Fourth Circuit on Title III "Elevator Exemption"

The Fourth Circuit yesterday issued this opinion in Laird v. Redwood Trust. The plaintiff argued that the defendant -- which operated a restaurant/nightclub with a first floor, second floor, and finished basement, all of which spaces had been renovated since the enactment of the ADA -- violated Title III by failing to provide an elevator. The defendant argued that it came within Title III's elevator exemption, which provides that an elevator need not be installed in "facilities that are less than three stories or have less than 3,000 feet per story." Each of the levels had well over 3,000 square feet: the basement had 6,500, the first floor 6,400, and the second floor 5,100. But the Fourth Circuit held, in a deeply fractured opinion, that the second floor was not a separate "story"; because the second floor had a hole in the middle that looked down on the dance floor of the first floor, the court held that the second floor was simply a "mezzanine" within the same story as the first floor. The court applied the definition of "mezzanine" in the relevant DOJ regulations: "[t]hat portion of a story which is an intermediate floor level placed within the story and having occupiable space above and below its floor."

What's interesting about the opinion is the way the court fractured. Judge Allyson Duncan dissented; she argued that under the majority's approach any floor with a hole in it is a "mezzanine," which could provide a giant loophole for Title III's accessibility requirements. For example, she said, under the majority's reading a floor-to-roof atrium in a 10-floor building would mean that, although the building had 10 floors, 9 of them would be mezzanines and the building would therefore only have one "story." Judge Dennis Shedd, in his concurring opinion, essentially said "nuh-uh" to that, and Judge Duncan called him on it: "Judge Shedd’s conclusion that such floors are separate stories simply because he says they are, offers little comfort to the disabled, and certitude strikes me as an inadequate substitute for analysis."