EXISTING VESSELS ARE SUBJECT TO THE ADA

EXISTING VESSELS ARE SUBJECT TO THE ADA

By: Alex Lauricella

Edited By: Andrew Lifsey

Schlesinger v. Belle of Orleans, LLC, No. 14-2593, 2015 U.S. Dist. LEXIS 139601; magistrate recommendation adopted: 2015 U.S. Dist. LEXIS 139589 (W.D. La. Oct. 13, 2015) Andrew Schlesinger (“Plaintiff”), afflicted with spina bifida and wheelchair bound, filed suit under the Americans with Disabilities Act (“ADA”), alleging that Belle of Orleans LLC (“Defendant”) failed to remove architectural barriers that impeded his access to the Defendant’s casino, the AMELIA BELLE, a Class H passenger vessel and riverboat gaming vessel; it has not left its dock since 2012. The Defendant moved for summary judgment, and the Plaintiff followed with a cross-motion for summary judgment. At the hearing the Magistrate limited the report and recommendation to two issues: (1) whether the AMELIA BELLE was subject to Subpart C of Title III of the ADA, and (2) whether Association for Disabled Americans, Inc. v. Concorde Gaming Corp applied as persuasive authority in this case.[1]Issue 1: Title III of the Americans with Disabilities ActTitle III of the ADA prohibits discrimination against disabled persons regarding access to public accommodations. The Act’s legislative history indicates that “public accommodation” should be read broadly to cover a wide variety of establishments, such as restaurants and bars. Accordingly, the United States Supreme Court has held that cruise ships fall within the Act’s definition. Further, Congress directed the Department of Justice (“DOJ”) to promulgate regulations to effectuate the Act’s provisions – the American Disabilities Act Accessibility Guidelines (“ADAAG”). Subpart C of the ADAAG requires existing facilities to remove architectural barriers if removal is “readily achievable.” Subpart D applies to new constructions and alterations – not including vessels. Citing subpart D’s exclusion of vessels, the Defendant argued that there was no ADA violation. However, the Plaintiff sued under subpart C. Therefore, the Magistrate found that while there was no ADA action based on subpart D, this did not prevent claims based on subpart C.Accordingly, the Magistrate discussed whether the Defendant’s existing facility presented architectural barriers and if removal of the barriers was readily achievable. Courts have interpreted “architectural barriers” to mean any element of an existing facility that does not satisfy the ADAAG. However, the Magistrate found that the ADAAG provided guidelines, not requirements, and that technical violations alone were not sufficient; the Plaintiff also had to show that removal was readily achievable. The ADA defines “readily achievable”[2] as “easily accomplishable and able to be carried out without much difficulty or expense.” The Plaintiff’s expert witness found 45 mobility-related issues. The Defendant only disputed five of the issues without providing its own expert. Thus, the Magistrate declined to address the merits of these impediments.Issue 2: The Persuasiveness of Concorde GamingThe Defendant argued that Concorde Gaming required that the Plaintiff show he was intentionally denied equal access to use and enjoyment of its casino. In that case, the Court held that there is no ADA violation if the facility has personnel available to assist the disabled. The Magistrate declined to find Concorde Gaming persuasive as it was not binding, and because its reasoning could be called into question. Specifically, its application would preclude ADA actions alleging de facto discrimination – i.e. “discriminatory effects of benign neglect, apathy, and indifference.”ConclusionIn light of the above, the Magistrate recommended that both parties’ motions for summary judgment be granted in part and denied in part. As to the plaintiff, he could proceed in his claim for alleged violations under Subpart C of the DOJ regulations. As he conceded there was no claim under Subpart D, the court granted the defendant’s relief.[1] 158 F.Supp.2d 1353, 1359 (S.D. Fla. 2001).[2] Congress included ten factors to consider in determining whether removal is “readily achievable,” including: (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 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.