Daily Development for Monday, February 28, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu
DISABILITIES; RENOVATIONS; ELEVATOR REQUIREMENT: Under the plain language interpretation of the ADA, the presence of a "mezzanine" in form of a second level in a night club with an opening in its center constituting 45% of the total area does not establish a three story structure triggering elevator requirements.
Laird v. Redwood Trust LLC; 200 East Redwood Street LLC, 392 F. 3d 661 (4th Cir. 2004).
Laird, who suffers from spina bifida and was in a wheelchair, went to a night club owned by Redwood. Laird was not able to access the basement nor the second floor of the night club because it had no elevators. Laird brought an action in federal court against Redwood in the claiming that Redwood violated the American with Disabilities Act ("ADA") by failing to install elevators in its night club. The District Court granted Redwood’s motion for summary judgment, holding that it did not violate the ADA's elevator requirement because the night club had fewer than three stories. Laird appealed the District Court's decision to the United States Court of Appeals, Fourth Circuit.
Redwood purchased the subject property in 2001 and renovated it as a sushi bar and night club. The renovated building has three levels: a basement and a first and second floor. The second floor has a large opening in its center, approximately 45% of the width of the building. On either side of the opening are a lounge area, a disc jockey booth, a bar, and the owner's office.
The ADA requires that when a place of public accommodation makes renovations, the renovated facility must be accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(2). However, the ADA provides that the foregoing requirement shall not be construed to require the installation of an elevator in a facility that is less than three stories or has less than 3,000 square feet (with certain exceptions that do not apply in this case). 42 U.S.C. § 12183(b).
The issue presented to the court was whether the night club qualified as less than three "stories" under the ADA. The ADA itself does not define "story" so the court looked to the Attorney General's ADA Accessibility Guidelines for Buildings and Facilities ("Guidelines"), which defines "story" as follows:
That portion of a building included between the upper surface of a floor and upper surface of the floor or roof next above. If such a portion of a building does not include occupiable space, it is not considered a story for purposes of these guidelines. There may be more than one floor level within a story as in the case of a mezzanine or mezzanines.28 C.F.R. pt. 36, app. A § 3.5 (2002).
The term "mezzanine" is defined under the Guidelines as follows:
That portion of a story which is an intermediate floor level placed within the story and having occupiable space above and below its floor. 28 C.F.R. pt. 36, app. A § 3.5.
The court took a plain meaning approach to interpreting the definition of mezzanine and concluded that a mezzanine must be an area that is less than a story and must exist in the "middle place" or "between extremes." It reasoned that a "floor," as used in the definition of "mezzanine," is a physical separation of space, which contains an "upper surface." Applying these definitions, the court concluded that the second floor of the night club was a "mezzanine" because 1.) the second level was less than a story by itself as it had occupiable space around the opening, 2.) it was an intermediate floor level because it was located between the first floor and the roof, and 3.) it had occupiable space above and below its floor because there was occupiable space both on the first level below and the second level above.
The court dismissed Laird's second claim that elevators were required under the Guidelines applicable to restaurants. The ADA requires that in all new construction, dining areas be accessible, however, it provides that accessibility is not required if the same services and décor are provided in an accessible space available to the general public. 28 C.F.R. pt. 36, app. A § 5.4. The court concluded that the renovations of the night club did not constitute new construction and that there was no difference in the services or décor of the first and second floor dining areas.
The dissent argued that, in its interpretation of what constituted a "mezzanine," the majority created a "loophole that could swallow the rule." The dissent criticized the majority for failing to place a spatial limitation on its definition of a mezzanine, arguing that under the majority's analysis, any open space on a floor level would convert the floor into a mezzanine. To emphasize its point, the dissent argued that under the majority's analysis, "the opening surrounding a fireman's pole would give the second floor of a fire station less total floor space than the story below, thus converting it into a mezzanine." The dissent advocated using an objective definition of mezzanine established by the International Building Code, which defines a mezzanine as an intermediate level with an aggregate floor area of not more than one-third of the area of the room in which the level is located. IBC, 2003 ed. § 502.
Judge Shedd wrote a concurring opinion in response to the dissent, arguing that an objective definition of mezzanine, almost identical to that proposed by the dissent, appears in a portion of another portion the Guidelines relating to new construction. Thus, argued Judge Shedd, the Department of Justice "obviously knew how to create a bright-lie spatial test for determining issues of access but chose not to do so in the definition of 'mezzanine.'" It was clear that the Department rejected that approach for renovations.
The Reporter for this item was Mort Fisher of the Ballard Spahr firm in Baltimore.
Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters. The same is true of all
commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 15 messages per work day.
Daily Developments are posted every work day. To
subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message
signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message
Help to the listserv address.
DIRT has an alternate, more extensive coverage that
includes not only
commercial and general real estate matters but also focuses
specifically upon
residential real estate matters. Because real estate brokers
generally find
this service more valuable, it is named “BrokerDIRT.” But
residential
specialist attorneys, title insurers, lenders and others
interested in the
residential market will want to subscribe to this alternative
list. If you
subscribe to BrokerDIRT, it is not necessary also to
subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the
residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the
message
signoff BrokerDIRT to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
http://cctr.umkc.edu/dept/dirt/
*************************************
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610
If you are an ABA member, log in to the ABA Web site at http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://www.abanet.org/members/join/coa2.html
To review our privacy statement, go to http://www.abanet.org/privacy_statement.html.
If you have any problems, please contact the list owner at
dirt-dd-request@mail.abanet.org.