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
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.
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