Metropolitan News-Enterprise


Thursday, July 10, 2008


Page 3


Ninth Circuit Revives ADA Suit Against Historic Winery


By SHERRI M. OKAMOTO, Staff Writer


A U.S. district judge erred in throwing out a controversial disability rights activist’s suit regarding alleged accessibility barriers at a historic landmark, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Disabled access to the wine-tasting room located within a Craftsman cottage at Foley Estates Vineyard and Winery in Santa Barbara County may be “readily acheivable” within the meaning of the Americans With Disabilities Act, a divided panel held.

The rulign was the second appellate victory of the week for Jerek Molski, a paraplegic who sues public accommodations for a living and has filed in excess of 400 such actions in state and federal courts.

A divided panel concluded that Senior U.S. District Judge Consuelo B. Marshall of the Central District of California erred by failing to apply the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities to determine what modifications would be readily achievable in the existing historic facility.

Molski and an activist group sued for injunctive relief and damages to redress physical barriers at the vineyard’s wine tasting room.

Rather than remove the barriers, Foley undertook $23,994 in renovations to provide wine tasting services on a wheelchair-accessible gazebo. After proceedings began, the Santa Barbara County Historic Landmarks Advisory Commission declared the winery a “Place of Historical Merit.”

At trial, the winery presented uncontroverted evidence that building an access ramp to the cottage’s entrance would have a severe impact on the historical nature of the building’s structure.

Marshall determined that the removal of exterior barriers would not be readily achievable because it would threaten the architectural significance of the property and declined Molski’s request for a permanent injunction requiring removal of the external accessibility barriers.

In an opinion authored by Senior Judge Dorothy W. Nelson, however, the appellate court panel concluded Marshall had applied an erroneous standard.

Nelson explained that 28 C.F.R. § 36.404 requires public accommodations to remove architectural barriers in existing facilities where such removal is readily achievable. It also incorporates Sec. 36.405, which requires that qualified historical buildings “comply to the maximum extent feasible” with the ADA guidelines.

The ADA guidelines, Nelson noted, establish a procedure for determining whether barrier removal in existing historical structures would be readily achievable, and further provide that if an entity undertaking alterations believes that compliance with the ADA’s requirements will “threaten or destroy the historic significance of the building,” the entity “should consult with the State Historic Preservation Officer.”

After acknowledging that three courts have considered historical significance as a factor for determining achievability without invoking Sec. 36.405 or the ADA guidelines, Nelson wrote, “we find the explicit regulatory language to be more persuasive than the absence of discussion of these regulations in our sister circuits.”       

Accordingly, she concluded, Marshall had erred in finding Sec. 36.405 and the ADA guidelines were inapplicable in determining whether barrier removal would be readily achievable.

The majority also concluded that the winery’s alternative accommodations did not supplant legally required barrier removal, and upheld the injunction requiring the winery to make readily achievable interior accommodations to the maximum extent feasible as well.

Judge Harry Pregerson joined Nelson in her opinion, but Senior Judge Ferdinand F. Fernandez dissented in part.

Fernandez argued that for existing properties, the standard for barrier removal is readily achievable when it is “easily accomplishable and able to be carried out without much difficulty or expense,” pursuant to the ADA. This standard, he insisted, is less stringent than the “maximum extent feasible” standard set forth in Sec. 36.405 .

“[I]t was never intended that the nation’s architectural heritage be destroyed under the banner of readily achievable accessibility,” he wrote, suggesting that historic landmarks should be given special consideration.

He also focused on the use of the word “should” in the ABA guidelines, arguing that its use denoted a mere recommendation of a method for a court to determine whether barrier removal is readily achievable.

“I fail to see how or why the existence of that recommendation of a possible course of action would preclude a district court from taking direct expert testimony and making a finding on the effect of a proposed change on the historic significance of the property in question,” he wrote.

Yesterday’s decision leaves Molski with a 2-1 record for the week. On Monday, Div. Six of this district’s Court of Appeal affirmed an adverse $33,702.63 attorney fee award, calling it a reasonable and necessary consequence of Molski’s “scorched earth strategy,” invoking the Unruh Civil Rights Act, Disabled Persons Act, and Civil Code Sec. 55 in an accessability claim against the Arciero Winery. But, in a second, unpublished opinion, Div. Six upheld an award of attorney fees to Molski from another winery following a settlement of his Uruh Act claims.

Molski was represented by Frankovich and Julia M. Adams. Santa Barbara attorney Barry Clifford Snyder represented Foley Estates.

Yesterday’s case is Disability Rights Enforcement v. Foley Estates, 06-56385.


Copyright 2008, Metropolitan News Company