Disability advocates clear first hurdle in Phenix Hall lawsuit

Last modified: Wednesday, April 10, 2013
A federal judge has ruled that renovations made to Phenix Hall and its bagel shop on Main Street in 2010 were significant enough to require owner Mark Ciborowski of Concord to do everything possible to accommodate people with disabilities.

The question before the court now is whether Ciborowski met that obligation when he reconfigured the front of The Works Bakery Cafe and left the two front steps and other features in place to maintain the historic nature of the 1893 building, which is on the National Register of Historic Places.

Monday’s ruling from Judge Paul Barbadoro was a significant win for the Disabilities Rights Center and the three people who sued Ciborowski in September 2011 after the renovations still left them unable to access the cafe in their wheelchairs. Ciborowski and his attorney, Jack Crisp, had asked Barbadoro to dismiss their lawsuit by finding that the renovations were too minor to trigger federal disabilities protections.

The changes Ciborowski made to Phenix Hall, which totaled about $136,000, most of it for supplies, included replacing windows, relocating the front door and replacing the front steps, according to court records. Barbadoro concluded in his ruling Monday that those changes were more than just cosmetic.

He wrote that the accessibility requirements of the Americans with Disabilities Act “would be completely undermined” if a building owner could avoid federal accessibility requirements “simply by replacing existing elements, unusable by disabled persons, with new elements, equally unusable by disabled persons.”

The two parties are due in court May 2 to set a schedule for deciding the remaining questions in the case, namely whether Ciborowski satisfied the ADA requirements that Barbadoro now says applied to his project. Ciborowski could not be reached yesterday. The federal law requires that any building, historic properties included, be made accessible when its owner makes more than cosmetic changes or maintenance upgrades. But federal law also requires that the historic integrity of a building be maintained.

The original Phenix Hall, which hosted Abraham Lincoln, was badly damaged by fire in 1892, according to court records. In redesigning it, the Concord architectural firm of Dow and Randlett incorporated what they could of the original building, including the floor plan, foundation, some walls and the first floor commercial storefronts, which include the bagel shop.

The parties have been unable to settle the case out of court, and resolution without a trial continued to seem unlikely yesterday. Aaron Ginsburg, an attorney with the Disabilities Rights Center, said he remains open to a settlement and believes “it is very easy” to alter the entrance to Phenix Hall in a way that is accessible to everyone.

Both sides have submitted new designs involving ramps or sloped sidewalks or raised sidewalks, but none has appealed to both parties. Ciborowski has preferred using a movable ramp that can be made available when a customer needs it to get into the building. The Disabilities Rights Center has provided one drawing that shows the cafe’s entrance without stairs and flush with Main Street.

Crisp said yesterday that Ciborowski is limited in what he can do because providing wheelchair access will require use of the city’s sidewalk in front of Phenix Hall, and “we don’t own the sidewalk.” In his affidavit included in the case, Ciborowski said the city officials have told him they will not allow a ramp to be constructed on the sidewalk.

But the court file also contains correspondence from the city indicating the city would consider “bona fide” plans for an accessible entrance that involved use of the sidewalk. Yesterday, Crisp maintained that city officials have said Ciborowski cannot use the sidewalks for a ramp.

Crisp said the center waited until after construction was finished to bring its lawsuit rather than weigh in earlier. “My impression is that settling out of court is very difficult,” Crisp said. “I think the (center) is looking for a huge amount of money in legal fees, and that is absolutely a big obstacle to our side.”

Ginsburg said the Disabilities Rights Center didn’t realize the extent of Ciborowski’s renovations until they were nearly done because Ciborowksi had said before the work that he was making only minor changes.

“Our end goal is to have these places become accessible,” Ginsburg said. “We made a sincere effort to make them accessible before the construction project was done. Filing this lawsuit was not the first way we wanted to make this (building) accessible.”

This story has been updated from an earlier version.

(Annmarie Timmins can be reached at 369-3323, atimmins@cmonitor.com or on Twitter @annmarietimmins.)