Paralyzed Veterans’ reading of the statute:
With ail due respect, this Court disagrees totally with that reading
of Section 3504(f). To be sure, the Act does proscribe
nonconforming design and construction. But the notion that each
of two parties working together, one performing the first function
and the other performing the second function, is thereby insulated
from liability is a frank absurdity. There is no inconsistency
whatever between reading the Act as unambiguously requiring both
faulty design and faulty construction and the imposition of joint
and several liability against codefendants who have divided
between them the responsibility for those two functions.

Id. at *1.

Montana Fair Housing, Inc. v. American Capital Development, Inc., supra, rejected
Paralyzed Veterans and followed Baltimore Housing, holding that the “design and construct”
language should be read disjunctively to effectuate the broad remedial sweep of the statute:
“Nothing in the legislative history supports the Defendants’ wooden reading of ‘design and
construct,” and the purpose of the Act is better fulfilled by a disjunctive reading.” 81 F. Supp. 2d
at 1068. The court noted that the decision in Paralyzed Veterans held the general contractor
liable, even though the general contractor constructed the subject premises but did not design
them, a conclusion inconsistent with the decision’s insistence that only a party which both
designs and constructs can be liable. Id. at 1069.

In Johanson v, Huizenga Holdings, Inc., supra, the court denied an architectural firm’s
motion to dismiss. The firm argued, based on Paralyzed Veterans, that architects were not liable
under the public accommodations provisions of the ADA. The argument was based both on

Paralyzed Veterans’ reading of the “design and construct” language and the contention that only

those who owned, leased or operated a public accommodation could be liable. Finding that if


a nonconforming design), the statute should probably be read to imply that for discrimination to
occur, there must be both nonconforming design and nonconforming construction; an architect
who designs a nonconforming building that is never constructed should probably escape liability.
But that is not the issue here. The issue here is whether a single party must perform both
required functions to be liable. The statute is certainly conjunctive, “distinctly conjunctive” in
the words of Paralyzed Veterans, but the effect of that conjunctive usage, given that it occurs ina
definition of what is prohibited rather than in a definition of who is liable, is more naturally read
as attempting to make clear that discrimination occurs when premises subject to the statute are
improperly both designed and constructed. The statute says nothing more than that. It says
nothing to excuse those who participate in such nonconforming “design and construction,”
simply because they do not perform both functions, from liability. Reading the statute as simply
defining what constitutes discrimination, and relying on all the normal rules of responsibility for
determining who is liable when such discrimination occurs, is a natural reading of this statute, is
entirely consistent with its language and does no violence to the statute’s manifest remedial
purpose. As the court in Baltimore Neighborhoods stated, “those who are wrongful participants
{in such discrimination] are subject to liability for violating the FHAA.” 3 F.Supp.2d at 665.
The motion to dismiss is denied,

ENTER:

7

JOAN#. GOTPSCHALL
nitéd States District Judge

DATED: November 16, 2001


wee

(N.D.IL. 1998); Montana Fair Housing v. American Capital Develop., $1 F.Supp.2d 1057, 1068
(D. Mont. 1999); Johanson v. Huizenga Holdings, Inc., 963 F.Supp. 1175, 1178 (S.D.Fla. 1997);
US. v, Ellerbe Becket, 976 F.Supp. 1262, 1267-68 (D.Minn. 1997) and U.S. v. Days Inns of
America, Inc., 997 F.Supp. 1080, 1083 (C.D. 11.1998). The court will briefly review each of
these decisions."

Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., supra, was a suit against a
builder, not an architect, and the builder argued that it did not conjunctively design and construct,
but merely constructed according to plans prepared by others which it was contractually required
to follow. The court rejected the builder’s argument, finding Paralyzed Veterans “unpersuasive,”
3 F.Supp.2d at 664, and holding that “{w]hen a group of entities enters into the design and
construction of a covered dwelling, all participants in the process as a whole are bound to follow
the FHAA.” Id, at 665 (emphasis in original). Any entity which participates in the wrongdoing,
the court held, should be liable. a.

US. v. Hartz Construction Company, Inc., 1998 WL 42265 (N.D.IL. Jan. 28 1998),
addressed a motion by an architecture firm to dismiss a §3604(f) claim based on Paralyzed
Veterans, arguing that the firm, Linden, was responsible for only the design and not the

construction of the subject residential condominium complex. The court summarily rejected

‘The court notes that in its opening memorandum, defendant failed to cite the many cases
which have rejected the holding of Paralyzed Veterans, on which it relies. In these
circumstances, there was little danger that the court would decide the motion in ignorance of the
split of authority. Plaintiffs’ counsel could be expected to research the law, and this court
undoubtedly would have found the pertinent authority without assistance from plaintiffs simply
by shepardizing Paralyzed Veterans.. Nevertheless, defendant’s brief led the court to believe, at
least initially, that this issue was clear and controlled by precedent. A party not only fails to
benefit but loses the court’s trust when it fails to disclose contradictory precedent,

3


a s CTR SST TSN ete Herb neon y eenoe

architects are not liable, “it is conceivable that no entity would be liable” under the ADA, 963
F.Supp. at 1178, the court denied the motion to dismiss.

U.S. v. Ellerbe Becket, Inc., supra, involved a complaint brought by the government
against an architectural firm, alleging that it had engaged in a pattern or practice of designing
inaccessible sports arenas around the country. The court reviewed the pertinent authority but
concluded that because the government alleged that Ellerbe Becket participated in both the
design and construction of the arenas at issue, it did not have to decide whether participating in
both functions was necessary to liability.

Finally, in U.S. v. Days Inns of America, Inc., supra, the court found that the parties
sought to be held liable “were involved contractually and in a supervisory role with both the
design of the [relevant premises] and its construction.” Jd. at 1084. The court noted, in dicta,
that it disagreed with Paralyzed Veterans and found its “narrow, literal reading of the statute
inappropriate to carry out the intent of the ADA.” Jd.

After this motion was fully briefed, defendant moved for leave to cite additional
authority, specifically, Lonberg v. Sanborn Theaters, Inc., —— F3d___, 2001 WL 877122 (9%
Cir. Aug. 6, 2001). In Lonberg, the Ninth Circuit , construing Title III of the ADA (applicable to
public accommodations and commercial facilities), addressed the question whether an
architectural firm, STK, could be held liable for “design and construct” liability “even though it
is not one of the entities—owners, lessees, lessors, or operators—to whom liability is extended by
the ‘[g]eneral rule’ under §12182(a).” Jd. at *4. The question, more specifically, was whether
the list of those liable for discrimination in public accommodations under 42 U.S.C. §12182(a)

(“any person who owns, leases (or leases to), or operates a place of public accommodation”)


Minute Order Form (06/97)

,

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan B. Gottschall than Assigned Judge
CASE NUMBER 01 C 2924 DATE 11/16/2001
CASE TITLE Doering vs. Pontarelli Builder Inc.
MOTION: [In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented. }
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due __
@) im) Answer brief to motiondue___. Reply to answer brief due_
(4) QO Ruling/Hearing on _ set for at
() a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__set for at :
(7) Oo Trial[set for/re-set for] on _at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) O This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).
a0) ff [Other docket entry} Enter Memorandum Opinion and Order. Motion to dismiss [3] is denied.
(il) [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court, rurber of notices
‘No notices required,
Notices mailed by judge’s staff. date docketed
Notified counsel by telephone. Hoy 1 9 Saf
\ Docketing to mail notices. docketing deputy initials
Mail AO 450 form. |
Copy to judge/magistrate judge. ‘date maited notice
courtroom
deputy’s nailing deputy initials
initials Date/time received in
central Clerk’s Office



limits those who may be held liable for “design and construct” liability under 42 U.S.C.
§12183(a)(1). The court held, in agreement with Paralyzed Veterans, that the persons liable for
design and construct liability under §12183(a)(1) are limited to those specified in 12182)
Because architects are not owners, lessors or operators, the court held, they are not liable under
Title III. As is obvious, this issue is a different issue from the issue raised by defendant here in
its motion to dismiss and a different issue from that for which the defendant relies on Paralyzed
Veterans.

The court finds the reasoning of Baltimore Neighborhoods and U.S. v. Hartz
Construction Company dispositive and denies the motion to dismiss. There is no question that
the relevant statute, 42 U.S.C. §3604(f)(3)(C), uses conjunctive language. It defines
“discrimination” to include “a fz ailure to design and construct those dwellings [“covered
multifamily dwellings for first occupancy after the date that is 30 months after September 13, -
1988"] in such a manner that” they are consistent with the statute’s accessibility rules. But
observing that the statute speaks in the conjunctive does not answer the question of whether it
requires that one person perform both activities to be liable or rather, as the court in U.S. v. Hartz
Construction Company observed, it merely requires that both activities take place for
discrimination within the meaning of the statute to occur.

The section at issue, significantly, is not a description of who is liable. Rather, it is a
description of what actions constitute discrimination. And what it says is that discrimination
occurs when a nonconforming structure is designed and constructed. Since there can presumably
be no liability without both nonconforming design and construction (a nonconforming design

that was never constructed would produce no injury, while a nonconforming construction implies



“aL

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PHYLLIS DOERING and KARL DOERING,

Plaintiffs, i
No. 01 C 2924 NOY 73 2001

v.

PONTARELLI BUILDERS, INC., MICHAEL
PONTARELLI, DANIEL PONTARELLI, and
ADRIAN ZEMENIDES,

)
)
)
)
)
)
) Judge Joan B. Gottschall
)
Defendants. )

Nov 1 9 2008,
MEMORANDUM OPINION AND ORDER

Plaintiffs have filed a complaint against numerous defendants alleging a failure to comply
with FHAA accessibility guidelines in a newly-constructed condominium owned by plaintiffs in a
condominium development referred to as Merrimac Square. Defendant Adrian-Zemenides, Ltd.
(incorrectly sued as Adrian Zemenides), identified in the complaint as “a licensed architect . . .
who produced the drawings and design used in the construction of Merrimac Square,” has moved
to dismiss on the grounds that the relevant statute imposes liability only on those who both
“design and construct” multifamily dwellings, thus excluding architects from liability.

The relevant statute, 42 U.S.C. §3604, sets forth a number of actions which constitute
“[d]iscrimination in the sale or rental of housing . . ..” Section 3604(£) prohibits discrimination in
the sale or rental of a dwelling and defines discrimination as including “in connection with the
design and construction of covered multifamily dwellings for the first occupancy after the date
that is 30 months after September 13, 1988, a failure to design and construct those dwellings in
such a manner . . . .” that the premises are accessible in a number of defined ways. §3604(f)(3)(C).

In its opening brief in support of its motion, defendant relied on United States v. Days

Inns of America, Inc., 151 F.3d 822 (8" Cir. 1998) and Paralyzed Veterans of America v. Ellerbe

ie


Becket Architects & Engineers, P.C., 945 F.Supp. 1 (D.D.C. 1996). In Paralyzed Veterans, the
court dismissed from the action the defendant architectural firm, holding that the term “design and
construct” is “distinctly conjunctive. It refers only to parties responsible for both functions, such
as general contractors or facilities owners who hire the necessary design and construction experts

a

for each project.” Jd. at 2. The court rejected the position taken by the Department of Justice as
amicus that the statute includes architects as parties; the Department of Justice’s views, the court
ruled, are not subject to deference inasmuch as the statute is unambiguous. Id.

United States v. Days Inns of America, Inc., supra, also relied on by defendant, decided a
different question. The case involved the liability of Days Inns of America (“DIA”), the
franchisor, for the failure of its franchisee to comply with the ADA’s accessibility requirements
in designing and constructing a motel. The Eighth Circuit noted that it was undisputed that DIA
“did not design and construct the Wall Days Inn, nor was it an owner, lessor, or operator under
§303.” Rather, the court observed, although DIA, due to its various agreements with its
franchisee, had some involvement in the design and construction process, it did not exert enough
control to be liable under any of the statutory provisions. Finding that, as a factual matter, DIA
neither designed nor constructed the motel, the court had no occasion to determine if either
designing or constructing alone was sufficient for liability. The court noted in a footnote,
however, that it was applying the “design and construct” language conjunctively, as had the court
in Paralyzed Veterans.

In response, plaintiff cited a number of cases which have rejected the view taken in

Paralyzed Veterans, specifically, Baltimore Neighborhoods v. Rommel Builders, 3 F. Supp. 2d

661, 664 (D. Md. 1998), U.S. v. Hartz Construction Company, Inc., 97 C 8715, 1998 WL 42265