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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 23, 2006
THOMAS K. KAHN
No. 05-14229
CLERK
D. C. Docket No. 02-01978 CV-WSD-1
MARGO GATHRIGHT-DIETRICH,
BONNIE BONHAM,
Plaintiffs-Appellants,
versus
ATLANTA LANDMARKS, INC.,
a.k.a. Fox Theatre,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
(June 23, 2006)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
DUBINA, Circuit Judge:
Appellants, Margo Gathright-Dietrich and Bonnie Bonham, appeal the
district court’s order granting summary judgment to appellee, Atlanta Landmarks,
Inc., on their claim pursuant to Title III of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12182, et seq. For the reasons that follow, we affirm.
I. BACKGROUND
The venue at issue in this appeal is The Fox Theatre (“The Fox”) in Atlanta,
Georgia, which was designed in the late 1920’s. The Fox serves the Atlanta area
as an unique and opulent entertainment center. The Fox is owned and operated by
Atlanta Landmarks, Inc., a non-profit organization that led a successful
community-wide effort to “Save The Fox” in the 1970’s. The Fox contains
significant historic features ranging from its seating configuration, to its simulated
night-sky ceiling, to its faux painting techniques, to its original DC current-run
elevators with AC converters. Because of these unique features, in 1974, the
National Register of Historic Places added The Fox to its list. In 1976, the United
States Department of the Interior designated The Fox a National Historic
Landmark. Additionally, in 1991, due to its architectural and historical
significance, The Fox became one of only nine buildings in the State of Georgia to
be designated a Landmark Museum Building by the State Historic Preservation
Officer of the Georgia Department of Natural Resources.
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Prior to the passage of the ADA, The Fox installed removable theater seats
to accommodate individuals in wheelchairs and created wheelchair-accessible
restrooms. From the mid-1980’s and throughout the 1990’s, The Fox continued its
efforts to make the theater more disabled-accessible, including (1) the installation
of an elevator to give disabled patrons access to the theater’s ballrooms; (2) the
installation of a wheelchair-accessible box office; (3) the installation of a
wheelchair-accessible telephone; (4) the addition of four new wheelchair-
accessible restrooms; (5) the addition of a wheelchair-accessible concession area
on the mezzanine level of the theater; and (6) the installation of a ramp to give
performers, patrons, and visitors in wheelchairs access to the stage.
In 1996, The Fox implemented its “Ambassador Program” through which it
trains a select group of volunteer ushers in how best to accommodate and assist
The Fox’s disabled patrons. As a result of these efforts, The Fox’s current
amenities and policies include between 19 and 25 wheelchair-accessible seating
positions with companion seats located throughout the orchestra level; nine aisle
seats with removable armrests at various locations on the orchestra level; a ticket-
pricing policy that includes the option of paying the lowest ticket price for every
show if you are a disabled patron; seven wheelchair-accessible restrooms;
wheelchair-accessible concession areas; wheelchair-accessible drinking fountains;
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a wheelchair ramp to enable patrons who use wheelchairs to utilize the south exit
of the theater; and many more “disabled-friendly” policies.
Appellants, undisputed patrons of the arts, have attended numerous events
at The Fox. They filed suit under Title III of the ADA alleging that they and other
wheelchair patrons are denied access to events at The Fox comparable to the
access given to non-wheelchair patrons. Specifically, the appellants asserted that
certain areas designated for wheelchair patrons are physically inaccessible to
them; that the quality of their access is inferior; and that barriers exist in
connection with ticket pricing and sales at The Fox. Following discovery, The
Fox filed a motion for summary judgment, contending that the ADA did not
mandate removal of any alleged architectural barriers. The district court granted
The Fox’s motion, finding that although the appellants proved that there were
seating barriers, they failed to meet their burden of production to demonstrate that
removal of those barriers was “readily achievable.” In so ruling, the district court
adopted the approach followed by the Tenth Circuit in Colorado Cross Disability
Coalition v. Hermanson Family Limited Partnership I, 264 F.3d 999 (10th Cir.
2001), the only appellate decision addressing the issue. The district court also
found that the changes that The Fox had already made to accommodate wheelchair
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patrons at the theater were sufficient to satisfy the ADA. Appellants filed a timely
appeal.
II. ISSUE
Whether the district court erred in granting summary judgment to The Fox
because it determined that appellants could not meet their burden of production on
the issue of whether their proposed modifications relating to wheelchair seating at
The Fox were “readily achievable” under Title III of the ADA.
III. STANDARD OF REVIEW
This court reviews the district court’s order granting summary judgment de
novo, viewing the evidence in the light most favorable to the non-moving party.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004).
IV. DISCUSSION
A. Title III of the ADA
The ADA is comprehensive legislation that addresses discrimination against
disabled individuals. The ADA has three sections: Title I regulates discrimination
in the workplace; Title II prohibits discrimination by public entities; and Title III
prohibits discrimination by private entities in places of public accommodation.
Title III applies to the present case and provides:
No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities,
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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). Congress enacted the ADA on January 25, 1993. After this
date, facilities have to meet exacting design and implementation standards to be in
compliance with the ADA. The ADA imposes different requirements on the
owners and operators of facilities that existed prior to its enactment date. For
those facilities, the ADA states that discrimination includes a private entity’s
“failure to remove architectural barriers . . . where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Where removal is not “readily
achievable,” failure of the entity to make goods, services and facilities “available
through alternative methods if such methods are readily achievable,” may
constitute discrimination under the ADA. 42 U.S.C. § 12182(b)(2)(A)(v).
The ADA defines “readily achievable” as “easily accomplishable and able
to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).
Congress included in the ADA factors to be considered in evaluating whether
removal of a barrier is “readily achievable.” These factors are (1) nature and cost
of the action; (2) overall financial resources of the facility or facilities involved;
(3) number of persons employed at such facility; (4) effect on expenses and
resources; (5) impact of such action upon the operation of the facility; (6) overall
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financial resources of the covered entity; (7) overall size of the business of a
covered entity; (8) the number, type, and location of its facilities; (9) type of
operation or operations of the covered entity, including composition, structure,
and functions of the workforce of such entity; and (10) geographic separateness,
administrative or fiscal relationship of the facility or facilities in question to the
covered entity. Id.
“The Department of Justice [] has interpreted the ADA’s barrier removal
and alteration requirements in accordance with the Congressional desire to take
into account the national interest in preserving significant historical buildings.”
Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 628-29 (D. Md. 2002). Thus,
in the context of an historic building, “barrier removal would not be considered
‘readily achievable’ if it would threaten or destroy the historic significance of [the]
building.” Id. at 629 (quoting ADA Title III DOJ Technical Assistance Manual §
III-4.4200). The alterations to the historic building need only comply with the
accessibility standards “to the maximum extent feasible.” 28 C.F.R. § 36.405(a).
The ADA’s implementing regulations provide specific procedures for determining
feasibility, and the regulations state that “[i]f it is determined . . . that it is not
feasible to provide physical access to an historic property . . . in a manner that will
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not threaten or destroy the historic significance of the building or facility,
alternative methods of access shall be provided. . . .” 28 C.F.R. § 36.405(b).
B. Application of Standard
Appellants argue on appeal that the district court erred in applying the
burden of proof established in Colorado Cross. Under this approach, 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. Colorado
Cross, 264 F.3d at 1007. If the plaintiff meets this burden, the defendant then
bears the ultimate burden of persuasion that barrier removal is not “readily
achievable.” Id. at 1002-03; see also White v. Cinemark USA, Inc., 2005 WL
1865495 at *6 (E.D. Cal. 2005); Access Now, Inc. v. So. Fla. Stadium Corp., 161
F. Supp. 2d 1357, 1363 (S.D. Fla. 2001); Ass’n for Disabled Ams., Inc. v. Claypool
Holdings LLC, 2001 WL 1112109 at *26 (S.D. Ind. 2001); Pascuiti v. New York
Yankees, 1999 WL 1102748 at *4 (S.D.N.Y. 1999).
Appellants do not object to the general burden-shifting framework
articulated by these cases, but instead, object to the amount and specificity of
evidence required to meet their burden of showing that barrier removal was
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“readily achievable.” Appellants contend that in order to meet their burden of
production on this issue, the district court held that they must present evidence of
“(1) a specific design to remove the barriers alleged; (2) the cost of removal or of
the proposed remedy; and (3) the effect on the finances and operation of the
facility.” [R. Vol. 7, Doc. 107, p. 21]. Because of the expense involved in
drafting what amounts to a “pre-approved construction contract for a sum certain
which includes detailed plans, impact statements, engineering studies, and
permits,” the appellants argue that this standard guarantees that “virtually no
plaintiff could afford to bring an architectural barrier removal claim. . . .”
Colorado Cross, 264 F.3d at 1011 (Lucero, J., dissenting). We disagree.
The district court did not err in following the burden of proof enunciated in
Colorado Cross, and we adopt that burden shifting framework for the reasons
articulated by the Colorado Cross court. Moreover, the district court did not
impose too heavy a burden on appellants to show that barrier removal was “readily
achievable.” The appellants did not satisfy their burden of production to show
that a vast majority of the alleged conditions they cited, ranging from ticket
pricing and sales policies, to restrooms and concession areas, constituted barriers
to access for wheelchair patrons under the ADA. As for the alleged seat-number
barrier, the appellants could not meet their burden of showing that the barrier
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removal was “readily achievable.” Under the standard enunciated in Colorado
Cross, 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
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.
In this case, appellants submitted three proposed options relating to
wheelchair seating, but they failed to produce any reliable evidence that those
proposals were “readily achievable.” Appellants’ seating proposals involved the
addition of at least 27 wheelchair seating positions, as well as modification of the
existing wheelchair locations. Appellants’ expert proposed three options: (1) The
Fox could provide additional seating in existing level areas; (2) The Fox could
remove rows of existing seats and modify the floor slab to create new inset
sections on the orchestra level; and (3) The Fox could add raised platforms at
various locations throughout the theater. However, these proposals were non-
specific, conceptual proposals that did not provide any detailed cost analysis.
Appellants did not provide any evidence of the number of seats lost, the number of
wheelchair and companion seats gained, where they could be located, what it
would cost to implement them, or what effect they could have economically or
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operationally on the theater. Appellants also failed to provide expert testimony to
assure the feasibility of their proposed seating modifications and did not, in any
meaningful way, address the engineering and structural concerns associated with
their proposals or the effect that those proposals would have on the historic
features of the theater.
Additionally, appellants failed to show that their proposed modifications
were inexpensive. Not only did appellants fail to produce a financial expert to link
the estimated costs of their proposals with The Fox’s ability to pay for them, they
failed to take even the rudimentary steps of formulating what those estimated costs
might be or providing any evidence of The Fox’s financial position and ability to
pay those costs. The only “evidence” presented by the appellants of the costs
associated with their proposed modifications consists of testimony by an ADA
expert who summarily opined that some of the proposed modifications would be
“low-cost” or “inexpensive,” while others would be “more expensive,” and that
some modifications would cost similarly to previous modifications. Accordingly,
we conclude that the district court did not err in finding that the appellants could
not meet their burden of production for barrier removal.
Assuming arguendo that the evidence proffered by appellants did satisfy
their burden of production for barrier removal, we conclude that the district court’s
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grant of summary judgment would still be appropriate because The Fox rebutted
any showing by establishing that removal of the alleged barriers could not be
accomplished without much difficulty or expense. The Fox presented undisputed
evidence that lowering a portion of the floor, as appellants proposed, would
directly affect the historic nature of the theater; the actual seating configuration in
the theater is a character-defining feature of The Fox, and the permanent removal
of seats would require the approval of the State Historic Preservation Officer; the
floor that would be affected by appellants’ proposals is historically significant; the
implementation of certain of appellants’ proposals would involve closing the
theater for a period of time; the appellants’ proposals would result in the
elimination of seats belonging to season ticket holders; and a decrease in the
number of regular theater seats would directly impact The Fox’s ability to compete
with other venues, possibly resulting in lost revenue. Therefore, The Fox satisfied
its burden of persuasion, proving that barrier removal was not “readily
achievable.”
V. CONCLUSION
Because we conclude that the district court properly applied the burden-
shifting standard enunciated in Colorado Cross to the particular facts of this case,
we affirm the district court’s order granting summary judgment to The Fox.
AFFIRMED.
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