Disabilities Rights v. Foley Estates ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAREK MOLSKI, an individual, 
Plaintiff,
and
DISABILITY RIGHTS ENFORCEMENT,
EDUCATION, SERVICES: HELPING YOU No. 06-56385
HELP OTHERS, a California public
benefit corporation,  D.C. No.
CV-03-09393-CBM
Plaintiff-Appellant,
v.
FOLEY ESTATES VINEYARD AND
WINERY, LLC, a California limited
liability company,
Defendant-Appellee.

JAREK MOLSKI, an individual, 
Plaintiff,
and
DISABILITY RIGHTS ENFORCEMENT,
EDUCATION, SERVICES: HELPING YOU No. 06-56418
HELP OTHERS, a California public
benefit corporation,  D.C. No.
CV-03-09393-CBM
Plaintiff-Appellee,
OPINION
v.
FOLEY ESTATES VINEYARD AND
WINERY, LLC, a California limited
liability company,
Defendant-Appellant.

8325
8326 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted
April 9, 2008—Pasadena, Caliornia
Filed July 9, 2008
Before: Harry Pregerson, Dorothy W. Nelson, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge D.W. Nelson;
Partial Concurrence and Partial Dissent by Judge Fernandez
8330 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
COUNSEL
Julia M. Adams and Thomas E. Frankovich, Law Offices of
Thomas E. Frankovich, San Francisco, California, for the
plaintiff-appellant.
Barry Clifford Snyder, Snyder Law, Santa Barbara, Califor-
nia, for the defendant-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
This case involves a paraplegic who encountered discrimi-
natory barriers to access when he visited a winery with his
grandmother. Unwilling to remove barriers to the historic
wine-tasting room, Foley Estates Vineyard and Winery
(“Foley”) began providing services on a gazebo with a “big
bell” where individuals barred from the wine-tasting room
could ring for service. Jarek Molski and Disability Rights
Enforcement, Education, Services (“DREES”) sued Foley for
injunctive relief and damages to redress physical barriers to
wheelchair accessibility. The district court ordered barrier
removal within the building, but determined that it would not
be readily achievable to make an accessible ramp to the
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8331
entrance. We affirm the injunction requiring barrier removal
within the building and we remand for the district court to
apply 28 C.F.R. § 36.405 and the Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities, 28
C.F.R. § 36 App. A 4.1.7 (“ADAAG § 4.1.7” or “§ 4.1.7”)
when evaluating whether an accessible ramp would be readily
achievable.
FACTUAL AND PROCEDURAL BACKGROUND
On January 18, 2003, Jarek Molski1 visited the Foley
Estates Winery with his grandmother. While attending a
wine-tasting, Molski encountered multiple physical barriers to
entry with his wheelchair. An accessibility expert, Rick
Sarantschin, conducted a sub rosa investigation of the prop-
erty on October 12, 2003. Sarantschin confirmed the existence
of barriers to entry including a ramp with a slope that varies
between 6% and 20%; a raised threshold measuring 4.5″; a
round door knob; a rear door width of only 30″; another door
width of 31.25″; and a wine-tasting counter height of 42″.
Jarek Molski and DREES filed suit against Foley on Decem-
ber 22, 2003.
Prior to the commencement of litigation, Foley undertook
$23,994 in renovations to provide all services on a
wheelchair-accessible gazebo. Renovations included an acces-
sible ramp from the parking lot and a “big bell” to summon
for service. Nearly two years into the court proceedings, the
Santa Barbara County Historic Landmarks Advisory Commis-
sion declared Foley Estates a “Place of Historical Merit” by
way of resolution No. 2005-01.
At trial, the court heard expert testimony regarding pro-
posed methods of barrier removal and associated costs. The
1
Jarek Molski is paraplegic and requires a wheelchair for mobility. Mol-
ski is a member of DREES, a nonprofit membership organization that
advocates on behalf of individuals with disabilities.
8332 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
court also heard testimony from Foley’s architectural histo-
rian, who opined that an access ramp would have a severe
impact on the historical nature of the cottage. The judge deter-
mined that it would cost $34,074 to construct an access ramp
to the rear of the building, and it would cost $5,130 to remove
all physical access barriers inside the building. The judge
found that removal of interior barriers would be readily
achievable, but removal of exterior barriers would not be
readily achievable because it would threaten the architectural
significance of the property. In reaching this finding, the
judge held that 28 C.F.R. § 36.405 and ADAAG § 4.1.7 do
not apply to barrier removal for existing facilities. Thus, the
judge allocated the burden of production to the plaintiff to
show that the proposed alteration would not threaten the his-
toric significance of the building. The trial judge issued a per-
manent injunction requiring barrier removal inside the
cottage.
DREES timely appeals the district court’s findings regard-
ing the applicability of 28 C.F.R. § 36.405 and ADAAG
§ 4.1.7, and the ready achievability of constructing an accessi-
ble ramp. Foley cross-appeals and challenges the permanent
injunction requiring removal of interior physical barriers.
JURISDICTION AND STANDARD OF REVIEW
DREES filed the underlying action for violations of the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-
12300, in federal court pursuant to 28 U.S.C. § 1331. We
exercise jurisdiction over the appeal pursuant to 28 U.S.C.
§ 1291.
“The interpretation of [the ADA] is a question of law sub-
ject to de novo review.” Barden v. City of Sacramento, 292
F.3d 1073, 1075 (9th Cir. 2002). We also review the district
court’s allocation of the burden of proof de novo. Ferrari,
Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550,
555 (9th Cir. 1991). We review the court’s decision whether
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8333
to grant equitable relief under the ADA for an abuse of discre-
tion. Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th
Cir. 2002).
DISCUSSION
I. EXTERIOR RAMP
A. APPLICABLE REGULATIONS
[1] On appeal, we are asked to decide whether 28 C.F.R.
§ 36.405 and ADAAG § 4.1.7 apply to barrier removal in
existing facilities. By their terms, these regulations apply to
“alterations;” however, 28 C.F.R. § 36.304(d)(1) extends their
application to readily achievable barrier removal in existing
facilities. Despite this regulatory directive, the district court
declined to apply § 36.405 and § 4.1.7. We reverse and
remand.
[2] Our analysis begins with 28 C.F.R. § 36.304, which
regulates barrier removal in existing facilities of public
accommodation. That section requires “[a] public accommo-
dation [to] remove architectural barriers in existing facilities
. . . where such removal is readily achievable.”2 28 C.F.R.
§ 36.304(a). The regulation goes on to specify that, “measures
taken to comply with the barrier removal requirements of this
section shall comply with the applicable requirements for
alterations in § 36.402 and §§ 36.404-36.406. . . .” 28 C.F.R.
§ 36.304(d)(1) (emphasis added). If compliance under those
additional regulations would not be readily achievable, “a
public accommodation may take other readily achievable
measures to remove the barrier that do not fully comply with
the specified requirements.” 28 C.F.R. § 36.304(d)(2).
2
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). Factors to consider include the costs of the project, the
resources of the facility and entity, and the nature of the entity and its
operations. Id.8334 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
[3] In this case, we look to the regulations governing his-
toric buildings because the Santa Barbara County Historic
Landmarks Advisory Commission designated the building as
a place of local historic merit. Through its plain language, 28
C.F.R. § 36.304(d)(1) directs vendors to comply with 28
C.F.R. § 36.4053 when making readily achievable accommo-
dations. Section 36.405 requires qualified historic buildings to
“comply to the maximum extent feasible with [ADAAG
§ 4.1.7].” 28 C.F.R. § 36.405(a). Under § 4.1.7, “if the entity
undertaking the alterations believes that compliance with the
requirements . . . would threaten or destroy the historic signif-
icance of the building . . . the entity should consult with the
State Historic Preservation Officer.” ADAAG § 4.1.7(2)(b).
“If the State Historic Preservation Officer agrees that compli-
ance with the accessibility requirements for accessible routes
(exterior and interior), ramps, entrances or toilets would
threaten or destroy the historical significance of the building
or facility, the alternative requirements in 4.1.7(3) may be
used.” Id. Under our reading, 28 C.F.R. § 36.304(d)(1)
requires compliance with § 36.405, which incorporates
§ 4.1.7(2)(b) and provides a procedure for businesses to seek
alternative requirements for historic properties.
[4] Our reading of 28 C.F.R. § 36.304 preserves the
leniency allocated to existing facilities under Title III of the
Americans with Disabilities Act. The ADA only requires bar-
rier removal in existing facilities “where such removal is
readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Section
36.304 integrates the “readily achievable” standard into both
§ 36.304(a) and § 36.304(d)(2). Section 36.304(a) ensures that
only readily achievable barrier removal triggers the incorpora-
tion of § 36.405 and § 4.1.7, and § 36.304(d)(2) allows for
partial compliance if full compliance with those regulations
would not be readily achievable. Thus 28 C.F.R. § 36.3043
Section 36.405 applies to “facilities that are eligible for listing in the
National Register of Historic Places . . . or are designated as historic under
State or local law.”
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8335
incorporates § 36.405 and § 4.1.7 into the ready achievability
framework, and retains the flexible standard reserved for
existing facilities.
Additionally, § 4.1.7 establishes a procedure for determin-
ing whether barrier removal in existing facilities will be read-
ily achievable. According to the ADA Title III Technical
Assistance Manual (“ADA Manual”) § III-4.4200, “[b]arrier
removal would not be considered ‘readily achievable’ if it
would threaten or destroy the historic significance of a build-
ing or facility that is . . . designated as historic under State or
local law.” The standard set in § 4.1.7 is identical to the stan-
dard of ready achievability proffered by the ADA Manual.
This similarity between the language suggests that application
of § 4.1.7 is consistent with the standard for existing historic
facilities. Therefore, the procedure set forth in § 4.1.7 may be
used to determine what is readily achievable in existing his-
toric facilities.
[5] For the foregoing reasons, we find that the district court
erred when it refused to apply § 36.405 and § 4.1.7 to readily
achievable barrier removal in existing facilities. We acknowl-
edge that three courts have considered historical significance
as a factor for determining ready achievability without invok-
ing 28 C.F.R. § 36.405 or ADAAG § 4.1.7.4 However, we
find the explicit regulatory language to be more persuasive
than the absence of discussion of these regulations in our sis-
ter circuits. Therefore, we remand to the district court to apply
§ 36.405 and § 4.1.7 when determining whether an exterior
ramp would be readily achievable.
4
In, Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1275
(11th Cir. 2006), Colorado Cross Disability Coalition v. Hermanson Fam-
ily Ltd., 264 F.3d 999, 1007 (10th Cir. 2001), and Speciner v. Nations-
Bank, N.A., 215 F. Supp. 2d 622, 631 (D. Md. 2002), courts have consid-
ered historical significance as a factor for determining ready achievability
without invoking 28 C.F.R. § 36.405 or ADAAG § 4.1.7. Notably, none
of these cases rejects the application of 28 C.F.R. § 36.405 and ADAAG
§ 4.1.7; they simply proceed without analyzing those authorities.
8336 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
B. BURDEN OF PRODUCTION
At trial, the judge relied on Colorado Cross Disability
Coalition v. Hermanson Family Ltd. to find that DREES bore
the initial burden of production for the question of ready
achievability. See 264 F.3d 999, 1002 (10th Cir. 2001). As
noted above, Colorado Cross failed to address § 36.405 and
§ 4.1.7. This omission tainted the inquiry into who bears the
burden of production for the ready achievability of barrier
removal in historic facilities. We reverse and remand because
we find that § 4.1.7 counsels in favor of placing the burden of
production on the defendant.
[6] We begin by looking to § 36.405 and § 4.1.7 to allocate
the burden of production. Under § 4.1.7(2)(b), “if the entity
undertaking alterations believes that compliance with the
requirements . . . would threaten or destroy the historic signif-
icance of the building . . . the entity should consult with the
State Historic Preservation Officer.” Although this clause uses
permissive language, it calls upon the party who believes that
compliance would threaten the historical significance of the
building to consult the appropriate agency. It does not place
that burden on the party advocating for remedial measures.
Thus, the language of § 4.1.7(2)(b) counsels in favor of plac-
ing the burden of production upon the defendant.
[7] By placing the burden of production on the defendant,
we place the burden on the party with the best access to infor-
mation regarding the historical significance of the building.
The defendant sought the historical designation in this case.
Thus, the defendant possesses the best understanding of the
circumstances under which that designation might be threat-
ened. The defendant is also in the best position to discuss the
matter with the Santa Barbara County Historic Landmarks
Advisory Commission and to request an opinion on proposed
methods of barrier removal. As a result, the defendant is in a
better position to introduce, as part of its affirmative defense,
detailed evidence and expert testimony concerning whether
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8337
the historic significance of a structure would be threatened or
destroyed by the proposed barrier removal plan.
[8] As the dissent reasoned in Colorado Cross, “[i]f plain-
tiffs must all but present the court with a pre-approved con-
struction contract for a sum certain which includes detailed
plans, impact statements, engineering studies, and permits to
meet their threshold burden, virtually no plaintiff could afford
to bring an architectural barrier removal claim under 42
U.S.C. § 12182(b)(2)(A)(iv).” Colorado Cross, 264 F.3d at
1011 (Lucero, J., dissenting). We need not require an ADA
plaintiff to undertake such heroic measures. Congress relies
on private actors, i.e., disabled individuals, to enforce the
ADA by filing lawsuits. Thus plaintiffs should not be deterred
from filing meritorious claims by an inappropriate allocation
of the burden of production.
[9] We find that the language of § 4.1.7, the access to infor-
mation, and the congressional intent behind the ADA support
placing the burden of production on the defendant. Thus, we
reverse and remand for the district court to assign the burden
of production to the defendant on the issue of whether barrier
removal would threaten the historical significance of the
building.
II. DUTY TO REMOVE INTERIOR BARRIERS
[10] When the district court ordered removal of interior
barriers to the building, the court arguably enhanced the prob-
ability that persons with disabilities would attempt to traverse
the non-compliant ramp to access the building. Foley argues
that we should absolve the winery of its responsibility to
remove interior barriers because the only existing ramp is
non-compliant. We reject this argument and affirm the district
court’s injunction requiring barrier removal inside the build-
ing.
[11] Both parties find support for their positions in 28
C.F.R. § 36.304(d)(2). According to this regulation:
8338 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
If . . . the measures required to remove a barrier
would not be readily achievable, a public accommo-
dation may take other readily achievable measures to
remove the barrier that do not fully comply with the
specified requirements. Such measures include, for
example, providing a ramp with a steeper slope . . . .
No measure shall be taken, however, that poses a
significant risk to the health or safety of individuals
with disabilities or others.
28 C.F.R. § 36.304(d)(2). DREES relies on the provision for
partial accommodation wherever complete accommodation is
not readily achievable. Foley relies on the caution against par-
tial accommodations where they pose a significant risk to
health and safety. We find that partial accommodation was
appropriate in this case.
[12] First, § 36.304(d)(2) expressly contemplates that a
venue may provide a ramp with a steeper slope. The provision
of such a ramp does not excuse the facility from otherwise
making readily achievable accommodations to the maximum
extent feasible. Therefore, the fact that there is an existing
ramp with a steeper slope also does not excuse the facility
from making readily achievable accommodations to the maxi-
mum extent feasible. Second, the inaccessibility of entry to
one group of individuals does not justify retaining barriers to
access inside the building for all others who may safely gain
entry. Where readily achievable, the interior of the building
must be made accessible for all who may enter.
[13] Foley argues that removing barriers to the interior of
the building might tempt people with disabilities to traverse
a ramp that is nearly twelve percent steeper at points than
ADA Guidelines recommend. According to Foley, this temp-
tation implicates 28 C.F.R. § 36.304(d)(2) because it “poses
a significant risk to the health or safety of individuals with
disabilities.” When weighing this consideration, we recognize
the diversity in the population of persons with disabilities who
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8339
might seek to use this ramp. People using canes, walkers,
braces, and powered chairs can often navigate a steeper ramp
than people using manual chairs, so safety risks vary with the
nature of the disability and adaptive equipment. Notably, the
only evidence that Foley cites to support its theory of a health
and safety risk is the pleading of a manual wheelchair user
who complained of trauma to his upper extremities. Although
the ramp allegedly caused injury to Jarek Molski, the ramp
might not cause injury to people using different adaptive
equipment. Because safe access is possible for many persons
who might need or use the ramp, the district court did not
abuse its discretion by ordering readily achievable accommo-
dations to the interior of the wine-tasting room.
III. ALTERNATIVE GAZEBO
Foley argues that the provision of all relevant services on
the wheelchair-accessible gazebo was legally adequate as a
means of barrier removal. We reject this argument and affirm
the district court’s imposition of readily achievable barrier
removal inside the building.
As a threshold matter, a facility may only substitute alterna-
tives to barrier removal where “as a result of compliance with
the alterations requirements specified in paragraph (d)(1) of
this section, the measures required to remove a barrier would
not be readily achievable.” 28 C.F.R. § 36.304(d)(2). As
noted above, the district court did not abuse its discretion in
determining that barrier removal inside the building was read-
ily achievable. In light of this holding, no alternative accom-
modations can supplant the legally required barrier removal.
[14] Although we find the gazebo inadequate for those who
could otherwise access the wine-tasting room, the gazebo pro-
vides an important avenue of participation for those who can-
not traverse the steps or ramp to the wine-tasting room. We
acknowledge Foley’s efforts to serve this community; how-
ever, these efforts do not change Foley’s obligation to make
8340 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
readily available changes to enable the maximum participa-
tion possible for those who are able to access the interior of
the wine-tasting room. The gazebo places those who could
otherwise access the wine-tasting room at a disadvantage that
the ADA seeks to remove. Thus, the Gazebo is not an appro-
priate alternative accommodation.
CONCLUSION
We REVERSE and REMAND for the district court to
apply § 36.405 and § 4.1.7 and place the burden of production
on the defendant. Additionally, we AFFIRM the district
court’s permanent injunction requiring removal of interior
barriers to wheelchair access.
REVERSED AND REMANDED IN PART AND
AFFIRMED IN PART.
FERNANDEZ, Circuit Judge, concurring and dissenting:
I concur in the majority’s determination that the district
court did not err when it required Foley Estates Vineyard and
Winery, LLC, to make changes to the interior of its building
pursuant to the Americans with Disabilities Act, 42 U.S.C.
§ 12181-12189 (“ADA”). However, I dissent from the majori-
ty’s reversal of the district court’s order denying a demand
that Foley make the proposed exterior changes.
It is important to note that this is not a case where Foley
sought to construct a new facility. See 42 U.S.C.
§ 12183(a)(1). Nor is it a case where Foley sought to alter an
old facility. See id. § 12183(a)(2). It is, instead, a case where
Foley was not seeking to make any change, but Disability
Rights Enforcement Education Services: Helping You Help
Others (hereafter “Disability Rights”) demanded that changes
be made because the failure to do so would be discriminatory.
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8341
See id. § 12182(b)(2)(A)(iv). However, a mere failure to
remove an architectural barrier is discriminatory only “where
such removal is readily achievable.” Id. In other words, the
mere existence of the barrier does not bespeak wrongdoing;
it only becomes wrongful if removal can be readily achieved.
Barrier removal is readily achievable when it is “easily
accomplishable and able to be carried out without much diffi-
culty or expense.” Id. § 12181(9). That definition is extremely
important. It imposes a much less stringent standard upon
owners of existing properties than that imposed upon owners
who undertake new construction and are required to show
structural impracticability in order to avoid violating the
ADA. See id. § 12183(a)(1). It is also less stringent than the
“maximum extent feasible” standard imposed upon owners
who seek to alter their facilities. See id. § 12183(a)(2).
In determining ready achievability, “the nature and cost of
the action needed” must be taken into account. Id.
§ 12181(9)(A). Furthermore, because it was never intended
that the nation’s architectural heritage be destroyed under the
banner of readily achievable accessibility, special consider-
ation is given to buildings that “are designated as historic
under State or local law.” 28 C.F.R. § 36.405(a). As to those,
it is important to avoid changes that would “threaten or
destroy the historic significance of the building . . . .” Id.§ 36.405(b). As the Department of Justice puts it: “Barrier
removal would not be considered ‘readily achievable’ if it
would threaten or destroy the historic significance of a build-
ing or facility that is . . . designated as historic under State or
local law.” Dep’t of Justice, ADA Title III Technical Assis-
tance Manual: Covering Pub. Accommodations & Commer-
cial Facilities, § III-4.4200; see also 16 U.S.C. § 470f;
Nondiscrimination on the Basis of Disability by Pub. Accom-
modations & in Commercial Facilities, 56 Fed. Reg. 35,544,
35,568-69 (July 26, 1991). It is through that lens that we must
review the district court’s decision in this case because the
Foley building in question is a Craftsman house which has
8342 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
been designated as a Place of Historic Merit by the Santa Bar-
bara County Historic Landmark Commission. Nobody doubts
that.
When that proper method of examining the district court’s
determination is used, it is apparent that the district court did
not clearly err1 when, based on the record before it, the court
determined that the changes suggested by Disability Rights
would, in fact, severely impact or destroy the historic signifi-
cance of Foley’s building. In reaching that conclusion, the
court relied upon the unrebutted evidence from an expert
architectural historian, Dr. Pamela Post, who testified to that
effect and added that if the suggested changes had been made
previously, they would have made the designation of the
house as a Place of Historic Merit problematic. She, by the
way, is the person who presented the initial report that sup-
ported the designation of the property in the first place.
But, argues Disability Rights, the district court was not per-
mitted to make that finding. Why? Well, Disability Rights
points to the fact that the regulation on removal of barriers
states that when measures are taken to comply with readily
achievable barrier removal requirements, any alterations made
are to comply with 28 C.F.R. § 36.405(a) “for the element
being altered.” 28 C.F.R. § 36.304(d)(1). Of course, that is no
surprise because if a change is made, it becomes an alteration
and ought to then make the property accessible. But, to state
that the intent of the regulation is to make barrier removal
essentially the same as voluntary alteration is to conflate those
two different concepts by making the very threshold for
removability the same as the standard for alteration. That can-
not have been the intent of the regulation.
Leaving that objection aside, however, Disability Rights’
second step is even more problematic. Having been referred
1
See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837
(9th Cir. 2007).
DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES 8343
to 28 C.F.R. § 36.405, we should, says Disability Rights, then
note that § 36.405 further refers to 28 C.F.R. Pt. 36, app. A
(hereafter “Appendix A”). And, notes Disability Rights,
§ 4.17(2)(b) of Appendix A states that when making alter-
ations to historic buildings the entity (here Foley) “should
consult with the State Historic Preservation Officer.” What
Disability Rights bypasses is the clear definition of “should”
as used in Appendix A. As opposed to “may”2 and “shall,”3
the word “should” by definition “[d]enotes an advisory speci-
fication or recommendation.” See Appendix A § 3.4. 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. Thus, the claim that the district court
could not make a finding on the issue must fail.
Disability Rights also raises questions about whether it had
any burden to propound a prima facie case that included an
element regarding the effect of its proposed changes on the
historic significance of the property. Other courts have indi-
cated that plaintiffs, like Disability Rights, do have that obli-
gation. See, e.g., Gathright-Dietrich v. Atlanta Landmarks,
Inc., 452 F.3d 1269, 1273-75 (11th Cir. 2006); Colo. Cross
Disability Coal. v. Hermanson Family Ltd., 264 F.3d 999,
1004-07 (10th Cir. 2001); Speciner v. NationsBank, N.A., 215
F. Supp. 2d 622, 632 (D. Md. 2002). However, I see no need
to resolve that issue in this case. The district court decided the
question of ready achievability after a trial. Thus, any shifting
burdens of production are of no import. Cf. St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 509-11, 113 S. Ct. 2742, 2748-49,
125 L. Ed. 2d 407 (1993) (holding that a burden shifting pre-
sumption “simply drops out of the picture” once the party
comes forward with evidence). Here the district court
received all evidence that the parties chose to put forward,
2
Appendix A § 3.4.
3
Id.
8344 DISABILITY RIGHTS ENFORCEMENT v. FOLEY ESTATES
and made a finding that there would be a deleterious impact
upon the historic significance of the property. No more was
needed, and the fact that Disability Rights did not put forth
any historic significance evidence of its own, expert or other-
wise, is fatal to its position. See, e.g., Gathright-Dietrich, 452
F.3d at 1275; Colorado Cross, 264 F.3d at 1009.
In short, as I see it, the district court’s perspicacity and care
led it to the correct result in this case. Its decision should be
affirmed.
Thus, I concur in part and respectfully dissent in part.