Davis et al v. Jacob S. Ciborowski Family Trust et al

Filing 113

ORDER denying 105 Motion for Summary Judgment; granting 106 Motion for Partial Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Dean Davis, et al.
v.

Case No. 11-cv-436-PB
Opinion No. 2013 DNH 055

John S. Ciborowski Family Trust,
et al.

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 . . .
. ”

42 U.S.C. § 1283(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.
27, 2010.

The city issued a construction permit on July

Doc. No. 105-3.

On November 13, 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. No. 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., 463 F.3d 50, 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.”
56(a).

Fed. R. Civ. P.

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., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

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.,

960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 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 it; if
that party cannot produce such evidence, the motion must be
granted.”

Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86,

94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.

On cross

motions for summary judgment, the standard of review is applied
to each motion separately.

See Am. Home Assur. Co. v. AGM

Marine Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006).

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III.
A.

ANALYSIS

Title III
Title III of the ADA prohibits discrimination on the basis

of disability in commercial facilities and places of public
accommodation.

42 U.S.C. § 12183(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, 56 Fed. Reg.
35544-01, 35574 (July 25, 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.

Id.

Even so, 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
. . . . ”

42 U.S.C. § 12183(a)(2).

If an alteration is covered

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

In certain circumstances not present here, an owner must take
affirmative steps to remove architectural barriers to an
existing facility. See 42 U.S.C. § 12182(b)(2)(A)(iv).
3

5

extent feasible, the altered portions of the facility are
readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.”

Id.

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.”

28 C.F.R. § 36.402(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.

Id.

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.”

Id.

The DOJ has also issued a technical assistance manual that
provides several examples of alterations that are subject to the
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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.
a.

I address each argument in turn.

Alterations That Affect Usability

Defendants’ first argument is based on the premise that
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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 III, 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

if, 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
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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.,
1998 WL 35177067 (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, 701
F.3d 5, 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 law); see also Bragdon v Abbott,
524 U.S. 624, 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.
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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.

28 C.F.R. § 36.40(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 III, 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 III, 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 . . . .”
§ 12183(a)(2).

42 U.S.C.

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.

Id.

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.
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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 III, 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,
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“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. No. 105) is
denied, and the plaintiff’s motion for partial summary judgment
(Doc. No. 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.

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