Roberts v. Royal Atlantic Corporation, No. 06-4730 (2d Cir. 2008)
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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 8 JUNE ROBERTS, STEPHEN LEE AND SUFFOLK INDEPENDENT LIVING ORGANIZATION (SILO), 9 Plaintiffs-Appellants, 10 ANITA BRADLEY, ELIZABETH GARDNER, 11 Plaintiffs, 12 - v - 13 14 15 16 17 18 19 ROYAL ATLANTIC CORPORATION, ROYAL ATLANTIC NORTH CORPORATION, ROYAL ATLANTIC RESTAURANT CORPORATION, THEMISTOCLES KALIMNIOS, ANTHONY KALIMNIOS, STEVEN KALIMNIOS, OCEAN REALTY HOLDING CORPORATION, DES REALTY CORPORATION, and STAR DEVELOPMENT REALTY HOLDING CORPORATION, 20 ------------------------------------- 21 Defendants-Appellees. 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. 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 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. 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 11 12 13 14 15 16 The court MARTIN J. COLEMAN, Hauppauge, NY, for Plaintiffs-Appellants; ALLAN M. CANE, Fairfield, CT, for Defendants-Appellees. SACK, Circuit Judge: 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. 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. 26 plaintiffs sought injunctive and declaratory relief, attorneys' 27 fees, and costs. 28 (Leonard D. Wexler, Judge) filed Findings of Fact and Conclusions In a The Following a bench trial, the district court 2 1 of Law and, on the basis thereof, entered judgment in favor of 2 the defendants. 3 4 For the reasons that follow, we vacate the district court's judgment and remand for further proceedings. BACKGROUND 5 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. 12 residential cooperative corporations. 13 defendants here -- the Royal Atlantic Corporation ("Royal 14 Atlantic South") and the Royal Atlantic North Corporation ("Royal 15 Atlantic North"). The Resort is organized for legal purposes as distinct 16 Two of them are among the Royal Atlantic North owns thirty-nine units of the 17 Resort in a complex of five two-storey buildings. 18 South owns ninety-eight units in a complex of six two-storey 19 buildings. 20 Royal Atlantic None of the buildings has an elevator. 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. 23 complex also has an associated parking lot. 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. 3 Each Although there are Both parking lots are 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. 5 known as "proprietary tenants" who are in turn shareholders in 6 one or more of the corporations. 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 They lease units to individuals and entities Many proprietary tenants rent Units available for rent are typically advertised on 11 the Resort's website. 12 ("Double K") acts as a sales agent for the rentals. 13 also serves as a management agent to provide maid, maintenance, 14 and other services for each unit. 15 Defendant Double K Management Corporation Double K 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. 19 other maintenance and repair related to the buildings, walkways, 20 surrounding areas, and other common areas. 21 The corporations bear the responsibility for all 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. 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. Upon his arrival, he had difficulty 4 1 Lee experienced daily frustration and embarrassment 2 during the remainder of his stay. 3 bathroom in his unit because its doorway was too narrow to 4 accommodate his wheelchair. 5 family members to assist him. 6 either of the Resort's pool areas in his wheelchair. 7 He was unable to use the As a result, he was forced to enlist Lee was also unable to reach 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. 16 plaintiffs filed the complaint initiating this lawsuit. 17 A bench trial began on May 31, 2005. In February 2004, Lee and the other 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. 3 Supp. 2d 239, 244, 246 (E.D.N.Y. 2006). 4 Roberts v. Royal Atl. Corp., 445 F. 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 9 On August 15, 2006, the court rendered its Findings of Fact and Conclusions of Law. Among the latter, it decided, that 10 Lee had standing to bring this action, 11 place of public accommodation under 42 U.S.C. § 12181(7)(A).1 12 and that the Resort was a 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. 15 C.F.R. § 36.402(a);2 see also 28 C.F.R. § 36.402(b) (an 1 See 28 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"). 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. 8 9 The court Roberts, 445 F. Supp. 2d at 247. As the district court also noted, the ADA requires 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.'"). 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. 7 8 The court concluded, however, that the plaintiffs Roberts, 445 F. Supp. 2d at 248. Based on these conclusions, the court entered judgment in favor of the defendants. DISCUSSION 9 10 The plaintiffs appeal. 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. 13 are also reviewed de novo. 14 Int'l Corp., 354 F.3d 112, 115 (2d Cir. 2003). Mixed questions of law and fact Well-Made Toy Mfg. Corp. v. Goffa 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. 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. 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 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." In light of the number of Therefore, on remand to the extent that In this connection, we note that 42 U.S.C. 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 . . . ." 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. 7 Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). 8 dispute that the first two requirements have been met. 9 is the third: whether the inaccessibility of the Resort to 10 wheelchair users constitutes discrimination under the ADA. 11 42 U.S.C. § 12182(a). A Title III claim See Camarillo v. There is little At issue The ADA describes discrimination in both general and 12 specific terms. 13 first, which addresses the making of alterations, provides that 14 "discrimination" includes, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Two provisions are relevant to this appeal. with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations 10 The 1 2 3 in terms of cost and scope (as determined under criteria established by the Attorney General). 4 42 U.S.C. § 12183(a)(2) (emphasis added). 5 that "discrimination" includes "a failure to remove architectural 6 barriers . . . in existing facilities . . . where such removal is 7 readily achievable." 8 9 The second provides Id. § 12182(b)(2)(A)(iv). We must therefore first determine whether a challenged facility (or part thereof) has been "altered" in "a manner that 10 affects or could affect its usability." 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." 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." 18 § 12182(b)(2)(A)(iv). 19 A. 20 If alterations have been Id. Even in the Id. When Is a Facility "Altered"? 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). 26 what constitutes an alteration. 27 28 The regulation describes by illustration Alterations include, but are not limited to, remodeling, renovation, rehabilitation, 11 1 2 3 4 5 6 7 8 9 10 11 reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility. 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. 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"). 22 absence of a formal definition, however, renders interpretation a 23 challenge. 24 allocation of burdens of production and persuasion between the 25 parties in establishing whether a facility has been altered. And the Department of Justice has The Neither the statute nor the regulation specifies the 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. 5 a modification to a facility or portion of a facility, the closer 6 it is, in effect, to new construction. 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 See 42 U.S.C. § 12183(a). The greater the change made by This is consistent with 10 that facilitate ADA access. 11 "alterations" and "new constructions" should be subject to 12 similar accessibility requirements. 13 The ADA contemplates that both 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. 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. 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 As the cost, degree, or scope of Even a relatively inexpensive or 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 2 3 4 1. The overall cost of the modification relative to the size (physical and financial) of the facility or relevant part thereof. 5 6 7 2. The scope of the modification (including what portion of the facility or relevant part thereof was modified). 8 9 10 11 12 3. The reason for the modification (including whether the goal is maintenance or improvement, and whether it is to change the purpose or function of the facility). 13 14 15 16 4. Whether the modification affects only the facility's surfaces or also structural attachments and fixtures that 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. 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. 23 guided by our decision in Borkowski v. Valley Central School 24 District, 63 F.3d 131 (2d Cir. 1995). 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. 5 These regulations and Our analysis is There, we addressed the See Henry H. Perritt, Jr., Americans with 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." 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. at 138. That is, it would be "enough for the 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. 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 Because defendants possess superior access to 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." 4 Id. at 137. 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. 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. 15 to establish that the modification is in fact not an alteration. 16 To establish the existence of an alteration, a The defendant then bears the burden of persuasion 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." 20 § 12183(a)(2). 21 22 B. 42 U.S.C. When Is an Altered Facility Made Readily Accessible and Usable to the "Maximum Extent Feasible"? 23 As explained by regulation: 24 25 26 27 28 29 30 The phrase 'to the maximum extent feasible' . . . applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. In these circumstances, the alteration shall provide 16 1 2 3 4 5 6 7 8 9 10 11 12 the maximum physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible. If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilities (e.g., those who use crutches, those who have impaired vision or hearing, or those who have other 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. 16 where providing it would be "virtually impossible" in light of 17 the "nature of an existing facility." 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. 21 regulations, the Department explicitly rejected suggestions that 22 cost be considered with respect to this provision. 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. 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."). Instead it requires accessibility except 28 C.F.R. § 36.402(c). Indeed, in promulgating the implementing 17 See Title III Costs are to be 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. 4 accessibility must be provided for all types of disabilities for 5 which nondiscrimination is possible. 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 Even in such cases, For example, if a doorway 10 provide accessibility. 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 The owner would nonetheless be required 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. 25 of production identifying some manner in which the alteration 26 could be, or could have been, made "readily accessible and usable So, once a plaintiff has met an initial burden 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." 5 § 12183; 28 C.F.R. § 36.402. 6 42 U.S.C. 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. 19 mechanism applies when considering compliance in this regard. 20 The same Borkowski burden-shifting The proportionality requirement limits the extent to 21 which supporting areas must be made accessible. 22 burdens placed on ADA plaintiffs and defendants. 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 This changes the A plaintiff 1 and that the desired access may be achieved with a cost and scope 2 not disproportionate to the overall alteration. 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. 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 This burden may Once this burden is met, the 10 regulations. 11 12 C. When is the Removal of an Architectural Barrier "Readily 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. 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." 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. 26 the concept of "readily achievable" is a broad one, either party When evaluating a claim under this provision, we Borkowski, 63 F.3d at 138. 20 Neither the Because 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. 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 Our analysis is limited 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. 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." 20 court's underlying factual findings for clear error. 6 This inquiry is a mixed question of law and fact. Roberts, 445 F. Supp. 2d at 247. We review the 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 nonmeritorious 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. 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 district court 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." 12 minutes explained that: 13 14 15 16 17 18 19 20 21 22 23 The In 1995 suggestions were made by owners, management and guests in reference to the condition of the bathrooms and kitchens. At that time management was asked to be aware but not pursue renovations. Through the years, we have done everything possible to repair and maintain these items. At this time their age (23-27 years) and wear are entirely to[o] evident. Their condition has progressed, and only a hand[ful] of rooms are 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 30 Complete gut to studs, install wonderboard at tub surround and sheetrock remainder, install 7 The plaintiffs presented evidence of unit alterations only for those owned by Royal Atlantic South. 22 1 2 3 4 new floor tiles on mud base, wall tiles, shower enclosure, light fixture, tub and shower body, toilet, lavatory and faucet, spackle and paint. 5 Kitchen: $1,364.00 6 7 8 9 Remove and replace linoleum floor, baseboard molding and kitchen cabinets. Replace sink, faucet and stove as needed. Replace electric outlets to G.F.I., spackle and paint. 10 Id. at 6. 11 at the end of the 2000 season and [be] completed the spring of 12 year 2001. 13 directly to the unit owners and collected from the rental . . . 14 of the year 2000 season." 15 the minutes, would "offer our guests yet another reason to 16 continue their patronage at our unique seaside resort." 17 5-6. 18 The minutes stated that these renovations would "start The actual cost for this project will be billed Id. These renovations, according to Id. at The minutes of the shareholder meeting of the following 19 year, 2000, confirmed the progress being made with respect to 20 these renovations. 21 schedule[.] 22 are in full swing. 23 there appears to have been more rotted floors and joists th[a]n 24 anticipated." 25 Meeting of Royal Atlantic Corp., Dec. 11, 2000, at 7. 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." 29 Corp. Stockholders Meeting, Dec. 12, 2001, at 4. The minutes noted that "[r]enovation is on [A]ll rooms have been gutted and the repair stages The only problems so far ha[ve] been that Minutes of the Seventeenth Annual Shareholders 23 And one Minutes of the Royal Atlantic The kitchen and 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. 4 Id., addendum. 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. 7 easily fall within the illustrative examples of alterations at 28 8 C.F.R. § 36.402(b)(1). 9 Atlantic essentially rebuilt the bathrooms and kitchens. First, as a renovation, these modifications By performing a "gut to studs," Royal 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. 19 in undertaking these renovations, to upgrade the facilities, 20 rather than merely maintain them. 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. 24 course of updating and renovating these facilities, the 25 defendants changed the usability of the units. It also reflects Royal Atlantic's intent, 24 Having done "everything The ensuing In the 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." 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 See ADA 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. 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. 5 district court may not consider the comparative cost or scope of 6 the proposed renovations. 7 be ascertained with respect to the units' pre-alteration 8 configuration, rather than their present state. 9 As we have explained, only if On remand, the The feasibility of alterations should 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. 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. 19 bathroom renovations were performed, the defendants had made 20 maximally feasible efforts to achieve the requisite level of 21 accessibility. 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 Even if it is true that the It asks whether, at the time the kitchen and And although limitations on the defendants' 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." 15 commercial offering of the facility. 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. Royal Atlantic's rooms are, of course, the central The units renovated in 2000 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. 26 made to these lots, beyond evidence that tons of gravel had been The record is sparse with respect to the modifications 27 1 added in 2000 and 2001. 2 existing record, make a determination as a matter of law as to 3 whether the pool or parking areas have been altered. 4 district court should address this question on remand. 5 We therefore cannot, based on the The 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 11 satisfaction of their initial burden of production. 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. 16 U.S.C. § 12183(a)(2). 17 to the maximum extent feasible (provided the costs and scope of 18 doing so are not disproportionate to the room alterations). 19 not, the less stringent "readily achievable" standard for 20 existing facilities applies. 21 See 42 If so, they must also be made accessible If 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). 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." 6 § 36.403(e)(2). 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. 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 "An accessible path of travel may consist 28 C.F.R. Although section 36.403(e) might be read to This interpretation is 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. 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). 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 Even if the parking lots were not However, because the path of 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."). 16 reach this question, a full analysis of alterations made to areas 17 of public function would be required. 18 C. 19 Should the district court Access to Pool Areas 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. 22 court to consider upon remand. 23 This is another subject for the district 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. 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 light of our discussion 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. 15 concluded that "Plaintiffs failed in [their] burden" "to 16 establish that the modifications sought . . . are readily 17 achievable." 18 As a consequence, the court Id. at 248. In light of the relative burdens borne by each party, 19 this analysis was flawed. 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 24 had failed to take into account various other factors is of 25 little import, for once the plaintiffs met their initial burden 9 The plaintiffs satisfied their initial The district court's finding that the plaintiffs 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 4 D. Requirements If ADA-Compliant Remedial Measures Are "Not Readily Achievable" 5 An ADA regulation provides: 6 7 8 9 10 11 12 13 14 15 16 17 If . . . the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with [ADA] requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the [ADA]. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others. 18 28 C.F.R. § 36.304(d)(2). 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." 24 Rule, 56 Fed. Reg. at 35,570. 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 32 The purpose of the regulation is to Title III Final Even if the defendants meet their There is evidence that application of this rule might 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. 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 Similarly, although the defendants argue that 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. 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. 19 possibilities must be addressed by the district court. 20 E. 21 In addition to establishing that the Both Relief and Named Defendants 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. 25 Roberts, 445 F. Supp. 2d at 246-47. 26 named as defendants the cooperative corporations, the managing 33 See The plaintiffs in this case 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. 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). 12 allocate by lease or contract their relative responsibilities for 13 compliance with the ADA. 14 Handbook at § 6.02. 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 . . . ." 18 (quoting U.S. Dep't of Justice, Questions and Answers (rev. Sept. 19 1992)). 20 In Of course, owners and operators of facilities may See Americans with Disabilities Act And the Department of Justice has provided Id. 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. 25 that no relief was available in the first place, it made no 26 findings regarding the cooperative corporations' ability to Perhaps because the court concluded 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. 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. 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 As It may well be, then, that the named defendants are 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. 2 would be proper defendants. 3 court in the first instance. 4 5 6 We offer no view as to whether individual tenants These remain issues for the district CONCLUSION For the foregoing reasons, the judgment of the district court is vacated and the cause remanded for further proceedings. 36
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