Laird v. Redwood Trust LLC ( 2004 )


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  •                             PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    CAROLEE LAIRD,                          
    Plaintiff-Appellant,
    v.
              No. 03-2005
    REDWOOD TRUST LLC; 200 EAST
    REDWOOD STREET LLC,
    Defendants-Appellees.
    
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    J. Frederick Motz, District Judge.
    (CA-02-481-JFM)
    Argued: February 26, 2004
    Decided: December 21, 2004
    Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
    Affirmed by published opinion. Judge Widener wrote the majority
    opinion. Judge Shedd wrote a concurring opinion, and Judge Duncan
    wrote a dissenting opinion.
    COUNSEL
    ARGUED: Andrew David Levy, BROWN, GOLDSTEIN & LEVY,
    L.L.P., Baltimore, Maryland, for Appellant. Peter Alexander Prevas,
    PREVAS & PREVAS, Baltimore, Maryland, for Appellees. ON
    BRIEF: Shelly Marie Martin, BROWN, GOLDSTEIN & LEVY,
    L.L.P., Baltimore, Maryland, for Appellant.
    2                     LAIRD v. REDWOOD TRUST LLC
    OPINION
    WIDENER, Circuit Judge:
    Plaintiff Carolee Laird brought this action in the United States Dis-
    trict Court for the District of Maryland against Redwood Trust, LLC
    and 200 East Redwood Street, LLC (Redwood Trust). Laird alleged
    that Redwood Trust violated the Americans with Disabilities Act
    (ADA) by failing to install an elevator in a nightclub it owned and
    operated. The district court granted summary judgment for Redwood
    Trust, and Laird appealed. For the reasons stated, we affirm the judg-
    ment of the district court.
    I.
    The building at issue was originally the headquarters of the Mer-
    cantile Safe Deposit and Trust Company of Baltimore, Maryland. In
    2001, Redwood Trust bought the building and renovated it. In
    November 2001, the building opened for business as a sushi
    bar/restaurant and night club offering alcoholic beverages and live
    and recorded music.1
    The building, as renovated, has three levels: a basement and a first
    and second level. The basement level, which was formerly the bank
    vault, is roughly 6,500 square feet and consists of lounge space, a
    dance floor, and storage. At times, the basement level has its own
    music and entertainment separate from the first and second levels. At
    other times, the music played in the basement is the same as that
    played on the first and second levels.
    The first level is located on the ground floor and is roughly 6,400
    square feet. It contains the sushi bar/restaurant, separate bars for pur-
    1
    Plaintiff’s attorney advises that after the case was filed, the sushi bar,
    called Sushi-San, was converted to a restaurant called Red Tapas. At oral
    argument, counsel for Redwood Trust informed us that Redwood Trust
    has ceased operating the business entirely and that the building is cur-
    rently closed. It is unclear whether the business will be reopened in the
    future.
    LAIRD v. REDWOOD TRUST LLC                        3
    chasing alcoholic beverages, lounge space and a dance floor. The
    entrances to the building are located on the first level.
    The second level is roughly 5,100 square feet and has a large open-
    ing in the center that provides a view of the dance floor on the first
    level below. The opening is rectangular, and its width is about 45%
    of the width of the building. There is a lounge area on either side of
    the large opening, and the width of each lounge is about 27% of the
    width of the building. The lounge areas are connected to each other
    by a walkway at one end and a bar at the other. The second level also
    has a disc jockey booth, a bar, and the owner’s office. Patrons on the
    first and second levels listen to the same live or recorded music.
    There are no other floor levels above the second level.
    Carolee Laird suffers from spina bifida. On December 15, 2001,
    she visited the Redwood Trust building. She could not access the
    basement or second level because the building does not have an ele-
    vator. On February 13, 2002, Miss Laird brought suit against Red-
    wood Trust in the United States District Court for the District of
    Maryland alleging violations of the ADA. She argued that the ADA
    required Redwood Trust to install an elevator in the building. The dis-
    trict court granted summary judgment for Redwood Trust, holding
    that Redwood Trust was exempt from the requirement of installing an
    elevator because the building was fewer than three stories. Miss Laird
    appealed.
    II.
    We review the district court’s grant of summary judgment de novo.
    Bass v. E.I. DuPont de Nemours & Co., 
    324 F.3d 761
    , 766 (4th Cir.
    2003). Summary judgment is appropriate when the "pleadings deposi-
    tions, answers to interrogatories, and admissions on file, together with
    the affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment as a
    matter of law." Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986)
    (quoting Fed. R. Civ. P. 56(c)). There is no genuine issue for trial if
    the record taken as a whole could not lead a rational trier of fact to
    find for the non-moving party. See Matsushita Elec. Indus. Co. v.
    Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986).
    4                   LAIRD v. REDWOOD TRUST LLC
    The Americans with Disabilities Act prohibits discrimination on
    the basis of disability "in the full and equal enjoyment of the goods,
    services, facilities, privileges, advantages, or accommodations of any
    place of public accommodation." 42 U.S.C. § 12182(a). The ADA
    defines discrimination with respect to renovations of a place of public
    accommodation as the failure to "make alterations in such a manner
    that, to the maximum extent feasible, the altered portions of the facil-
    ity are readily accessible to and usable by individuals with disabili-
    ties, including individuals who use wheelchairs." 42 U.S.C.
    § 12183(a)(2). Redwood Trust concedes that Laird is a qualified per-
    son with a disability, and that the building is a recently renovated
    place of public accommodation.
    The ADA provides a specific exemption from the requirement to
    make a place of public accommodation readily accessible to all dis-
    abled individuals. The exemption provides:
    (b) Elevator
    Subsection (a) of this section shall not be construed to
    require the installation of an elevator for facilities that are
    less than three stories or have less than 3,000 square feet per
    story unless the building is a shopping center, a shopping
    mall, or the professional office of a health care provider or
    unless the Attorney General determines that a particular cat-
    egory of such facilities requires the installation of elevators
    based on the usage of such facilities.
    42 U.S.C. § 12183(b). The statute does not define "story." However,
    the statute requires the Attorney General to issue regulations to imple-
    ment its provisions, including defining terms used in the statute, and
    we look to those regulations where the statute is silent. See Olmstead
    v. L.C. ex rel Zimring, 
    527 U.S. 581
    , 591 & n.5 (1999); 42 U.S.C.
    § 12186(b) (1995). In response to the requirements of 42 U.S.C.
    § 12186(b), the Attorney General released the ADA Accessibility
    Guidelines for Buildings and Facilities. 28 C.F.R. pt. 36, app. A
    (2002). The guidelines define the term "story" as follows:
    That portion of a building included between the upper sur-
    face of a floor and upper surface of the floor or roof next
    LAIRD v. REDWOOD TRUST LLC                            5
    above. If such a portion of a building does not include
    occupiable space, it is not considered a story for purposes of
    these guidelines. There may be more than one floor level
    within a story as in the case of a mezzanine or mezzanines.
    28 C.F.R. pt. 36, app. A § 3.5 (2002). The term "mezzanine" is
    defined as
    [t]hat portion of a story which is an intermediate floor level
    placed within the story and having occupiable space above
    and below its floor.
    28 C.F.R. pt. 36, app. A § 3.5.
    The district court held that the definition of mezzanine "is impre-
    cise and consequently difficult to apply to the facts of this case."
    Laird v. Redwood Trust LLC, 
    240 F. Supp. 2d 423
    , 425 (D. Md.
    2003). The district court therefore looked beyond the plain language
    of the statute and interpreted the regulations using a "pragmatic exam-
    ination of the floor’s functional space and the services provided on
    the floor." 
    Laird, 240 F. Supp. 2d at 425
    .2 Although we agree with the
    district court’s result, our reasoning is somewhat different. We con-
    strue the language in the statute and the regulatory guidelines to
    describe the second level as a mezzanine, and thus not a third story.
    Webster’s Dictionary defines "portion" as "an often limited part set
    off or abstracted from a whole." Webster’s Ninth New Collegiate Dic-
    tionary 916 (1985). "Intermediate" is defined as "being or occurring
    at the middle place, stage or degree or between extremes." Webster’s
    Ninth New Collegiate Dictionary 632. Thus, by defining a mezzanine
    as "[t]hat portion of a story which is an intermediate floor level," the
    guidelines distinguish a mezzanine from an ordinary floor level in two
    ways. 28 C.F.R. pt. 36, app. A § 3.5. (emphasis added). First, a mez-
    zanine must be less than a story, as it is only a "portion" of one. Sec-
    ond, a mezzanine must exist in the "middle place" or "between
    extremes" of a story because it is an "intermediate level."
    2
    The plaintiff, br. at p.18, agrees with the district court that the regula-
    tions are imprecise, but comes to the opposite conclusion.
    6                   LAIRD v. REDWOOD TRUST LLC
    The definition also provides that a mezzanine must have "occupi-
    able space above and below its floor." 28 C.F.R. pt. 36, app. A § 3.5.
    The word "floor" in this context refers to the physical barrier separat-
    ing space between floor levels. The guidelines define a story as "[t]hat
    portion of a building included between the upper surface of a floor
    and upper surface of the floor or roof next above." 28 C.F.R. pt. 36,
    app. A § 3.5. When distinguishing a mezzanine from a separate story,
    however, the guidelines state that "[t]here may be more than one floor
    level within a story as in the case of a mezzanine or mezzanines." 28
    C.F.R. pt. 36, app. A § 3.5 (emphasis added). A "floor" therefore is
    a physical separation of space, which contains an "upper surface." A
    floor level, by contrast, refers not only to the physical barrier between
    levels, but also to the occupiable space above the upper surface of that
    barrier. Thus, the bottom floor level of a building could not be a mez-
    zanine because there is no occupiable space below its floor. However,
    the second level of a building, where there is occupiable space both
    below the floor’s lower surface (the ceiling) and above its upper sur-
    face, satisfies the guidelines requirement.
    Applying these definitions to the facts in this case, we are of opin-
    ion that the second floor level of the Redwood Trust building meets
    the definition of a mezzanine under the ADA Accessibility Guide-
    lines. First, the second level is less than a story by itself, because it
    has occupiable space only in the limited area around the large opening
    that allows patrons to view the dance floor below. Second, the level
    is an "intermediate floor level" within a story because it is located
    between the first floor and the roof of the building. 28 C.F.R. pt. 36,
    app. A § 3.5. Finally, the second floor meets the literal regulatory def-
    inition of "mezzanine" by having "occupiable space above and below
    its floor" because there is occupiable space both on the first level
    below and on the second floor level itself. 28 C.F.R. pt. 36, app. A
    § 3.5. Therefore, we are of opinion and hold that the second level is
    a mezzanine within the meaning of the ADA Accessibility Guidelines
    and summary judgment for Redwood Trust was appropriate.
    Laird also argues that Redwood Trust must provide elevator or lift
    access to the second floor under the ADA Accessibility Guidelines
    applicable to restaurants and cafeterias.3 28 C.F.R. pt. 36, app. A
    3
    Although Laird does not address the conflict between the require-
    ments of guidelines § 5.4 relating to restaurants and cafeterias and the
    LAIRD v. REDWOOD TRUST LLC                           7
    § 5.4. Section 5.4 provides that "[i]n new construction, all dining
    areas . . . shall be accessible." 28 C.F.R. pt. 36, app. A § 5.4. How-
    ever, "[i]n alterations, accessibility to . . . dining areas . . . is not
    required provided that the same services and decor are provided in an
    accessible space usable by the general public and are not restricted to
    use by people with disabilities." 28 C.F.R. pt. 36, app. A § 5.4. The
    term "alteration" is defined as "a change to a building . . . [including]
    remodeling, renovation, rehabilitation, reconstruction, historical resto-
    ration, changes or rearrangement of the structural parts or elements,
    and changes or rearrangement in the plan configuration of walls and
    full-height partitions." 28 C.F.R. pt. 36, app. A § 3.5. Though Red-
    wood Trust concedes that the renovations to the building were exten-
    sive, they are, nonetheless, renovations. There is no evidence in the
    record of any new construction; all of the renovations involved
    changes to the existing structure to allow it to function as a restaurant
    and night club. We are of opinion that the lengthy set of terms defin-
    ing alteration were intended to cover renovations, like those to the
    Redwood Trust building, that are extensive but did not involve new
    construction. See 28 C.F.R. pt. 36, app.A, § 3.5 Accordingly, we find
    that the renovations to the Redwood Trust building were "alterations"
    under guideline §§ 3.5 and 5.4. We also find that the record shows no
    difference in the services or decor between the first and second floor
    dining areas. Therefore, we find that the district court’s grant of sum-
    mary judgment was proper.4
    elevator exemption contained in 42 U.S.C. § 12183(b), we assume Laird
    is arguing the exemption does not apply because § 5.4 falls within the
    final clause of the statute. That clause provides that an elevator is
    required in buildings with less than three stories if "the Attorney General
    determines that a particular category of such facilities requires the instal-
    lation of elevators based on the usage of such facilities." 42 U.S.C.
    § 12183(b). Presumably, Laird believes that the use of the unqualified
    phrase "all dining areas . . . shall be accessible" indicates that the Attor-
    ney General intended to require the installation of elevators in restaurants
    and cafeterias regardless of the number of stories. However, because
    Laird’s claim under § 5.4 fails even if the final clause of 42 U.S.C.
    § 12183(b) applies, we decline to reach this issue.
    4
    Laird’s counsel conceded in oral argument that if the building falls
    under the "alteration" standards rather than the new construction stan-
    dards, Laird’s claim under guideline § 5.4 fails.
    8                    LAIRD v. REDWOOD TRUST LLC
    In sum, we are of opinion that the language of the ADA and the
    ADA Accessibility Guidelines is properly construed so that the Red-
    wood Trust building has fewer than three stories because the second
    floor is a mezzanine. We also find that the building does not violate
    the ADA Accessibility Guidelines requirements for restaurants and
    cafeterias. Therefore, although we need not rely upon the district
    court’s finding that the regulatory definitions are ambiguous, we
    agree that summary judgment was appropriate. See SEC v. Chenery,
    
    318 U.S. 80
    , 88 (1943) (holding that a district court must be affirmed
    if the result is correct although we may rely upon a different reason)
    Accordingly, the judgment of the district court is
    AFFIRMED.
    SHEDD, Circuit Judge, concurring:
    I concur in the majority opinion but write separately to address the
    analysis of the dissenting opinion.* The dissent would rewrite an
    unambiguous Department of Justice (DOJ) regulation. Even more
    remarkably, the dissent would redraft this regulation by adding a spe-
    cific provision that the DOJ clearly rejected.
    The DOJ deliberately attempted to make its regulations consistent
    with model building codes whenever the dictates of the model codes
    were consistent with the purposes of the ADA. 56 Fed. Reg. 35,418
    (July 26, 1991). Despite its specific knowledge of the model codes,
    the DOJ adopted a definition of "mezzanine" substantially different
    from that of the model codes. The DOJ regulation defines "mezza-
    nine" as:
    That portion of a story which is an intermediate floor level
    *The dissent faults the majority opinion for "avoid[ing] the difficult
    task of interpreting the parameters of a poorly drafted regulation." I do
    not believe that this court’s duty is to explore the "parameters" of how
    the regulatory definition might be applied to all conceivable factual sce-
    narios. Instead, this court must simply apply the regulatory definition to
    the facts of the concrete dispute in this particular case.
    LAIRD v. REDWOOD TRUST LLC                         9
    placed within the story and having occupiable space above
    and below its floor.
    28 C.F.R. pt. 36, app. A § 3.5. The model codes, on the other hand,
    define "mezzanine" as:
    An intermediate level or levels between the floor and ceiling
    of any story with an aggregate floor area of not more than
    one-third of the area of the room or space in which the level
    or levels are located.
    INTERNATIONAL BUILDING CODE (2003), § 502.1 (emphasis added);
    BOCA NATIONAL BUILDING CODE, § 201 (1987) (similar language).
    Thus, the model codes contain an objective test under which a level
    cannot be deemed a mezzanine if it is larger than one-third of the area
    of the room in which it is located. The DOJ definition of "mezzanine"
    does not incorporate this bright-line test.
    Although the DOJ did not adopt this objective test from the model
    codes in its definition, it employed an almost identical phrase in
    another portion of its ADA regulations governing new construction of
    dining areas. That regulation provides that an owner of a new building
    need not provide vertical access to a mezzanine if the "area of mezza-
    nine seating measures no more than 33 percent of the area of the total
    accessible seating area." 28 C.F.R. pt. 36, app. A § 5.4. Thus, the
    DOJ obviously knew how to create a bright-line spatial test for deter-
    mining issues of access but chose not to do so in its definition of
    "mezzanine."
    Nevertheless, the dissent insists that this particular language in the
    model building codes creating the bright-line test — which the DOJ
    rejected — must be incorporated into the DOJ definition of "mezza-
    nine" because the existing definition is a "virtual nullity" and does not
    "helpfully define" a mezzanine. I believe such a conclusion, espe-
    cially under the facts of this case, is simply not correct. According to
    the DOJ definition, a mezzanine must be, among other things, "a por-
    tion of a story" and must be "placed within the story." That is, a mez-
    zanine cannot be a free-standing story, but instead must be part of,
    and within, a larger story.
    10                  LAIRD v. REDWOOD TRUST LLC
    The dissent presumes that a floor, like one in a firehouse, with a
    hole cut out for a fire pole or a floor that has a drill hole is a mezza-
    nine under the DOJ definition. The DOJ definition of "mezzanine"
    does not suggest such a conclusion. The floor that has a hole cut out
    for a fire pole — just as for a staircase — is a separate story. That
    floor is not a "portion of" the lower story, and neither is that floor
    "placed within" the lower story. Although the fire pole hole, like the
    staircase, connects the two floors, the two floors remain separate from
    each other. Further, the existing definition of "mezzanine" is suffi-
    cient to draw a distinction between a floor that has a hole drilled in
    it and the type of floor involved in this case — where the mezzanine
    is clearly a "portion of" and "placed within" the main story of the
    Redwood Trust building.
    We are generally bound to construe a regulation according to the
    plain meaning of its unambiguous terms, and I concur with the major-
    ity because it faithfully does just that. The DOJ definition of "mezza-
    nine" is not ambiguous, and based on the plain meaning of that
    definition the floor in question qualifies as a mezzanine. We are not
    free to write into the DOJ’s definition what is not there, but instead
    we should apply the definition as written to the facts before us. See
    Maryland State Dep’t of Ed. v. United States Dep’t of Veterans
    Affairs, 
    98 F.3d 165
    , 169 (4th Cir. 1996) (giving effect to the plain
    meaning of a statute).
    DUNCAN, Circuit Judge, dissenting:
    Today the majority avoids the difficult task of interpreting the
    parameters of a poorly drafted regulation by interpreting it in a way
    that could not logically have been intended.1 In doing so, the court
    disposes of the case before us, but creates a loophole in the ADA that
    could have serious consequences in the future. I therefore respectfully
    dissent.
    1
    In his concurring opinion, Judge Shedd calls the regulation in ques-
    tion "unambiguous." Such an assertion, however, no matter how
    emphatic, does not make it so. I note that even the district court, whose
    conclusion Judge Shedd would uphold, does not share his assessment.
    Laird v. Redwood Trust LLC, 
    240 F. Supp. 2d 423
    , 425 (D. Md. 2003).
    LAIRD v. REDWOOD TRUST LLC                        11
    As an initial matter, I note that there is much in the majority’s opin-
    ion with which I agree. We agree that the key issue in this case is
    whether the "elevator exemption" of 42 U.S.C. § 12183(b) applies to
    the Redwood Trust facility, specifically whether the second level of
    the facility is properly considered a "story" or a "mezzanine". We also
    agree that a correct starting point for this determination is the Depart-
    ment of Justice’s ("DOJ") regulations defining these two terms. See
    28 C.F.R. pt. 36, app. A § 3.5 (2002). Most significantly, we agree
    that the district court’s "functional analysis", which distinguishes a
    "story" from a "mezzanine" based upon the functions or activities that
    take place within it, is impractical and incorrect. Such an approach
    would be virtually impossible to apply and has no basis in the regula-
    tions. However, I cannot agree with the majority that we should end
    our interpretation of the regulation with its "plain meaning" reading,
    when such a reading has the potential to undermine the purposes of
    the ADA.
    As with the interpretation of statutes, our interpretation of regula-
    tions begins with their text. See Maryland. St. Dep’t of Educ. v. Dep’t
    of Veterans Affairs, 
    98 F.3d 165
    , 169-70 (4th Cir. 1996). In the over-
    whelming majority of cases, a textual reading will be dispositive.
    United States v. Ron Pair Enters., Inc., 
    489 U.S. 235
    , 242 (1989).
    However in a few cases, a literal reading of the regulations cannot be
    upheld, as it leads to an absurd result. In these limited instances, a
    court may adopt a more restrictive interpretation, so long as it is con-
    sistent with the purposes of the regulation and its governing statute.
    United States v. Boynton, 
    63 F.3d 337
    , 344 (4th Cir. 1995).
    In the DOJ’s regulations, a mezzanine is defined as "[t]hat portion
    of a story which is an intermediate floor level placed within the story
    and having occupiable space above and below its floor." 28 C.F.R. pt.
    36, app. A § 3.5 (2002). The majority holds that a floor level is a
    "portion of a story" if there is some open space on that floor level,
    regardless of the amount, that makes it have less floor space than a
    story by itself. Under this interpretation, it determines that the open-
    ing in the center of the floor at Redwood Trust, through which the
    dance floor below can be viewed, causes it to qualify as a mezzanine.
    Maj. Op. 6. There is superficial appeal to this analysis. It seems
    straightforward, tracks the language of the regulation, and easily dis-
    poses of this case. However, in my opinion, the unavoidable negative
    12                   LAIRD v. REDWOOD TRUST LLC
    ramifications of such an interpretation on the broader scheme of the
    ADA make such a reading untenable.
    According to the majority’s interpretation, a floor level is a "por-
    tion of a story" so long as there is some open space on that floor level
    that causes it to have less total floor space than a story by itself. The
    majority reads the regulation as having no spatial limitation, thus
    making any floor level that happens to have some degree of open
    space, or in other words, a hole, a candidate for classification as a
    "mezzanine." Under this analysis, the opening surrounding a fire-
    man’s pole would give the second floor of a fire station less total floor
    space than the story below, thus converting it into a mezzanine. A
    ground floor-to-roof atrium in a ten-floor building creates an open
    space, turning a ten story building into a single story with nine mezza-
    nines. Any floor that happens to have some opening that looks down
    upon the level below it, could be determined to be a "portion of a
    story" that has "occupiable space above and below its floor", thus
    making it a mezzanine, and consequently exempt from the require-
    ments of the ADA. The majority’s interpretation contains no limita-
    tions; if followed to its logical conclusion, it renders the ADA’s
    elevator requirement a virtual nullity for anyone with the foresight to
    purchase a drill.2
    Perhaps the majority would not follow its line of reasoning to its
    logical end, and would hesitate to hold that a fire pole opening or a
    floor-to-roof atrium converts a story to be converted into a mezza-
    nine. However it could not do so under its current interpretation of the
    2
    Judge Shedd’s concurring opinion suggests that the majority’s inter-
    pretation of the DOJ definition of "mezzanine" does not require such
    conclusions. According to Judge Shedd, the level with a hole cut out for
    a fire pole or a staircase qualifies as a separate story because the floor
    is not a "portion of" the lower story, nor is it "placed within" the lower
    story. Conspicuously absent from his conclusory assertion, however, is
    any reasoning to support it. The regulation contains no spatial limitation
    that would prevent the DOJ from applying its definition to a level with
    a fire pole hole or staircase and claiming that such a floor is a "portion
    of" and "placed within" a lower story. Judge Shedd’s conclusion that
    such floors are separate stories simply because he says they are, offers
    little comfort to the disabled, and certitude strikes me as an inadequate
    substitute for analysis.
    LAIRD v. REDWOOD TRUST LLC                         13
    regulation. It is not enough for the majority to say that such an
    extreme example is not before us when there is no basis for any dis-
    tinction under the interpretation it adopts.
    While recognizing that the majority’s interpretation is grounded in
    the text of the regulation, I cannot believe that such a result was
    intended. It creates a loophole that could swallow the rule and ulti-
    mately stymie the purpose of the ADA — to integrate individuals
    with disabilities into mainstream life by guaranteeing them reasonable
    access to places of public accommodation. cf. 42 U.S.C. § 12101;
    P.G.A. Tour, Inc. v Martin, 
    532 U.S. 661
    , 675 (2001). Because of
    this, I believe the interpretation is unsustainable. See In re Vial, 
    115 F.3d 1192
    , 1196 (4th Cir. 1997) (en banc). Therefore, the question
    arises as to what interpretation that is faithful to the regulations
    should replace it.
    The district court, recognizing that the DOJ’s definition of mezza-
    nine was "imprecise and consequently difficult to apply", attempted
    to create a new "pragmatic" approach based upon the floor’s available
    space and the services provided upon it. Laird v. Redwood Trust LLC,
    
    240 F. Supp. 2d 423
    , 425 (D. Md. 2003). Using this test, the court
    found that because of the second floor’s "limited functional space"
    and the fact that the Club did not play different music on the second
    floor, thus offering no "unique services" on it, the second level could
    properly be characterized as a mezzanine. 
    Id. While I
    applaud the dis-
    trict court’s efforts to grapple with a poorly drafted regulation, its pro-
    posed solution creates more problems than it solves. Primarily, the
    court never defines "functional space," leaving it as an ambiguous
    concept that finds no justification in the regulations and is extremely
    difficult to apply. The court concludes that one-third of the space on
    the second floor was not "functional," because it was used for an
    office, two bathrooms, a bar, a storage room and two staircases. But
    it does so without explanation, and its logic is far from apparent.
    And even if the concept of "functional space" could be defined, the
    question as to whether a floor provides "unique services" would cause
    a myriad of other problems. For example, the district court focuses on
    the fact that the seating arrangement on each floor is similar and that
    the music provided on each level is generally of the same type. I can-
    not believe that the Department of Justice truly intended the decision
    14                   LAIRD v. REDWOOD TRUST LLC
    as to whether an elevator must be put in a place of public accommo-
    dation to hinge on a federal judge’s decision as to whether the rock
    music on a club’s first floor and the rap music on its second were dif-
    ferent enough to create a "unique" experience on each level. Further,
    both the function and usage of a club can easily change — certainly
    far more easily than that building’s structure. Having the applicability
    of the mezzanine exemption follow the function and usage of the
    space would make ADA compliance unnecessarily expensive, uncer-
    tain, and susceptible to manipulation.
    Since the majority’s reading of the DOJ definition is without limi-
    tation and creates an untenable loophole in the ADA, and the district
    court’s functional interpretation created to replace it is equally prob-
    lematic, another interpretation of the regulations that is consistent
    with the goals of the ADA must be sought. In a different context, the
    Supreme Court has recently said that when a regulation does not
    "helpfully define" a term, courts may seek to find Congressional
    intent by looking at the common meaning of that term (in that case
    the common law definition). See Clackama Gastroenterology Assoc.,
    P.C. v. Wells, 
    538 U.S. 440
    , 444 (2003).
    Although there is no common law definition of "mezzanine", its
    definition in the model building codes has gained wide acceptance.
    Mezzanine is defined in the International Building Code ("IBC") and
    the Building Officials & Code Administrators International, Inc.
    ("BOCA") National Building Code as "[a]n intermediate level or
    levels between the floor and ceiling of any story with an aggregate
    floor area of not more than one-third of the area of the room in which
    the level or levels are located." IBC, 2003 ed. § 502; BOCA 1999
    National Building Code § 502.0. This is the definition used by a large
    number of states in their building codes, and serves as the most com-
    mon definition of mezzanine currently used. See e.g., Cal. Health &
    Safety Code § 19995.3; 71 Ill. Adm. Code 400.210; Wis. Admin.
    Code § 51.02. The applicability of a one-third limitation to the regula-
    tion before us has appeal. It creates an objective criterion that is easily
    applied, familiar to the construction industry, and unlike the majori-
    ty’s reading, furthers the ADA goal of facilitating access.
    Such an application is, however, not without its problems. DOJ
    included the one-third limitation in another part of its regulations
    LAIRD v. REDWOOD TRUST LLC                        15
    dealing with mezzanines, thus acknowledging its familiarity with the
    standard. Despite that awareness, it declined to include the phrase
    within the definitions at issue. See C.F.R. § 36, App. A., 5.4 (vertical
    access to the mezzanine is not required if the area is "no more than
    33 percent of the [total] area"). Thus one might argue that the expres-
    sio unius est exclusio alterius ("the expression of one thing is the
    exclusion of another") maxim should apply, reading the lack of incor-
    poration of the one-third standard in the mezzanine definition as being
    intentional. However as courts have recognized, the expressio maxim,
    while a helpful tool for statutory construction, can often be mislead-
    ing. United States Immigration & Naturalization Serv. v. Fed. Labor
    Relations Auth., 
    4 F.3d 268
    , 272 (4th Cir. 1993). Its purpose, or that
    of any other principle of statutory construction, is simply to serve as
    a guide to ascertaining legislative or regulatory intent. If applying the
    maxim in a particular situation does not clarify the drafter’s intent,
    then the maxim serves no purpose. As explained before, I do not
    believe that the DOJ intended to define "mezzanine" in such a way
    so as to create a large loophole in the statute. Applying the expressio
    maxim rigidly in this case, thus eliminating reference to the one-third
    limitation, would create such a loophole. A statutory maxim intended
    to help decipher drafter intent will expressly counter it, thus leaving
    us with the unfettered interpretation adopted by the majority and the
    potential for the goal of access to be unrealized.
    Ultimately, as the district court implicitly and astutely recognized,
    the Justice Department needs to clarify its regulations. In the interim,
    however, I would rely on the one-third standard adopted by the build-
    ing codes as an initial point of departure. As problematic as building
    codes may be, no other objective standard appears. And with one-
    third of a floor as the frame of reference for determining the existence
    of a mezzanine, it is not difficult to conclude that a level which is
    75% of the floor space of the stories between which it falls, is too
    large. Indeed, it is disconcertingly close to my firepole/atrium analo-
    gies.
    For the foregoing reasons, and with full understanding of the
    majority’s decision to opt for its simpler reading, I respectfully dis-
    sent. In the long run, the goal of facilitation of access for the disabled
    demands it.