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2nd Circuit Finds Alterations May Open Resort to Disabilities Act
New York Law Journal
September 19, 2008
The scope of a property owner's obligation to make a public accommodation accessible to the disabled when alterations are made to the property was fleshed out Thursday by the 2nd U.S. Circuit Court of Appeals.
Reversing a lower court, the circuit said a resort in Montauk, N.Y., underwent significant enough renovations so that it might be required under the Americans With Disabilities Act to make changes to allow access to customers who use wheelchairs.
Judges Dennis Jacobs, Rosemary Pooler and Robert Sack reversed Eastern District of New York Judge Leonard Wexler in the case of Roberts v. Royal Atlantic Corp., 06-4730-cv.
Royal Atlantic North and Royal Atlantic South are residential cooperative corporations that control 137 units in two-story buildings throughout several complexes, each of which have a pool surrounded by a narrow deck, a parking lot and ramps into the buildings. The ramps are too narrow for wheelchairs.
The suit was filed by the late June Roberts, a disability advocate who founded the Suffolk Independent Living Organization (SILO), and a private citizen who uses a wheelchair, Stephen Lee.
Lee found he could not negotiate the gravel parking lot at the complex, reach the resort office to check in or access the bathrooms in his wheelchair. SILO and Roberts joined Lee in the suit after Roberts discovered she could not use a grant to hold a SILO conference at the resort because of the lack of affordable alternatives in Montauk.
After a bench trial, Judge Wexler dismissed the suit after examining a regulation under the act, 28 C.F.R. §36.402(a), which requires that altered portions of a building be made accessible. The judge concluded the plaintiffs had not shown a prerequisite for the regulation's requirements, finding they had not shown that the defendants' property was altered after 1992.
The 2nd Circuit reversed, with Judge Sack writing the opinion.
The panel first found that the resort had indeed done enough renovations to kitchens and bathrooms beginning in 2000 to meet the definition of "alterations" that might require action on accessibility under the act.
The court used as its guide the decision of Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995), which set the standard for the allocation of burdens on plaintiffs and defendants under the Rehabilitation Act, 29 U.S. §794 and related statutes.
The circuit then examined whether, during the alterations, the complexes were made "readily accessible" to disabled individuals to "the maximum extent feasible" within the meaning of the Americans With Disabilities Act, 42 U.S.C. §12182.
"Section 12183's 'maximum extent feasible' requirement does not ask the court to make a judgment involving costs and benefits," Sack said. "Instead it requires accessibility except where providing it would be 'virtually impossible' in light of the 'nature of the existing facility,' 28 C.FF.R. §36.402(c)."
Under Borkowski, he said, once the plaintiff "identifies some manner in which the alteration could be, or could have been, made 'readily accessible and usable'" to individuals with wheelchairs "the defendant bears the burden" of showing virtual impossibility.
Sack also said Borkowski was instructive on another aspect of the act's §12183(b).
"A plaintiff challenging the accessibility of the paths of travel, restrooms, telephones, and drinking fountains serving an altered area containing a primary function bears an initial burden of production that the area in question is covered by the statute and that the desired access may be achieved with a cost and scope not disproportionate to the overall alteration," he said.
And the panel said the "Borkowski approach is also appropriate" when considering whether the removal of an architectural barrier is "readily achievable" under the act. Under Borkowski, it is up to the plaintiff to offer a plausible proposal to remove a barrier, "the costs of which, facially, do not clearly exceed its benefits."
Having found that a large number of the rooms at the resort were altered, and that SILO had presented a feasible proposal for renovating the rooms to make them wheelchair accessible, the court said Wexler should conduct a fact-intensive inquiry into whether the defendants had demonstrated prior alterations had increased accessibility to the "maximum extent feasible," adding "there are reasons to doubt that this burden had been met."
It applied a similar analysis to the gravel parking lots and the pools, saying Wexler should develop the record on remand to determine whether alterations had been made.
The circuit also instructed Wexler on remand to examine whether SILO had standing in the case.
Glenn Campbell, SILO's co-executive director, called the ruling "exciting news."
Should the plaintiffs prevail on remand, he said, "it will give individuals with disabilities in wheelchairs the same opportunity to have access to the resort for vacations" and give SILO a meeting place for conferences.
Martin J. Coleman of Hauppauge, N.Y., represented the plaintiffs.
Allan M. Cane of Fairfield, Conn., represented the resort. He said the opinion marks a significant shift in the law.
"New York really had no case on point and now they are saying that the burden is equal, but once [the plaintiff] shows the possibility that it's readily achievable, then the burden shifts to me to show that it can't be done -- and that is a real change," Cane said. "All of a sudden the burden of specification falls on me."
