Title III of the ADA requires that any new buildings, after 1992, be built in accordance with strict architectural guidelines that mandate accessibility for persons with disabilities. Also, any renovations to buildings, whether the building is built before 1992 or otherwise must be made in a way so that the renovations are accessible to persons with disabilities to the maximum extent feasible. Further, the path of travel to those renovations also must be accessible to persons with disabilities as well. This particular blog entry poses several questions. First, what happens when the renovations/alterations are not done in a way to ensure access for persons with disabilities to the maximum extent feasible? Second, can ownership structure be used as a vehicle to get around whether title III applies at all? Third, when does an alteration occur? Fourth, for buildings built prior to 1992, all a defendant has to do is to make modifications that are readily achievable. How does the burden of proof work then?
The two cases that answers all of these questions are: 1) Roberts v. Royal Atlantic Corporation _ F. Supp. 2d_, 2012 WL 4849138 (E.D. N.Y. October 5, 2012), which is actually the decision resulting from a remand in the case of 2) Roberts v. Royal Atlantic Corporation, 542 F.3d 363 (2d Cir. 2008). This case involved a group of cooperative apartments that are joined together and marketed as a single beachfront resort with pools and a restaurant. Roberts 2012 WL 4849138, *1. Those units, which comprise the resort, are available for sale and resale. Id. The individual owners are free to occupy their units exclusively and do not have to make the units available for rental. Id. However, they do have the option of making the units available for periodic seasonal rental to members of the general public. Id. When they do that, the rental of the units is facilitated by a management company that handles rentals on behalf of the unit owners participating in the program. Id. A person desiring to rent out the unit makes the unit available to the management company which then advertises and offers the unit for rent, communicates with members of the public wishing to stay at the resort, and facilitates the entire rental process on behalf of the unit owner in exchange for a fee. Id. What happened here was that two mobility impaired plaintiffs booked rooms at the Resort and because of the inaccessibility of the rooms, they faced tremendous difficulties during their stay. Roberts 542 F.3d at 366. As a result, they filed suit alleging that the resort violated title III of the Americans with Disabilities Act. Id. Turns out that in 2000 and 2001 rooms at the resort underwent a major renovation. Id. at 374-375. However, those renovations were not done in such a way so as to have the rooms be fully accessible to persons with disabilities. Id. at 374.
So, if you do not make your alterations accessible to persons with disabilities when the renovations are occurring, down the road all the person with the disability has to do to meet their burden of production is to identify some manner in which the alteration could have been made readily accessible and usable by individuals with disabilities. Id. at 372. Once they do that, then the burden of persuasion switches to the defendant, and the defendant would have to show that it would be virtually impossible in light of the nature of the facility for renovations to be made readily accessible and usable by persons with disabilities, Id. an extremely tough burden to show. The same construct applies to the path of travel as well. Id.
The second question concerns ownership structure. Can ownership structure be used to get around the requirements of title III? The appellate court said that it would be a rare case that such a limitation could excuse the ADA’s accessibility requirements. Id. at 375. The District Court on remand, was not buying it either. More specifically, they said that the record was such that it was clear that the resort advertises and holds itself out to the public as a place where rooms are openly available for rent. Roberts 2012 WL 4849138 at *4. Therefore, just because the resort is made up of a group of individual owners does not change its character as an inn, hotel, motel, or other place of lodging that would be subject to title III of the ADA. Id.
Third, with respect to the first issue, it becomes necessary to know when that an alteration occurs in the first place. After all, if there is no alteration, then the requirements to make an alteration to be accessible to persons with disabilities to the maximum extent feasible simply does not apply. The appellate court decision dealt with and answered this question. In particular, they relied on the Department of Justice regulations defining alteration which says that an alteration is a change to a place of public accommodation or commercial facility that affects or could affect the usability of the building or facility. Roberts 542 F.3d at 368-369. That is, the key focus must be on changes affecting usability of the facility and not on changes relating directly to access by individuals with disabilities. Id. at 369. Some factors that could be considered are: the overall cost of the modification relative to the size (physical and financial) of the facility; the scope of the modification (including the portion of the facility or relevant part that was modified); the reason for the modification (including whether the goal was maintenance or improvement, and whether it was to change the purpose or function of the facility); and whether the modification affected only the facility’s services or affected also the structural attachments and fixtures that were part of the realty. Id. at 370. Notably, the plaintiff bears the burden of production that an alteration has occurred, but it is the defendant the bears the burden of persuasion to establish that the modification of the facility is not an alteration. Id. at 371.
Finally, with respect to buildings built before 1992, a defendant need only make modifications to that building that are readily achievable. How does the burden of proof work in that situation? The appellate decision answered that question. First, a plaintiff has to articulate a plausible proposal for barrier removal which cost do not clearly exceeded its benefits. Id. at 373. In the Second Circuit’s view, those estimates and proposal do not need to be exact or detailed. Id.. The defendant can then counter the plaintiff’s showing by persuading the court that the costs of plaintiff’s proposal would in fact exceed the benefits. Id. Finally, benefits include both monetary and nonmonetary consideration. Id. However, the defendant’s burden does not end there for if they are able to establish that the plaintiff’s proposal would not be readily achievable, they also must establish that the proposal would not be readily achievable even if ADA design requirements were relaxed because the applicable federal regulation allows the relaxation of certain ADA requirements in the case of making the facility as accessible as possible where readily achievable is the principal at issue. Id. at 378.
Preventive tips: First, if the building is built before 1992, assess your facility to see what modifications are readily achievable . When doing that, be sure to look at the Department of Justice regulations on what is readily achievable. They are actually quite detailed. If you do that, then because readily achievable is rather flexible, you may be in a good litigation position. Second, if you are representing a timeshare entity or an entity that markets individually owned units in the context of a whole “resort,”, you will want to read these decisions very closely. In all probability, with respect to modifications and renovations, both of the cases discussed in this blog entry, are going to be directly on point. Third, build any new buildings and undertake any renovations/alterations in accordance with the architectural guidelines. Fourth, if there are renovations, assess whether they are altering the facility in terms of its usability. Again, these decisions should be very helpful with that. Since the burden on the defendant is very tough, err on the side that an alteration is occurring. Finally, as mentioned in another blog entry, if you do get sued, depending upon the cost involved, consider fixing the problem so as to head off a successful claim for injunctive relief and attorneys fees.