Another federal court of appeals has weighed in on the applicability of the Americans with Disabilities Act [ADA] to design professions. A recent Ninth Circuit Court of Appeals decision considered the correct application of the Americans with Disabilities Act to an architect whose only connection to the project was the design of the public accommodations. The court concluded that the architect could not be held liable for the failure to design and construct the facility in a manner compliant with the ADA. [Lonberg v Sanborn Theaters, Inc., et al., 259 F3d 1029 (9th Cir 2001).]

The Mandates of the ADA

The ADA is divided into three parts, referred to as titles within the Act. Title I deals with employment discrimination. Title II is intended to protect the disabled from discrimination by public entities. Title III deals with discrimination against the disabled in regard to commercial buildings. In the claims focused on a building's design, Title III is the portion of the ADA in dispute.

Like the other Titles, Title III of the ADA sets forth a rule of liability prohibiting discrimination by specific individuals, and then has subsequent provisions which set forth what actions by these specific individuals constitute the prohibited discrimination.

Title III contains the following "general rule" of liability related to commercial buildings:

No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.

For the purposes of the analysis relative to design professional liability, as noted by the Lonberg court, there are three significant parts of this general rule that need to be considered. First, discrimination is only prohibited in regard to access to a place of "public accommodation." Second, liability may be imposed if the entity against whom liability is alleged "owns, leases (or leases to), or operates" a place of public accommodation. Third, the definition of "discrimination," which is not set out in the "general rule."

Other provisions of Title III define what constitutes "discrimination." One portion of the provision describes discrimination as being "the failure to design and construct facilities for first occupancy ... that are readily accessible to and useable by individuals with disabilities...."

"Significant Degree of Control" versus "Parallel" Liability

The courts, which have considered the ADA's application to the design professions, have applied the law in one of two ways. The court's interpretation turns on the application to an entity that does not own, operate, or lease the facility. The argument has been that the liability should extend to architects because, as the designer, the architect has had more control over the design and construction functions than the owner, operator, lessee, or lessor.

The Significant Degree of Control Faction. One camp of courts arguably extends the reach of the ADA beyond the language of the Act. These courts have created a class of entities that are liable under the ADA which are not specifically enumerated, and holds that any entity which exercises a "significant degree of control over final design and construction of a facility" can be found liable.

Examples of entities upon which liability had been imposed under the premise that each exercised a "significant degree of control over final design and construction of a facility" are franchisors and architects. The courts adopting the "significant degree of control" test are the Eighth Circuit Federal Court of Appeals and federal courts sitting in Minnesota and Florida.

The Parallel Faction. The other camp of courts which have looked at this issue has held that liability for the "failure to design and construct" an ADA-compliant building is parallel to those entities set out in the general rule, i.e.: owners, operators, lessees, and lessors of public accommodations or commercial facilities. This approach has been called the "parallel" approach because the holding most closely "parallel" the text and structures of the ADA.

The courts in this group have refused to expand the group exposed to liability beyond the entities listed in the statute, and have specifically not included franchisers and architects in the groups exposed to liability under the ADA. The courts in this faction are federal courts sitting in Kentucky, California, and the District of Columbia.

Lonberg v Sanborn Theaters, Inc.

Plaintiffs in the Lonberg case made their claims against the architect in this context of the ADA's history. In this case, plaintiffs John Lonberg and Ruthee Goldkorn are physically disabled and require the use of wheelchairs for mobility. Plaintiffs claimed that various aspects of the Market Place Cinema in Riverside, California were not sufficiently accessible to people who use wheelchairs.

Mr. Lonberg and Ms. Goldkorn filed suit alleging violations of the ADA against Sanborn Theaters, Inc., as the operator of the Market Place Cinema, West Coast Realty Investors, Inc., as the owner of the property and building, and Salts, Troutman & Kaneshiro, Inc. (STK), as the architect retained by Sanborn to design the theater. The only relief sought against STK in the lawsuit was for injunctive relief in that STK was alleged to have violated Title III of the ADA because STK failed to "design and construct" the theater such that it was "readily accessible to and useable by individuals with disabilities."

STK was not the owner, lessee, lessor, nor operator of the theater. Those claiming STK violated the ADA did not dispute this. STK asked the trial court to grant judgment in its favor on the basis, inter alia, that only "persons who both design and construct a building can violate" the applicable provisions of the ADA. STK did not construct the Market Place Cinema. Plaintiffs alleged that STK failed to design and construct the theater in a manner "readily accessible" to wheelchairs. There was no dispute that the theater was a place of public accommodation.

In considering the arguments of STK, the court of appeals considered the two camps that had considered an architect's liability under the ADA—"significant control" and "parallel." The court of appeals in the Lonberg case concluded that the "parallel" interpretation was preferable because it is more consistent with the language of the ADA. In further support of this position, the Lonberg court pointed out that the "parallel" interpretation avoids the problems created by the "significant degree of control" holdings. In the application of the "parallel" interpretation, the courts do not need to "divine liability" wholly divorced from the text of the ADA, as would be the case under the "significant control" interpretation.

The court of appeals also believed the relief available under Title III of the ADA was indicative of the correctness of the "parallel" interpretation. The court noted that as a general proposition, actions under Title III are limited to injunctive relief, such as that sought by plaintiffs in this suit. The court concluded:

This is significant because, after the noncompliant building has already been built, which is the case here, injunctive relief is only meaningful against the person currently in control of the building. That is, the architect who built the building, like STK in this case, is by the time of suit by an eligible plaintiff out of the picture. This limitation on relief suggests that reading Title III to make architects, and others who do not own, lease, or operate buildings, such as builders and construction subcontractors, liable for "design and construct" discrimination would create liability in persons against whom there is not meaningful remedy provided by the statute.

As a result of the court's analysis, STK was granted a judgment in its favor in the lawsuit. The conclusion reached was that only owners, lessee, lessor, or operators of noncompliant public accommodations can be liable under Title III of the ADA for the "design and construct" discrimination.

Conclusion

The Lonberg court of appeals is the Ninth Circuit. If your project is in a state within the Ninth Circuit, you have some clear guidance regarding your exposure as a designer of public buildings. You will not have the direct liability of claims under the ADA. The Ninth Circuit Court of Appeals covers the states and territories of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Mariana Islands, Oregon, and Washington.

If you have a project in the Eighth Circuit geographic area, you will have exposure under the test of whether your involvement constituted "significant control" over the design and construction of the project. The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Since we now have a conflict between the circuits, some resolution will have to come from a higher court.