FINDINGS OF FACT & CONCLUSIONS OF LAW
HIGHSMITH, District Judge.
THIS CAUSE came before the Court for a bench trial from July 31, 2001 to August 2, 2001. The issues tried to the Court concerned whether a casino vessel, the Casino Princesa (hereinafter the "Princesa"), was accessible to Plaintiffs Daniel Ruiz and Luis Rodriguez, in compliance with Title III of the Americans with
I. FINDINGS OF FACT
1. Plaintiff Daniel Ruiz is a T-3 paraplegic and is wheelchair-bound. He is a founder, a member, and the current president of the Association for Disabled Americans, Inc. He has sailed on the Princesa.
2. Plaintiff Luis Rodriguez is a quadriplegic and is wheelchair-bound. He is a founder, a member, and a current board member of the Association for Disabled Americans, Inc. He has sailed on the Princesa.
3. Plaintiff Association for Disabled Americans, Inc. is a nonprofit corporation organized under the laws of Florida, with approximately 250 members. Its mission is to combat discrimination against the disabled. Since it was established in 1995, the Association for Disabled Americans, Inc. and its members have instituted over 200 Title III access actions in the United States District Court for the Southern District of Florida.
4. Defendant Concorde Gaming Corporation, through wholly owned subsidiaries, controls Princesa Partners and Bayfront Ventures. Princesa Partners owns the Princesa, and Bayfront Ventures operates the Princesa.
5. Defendant Goldcoast Entertainment Cruises, Inc. previously owned a minority interest in both Princesa Partners and Bayfront Ventures. Concorde Gaming Corporation bought out Goldcoast Entertainment Cruises, Inc.'s interests in Princesa Partners and Bayfront Ventures in August of 2000. Goldcoast Entertainment Cruises, Inc. no longer has a stake in the ownership or operation of the Princesa.
6. The Princesa was designed in 1997, and construction of the vessel was completed in 1998. She is 200 feet long, 41 feet wide, and contains four passenger levels or decks. From design through construction, the cost of building the Princesa was $7.2 million.
7. The Princesa was designed and constructed as a commercial, passenger vessel, in accordance with the United States Coast Guard regulations for subchapter K vessels. The Princesa can carry up to 600 passengers, plus 148 crew members.
8. The Princesa was designed and built to be a casino ship; i.e., to transport customers to and from international waters, where she serves as a casino and her passengers partake in casino gaming. The Princesa's maiden voyage was in October of 1998, and, since that time, she has operated as a casino vessel open to the public from Miami's Bay Front Park.
9. Passengers purchase tickets and board the Princesa at Bay Front Park. When they arrive at the Princesa's terminal at Bay Front Park, prospective passengers are met by "greeters." The greeters are customer service representatives who meet and offer assistance to passengers and prospective passengers. At the terminal, there is also a ticket booth, where passengers may purchase tickets. The counter at the ticket booth is 40 inches high from ground level and 6½ inches deep. Among the services that the greeters regularly perform is to assist disabled individuals with the transaction of purchasing a cruise ticket. Disabled individuals therefore are not required to utilize the ticket booth.
10. After a passenger has purchased a cruise ticket, the passenger embarks the
11. At the point of ingress to the Princesa on the first deck, there is a drop-off of approximately four inches from the point where the gangway meets the vessel to the interior passenger deck. This drop-off is required to make the doorway water-tight, in compliance with Coast Guard regulations.
12. Gaming is offered on the first and second decks of the Princesa. There are cashier counters on the first and second decks, where passengers may exchange cash for gambling chips, and vice versa. The cashier counters are approximately 41 inches high. They are required to be that high for security reasons.
13. The following games are available on the first and second decks: (1) black jack; (2) mini-baccarat; (3) roulette; and (4) craps. There are also slot machines on the first and second decks. Additionally, poker is occasionally available on the second deck. Two of the gaming tables on the first deck are lowered, so that they are accessible to individuals in wheelchairs. Those two tables may be utilized to play either black jack or mini-baccarat. All of the other tables are inaccessible to individuals in wheelchairs, due to the height of the tables.
14. Bar service is available on the first, second, and third decks of the Princesa. Passengers may obtain drinks either (1) directly from bars located on each deck or (2) from the vessel's wait staff. Food is sold on the second and third decks, or it may be ordered through the wait staff from the first deck. On the second and third decks, there are tables where passengers may eat and drink. On the first deck, there are no tables solely for eating and drinking (i.e., all of the tables are gaming tables). The two lowered gaming tables on the first deck, however, are outfitted with plexiglass tops, which may be affixed to allow people to eat and drink off of them. The Princesa has a policy of affixing the plexiglass tops to the lowered gaming tables when (1) requested by a passenger and (2) the vessel is not in international waters (i.e., when gaming is not permitted). In effect, during a typical five hour gaming cruise, the lowered gaming tables may be utilized with the plexiglass tops for 45 minutes on the way out to international waters and for 45 minutes on the way in.
15. The fourth deck of the Princesa is an open air observation deck. The second and third decks of the Princesa also have small open air observation areas. There is no open air observation area on the first deck of the Princesa. The only segment of the first deck that is not enclosed cannot be utilized as an observation area because Coast Guard regulations require that it remain clear, as it serves as the primary emergency evacuation point for the vessel.
16. On the third deck of the Princesa, there is a dance floor that is open to passengers. Music, most often through a diskjockey, is played on the third deck.
17. Passenger restrooms are available on the first and second decks of the Princesa. On each deck, there is one men's restroom and one women's restroom.
18. All of the restrooms have one stall that was designed to be handicap accessible. Those stalls are 60 inches wide and 60 inches long. The toilets are positioned in a rear corner of the stall. In all of the stalls, there is a "grab bar" on the wall immediately beside the toilet. None of the stalls has a grab bar on the wall behind the toilet. In the women's stalls, there is
19. The toilet in the men's handicap accessible stall on the first deck is 16½ inches high, and the toilet in the women's handicap accessible stall on the first deck is 17½ inches high.
20. Each restroom also has one lavatory that is designed to be handicap accessible. In that respect, the lavatory is constructed so that there is open space between the sink and the floor, in order to allow an individual in a wheelchair to maneuver his legs under the sink to permit him to use the sink. The clearance under the sinks is approximately 6½ inches deep. Above the sinks are mirrors, and on an adjacent wall there are paper towel dispensers.
21. The Princesa does not have an elevator; therefore, the only way to get to the second, third, and fourth decks is via the vessel's stairways.
22. To retrofit the Princesa with an elevator would cost approximately $200,000.00. During the retrofitting the vessel would be in dry-dock and out of service for approximately two months, and the vessel would have to be re-certified by the Coast Guard following the retrofitting.
Plaintiffs' Cruise on the
23. Plaintiffs Daniel Ruiz and Luis Rodriguez (collectively "Plaintiffs") have both taken one cruise aboard the Princesa. During their cruise, Plaintiffs were aboard the vessel for approximately six hours.
24. Plaintiffs required assistance to get up the gangway to the vessel. Once aboard the Princesa, Plaintiffs were confined to the first deck because there was no elevator to the upper decks.
25. Plaintiffs attempted to use the men's restroom on the first deck, but they could not utilize that facility. In that respect, the urinals were too high for Plaintiffs to evacuate their leg bags, and Plaintiffs could not transfer from their wheelchairs to the toilet in the handicap accessible stall. Plaintiffs also could not use the lavatory because there was not enough clearance under the sink, and they could not reach the paper towel dispenser because it was too high.
26. Plaintiffs played slot machines during the cruise. Plaintiff Daniel Ruiz wanted to play craps, but could not, because the tables were too high for him to see the playing surface or roll the die.
27. Plaintiffs attempted to use the bar on the first deck; however, it was too high for them to access. Plaintiff Daniel Ruiz later obtained a drink from a waitress, and Plaintiff Luis Rodriguez's wife got him a drink.
28. Plaintiffs did not eat aboard the Princesa. Plaintiff Daniel Ruiz did ask a waitress what kind of food was available, and he was told that only sandwiches were available and that they were not very good.
29. Plaintiffs also were unable to use the cashier counter on the first deck because it was too high.
30. At trial, Michael Brennan (hereinafter "Brennan") testified as an expert on the Princesa's accessibility for Plaintiffs, and Peter Manheimer (hereinafter "Manheimer") testified as an expert on the Princesa's accessibility for Defendants. Brennan expressed the general opinion that the Princesa and her services are inaccessible to disabled individuals, while Manheimer expressed the opinion that the
31. To differing degrees, the experts based their opinions upon regulations for "landside" public accommodations issued by the United States Department of Justice.
32. Brennan and Manheimer agreed that it is impossible to make all aspects of a commercial, passenger vessel accessible to all disabled individuals. That is, there are some disabilities that are so severe that no alteration or modification will permit the individual to participate in a particular activity or utilize a facility.
33. Brennan and Manheimer also agreed that: (1) the toilet paper dispensers in the handicap accessible stalls are too far away from the toilets to be reached by individuals confined to wheelchairs; (2) the mirror in the women's first deck restroom is too high to be used by individuals in wheelchairs; (3) the paper towel dispensers in the restrooms are at a height that is difficult for individuals in wheelchairs to reach; and (4) the second, third, and fourth decks of the Princesa are inaccessible to individuals in wheelchairs.
34. Brennan opined that the exterior doors to the restrooms are too heavy and close too quickly to be used by individuals in wheelchairs, Manheimer disagreed.
35. Brennan opined that the first deck women's restroom does not have enough space to allow an individual in a wheelchair to open the exterior door easily when exiting the restroom, Manheimer disagreed.
36. Upon consideration of all their testimony, the Court found Manheimer to be the more credible witness than Brennan.
II. CONCLUSIONS OF LAW
A. The Applicable Law: Title III
"Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 531 U.S. 1049, 121 S.Ct. 1879, 1889, 149 L.Ed.2d 904 (2001). Employment discrimination, discrimination by government entities, and discrimination by places of public accommodation are governed by separate titles of the ADA. See id. Title III, which applies to discrimination by places of public accommodation, is implicated by the instant case. Only injunctive and declaratory relief are available to private litigants who bring suit under Title III; i.e., money damages are not available. See 42 U.S.C. § 12188; Powers v. MJB Acquisition Corp., 993 F.Supp. 861, 867 (D.Wyo.1998) ("Title III of the ADA does not provide for a private cause of action for damages").
42 U.S.C. § 12182(a). This broad prohibition contains three essential elements that
For purposes of Title III, the term disability means "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). Major life activities are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. § 1630.2(i). "The phrase `public accommodation' is defined in terms of 12 extensive categories, which the legislative history indicates `should be construed liberally' to afford people with disabilities `equal access' to the wide variety of establishments available to nondisabled." PGA Tour, Inc., 121 S.Ct. at 1890 (footnote omitted). Those 12 categories are:
42 U.S.C. § 12181(7). Although Title III does not identify commercial, passenger vessels as covered public accommodations, the Eleventh Circuit has held that "those parts of a cruise ship which fall within the statutory enumeration of public accommodations are themselves public accommodations for purposes of Title III." Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir.2000) (per curiam); see also id. ("[A] public accommodation aboard a cruise ship seems no less a public accommodation just because it is located on a ship instead of upon dry land. In other words, a restaurant aboard a ship is still a restaurant."). Thus, the areas of commercial, passenger vessels that serve the public must comply with Title III's general rule prohibiting discrimination, on the basis of disability (i.e., a physical or mental impairment), in the provision of goods, services, facilities, privileges, advantages, or accommodations. See id. at 1241 n. 5 ("Only those portions of the cruise ship that come within the statutory definition of `public accommodation' are subject to the public accommodation provisions of Title III. Other parts of a ship, such as the bridge, the crew's quarters, and the engine room, might not constitute public accommodations.").
It is important to observe that the drafters of Title III were cognizant of the hardship that bringing unintentional violations into compliance could impose upon small businesses. See Parr, 96 F.Supp.2d at 1070 (citing ADA's legislative history). Therefore, they attempted to strike a balance between the concerns of small business owners and the interests of the disabled. The compromise that Title III makes is to require only reasonable modifications and readily achievable barrier removals or alternative methods, when the disabled are subjected to de facto discrimination in places of public accommodation.
Id. at 560. In sum, with respect to de facto violations, Title III only requires that places of public accommodation take remedial measures that are (a) effective, (b) practical, and (c) fiscally manageable.
B. Title III Framework
Prior to trial, the Court advised the parties that the evidence would be assessed under the analytical framework set forth by the Fifth Circuit in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir.1997). That framework provides:
Id. at 1059 (internal citations and footnote omitted); see also Lieber, 80 F.Supp.2d at 1077 (setting forth the same analytical framework for barrier removals).
C. Application of Title III to the Instant Case
Preliminary Matters: Jurisdiction, the Parties, Standing, and the Applicability of Title III
1. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
2. Plaintiff Daniel Ruiz is disabled for purposes of Title III, and he has standing to maintain his claim for the alleged discrimination he incurred aboard the Princesa.
3. Plaintiff Luis Rodriguez is disabled for purposes of Title III, and he has standing to maintain his claim for the alleged discrimination he incurred aboard the Princesa.
4. Plaintiff Association for Disabled Americans, Inc. does not have standing to maintain a separate claim on behalf
5. Defendant Concorde Gaming Corporation is an owner/operator of the Princesa, subject to liability under Title III. See 42 U.S.C. § 12182(a).
6. Defendant Goldcoast Entertainment Cruises, Inc. is not an owner/operator of the Princesa and is not subject to liability under Title III.
7. The casino, restaurant, bar, and observation areas on the first, second, third, and fourth decks of the Princesa are public accommodations subject to Title III. See Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1240-41. The Princesa's terminal at Bay Front Park is a public accommodation subject to Title III.
8. The unenclosed area on the first deck of the Princesa is not a public accommodation subject to Title III. See id. at 1241 n. 5.
The Bay Front Park Terminal & the Gangway
9. Plaintiffs take issue with the height and width of the Princesa's ticket counter located at Bay Front Park. Plaintiffs, though, failed to present evidence that they suffered discrimination as a result of the height or width of the ticket counter. The uncontroverted evidence was that greeters meet and assist disabled passengers with the purchase of tickets. Moreover, Plaintiffs reported no trouble in purchasing their tickets. Thus, they have failed to establish any discrimination with respect to the ticket counter.
10. Plaintiffs also failed to satisfy their burden with respect to the gangway from Bay Front Park to the Princesa. Plaintiffs testified that the slope of the gangway was too steep for them to negotiate it without assistance. The modification proposed by Plaintiffs was to replace the gangway with a ramp with a more gradual slope. Plaintiffs' proposed modification may be reasonable in the general sense (i.e., in the run of cases). It does not, however, take into account the particular facts of the present case, namely that the slope of the gangway is dependent upon the level of the tide and, thus, the slope varies from hour to hour. Regardless of the ramp utilized, when the tide is high the gangway will be steeper than when the tide is low. Plaintiffs' proposed modification presupposes that the slope of the gangway is a constant variable, which may be corrected by simply replacing the current ramp with a more gradual one. In the present case, the slope is not a constant, and Plaintiffs have offered nothing to provide for the variations in the slope. Thus, variations of and periodic difficulties with the slope would persist. Under these circumstances, Plaintiffs have not proffered an effective alteration.
Access to the Second, Third, and Fourth Decks & Alternative Methods
11. Plaintiffs seek access to the second, third, and fourth decks of the Princesa through the installation of an elevator. As noted above, Title III requires readily achievable barrier removals, and readily achievable is statutorily defined as "accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). Installation of an elevator would (1) cost approximately $200,000.00, (2) require the Princesa to be in dry-dock for two months during the installation, and (3) require the Princesa to be re-certified as a commercial, passenger vessel by the Coast Guard. In short, installation of an elevator would be both extremely difficult and expensive. Installation of an elevator is, therefore, not readily achievable and Plaintiffs are entitled to no such relief.
12. Plaintiffs also seek to have the services and facilities available on the second, third, and fourth decks provided, through alternative means, to disabled passengers who cannot access those decks. More specifically, Plaintiffs seek alternatives to the: (1) restaurant service available on the second and third deck; (2) the observation areas; and (3) the dance floor/entertainment available on the third deck. These three facets of the vessel will be addressed separately.
a. Restaurant Service. The Princesa currently has a policy of allowing customers to order food that is available on the second and third decks from the first deck, through the wait staff. During the initial 45 minutes and final 45 minutes of a cruise, the lowered gaming tables on the first deck are available for customers to eat from them. The Princesa's provision of dining services on the first deck is reasonable and it satisfies Title III as an alternative method. Plaintiffs are entitled to no other alternative means of food service.
b. Observation Decks. At trial, Plaintiffs' counsel conceded that there was "no fix" for the observation decks. As Plaintiffs have offered no alternative, they have not met their burden and are entitled to no relief.
c. Dance Floor/Entertainment. On the third deck of the Princesa, there is a dance floor, where music is usually played during a cruise. Plaintiffs seek an alternative method to enjoy this feature. The only method proposed at trial was to create a dance floor on the first deck and transmit the music from the third deck to the first deck. Given the limited space on the vessel, the construction of a dance floor on the first deck would significantly impinge upon the area available for gaming —the primary function of the vessel. This would fundamentally alter the nature of the gaming offered aboard the Princesa. Moreover, the cost of constructing a dance floor would be considerable, and a dance floor, with piped in music, in the midst of a casino would likely not be a comparable or effective alternative. In light of the limited space on the first deck and the fact that the primary evacuation point for the vessel is located on the first deck, the Court also has concerns that placing a dance floor there would pose a threat of safety to the passengers. See 42 U.S.C. § 12182(b)(3). Thus, Plaintiffs are entitled to no relief with respect to the dance floor/entertainment on the third deck.
In sum, Plaintiffs failed to proffer a readily achievable alternative for any of the services or facilities available on the second, third, and fourth decks, which are not available on the first deck.
Services on the First Deck
13. Plaintiffs maintain that the bar and cashier counter on the first deck are inaccessible because of the height and width of their respective counters.
15. As for the cashier counter, Plaintiffs have failed to satisfy their burden of proof, because they did not proffer a reasonable modification or alternative method. Plaintiffs proposed lowering the cashier counter. Aside from the costs involved, this modification is not reasonable in the instant case because there was testimony that the cashier counter is required to be its current height for security purposes. Plaintiffs failed to refute this evidence and offered no other reasonable alteration or modification.
16. At trial, Plaintiffs' counsel stated that the only issue with respect to the gaming activities concerned the accessibility of the craps tables. Therefore, the Court will not address the accessibility of the other casino games or the slot machines.
17. Plaintiffs maintain that the craps tables are inaccessible because the areas designated for players to roll the dice, place wagers, and observe the game are too high to allow individuals in wheelchairs to participate. Plaintiffs proposed two modifications to cure this problem. First, Plaintiffs contend that wheelchair players could be permitted to play at the areas on the craps table designated for the game's attendants, the two croupiers and the stickman, where the railing is lowered. Second, Plaintiffs aver that the table's railing could be lowered at other spots or the entire table could be lowered.
18. Neither of Plaintiffs' proposed modifications of the craps tables is viable, because both would fundamentally alter the nature of the game. In PGA Tour, Inc., the Supreme Court recently explained, in the context of golf, what constitutes a fundamental alteration of a game for purposes of Title III.
Id. at 1893 (footnote omitted). Thus, a modification alters the fundamental nature of a game if it either (a) changes an essential aspect of the game that affects all competitors or (b) provides the disabled player with an advantage over the non-disabled players.
In the present case, both of Plaintiffs' proposed modifications would alter a fundamental aspect of craps—the dimensions by which the game is played. Craps is a common casino game, and it is played under common conditions, including the positioning of the players and the boundaries of the playing surface. Lowering the rail of a craps table or lowering the entire table would alter the playing surface in a manner that is the equivalent of changing the dimensions of a playing field or the size of the diameter of a golf hole. Similarly, moving one of the croupiers or the stickman from his designated spot on the table to another spot would change the dimensions of where competitors play. Moving a croupier or the stickman would also require lowering the railing of the table on the spot that he is moved to, further distorting the playing surface. Moreover, allowing disabled players to play from a spot on the table that other players cannot play from may provide the disabled players with an advantage not enjoyed by the other players. As Plaintiffs' proposed modifications of the craps tables would fundamentally alter the nature of the game, Plaintiffs are entitled to no relief with respect to the craps tables.
The First Deck Restrooms
19. A Title III violation "does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity." Shotz v. Cates, 256 F.3d 1077 (11th Cir.2001). If a public accommodation's restrooms are "unfit for the use of a disabled person," the public accommodation is not accessible. See id.
20. In the present case, Plaintiffs both testified that they could not transfer onto the handicap toilet because there was no garb bar behind the toilet.
21. The deficiencies noted in paragraph 20 above render the restrooms inaccessible. Plaintiffs proposed remedying these problems by: (a) installing grab bars behind the handicap accessible toilets; (b) moving the toilet paper dispensers in the handicap accessible stalls so that they are located on the wall adjacent to the toilet; and (c) lowering (1) the mirror in the women's restroom, (2) the paper towel dispensers in the restrooms, and (3) the coat hooks in the handicap accessible stalls. These remedies are readily achievable in the general sense, and Defendants offered no evidence to establish that they are unreasonable in this case. Plaintiffs have, therefore, satisfied their burden of proof with respect to the rear grab bars, the toilet paper dispensers, the mirror in the women's restroom, the paper towel dispensers, and the coat hooks. Defendant Concorde Gaming Corporation will be ordered to remedy those violations.
22. At trial, there was conflicting expert testimony concerning the weight and closing speed of the restroom doors. Similarly, there was conflicting expert testimony with respect to whether the space in the women's restroom was sufficient to allow an individual in a wheelchair to exit the restroom easily. As noted above, the Court found Defendants' expert to be more credible than Plaintiffs' expert, and with respect to the bathroom doors and the space in the women's restroom the Court accepts the testimony of Defendants' expert. Accordingly, the Court finds that Plaintiffs have failed to satisfy their burden of demonstrating that they were denied access (i.e., discriminated against) due to (a) the weight and/or speed of the restroom doors or (b) the space in the women's restroom.
23. Finally, there is the issue of the clearance under the handicap accessible lavatories. Like the issues of the weight and closing speed of the bathroom doors, the clearance controversy was spawned primarily by Plaintiffs' expert's inspection and testimony, rather than Plaintiffs' experience aboard the Princesa. Plaintiffs' expert averred that the lavatories are inaccessible to individuals in wheelchairs because there is not a full eight inches of clearance. Defendants' expert countered that, while there may not be a full eight inches of clearance, there is adequate clearance under the handicap accessible lavatories to allow most individuals in wheelchairs to use them. The only evidence as to the actual clearance was that it is approximately six and a half inches. There was no evidence that increasing the clearance by one and a half inches (i.e., to eight inches) would make
As the undersigned has previously observed, the lack of regulations for commercial, passenger vessels renders compliance with and application of Title III an arduous task. See Access Now, Inc. v. Holland Am. Line-Westours, Inc., 2001 WL 649158, at *1. In light of the ADA's mandate "for the elimination of discrimination against persons with disabilities," 42 U.S.C. § 12101(b), it is a task, though, that can no longer be delayed. Therefore, the Court has endeavored to apply Title III's reasonable modification and readily achievable barrier removal provisions to the facts of this case.
The evidence adduced at the trial demonstrated that the owners/operators of the Princesa undertook considerable efforts to design and construct the vessel to be as accessible as possible. Moreover, the evidence revealed that the Princesa has in place reasonable policies to make her services available to disabled individuals. These efforts resulted in a vessel that is largely complaint with Title III. There are, nonetheless, some areas in which the Princesa is inaccessible, namely the first deck restrooms. As remedies for those problems are readily achievable, they must be undertaken to make the Princesa compliant with Title III. Accordingly, Defendant Concorde Gaming Corporation is ORDERED to make the following alterations to the first deck restrooms within 90 days of this order:
Plaintiffs' claims are denied in all other respects. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, the Court will enter separate final judgments consistent with this order.
There are, however, no applicable regulations for the construction or alteration of commercial, passenger vessels. See Access Now, Inc. v. Holland Am. Line-Westours, Inc., 147 F.Supp.2d 1311, 1312-13 (S.D.Fla.2001) ("the DOJ and the DOT have been derelict in the exercise of their statutorily mandated duty to promulgate regulations, under the Americans with Disabilities Act of 1990 (the `ADA'), regarding the alteration and construction of cruise ships"). In the absence of applicable guidelines, there are no minimum requirements to serve as a safe harbor for ship designers, builders, and operators/owners. See id. Consequently, the more demanding requirements for the design of new construction (i.e., no undue burden defense) imposed by Title III's implementing regulations may not be applied to vessels constructed after January 26, 1993, as it cannot be required that a vessel be designed and constructed in accordance with guidelines that do not exist. See Lara, 207 F.3d at 789 (refusing to apply sight-line requirements that were not promulgated as regulations); Indep. Living Res. v. Or. Arena Corp., 982 F.Supp. at 746 (same). The issue of whether this is a new construction or existing facility case is, therefore, of little moment. As previously noted, that distinction becomes significant when applying Title III's design regulations. Here, there are no design regulations; therefore, the Court must apply, only, the barrier removal and modification provisions of Title III with their textual reasonableness/readily achievable component, as discussed above in the text. See generally Lieber v. Macy's West, Inc., 80 F.Supp.2d 1065, 1077 (N.D.Cal.1999) (noting that even in new construction facilities, "[c]ontinued efforts are required ... over time to remove any remaining barriers to the extent readily achievable").
Id. at 1903-04 (Scalia, J., dissenting). The instant dispute over accessibility to the craps tables resinates with the justiciability concerns identified by Justice Scalia in PGA Tour, Inc. This Court, though, is bound to apply Title III as construed by the PGA Tour, Inc. majority and determine whether Plaintiffs' proposed modifications would fundamentally alter the game of craps. The Court notes that this determination is made even more difficult, in the present case, because the parties failed to introduce any evidence as to the rules of craps.