Eleventh Circuit: No Changes to Atlanta's Fox Theater Would Be Readily Achievable

Yesterday, the Eleventh Circuit issued its opinion in Garthright-Dietrich v. Atlanta Landmarks, Inc.. The case was an ADA Title III challenge to accessibility at Atlanta's historic Fox Theater. (I think all Fox Theaters are historic.) Since the building predates the ADA, the relevant standard is whether barrier removal is readily achievable. The plaintiffs alleged "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." But the Eleventh Circuit held that the plaintiffs had not carried their burden to show that removal of these alleged barriers would be "readily achievable":

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 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 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.”

A couple of things about this case. First, if the court's opinion is to be believed, the plaintiffs' expert testified in a very general way about the proposed accommodations and their costs. The plaintiffs argued that they shouldn't have to provide anything more specific, because they were not in a position to know how precisely to remove barriers in the defendant's building, but the court unsurprisingly ruled that that's what experts and discovery are for. Plaintiffs' counsel in these kinds of cases would be well advised to present expert testimony that is as specific as possible on these issues.

Second, the court emphasized all of the things the Fox had already done to make its premises accessible:

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; a wheelchair ramp to enable patrons who use wheelchairs to utilize the south exit of the theater; and many more “disabled-friendly” policies.

As Lennard Davis showed in his great book, courts are strongly inclined to rule for defendants who they feel have already "bent over backwards" for people with disabilities, and are inclined to think of additional requests for accommodations as so much whining. Maybe we're seeing a bit of that here.