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In D'Lil v. Stardust Vacation Club, 2001 WL 1825832, *5 (E.D. Cal. Dec. 21, 2001), the defendant rebutted plaintiff's cost estimate of renovations to remove the access barrier by submitting its own specific cost estimate, as well as an allegation that it suffered net losses during the previous two years such that the remodeling project would cost more than its net income.
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CIV-S-00-1496 DFL PAN.
December 20, 2001
MEMORANDUM OF OPINION AND ORDER
This action arises out of a visit by plaintiff Hollynn D'Lil ("D'Lil"), to the Stardust Lodge, a time-share resort in South Lake Tahoe. D'Lil has paraplegia and must use a wheelchair. She alleges that the Stardust failed to provide her with a handicap accessible room. D'Lil asserts causes of action under: (1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq., (2) California Health and Safety Code § 19955, et. seq., (3) California Civil Code § 54, et. seq., and (4) the Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 51.5. She seeks damages and an injunction compelling the Stardust to comply with federal and state equal access requirements. On this motion, individual defendants, Edward J. McCarthy, Merrill F. Higham, Carol FL Higham, John T. Kitama, and Mihiko Kitama seek summary judgment on the ground that D'Lil has failed to establish individual liability. This motion will be granted. Defendant, Stardust Lodge moves for summary judgment on all claims against it. The Stardust Lodge contends that D'Lil lacks standing to bring an ADA claim, that it is exempt from federal and state access requirements, and that it has already met federal guidelines by completing all readily achievable modifications necessary for disabled access.
I.
A. History and Organization of the Stardust Lodge
The Stardust Lodge was built in 1966 and became a time-share resort known as the Stardust Vacation Club in 1986 after receiving a conversion permit from the City of South Lake Tahoe Building Department ("STLBD"). (Motion at 1; Defs.' Statement of Undisputed Facts ("SUF") at ¶ 4). The Stardust Vacation Club is organized as a non-profit mutual benefit corporation which holds the Stardust Lodge in trust for the benefit of Stardust time-share owners. (Id. at ¶¶ 25, 64). Individual time-share owners purchase the right to use a certain type of room at the Stardust Lodge, for one week every year, in perpetuity. (Motion at 1). The time-share owners elect the Vacation Club's Board of Directors which is responsible for managing the Club. (Def.'s SUF at ¶¶ 25-27).
When it applied for the permit, the Stardust inquired about its obligations to provide disabled access under California law. (Defs.' SUF at ¶ 5). South Lake Tahoe officials informed the Stardust that time-shares were exempt from state access requirements. (Id. at ¶ ¶ 6-12). However, the Stardust voluntarily decided to designate Room 138 for handicapped visitors and equipped the room with some accessible features. (Id. at ¶ 13).
In 1996 the Vacation Club initiated a rental program that allows time-share owners to rent their weekly slots to public visitors like D'Lil. (Id. at ¶ 29). The Club's Board of Directors hired the Rainbow Management Company to run the rental program in return for a forty-percent share of the rental proceeds. (Defs.' Response to Pl.'s SUF at ¶ 53). Time-share owners who agree to rent their slots to the public are paid the other sixty percent of the rent. (Id.) In addition to renting rooms much like a hotel to persons who present themselves at the Lodge, the Stardust also holds itself out as a public place of accommodation in various publications and listings. The Lodge is listed in the AAA Tour Guide Book, appears on the South Lake Tahoe Chamber of Commerce hotel/motel referral list, and is advertised on multiple Internet travel sites. (Pl.'s SUF at ¶ 6; Opp. at 21). After initiating the rental program, the Lodge did not seek any further opinion from the STLBD as to its duty to provide access for disabled persons.
B. D'Lil's Visit to the Stardust Lodge
D'Lil reserved a room at the Stardust Lodge, through the Stardust's rental program, when she decided to visit Lake Tahoe on September 11, 1999. (Opp. at 2). When she arrived, D'Lil was assigned Room 138, the designated room for disabled visitors. (Id.) D'Lil alleges that Room 138 was not wheelchair accessible and that the room contained numerous architectural barriers that prevented her from using its facilities. Because the bathroom did not contain a roll-in shower or provide enough clear floor space to allow her to turn around in her wheelchair, D'Lil could not bathe and could only use the toilet with difficulty. (Id. at 2-3). D'Lil contends that she was forced to prematurely end her stay at the Stardust because she found Room 138 inaccessible.
C. Proposed Renovations
After D'Lil filed this lawsuit on July 12, 2000, the Stardust agreed to make various remedial changes to Room 138, including adding an ADA compliant ramp and adjusting the bathroom to make it more handicapped accessible. (Defs.' SUF at ¶¶ 37-48). Although the Stardust Lodge claims that it is currently in full compliance with federal and state access requirements, D'Lil contends that the Stardust still needs to install a roll-in shower in Room 138's bathroom to provide adequate access to disabled visitors. (Opp. at 33).
The Stardust concedes that Room 138's bathroom fails to meet current ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") codified in 28 C.F.R. Part 36, App. A. (Defs.' SUF at ¶ 76). The bathroom lacks both a roll-in shower and adequate clear-floor space to allow a wheel-chair bound visitor to turn around as required by ADAAG.See ADAAG §§ 4.23.2, 9.1.2. The extent of renovations necessary to bring Room 138 into full compliance with ADAAG is disputed. The Stardust claims that technical compliance with ADAAG could only be achieved by moving a bathroom wall two to three inches into Room 138's living room space. (Motion at 33). Because the Stardust has a contractual obligation to provide time-share owners with the floor-plan they purchased, the living room would also have to be enlarged entailing extensive work. (Defs.' SUF at ¶ 86). D'Lil contends that installation of a roll-in shower, without expanding the present size of Room 138's bathroom, would meet ADAAG requirements, because the unobstructed floor area within the shower could be used for wheelchair turning space. (Opp. at 28 n. 11; Saranschin Decl. at ¶ 7).
III.
The ADA imposes liability on individuals who own, lease, or operate a place of public accommodation. See 42 U.S.C. § 12182 (a). To "operate" a place of public accommodation means to exercise control over the alleged discriminatory action and to have the authority to take remedial measures. See Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1067 (5th Cir. 1996); Aikens v. St. Helena Hospital, 843 F. Supp. 1329, 1335 (N.D. Ca. 1994). Similarly, to hold individual defendants liable under California law for denying equal access, a plaintiff must demonstrate individual involvement in alleged discriminatory action. See Cal. Civ. Code § 54.3 (imposing liability on "any person who denies or interferes" with disabled access to public facilities).
D'Lil has failed to demonstrate that the individual defendants, Edward J. McCarthy, Merrill F. Higham, Carol FL Higham, John T. Kitama, and Mihiko Kitama, played any role in denying her access to the Stardust Lodge during her September 11, 1999 visit. Between 1996 and 1998 the individual defendants jointly purchased 105 time share intervals for over $1.2 million. (Opp. at 10). However, D'Lil has presented no evidence that the defendants owned any time-shares at the time of her visit to the Stardust, that they participated in the Stardust's public rental program, that they managed the Stardust by serving on the Vacation Club's Board of Directors, or that they have the legal or practical authority to take remedial measures. Therefore, all claims against the individual defendants are dismissed, and the action proceeds against the Stardust Vacation Club dba Stardust Lodge and Stardust Lodges Inc. (collectively "Stardust" or "defendant").
III.
Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation. See 42 U.S.C. § 12182 (a). The ADA defines discrimination to include "the failure to remove architectural barriers" in existing facilities where such removal is "readily achievable". See 42 U.S.C. § 12182 (b)(2)(A) (iv). D'Lil seeks an injunction compelling the Stardust to comply with ADA access requirements. See 42 U.S.C. § 12188 (a)(2). The Stardust contends that D'Lil lacks standing to seek injunctive relief under the ADA. It also moves for summary judgment on the merits of D'Lil's ADA claim, claiming: (1) that the Stardust is not a place of public accommodation subject to the ADA, (2) that Room 138 is currently accessible to D'Lil and does not contain any architectural barriers, and (3) that the renovations that D'Lil seeks are not readily achievable as a matter of law.
The parties agree that the ADA's less stringent existing facilities standards apply to the Stardust. See 42 U.S.C. § 12182 (b)(2)(A) (iv) (existing facilities need not remove architectural barriers unless removal is "readily achievable").
A. ADA Standing
To establish standing under the ADA, plaintiffs must demonstrate that they face "a real and immediate threat of harm" that can be addressed through injunctive relief. See Parr v. L L Drive-Inn Restaurant, 96 F. Supp.2d 1065, 1079 (D. Hi. 2000); see also Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (plaintiff must allege "facts giving rise to an inference that he will suffer future discrimination by the defendant" to establish standing under the ADA). To demonstrate a real threat of future harm, the plaintiff must establish a likelihood of returning to the defendants' premises. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000); Aikens, 843 F. Supp. 1329, 1334.
The ADA does not require plaintiffs to engage in the "futile gesture" of visiting buildings that they know to be inaccessible. See 42 U.S.C. § 12188 (a)(1). However, the "futile gesture" doctrine is distinct from the issue of standing and does "not create standing where there is no threat of future discrimination. See Deck v. American Hawaii Cruises, Inc., 121 F. Supp.2d 1292, 1300 (D. Hi. 2000).
In determining whether the plaintiff's likelihood of return is sufficient to confer standing, courts have closely examined factors such as: (1) the proximity of defendant's business to plaintiff's residence, (2) the plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near defendant. Compare Parr, 96 F. Supp.2d at 1079 (holding that plaintiff could establish standing based on one previous visit to restaurant, where restaurant was located a reasonable distance from plaintiff's home, plaintiff had a history of patronizing the restaurant chain, and the court was satisfied that plaintiff's intent to return was sincere), with Delil v. El Torito Restaurant, 1997 WL 714866 (N.D. Cal. 1997) (refusing to find standing where plaintiff visited the Monterey El Torito only once, the restaurant was located over a hundred miles from plaintiff's home, and plaintiff did not allege that she planned on returning to the restaurant in the future).
In her complaint D'Lil alleges that she "would, could and will return to the [Stardust Lodge] . . . when it is made accessible to persons with disabilities." (Complaint at ¶ 46). Although she has not returned to the Stardust Lodge since her initial visit in September 11, 1998, D'Lil asserts that she frequently travels to Lake Tahoe from her Sacramento home for both pleasure and business. (D'Lil Decl. at ¶¶ 3-5). After oral argument, the court ordered D'Lil to submit a further declaration clarifying the reasons for her original visit to the Stardust. In her supplemental declaration, D'Lil explains that she independently chose to stay at the Stardust, because it appeared attractive and well-maintained and offered accommodations at a reasonable price. (Supp. D'Lil Decl. at ¶¶ 2, 7-8).
Based on D'Lil's stated intention to return, her history of travel to Lake Tahoe, and her particular reasons for seeking accommodation at the Stardust, the court finds that D'Lil has alleged sufficient facts to establish standing at the summary judgment stage. See Access 123 v. Markey's Lobster Pool, Inc., 2001 WL 920051 (D.N.H. Aug. 8, 2001) (finding standing where restaurant was located in town where plaintiff's sister lived, and plaintiff stated he would return if restaurant were accessible); Assoc. for Disabled Americans v. Claypool Holdings, 2001 WL 1112109 (S.D. Ind. Aug. 6, 2001) (finding standing where plaintiff expressed desire to return to hotel on future visits to Indianapolis, a city he traveled to at least once a year).
D'Lil still bears the burden of proving her allegations at trial before the court will find that she has standing to bring this suit. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37 (1992) (noting that while generalized allegations of injury resulting from the challenged conduct may be adequate to establish standing at the pleading stage, when the court is obliged to accept all material allegations of the complaint as true, they will not suffice to carry plaintiff's burden of proof on standing at trial).
B. Public Accomodation
The ADA prohibits discrimination on the basis of disability in "any place of public accommodation." See 42 U.S.C. § 12182 (a). "The determination of whether a facility is a `public accommodation' turns on whether the facility is open `indiscriminately to other members of the general public.'" See Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp.2d 1174, 1178 (C.D. Cal. 1998); Independent Living Resources v. Oregon Arena Corp., (D.Or. 1997), 982 F. Supp. 698, 758-760 (executive suites in sporting arena licensed to public on a first-come, first-served basis were not exempt from ADA). Defendants have failed to establish that the Stardust is exempt from ADA requirements. The Stardust's rental program is open indiscriminately to the public, and the Stardust holds itself out as a hotel, a paradigmatic place of public accommodation.
The ADA specifically defines "public accommodation" to include "an inn, hotel, motel, or other place of lodging." 42 U.S.C. § 12181 (7) (A).
C. Architectural Barriers
To state a prima facie case under Title III of the ADA based on the presence of architectural barriers in an existing facility, a plaintiff must demonstrate that: (1) the facility presents a barrier prohibited under the ADA, and (2) removal of the barrier is readily achievable. See Parr, 96 F. Supp. at 1085. The Department of Justice ("DOJ") has adopted the ADAAG guidelines, codified in 28 C.F.R. Pt. 36, App. A, as part of its ADA Title III standards. Although ADAAG does not apply to existing facilities, ADAAG guidelines "provide valuable guidance for determining whether an existing facility contains architectural barriers." Pascutti v. New York Yankees, 87 F. Supp.2d 221, 226 (S.D.N.Y. 1999). The DOJ considers "any element in [an existing] facility that does not meet or exceed" ADAAG standards to be a barrier to access.Id. at 225 (quoting letter from DOJ to defendants).
Title III expressly gives the DOJ the authority to develop regulations to implement its requirements. See 42 U.S.C. § 12186 (b).
Defendants concede that Room 138 lacks the clear-floor space required by ADAAG § 4.23.2. See ADAAG § 4.23.2 (an accessible bathroom must contain enough unobstructed turning space to allow a wheel-chair bound user to make a 180 degree turn) (Defs.' SUF at ¶ 76). By demonstrating the lack of clear floor space in Room 138, D'Lil has raised a sufficient question of fact regarding the existence of prohibited architectural barriers to survive summary judgment. See Access Now v. South Florida Stadium Corp., 161 F. Supp.2d 1357, 1362 (S.D. Fla. 2001) (evidence of deviation from ADAAG sufficient to withstand summary judgment on existence of architectural barriers). However, at trial, D'Lil must still prove that Room 138 contained actual barriers that hindered her access to the room; she cannot rely solely on the Stardust's deviation from ADAAG to establish her Title III claim. See id. at 1367 (deviation from ADAAG standards is relevant but not determinative in establishing barriers to access; at trial a defendant may be able to show that "despite the technical noncompliance [with ADAAG], the challenged accommodation in fact allows disabled persons effective access.")
D'Lil also argues that the lack of a roll-in shower in Room 138 violates ADAAG. See ADAAG § 9.1.2 (requiring a place of transient lodging with 75 to 100 guest rooms or units to have five fully accessible guest rooms including one guest room equipped with a roll-in shower). However, defendant contends that the Stardust Lodge should be categorized as a place of transient lodging with 25 rooms or less, which is not required to provide a roll-in shower under ADAAG, because the Stardust has never had 25 rooms available for rent at any one time. See ADAAG § 9.1.2. D'Lil does not offer any contrary evidence or argument. On that basis, partial summary judgment is granted on her roll-in shower claim.
Plaintiff conceded at oral argument that she can use the toilet in Room 138 by making a front-approach in her wheelchair and transferring onto the toilet-seat with difficulty. Whether she could fully access Room 138's bathroom facilities is a question left for trial.
D. Readily Achievable
The plaintiff bears the initial burden of showing "that a suggested method of barrier removal is readily achievable." Colorado Cross Disability Coalition v. Hermanson Family Limited Partnership I., 264 F.3d 999, 1002 (10th Cir. 2001). The ADA defines a "readily achievable" change as one that can be accomplished "without much difficulty or expense." 42 U.S.C. § 12181 (9). In determining whether an action is readily achievable, factors to be considered include:
(1) the nature and cost of the action; (2) the overall financial resources of the facility or facilities involved; (3) the number of persons employed at such facility; (4) the effect on expenses and resources; (5) the impact of such action upon the operation of the facility; (6) the overall financial resources of the covered entity; (7) the overall size of the business of a covered entity with respect to the number of its employees; (8) the number, type, and location of its facilities; (9) the type of operation or operations of the covered entity, including composition, structure, and functions of the workforce of such entity; and (10) geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.Colorado Cross, 264 F.3d at 1002; see also 42 U.S.C. § 12181 (9) (A)-(D). Although the plaintiff bears the initial burden of demonstrating that a suggested method of barrier removal is readily achievable, the defendant bears the ultimate burden of persuasion on the issue at trial.See Colorado Cross, 264 F.3d at 1002; Access Now, 161 F. Supp.2d at 1362. Whether a specific change is readily achievable "is a fact intensive inquiry that will rarely be decided on summary judgment."Access Now, 161 F. Supp.2d at 1371.
D'Lil has presented expert evidence that Room 138 could be made more accessible by removing the bathtub and installing a roll-in shower. (Sarantschin Decl. at ¶ 7, attached diagrams). Although the parties dispute both the extent of renovations necessary to make Room 138 ADAAG compliant and the financial burden that these renovations would place on the Stardust, the Stardust's highest renovation cost estimate is $22,000. (Defs.' SUF at ¶ 99) D'Lil is willing to stipulate to this amount for the purposes of summary judgment and has presented evidence of specific renovations that can be accomplished at a reasonable cost. Defendant has not rebutted D'Lil's showing by demonstrating that installation of a roll-in shower is too difficult or expensive to be required under the ADA.
Although the Stardust alleges that it has suffered net losses during the past two years, it does not deny that the Club's Board of Directors could increase annual maintenance fees or collect a special assessment from time-share owners to pay for the proposed renovations. (Defs.' SUF at ¶¶ 92-93; Pl.'s SUF at ¶¶ 20-21). Defendant argues that a remodeling project which would cost more than a defendant's net income cannot be "readily achievable" under the ADA. See Alford v. City of Cannon Beach, 2000 WL 33200554 at *8 (D. Or. Jan. 17, 2000) (concluding that bathroom renovations, which would exceed restaurant's annual income, were not readily achievable as a matter of law). However, as D'Lil points out, the economic analysis should vary for non-profit entities like the Stardust Vacation Club, which do not earn income. As disputed issues of fact remain with regard to the cost and disruption that would be entailed in bringing Room 138 to full ADAAG compliance, summary judgment is denied on "the issue of whether D'Lil's proposed modifications are readily achievable.
Defendant also argues that creating a fully accessible bathroom in room 138 would fundamentally alter the nature of the services provided by the Stardust. See 42 U.S.C. § 12182 (b)(2)(A) (iii). However, the ADA's fundamental alteration standard applies to the provision of auxiliary aids and services, not to the removal of architectural barriers. See id.
III.
The Unruh Civil Rights Act, Cal. Civ. Code § 51, prohibits discrimination on the basis of disability by "all business establishments of every kind whatsoever." The California Supreme Court has cautioned that the term "business establishments" should be interpreted "in the broadest sense reasonably possible." See Burks v. Poppy Construction Co., 57 Cal.2d 463, 468 (1962). There is no exemption for non-profit, private organizations under the Unruh Act where the private organization operates "as the functional equivalent of a commercial enterprise. See Warfield v. Peninsula Golf Country Club, 10 Cal.4th 594, 621-23, 42 Cal.Rptr.2d 50, 66-68 (1995) (private social club that regularly permitted nonmembers to use its facilities for a fee qualified as a business establishment subject to the Unruh Act); O'Conner v. Village Green Owners Assn., 33 Cal.3d 790, 796, 191 Cal.Rptr. 320 (1983) (private homeowners association that engaged in activities similar to those of a landlord and whose purpose was to enhance the property value of its members was a business establishment under the Unruh Act).The Stardust's attempt to place itself outside the scope of the Unruh Act is not persuasive. The Stardust operates as the functional equivalent of a hotel by allowing members of the general public to rent its rooms for a fee. Furthermore, the Stardust's rental program is fundamentally commercial and is not designed to further the social or moral values of its time-share owners. See Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 699-700, 72 Cal.Rptr.2d 410, 430 (1998) (Unruh Act did not apply to membership decisions of Boy Scouts, an expressive social organization, but Act did apply to the Boy Scouts' business transactions with non-members in retail stores and elsewhere). As the Stardust Lodge is a business establishment subject to the Unruh Act, defendant's motion for summary judgment on D'Lil's Unruh Act claim is denied.
IV.
California Civil Code § 54.1 guarantees disabled individuals equal access to places of public accommodation. See Cal. Civ. Code § 54.1 (a). Public accommodations built after July 1, 1970 must adhere to the access guidelines developed by the California State Architect set forth in Title 24 of the California Code of Regulations. See Cal. Gov. Code § 4450(a); Cal. Health Safety Code § 19955. D'Lil seeks injunctive relief to bring the Stardust into compliance with Title 24 regulations under Cal. Civ. Code § 55 as well as damages under Cal. Civ. Code § 54.3.
D'Lil concedes that she has no independent cause of action for damages under Health and Safety Code § 19955. See Donald v. Cafe Royale, Inc., 218 Cal.App.3d 168, 182-83, 266 Cal.Rptr. 804, 813 (1990) (noting that plaintiffs must seek damages under Cal. Civ. Code § 54,et seq., for violations of § 19955).
Title 24 requires, "[h]otels, motels, inns, . . . and similar places of transient lodging" to comply with its accessibility requirements. Cal. Code Regs. tit. 24, § 1111B.4. Condominiums and co-ops are exempt from Title 24. See Cal. Code Regs. tit. 24 § 2-110(b)(9). Any change in the use or occupancy of a pre-1970 building, which would bring it within a covered occupancy category, triggers full application of Title 24's access requirements. See Cal. Code Regs. tit. 24 § 3405. Defendant claims that it is entitled to summary judgment on D'Lil's Title 24 claims on two grounds: (1) because the SLTBD correctly determined in 1985 that the Stardust Lodge is exempt from Title 24 requirements, and (2) if the SLTBD made a legal error, considerations of equity should shield defendant from liability.
A. Exemption under Title 24
When the Stardust converted to a time-share resort in 1985, it inquired about its obligations to provide disability access. (Motion at 1). The SLTBD indicated that Title 24 did not apply to the Stardust, basing its decision on a previous opinion letter by the South Lake Tahoe City Attorney, Dennis Crabb. (Id. at 1-2.) That opinion letter stated that no handicapped access requirements were applicable to the Waterfront Club, another time-share resort. (Id.) Mr. Crabb had consulted with the California Director of the State Department in charge of access requirements and was informed that no regulations governed time-share remodeling projects. (Id.) Mr. Crabb concluded that:
interpretation of whether a time-sharing project is more like a condominium than a hotel is therefore left to the local building department. . . While I can hardly profess to be an expert in the subject, it would appear to me that time-share projects, which require purchase of a real property interest, are for these purposes the equivalent of a condominium. It is therefore my advice that no handicapped access requirements are legally applicable.
(Parker Decl. at ¶ 2, Exh. A). Scrawled on the top of this letter is a note by Bill Niles, an SLTBD official stating "no handicap requirements," in response to Stardust's inquiry as to whether the opinion letter also applied to its timeshare conversion. (Id.) Mr. Niles also wrote a letter to Stardust's permit file indicating that he had consulted with the California Office of State Architect Access Compliance Section and determined that a motel converting into a time-share facility did not have to comply with state handicap access requirements. (Id.)
The SLTBD is vested with the authority to enforce Title 24. See Cal. Health Safety Code § 19958. Under California law agency interpretations of statutes are entitled to limited deference. See Yamaha Corp. of America v. State Board of Equalization, 19 Cal.4th 1, 11, 78 Cal.Rptr.2d 1, 6 (1998) (agency's interpretation of statutes should be given less deference than agency regulations). Informal agency opinions are not entitled to great weight. See id. at 12-13, 7-8 (less deference can be given to agency decisions made without careful consideration);Zapara v. County of Orange, 26 Cal.App.4th 464, 470, 31 Cal.Rptr.2d 555, 558 n. 4 (1994) (refusing to defer to advisory opinion letters drafted by agency's legal staff). Furthermore, even if the STLBD correctly determined in 1985, that the Stardust's time-share conversion did not trigger Title 24 requirements, D'Lil correctly notes that the creation of Stardust's rental program in 1996 converted the Stardust into a place of transient lodging regulated by Title 24. See Cal. Code Regs. tit. 24 § 3405 (governing changes in use or occupancy). Because the Stardust has not demonstrated that the STLBD opinion letters continue to be valid after 1996, or that Title 24 exempts time-shares that operate public rental programs, its motion for summary judgment on D'Lil's state access claims is denied.
Defendant has not provided the court with relevant administrative decisions interpreting the relevant sections of Title 24. Nor has defendant demonstrated that Title 24's plain language would exempt the Stardust.
B. Equitable Bar to Liability
A defendant's good faith reliance on an agency's erroneous legal opinion may in some instances preclude liability. See Donald, 218 Cal.App.3d at 180, 266 Cal. Rptr.3d at 811 (noting that "in some instances denial of access under [Cal. Civ. Code § 54.3] may be excused where the violator has been affirmatively directed, or given formal approval, by an enforcing agency to construct premises in a certain way, or maintain a configuration, which does not comply with code requirements"); Lusardi Construction Co. v. Aubry, 1 Cal.4th 976, 4 Cal.Rptr.2d 837 (1992) (where construction company acted in good faith on hospital's representations that project was not subject to prevailing wage law, equitable considerations precluded the imposition of statutory penalties).
Defendant has failed to establish, however, that its reliance on the STLBD opinion letters was reasonable. The Stardust inquired about its obligations to provide handicapped access in 1985. Even if it were sensible to rely on an opinion of that age, rendered prior to the passage of the ADA in 1990, it was not reasonable to rely on the opinion once a public rental program was begun in 1996.
V.
For the foregoing reasons, all claims against the individual defendants are DISMISSED. Defendant Stardusts's motion for summary judgment is DENIED on all other grounds.