Norkunas v. Seahorse NB, LLC

Filing 65

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Timothy J. Corrigan on 5/23/2011. (JMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
Bill Norkunas,
Plaintiff,
vs.

Case No. 3:09-cv-934-J-32MCR

Seahorse NB, LLC,
Defendant.
_____________________________________/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Bill Norkunas has brought this action pursuant to Title III of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq, seeking the
removal of certain alleged architectural barriers on Defendant’s property, the
Seahorse Oceanfront Inn (the “Seahorse”), a motel in Jacksonville Beach, Florida
(Doc. 1).1
I.

THE AMERICANS WITH DISABILITIES ACT
Title III of the ADA provides that:

1

On October 6, 2009, the Seahorse moved to dismiss Mr. Norkunas’ complaint
for lack of standing (Doc. 6). On June 16, 2010, after conducting an evidentiary
hearing on the matter, the Court held that Mr. Norkunas does not have standing to
challenge any alleged barriers in the guest rooms of the Seahorse, but does have
standing to challenge other alleged barriers (Doc. 28). See Norkunas v. Seahorse
NB, LLC, 720 F. Supp. 2d 1313 (M.D. Fla. 2010). The case was tried on February
14, 2011 (Doc. 61) and the parties submitted post-trial proposed findings of fact and
conclusions of law (Docs. 63, 64).
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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.
42 U.S.C. § 12182(a).
With respect to facilities, or portions thereof, which were constructed prior to
the enactment of the ADA (existing structures), the ADA defines “discrimination” as
“a failure to remove architectural barriers ... in existing facilities, ... where such
removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(iv). Thus, the ADA requires
the removal of existing architectural or structural barriers that prevent access to
existing public accommodations, when removal is "readily achievable," which is
defined as “easily accomplishable and able to be carried out without much difficulty
or expense." 42 U.S.C. § 12181(9). If removal is not readily achievable, then the
public accommodation must make its goods or services available to the disabled
through alternative methods, if such alternative methods are readily achievable. See
42 U.S.C. § 12182(b)(2)(v).
A different, and heightened, standard applies with respect to those structures
which were constructed post-ADA (new construction and post-ADA alterations). In
this regard, the ADA defines “discrimination” as follows:
[W]ith 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
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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.
42 U.S.C. §12183(a)(2). Failure to design and construct a facility in compliance with
this “new construction” standard constitutes intentional discrimination. See Access
Now, Inc. v. South Florida Stadium Corp., 161 F. Supp.2d 1357, 1362 (S.D. Fla.
2001); Association For Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.
Supp.2d 1353, 1362 n. 5 (S.D. Fla. 2001).
II.

THE ADA ACCESSIBILITY GUIDELINES
The ADA Accessibility Guidelines (“ADAAGs”) are construction and design

guidelines that offer a safe harbor for new construction (and post-ADA alterations),
such that if a place of public accommodation is constructed (or altered) in
compliance with the ADAAGs, it is in compliance with the ADA. See Rodriguez v.
Investco, LLC, 305 F. Supp. 2d 1278, 1282 n. 15 (M.D. Fla. 2004).
With respect to existing (pre-ADA) structures, plaintiffs may offer evidence of
ADAAG violations, but "the Court cannot determine the Defendants’ liability from
finding that elements of the [Defendant's facility] deviate from those standards."
Brother v. CPL investments, Inc., 317 F. Supp. 2d 1358, 1368 (S.D. Fla. 2004).
Allowing the ADA plaintiff to use the ADAAGs as evidence does not modify the ADA
standard applicable to existing facilities: "In order to establish that the defendant has

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violated the ADA, the Plaintiffs still must proffer evidence that removal of a given
barrier is readily achievable." Id. at 1370.
III.

THE FLORIDA BUILDING ACCESSIBILITY CODES
The ADA authorizes the Department of Justice (“DOJ”), upon application by

a State, to certify that a State law that establishes accessibility requirements meets
or exceeds the minimum requirements of Title III of the ADA for new construction
and post-ADA alterations. 42 U.S.C. § 12188(b)(I)(A)(ii); 28 CFR § 36.601 et seq.
Certification constitutes rebuttable evidence, in an ADA enforcement action, that a
building constructed or altered in accordance with the certified code complies with
the new construction and alterations requirements of Title III of the ADA.2 The State
of Florida has its building and accessibility codes so certified by the DOJ. See (Def.
Ex. 5, DOJ Notice of Certification, 63 Fed. Reg. 31 ,523-01 (June 9, 1998)).
Here, it is undisputed that at each stage of improvements (or alterations)
undertaken by the Seahorse since its acquisition by its current owners in 1997, all
changes or additions were certified as compliant with the applicable Florida codes.
(Tr. 91-92).

2

According to the Sixth Circuit: “Certification serves as ‘rebuttable evidence’
that a state law or local ordinance meets or exceeds the minimum requirements of
the ADA in a later federal enforcement proceeding, see 42 U.S.C. §
12188(b)(I)(A)(ii), and compliance with a certified code is ‘rebuttable evidence’ of
compliance with Title III of the ADA.” United States v. Cinemark, Inc., 348 F.3d 569,
574 (6th Cir. 2003).
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IV.

THE BURDEN OF PROOF
In Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir.

2006), the Eleventh Circuit adopted the burden-shifting approach fashioned by the
Tenth Circuit in Colorado Cross Disability Coalition v. Hermanson Family Limited
Partnership I, 264 F.3d 999 (10th Cir. 2001). With respect to an “existing facilities”
ADA case,
the plaintiff has the initial burden of production to show (1)
that an architectural barrier exists; and (2) that the
proposed method of architectural barrier removal is
"readily achievable," i.e., "easily accomplishable and able
to be carried out without much difficulty or expense" under
the particular circumstances of the case. If the plaintiff
meets this burden, the defendant then bears the ultimate
burden of persuasion that barrier removal is not "readily
achievable.”
Gathright-Dietrich, 452 F.3d at 1273 (citations omitted). The Eleventh Circuit further
held that,
a plaintiff must present sufficient evidence so that a
defendant can evaluate the proposed solution to a barrier,
the difficulty of accomplishing it, the cost of
implementation, and the economic operation of the facility.
Without evidence on these issues, a defendant cannot
determine if it can meet its subsequent burden of
persuasion.
Id. at 1274.3

3

Plaintiff relies upon the Second Circuit decision in Roberts v. Royal Atlantic
Corp., 542 F.3d 363 (2nd Cir. 2008), which imposes a lower initial burden upon an
ADA plaintiff before shifting the burden to the defense. However, this Court must
(continued...)
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V.

THE ALLEGED BARRIERS
At trial, Mr. Norkunas challenged several barriers as continuing ADA

violations. He relied upon the report and expert testimony of Pablo Baez.4 In
rebuttal, the Seahorse offered the report and expert testimony of John M. Barley, II,
FAIA.5 The Court will address each of the continuing violations alleged by Mr.
Norkunas at trial.
A.

The Walkway to the Beach

The Seahorse has an inaccessible wooden walkway that crosses over the
dunes and leads to the beach.6 See (P. Ex. 26, 27). The walkway is a post-ADA
"alteration"; therefore, the new construction standard applies. Under this standard,

3

(...continued)

apply the standard adopted by the Eleventh Circuit in Gathright-Dietrich, 452 F.3d
1269. Although Gathright-Dietrich was decided in the context of a summary
judgment motion, the case upon which it relies was a bench trial. See Colorado
Cross, 264 F.3d at 999. Another Court in this district has applied Gathright-Dietrich
in a trial setting. See Pinero v. 4800 West Flagler, L.L.C., 2011 WL 346082, at *3
(S.D. Fla. Jan. 11, 2011).
4

Mr. Baez has taken several classes in the field of ADA compliance and has
served as an accessibility inspector since 2005. He is the current president of the
ADA Compliance Consultants of the Carolinas, LLC. See (P. Ex. 38).
5

Mr. Barley is a licensed architect in the State of Florida and has more than 40
years of architectural experience. He has extensive experience in ADA compliance
and is a member of the College of Fellows of the American Institute of Architects
(“AIA”). He has served as President of AlA Florida, as a member of the AlA Board
of Directors and has chaired numerous chapter, state, and national AlA committees.
See (Def. Ex. 2).
6

The Seahorse acknowledges that it is not an accessible route (Tr. 167).
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the Court must determine whether, to the maximum extent feasible, the altered
portions of the facility are readily accessible to and usable by individuals with
disabilities. See 42 U.S.C. § 12183(a)(2).
Both parties are in agreement that there is no specific provision in either the
ADAAGs or in the Florida Accessibility Code that requires beach walkways to be
accessible (Tr. 145, 150). Nor were either of the experts aware of any case in which
an accessible beach walkway had been required under the ADA (Tr. 169-70).7
Under the general scoping (i.e., number and location) requirements for accessible
routes, there likewise is no requirement that this particular beach walkway be made
accessible. See Florida Accessibility Code 11-4.3. According to Mr. Barley, under
the ADAAGs, "[the Seahorse is] not required to have an accessible route to every
boundary of the property." (Tr. 160). And, as Mr. Baez conceded, if the scoping
requirements "were met, then that's all they had to do, in terms of the number and
location of accessible routes." (Tr. 149). Here, the number of accessible routes has
not been challenged.
Additionally, the wooden beach walkway lies, in part, over state property which
is within the regulated coastal construction zone (Tr. 94). The walkway was

7

Other courts have determined in similar circumstances that the ADA does not
require beach access. See Association/or Disabled Americans, Inc. v. Key Largo
Bay Beach, LLC, 407 F. Supp. 2d 1321, 1357-58 (S.D. Fla. 2005); Thompson v.
Sand Cliffs Owners Association, Inc., 1998 WL 35177067, at *8 n. 7 (N.D. Fla.
March 30,1998).
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permitted by the Florida Department of Environmental Protection (“DEP”) in 1998
and remains subject to that permit. See (Def. Ex. 44; Tr. 94).
Mr. Norkunas initially argued that on the landward side of the walkover the
stairs should be replaced by a ramp system, but that stairs could be retained on the
beach side of the walkway (the side which lies over state property). See (P. Ex. 38).
However, at trial, Mr. Baez claimed that the ADA required that the walkway be fully
ramped, on both sides, all the way to the beach (Tr. 137-38). Nevertheless, he did
not have any opinion as to how high such a ramp could be built above the dunes and
still comply with environmental regulations (Tr. 135). He likewise does not have any
knowledge or expertise in any of the areas of environmental permitting, structural or
mechanical engineering that would support his proposal (Tr. 141).8
In the absence of any regulation requiring an accessible beach walkway, and
in the absence of any general scoping requirement for accessible routes that would
mandate an accessible beach walkway in this particular setting, there is no legal
basis for this Court to hold that the walkway must be made accessible.9 Moreover,

8

In support of his argument that ramps could have been included on both sides
of the walkover, Mr. Baez relied on photographs of other dune walkovers in the area.
Some of the walkovers had stairs, some had ramps. Mr. Baez admitted that the
walkways shown in these photographs were not compliant with the ADA (Tr. 15152).
9

At trial, there was testimony regarding accessibility guidelines for walkovers
in federal lands such as national seashores (Tr. 156). It was said that, where those
guidelines are applicable, an accessible walkway is recommended or required every
(continued...)
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Mr. Norkunas has not established the feasibility of constructing an accessible beach
walkover. Accordingly, Mr. Norkunas has failed to prove an ADA violation with
respect to the walkway to the beach.10
B.

The Accessible Parking Space Adjacent to the Registration Office

At issue is the accessible parking space located outside Room 106 and
adjacent to the registration office. See (P. Ex. 1, 15). This parking space was
created in response to Mr. Norkunas' recommendation made in his deposition (Tr.
54-57; Def. Ex. 55, p.17). The creation (or relocation) of this space was an instance
of barrier removal; therefore, the applicable standard is the "readily achievable"
standard for existing facilities.
Mr. Baez testified that even after remediation he found an excessive slope at
the northern end of the parking space (Tr. 180-83, 206). He opined that the
excessive slope could be eliminated by repaving the space. However, Seahorse
owner David W. Cole, Jr. testified that the parking space is on a slope, as the ground
level of the Seahorse lies higher than the adjacent Atlantic Boulevard, and the space

9

(...continued)

half-mile (Tr. 158). However, on this record, the Court is not prepared to find any
such requirement governing all oceanfront places of public accommodation.
10

There is accessible public beach access (with available beach wheelchairs)
immediately adjacent to the Seahorse’s north border. Additionally, there is another
accessible beach access point adjacent to the Seahorse on the south side of the
motel that can be reached via the accessible route through the Seahorse’s Lemon
Bar. (Tr. 162-63).
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was made as level as possible during the regrading and repaving process (Tr. 9495). According to Mr. Barley, "[t]he existing site topography is such that there is no
practical way that this can be accomplished to be ‘... in full and strict compliance with
the minimum requirements ...’ Aside from a minor slope across the parking space,
all other required features have been incorporated." (Def. Ex. 2, p. 4). Mr. Barley
also testified that the space currently meets the new construction standard (a higher
standard than “readily achievable”) (Tr. 204).11
Mr. Norkunas failed to provide any evidence as to what would be necessary
to eliminate any remaining slope at the northern end of this parking space or how the
flattening of this space could be accomplished without creating a steeper condition
and potential hazards in other parts of the parking area.12 (Tr. 171). Therefore, the
Court finds that Plaintiff has not proven a continuing ADA violation. Put another way,
to the extent readily achievable, any existing barrier created by the lack of an
accessible parking space in this area has now been removed.

11

Mr. Baez inspected the Seahorse on February 23, 2010, nearly a year before
the trial, and did not return to inspect the premises post-remediation (Tr. 108).
12

A public accommodation is not required to make a modification or alteration,
where allowing a disabled individual "to participate in or benefit from goods,
services, facilities, privileges, advantages, or accommodations ... [would] pose a
direct threat to the health or safety of others." 42 U.S.C. § 12182(b)(3).
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C.

The Accessible Parking Spaces Across the Street

The Seahorse has two accessible parking spaces located across the street
from the motel. Mr. Norkunas claims that these two parking spaces are not the
shortest route to the Seahorse’s accessible entrances and that they require the
crossing of a road; thus, they are noncompliant. (Tr. 182-84).
The Seahorse is required to have a minimum of two accessible parking
spaces.13 The Seahorse already maintains these two spaces on the property (one
space in front of each of the Seahorse’s accessible rooms). According to Mr. Cole,
the two additional spaces located across the street serve not only the motel, but
other commercial areas (Tr. 276-77). Mr. Barley testified that, "[t]here is nothing
improper about having handicapped parking spaces available for use across the
street from the hotel. In fact the two spaces across the street would not be required
to satisfy the onsite parking requirements ... [T]hey [also] comply with all ADA
requirements for size, striping and signage." (Def. Ex. 2, p. 5). The Court agrees
and finds no violation with respect to these additional parking spaces.
D.

Curb Ramp by the Registration Office

The Seahorse has an access aisle which runs from the accessible parking
space located outside of Room 106 to the sidewalk leading to the registration office
entrance. See (P. Ex. 16). Mr. Baez contends the curb ramp leading from the
13

Mr. Norkunas has never challenged the required total number of available
accessible spaces. (Tr. 202).
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access aisle was one-half inch rather than one-quarter inch.

(Tr. 210-11). He

testified that if this "bumpy area" was smoothed out, there would not be a violation.
(Tr. 213). Mr. Cole’s unrebutted testimony was that this has now been done (Tr.
277). Accordingly, the Court finds there is no continuing ADA violation.
E.

Stairway Handrails

At issue is the interior stairway to the second floor located in the original
section of the Seahorse. See (P. Ex. 17). Mr. Baez testified that 12-inch extensions
are required on the stairway handrails. (Tr. 214). As the original section of the motel
was built in the 1950's, the applicable standard is the "readily achievable" standard
for existing structures.
Mr. Norkunas has failed to present any evidence as to how this remediation
would be readily achievable. Indeed, Mr. Norkunas does not even offer an estimate
of the total number of linear feet or total cost implicated by this remediation.
Additionally, Mr. Barley testified that, “if we do those extensions at the second level,
we are going to have them project into the width of the aisles that are the required
Life Safety aisles. And you simply cannot do that.” (Tr. 219). Mr. Norkunas has
failed to establish the prima facie case required by Eleventh Circuit in
Gathright-Dietrich.14

14

Mr. Norkunas was asked about any exterior barriers which required removal.
In his deposition, Mr. Norkunas did not mention modification of the handrails on the
stairway and advised the Seahorse that removal of the ice machine to the first floor
(continued...)
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F.

Latch-Side Clearance on Gates

At issue is insufficient latch-side clearance on the gates in the pool area. See
(P. Ex. 23, 24). Mr. Baez testified that additional clearance would be required on at
least one of the pool gates. (Tr. 226-27). He acknowledged that, if such clearance
space was added after his inspection, this issue would be eliminated. (Tr. 228). Mr.
Cole's testimony that the required clearance has been added (Tr. 277-78) was
unrebutted. Accordingly, the Court finds there is no continuing ADA violation with
respect to the latch side clearance on the gates.
G.

Keys

At issue is the Seahorse’s use of oversized keys as a way of assisting its
disabled guests. See (P. Ex. 10). Mr. Baez testified that, according to the ADAAGs,
operating mechanisms should not require tight grasping and twisting to operate. (Tr.
230-31).

However, Section 4.13 of the ADAAG manual provides that "keys,

magnetic cards, and other devices not permanently fixed are not technically covered
by ADAAG." (Tr. 233). The general ADAAG provisions upon which Mr. Baez
attempted to rely govern the fixed door hardware and are therefore inapplicable to
keys. Accordingly, the Court finds Mr. Norkunas has failed to establish an ADA
violation with respect to the Seahorse’s use of oversized keys.

14

(...continued)

would satisfy his requirements for barrier removal. (Def. Ex. 55, p. 41; Tr. 57-58).
The Seahorse has since moved the ice machine to the first floor.
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H.

Outdoor Shower Pull

The shower pull is used to operate the outdoor shower. See (P. Ex. 6).
Although Mr. Baez initially claimed that the Seahorse's implementation of a ring to
operate the pull was inadequate due to the lack of a separate, written policy
requiring inspection on the ring for rust (Tr. 234-35), he later withdrew that claim and
conceded that the outdoor shower pull is now compliant (Tr. 240). Accordingly, the
Court finds there is no ADA violation.
I.

Lemon Bar Restrooms

In his report, Mr. Baez cited numerous areas of noncompliance with respect
to the Lemon Bar restrooms. See (Pl. Ex. 38). However, Mr. Cole testified that,
following receipt of Mr. Baez’s report, the Seahorse made the requested
modifications - which Mr. Barley later inspected and found to be compliant.15 (Tr.
89-90, 93; Def. Ex. 2, p. 8).
At trial, Mr. Baez attempted to challenge these remediations with opinions that
were not previously disclosed and were not based on any actual inspection,
evaluation, or measurement. Instead, Mr. Baez attempted to count tiles on the wall

15

The following items were addressed in Mr. Baez's report and remedied:
Toilet stall doors and hinges; lavatories' vertical clearance underneath counter,
provide proper knee clearance and countertop, pipes installed correctly with foam
insulation; and toilet paper dispensers and grab bar locations. Mr. Cole testified that
these items were remedied following Mr. Baez's inspection and report (Tr. 89-90,
282-83); Mr. Barley's report states that he inspected the restrooms post-remediation
and found them to be compliant (Def. Ex. 2, p. 8).
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in photographs to demonstrate that distances were still non-compliant. See (P. Ex.
2, 34; Tr. 249-51). The Court finds this is not reliable evidence and that Mr.
Norkunas has failed to prove an existing barrier.
J.

Threshold to Accessible Room 118

At issue is the width of the threshold to Accessible Room 118. See (P. Ex. 9;
Tr. 262-67). Again, this criticism was not disclosed in Mr. Baez's report and is not
based on any actual measurements. (P. Ex. 38; Tr. 266-67). Rather, Mr. Baez’s
attempts to opine by looking at a photograph of the threshold. (Tr. 267). This
evidence is not reliable.16
K.

Route near Southwest Corner of the Seahorse

At issue is the inaccessible sidewalk in the southwest corner of the Seahorse.
See (P. Ex. 3, 4, 5). The Seahorse concedes that this is not an accessible route and
claims it was not intended to be. (Tr. 271-72). Mr. Norkunas offered no evidence
or standard that would mandate that this pre-existing narrow sidewalk around the
corner of the property must be an accessible route.

Nor has Mr. Norkunas

demonstrated how the remediation would be “readily achievable.” Therefore, the
Court finds Mr. Norkunas has failed to establish an ADA violation with respect to this
sidewalk.

16

The Court previously held that Mr. Norkunas does not have standing to
challenge any alleged barriers in the guest rooms (Doc. 28). See Norkunas v.
Seahorse NB, LLC, 720 F. Supp. 2d at 1321.
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VI.

ATTORNEYS’ FEES AND COSTS
Although certain areas of the Seahorse were in violation of the ADA at the

time the complaint was filed, the Court finds there are no proven continuing
violations. Under Title lII of the ADA plaintiffs "cannot ... recover their attorney's fees
for serving as a 'catalyst,' i.e., that they caused [defendant] to implement the
changes they sought." American Ass'n of People with Disabilities v. Harris, 605 F.3d
1124, 1137 n. 26 (11th Cir. 2010) (citing Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep't of Health & Human Res., 532 U.S. 598, 610, 121 S. Ct. 1835, 1843, 149
L. Ed. 2d 855 (2001)). As there are no continuing ADA violations, Mr. Norkunas’
claim for attorneys’ fees and costs must therefore also be denied.
VII.

CONCLUSION
As this case began, the Seahorse was non-compliant with the ADA in several

respects. Rather than give notice to the Seahorse of these deficiencies, Mr.
Norkunas, an experienced ADA plaintiff, sued. In response, the Seahorse began to
remedy the deficiencies noted by Mr. Norkunas (and later by his expert). This began
a process by which over the course of the litigation, Mr. Norkunas would identify a
defect and the Seahorse would hurry to fix it. This back and forth continued up until
the time of trial. Then, at trial, having substantially achieved their goal of ADA
compliance, Mr. Norkunas and his expert were largely left to argue previously
undisclosed deficiencies and that the remediations were themselves insufficient.

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Presumably, this “cat and mouse” game is due to the nature of the ADA (which
provides only prospective injunctive relief for continuing violations) and the rejection
of the “catalyst” theory of attorneys’ fees recovery, but there must be a better way
to achieve ADA compliance.
Mr. Norkunas has failed to establish a continuing case of discrimination under
Title III of the ADA. Therefore, judgment shall be entered in favor of the Seahorse
and against Mr. Norkunas.
DONE AND ORDERED in Chambers in Jacksonville, Florida this 23rd day of
May, 2011.

Copies to:
Counsel of Record

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