Davis v . Ciborowski Family Trust, et a l . 11-cv-436-PB 4/8/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dean Davis, et a l .

v. Case N o . 11-cv-436-PB Opinion N o .

John S . Ciborowski Family Trust, et a l .

MEMORANDUM AND ORDER

The Americans with Disabilities Act (“ADA”) requires the

owner of a commercial facility to take feasible measures when

altering the facility to ensure that the altered areas are

accessible to and usable by persons with disabilities. These

requirements apply, however, only if an alteration “affects or

could affect the usability of a facility or part thereof . . .

. ”

(a)(2). The issue presented by the current

motions for summary judgment is whether alterations defendants

made to Phenix Hall, a building located in the Downtown Concord

Historic District, are subject to the ADA’s accessibility and

usability requirements.

I. FACTS

Phenix Hall is part of the Downtown Concord Historic

District. It houses Bagel Works, a popular local café, and several retail stores. It was built in 1893 and is listed on

the National Register of Historic Places.

When the John S . Ciborowski Family Trust (“Ciborowski” or

“Trust”) decided to restore Phenix Hall’s storefront to its

original appearance, it contacted Concord’s Code Administration

Department, which is responsible for administering the city’s

zoning, building, licensing, and health regulations, for

approval of the proposed work. The Trust also consulted the New

Hampshire Division of Historical Resources (“DHR”), which

oversees the state’s historic preservation program, regarding

ADA compliance. The city issued a construction permit on July

2 7 , 2010. Doc. N o . 105-3. On November 1 3 , 2010, after

reviewing the proposed construction projects, the DHR sent

Ciborowski an advisory letter concluding that “[a]ccessibility

modifications that eliminated the entrance steps to the

storefronts would ‘threaten or destroy’ the historic character

of Phenix Hall, and may also be ‘technically infeasible’ as

defined by ADA regulations.”1 Doc. N o . 105-9.

1 For background on the ADA’s guidelines on historic preservation issues, see generally Neighborhood Ass’n of the Back Bay, Inc. v . Fed’l Transit Admin.,

0 , 65-66 (1st Cir. 2006); Christopher Parkin, Note: A Comparative Analysis of the Tension Created by Disability Access and Historic Preservation Laws in the United States and England, 22 Conn. J. Int’l L . 379, 402-404 (2007).

2 Construction at Phenix Hall began in the summer of 2010 and

continued through the fall. The construction project included2:

- Removal of slate-covered concrete steps and entrance landings, which were replaced with new granite steps and entrance landings;

- Installation of mahogany doors and entranceways to replace metal doors and entranceways;

- Relocation of the front doors so they are centered;

- Removal of the 1950s vintage metal covering the original granite façade;

- Exposure, cleaning, and painting of iron columns;

- Replacement of existing storefront windows with energy efficient windows;

- Removal of metal bases under each window, which were replaced with granite bases;

- Installation of granite pavers below the granite bases in the sidewalk;

- Replacement of a metal airlock with a mahogany airlock.

- Partial restoration of the damaged granite façade, columns, and lentils; and

- Clean-up and painting of the cast iron pillars.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

2 I have described the construction activity at Phenix Hall in the light most favorable to the defendants.

3 entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The court must consider the evidence submitted in

support of the motion in the light most favorable to the

nonmoving party, drawing all reasonable inferences in its favor.

See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine dispute of material fact. Celotex Corp.

v . Catrett,

1 7 , 323 (1986). A material fact “is one

‘that might affect the outcome of the suit under the governing

law.’” United States v . One Parcel of Real Prop. with Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson v . Liberty

Lobby, Inc.,

4 2 , 248 (1986)). If the moving party

satisfies this burden, the burden shifts to the nonmoving party

to “produce evidence on which a reasonable finder of fact, under

the appropriate proof burden, could base a verdict for i t ; if

that party cannot produce such evidence, the motion must be

granted.” Ayala–Gerena v . Bristol Myers–Squibb Co.,

6 ,

94 (1st Cir. 1996); see Celotex,

. On cross

motions for summary judgment, the standard of review is applied

to each motion separately. See Am. Home Assur. C o . v . AGM

Marine Contractors, Inc.,

1 0 , 812 (1st Cir. 2006).

4 III. ANALYSIS

A. Title III

Title III of the ADA prohibits discrimination on the basis

of disability in commercial facilities and places of public

accommodation.

(a)(2). Because, however, the

ADA is “geared toward the future,” the Act does not ordinarily

require the owner of a facility to take affirmative measures to

make the facility accessible to and usable by persons with

disabilities.3 Nondiscrimination on the Basis of Disability by

Public Accommodations and in Commercial Facilities,

-01, 35574 (July 2 5 , 1991). Instead, a failure to take

such measures will qualify as discrimination only when the owner

undertakes new construction or engages in alterations to an

existing facility.

Even s o , Title III’s accessibility and usability

requirements do not apply to every alteration to an existing

facility. Title III covers only those alterations that “affect

or could affect the usability of the facility or a part thereof

. . . . ”

(a)(2). If an alteration is covered

under Title I I I , the owner must ensure that “to the maximum

3 In certain circumstances not present here, an owner must take affirmative steps to remove architectural barriers to an existing facility. See

(b)(2)(A)(iv).

5 extent feasible, the altered portions of the facility are

readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs.”

Although the Act itself does not explain the phrase “affect

or could affect the usability of the facility or part thereof,”

the Department of Justice (“DOJ”) has adopted regulations that

provide guidance. The regulations echo the statutory language

by explaining that a covered alteration is “a change to a place

of public accommodation or a commercial facility that affects or

could affect the usability of the building or facility or any

part thereof.”

(b). They go on to list

“remodeling, renovation, rehabilitation, historic restoration,

changes or rearrangements in structural parts or elements, and

changes or rearrangements in the plan configuration or

rearrangement of walls and full-height partitions” as examples

of alterations that are subject to the Act’s accessibility and

usability requirements.

The regulations also explain,

however, that “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 facility.”

The DOJ has also issued a technical assistance manual that

provides several examples of alterations that are subject to the 6 ADA’s accessibility and usability requirements. The manual

explains that a change of flooring in a store is covered because

it can affect the ability of a person in a wheelchair to travel

throughout the store; a change in the location of a doorway is

covered because the width of the door and the placement of

hardware on the door can affect its usability; and a change in

the location of an electrical element is covered because the

height of the outlet can affect the usability of the outlet by a

person in a wheelchair. ADA Title III Technical Assistance

Manual III-6.1000 (1993), available at www.ada.gov/taman3.html

(as visited April 1 , 2013) (“ADA Manual”).

B. Application

1. Defendants’ Motion

Defendants present two arguments in support of their motion

for summary judgment. First, they argue that the changes to

Phenix Hall are not covered alterations because they are purely

cosmetic and have no actual effect on the usability of the

building. In the alternative, they argue that the changes are

not covered because they could not feasibly have been made in a

manner that made the building more accessible and usable by

persons with disabilities. I address each argument in turn.

a. Alterations That Affect Usability

Defendants’ first argument is based on the premise that 7 alterations are not subject to Title III unless they actually

affect the way the building is used. I reject this argument

because the defendants’ underlying premise is inconsistent with

the plain language of Title I I I , its purpose, and the

regulations and guidance developed by the DOJ to implement Title

III.

The plain language of Title III expressly covers not only

changes that “affect” usability, but also changes that “could

affect” usability. The only reasonable interpretation of this

language is that it covers alterations that have the potential

to affect the usability of the facility if they are made

differently. The defendants’ argument that the statute covers

only alterations that will affect the usability of the facility

if they are made as proposed ignores the phrase “could affect.”

Defendants’ reading of Title III is also inconsistent with

the ADA’s anti-discriminatory purpose. As I have explained, the

Act’s forward-looking nature requires owners of commercial

facilities to take the interests of individuals with

disabilities into account when making significant alterations to

their facilities. This purpose would be completely undermined

i f , as defendants imply, an owner could avoid Title III in

perpetuity, even when making major structural changes to a

facility, simply by replacing existing elements, unusable by 8 disabled persons, with new elements, equally unusable by

disabled persons. I find no support in the case law for such a

narrow reading of Title III. 4

It is also impossible to reconcile defendants’

interpretation of Title III with both the regulations DOJ

adopted to implement Title III and the DOJ’s technical

assistance manual.5 The regulations provide lists of covered and

presumptively excluded alterations. Those lists state that

Title III covers remodeling, renovation, and restoration

activities regardless of whether the specific plans for

remodeling, renovation, and restoration will actually affect the

4 Defendants cite Thompson v . Second Cliff Owners Ass’n, Inc.,

(N.D. Fla. 1998) for the proposition that an owner may replace stairs without having to comply with Title III’s accessibility and usability requirements. I am unpersuaded by the court’s reasoning in Thompson because the court did not attempt to explain its decision using the language of Title III. 5 To the extent that Title III is ambiguous, both the regulations and the technical assistance manual are entitled to deference in resolving any ambiguity. See Lovgren v . Locke,

, 29-30 (1st Cir. 2012) (stating that deference due to administrative constructions of ambiguous statutes varies depending on whether the agency interpretation is announced in a manner that has the force of l a w ) ; see also Bragdon v Abbott,

2 4 , 646 (1998)(explaining that the technical assistance manual is entitled to deference). Here, however, I have determined that the relevant statutory language is unambiguous. Thus, I do not defer to the DOJ’s reading of the statute. Instead, I cite the regulations and the technical assistance manual because they support the plain language reading of the statutory text.

9 usability of the building. Notably, the lists do not even

mention the criterion on which defendants rely - whether the

alterations have an affect on usability as proposed - to

distinguish covered alterations from non-covered alterations.

Instead, they suggest that Title III was intended to cover a

broad range of alterations, excluding only those alterations

that involve “normal maintenance,” or similar activities, and

that do not affect usability.

(b). For

similar reasons, the technical assistance manual is inconsistent

with the defendants’ interpretation of Title III because it

provides several examples of covered alterations such as a

change in flooring or a change in the location of a door that

are subject to Title III without regard to whether the change as

proposed will affect usability. See ADA Manual at III-6.1000.

In summary, because the plain language of the ADA, the

purpose underlying the act, the DOJ’s implementing regulations,

and the DOJ’s technical assistance manual are all inconsistent

with the defendants’ reading of Title I I I , I decline to grant

them summary judgment based on their claim that the changes they

made to the building are not subject to Title III because they

had no actual effect on the building’s usability.

b. Alterations That Could Affect Usability

Defendants argue in the alternative that the alterations 10 are not subject to Title III because they could not feasibly

have been made in a manner that would have increased the

accessibility or usability of the facility by individuals with

disabilities. I reject this argument because it improperly

conflates the test for determining whether an alteration is

subject to Title I I I , with the test that applies when

determining whether a covered alteration complies with Title

III.

As I have noted, an alteration to a commercial facility is

subject to Title III only if it “affects or could affect the

usability of the facility or a part thereof . . . .”

(a)(2). If this threshold requirement is met, the owner

of the facility must take the interests of individuals with

disabilities into account by ensuring 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.”

Defendants confuse these two requirements. Thus, they seek to

argue that they are not subject to Title III by arguing that

they did not violate Title III. Because defendants have based

their request for relief on an argument that is beyond the scope

of the present motions, I deny their request for summary

judgment on this basis. 11 2. Plaintiffs’ Motion

Plaintiffs argue in their motion for partial summary

judgment that the alterations are subject to Title III because

they could have affected the usability of the facility if they

had been done differently. In making this argument, they note

that, among other things, defendants removed and replaced the

stairs at the entrance to Bagel Works and relocated the front

door. By their nature, they argue, there are countless ways the

stairs could have been replaced and the door relocated that

could have affected the usability of the building by the general

public. Defendants do not contest the plaintiffs’ assertion

that there are many ways that the alterations could have been

made that would have affected the way in which the building was

used by the general public. Because I determine that this is

all that is required to subject a proposed alteration of a

commercial facility to Title I I I , I conclude that the plaintiffs

are entitled to partial summary judgment on this issue.

IV. CONCLUSION

In this Memorandum and Order, I determine only that the

alterations that the defendants made to Phenix Hall are subject

to Title III. The real question in this case - whether the

defendants failed to make their alterations in a manner that, 12 “to the maximum extent feasible, the altered portions of the

facility are readily accessible and usable by persons with

disabilities” - is an issue that must be left for a later day.

The defendants’ motion for summary judgment (Doc. N o . 105) is

denied, and the plaintiff’s motion for partial summary judgment

(Doc. N o . 106) is granted. The clerk shall set a status

conference to discuss a proposed schedule for the resolution of

the remaining issues in the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 8 , 2013

cc: Aaron Jesse Ginsberg, Esq. Cindy Robertson, Esq. James P. Ziegra, Esq. Jack P. Crisp, Jr., Esq.

13