whether the named
11 defendants can comply with an order to provide that relief.
12 Perhaps the defendants may do so unilaterally; perhaps they may
13 be able to solicit the assistance of individual unit owners. As
14 we have already noted, section 12183 requires, with respect to
15 altered facilities, that all feasible efforts be made toward
16 compliance without regard to cost, and the same requirement would
17 apply to complying with orders for relief pursuant to this
18 provision. It may well be, then, that the named defendants are
19 able to comply with orders to modify individual units, if
20 required, in light of the defendants' admission that at least
21 thirty units in fact change ownership each year.
22 Only if the district court finds that the named
23 defendants, having exhausted all options, are unable to comply
24 with its orders would it need to consider whether the plaintiffs
25 had failed to identify and serve necessary and indispensable
26 parties (such as individual proprietary tenants) under Fed. R.
35
1 Civ. P. 19. We offer no view as to whether individual tenants
2 would be proper defendants. These remain issues for the district
3 court in the first instance.
4 CONCLUSION
5 For the foregoing reasons, the judgment of the district
6 court is vacated and the cause remanded for further proceedings.
36