FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 23, 2006

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 05-14229

 

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:
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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 wheelchairaccessible 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 ticketpricing 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 nonspecific, 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 burdenshifting 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.