Flaum v. The Colonial Williamsburg Foundation

District Court, E.D. Virginia, No. 4:12cv111, November 21, 2012: Complaint of plaintiff in ADA historic property claim need not show remedy is readily achievable.

The historic preservation issue in this case is whether, at time of filing a claim in court under the Americans with Disabilities Act (“ADA”) for removal of architectural barriers at a historically significant building, the person filing the claim has the burden of showing that the barrier removal is “readily achievable” without threatening the historic significance of the property.

Plaintiff Flaum is assumed, for the purposes of this case, to be a “qualified individual with a disability” under the ADA. He brought this action alleging that that he encountered various architectural barriers at the “18th century style retail village” that is part of a Historic District in Williamsburg, Virginia, operated by Defendant Colonial Williamsburg Foundation (“Colonial Williamsburg”).  Flaum claimed that the architectural barriers limited his access to the goods, services, facilities, and privileges offered at the property in violation of the ADA.

Title III of the ADA prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations. 42 U.S.C. § 12182(a). Entities that provide public accommodations must remove architectural and structural barriers, or if barrier removal is not readily achievable [emphasis added], must ensure equal access for the disabled through alternative methods, §§ 12182(b)(2)(A)(iv)-(v) and 12184(b)(2)(C).  According to the ADA Title III Technical Assistance Manual  § III-4.4200, “[b]arrier removal would not be considered `readily achievable’ if it would threaten or destroy the historic significance of a building or facility that is . . . designated as historic under State or local law.”

Defendant Colonial Williamsburg asked the Court to dismiss Flaum’s complaint saying, among other reasons, it fails to state a cause of action on which relief can be granted. Colonial Williamsburg argued that Flaum did not allege any facts that show that the alleged architectural barriers could be removed in a readily achievable manner that does not threaten the historic significance of the property. Colonial Williamsburg argued that several courts have held that Flaum, as the initial complainant, has the burden of showing that “any method of readily achievable barrier removal would not threaten the historic significance of the property”.

For the purposes of a motion to dismiss, a court assumes that all of the factual allegations in the Plaintiff’s complaint are true, but the facts alleged “must be enough to raise a right to relief above the speculative level and must provide enough facts to state a claim to relief that is plausible on its face.”  The Court held that while it is correct that at a trial the Plaintiff has the burden on the “readily achievable” question, the “readily achievable” inquiry is premature at the pleading stage. The Court wrote, “The law does not require that Plaintiff request some specific form of modification as a prerequisite to a valid ADA claim. Plaintiff need only allege facts sufficient to permit a court to infer that all the elements of the cause of action exist. Plaintiff has satisfied his burden by pleading that ‘it is readily achievable for Defendant to correct the ADA violations . . . without threatening or destroying the historical significance of any facility…’. The question of what specific modifications may be necessary for full compliance is a factual issue reserved for trial.” Accordingly, and because the Court found against all the other grounds for dismissal alleged by Colonial Williamsburg, the Court denied Colonial Williamsburg’s motion to dismiss the complaint.

Memorandum decision available at http://docs.justia.com/cases/federal/district-courts/virginia/vaedce/4:2012cv00111/282378/25/0.pdf?ts=1353599450.

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