                            PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


CAROLEE LAIRD,                          
                 Plaintiff-Appellant,
                 v.
                                                  No. 03-2005
REDWOOD TRUST LLC; 200 EAST
REDWOOD STREET LLC,
            Defendants-Appellees.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 J. Frederick Motz, District Judge.
                         (CA-02-481-JFM)

                      Argued: February 26, 2004

                      Decided: December 21, 2004

   Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.



Affirmed by published opinion. Judge Widener wrote the majority
opinion. Judge Shedd wrote a concurring opinion, and Judge Duncan
wrote a dissenting opinion.


                             COUNSEL

ARGUED: Andrew David Levy, BROWN, GOLDSTEIN & LEVY,
L.L.P., Baltimore, Maryland, for Appellant. Peter Alexander Prevas,
PREVAS & PREVAS, Baltimore, Maryland, for Appellees. ON
BRIEF: Shelly Marie Martin, BROWN, GOLDSTEIN & LEVY,
L.L.P., Baltimore, Maryland, for Appellant.
2                     LAIRD v. REDWOOD TRUST LLC
                                OPINION

WIDENER, Circuit Judge:

   Plaintiff Carolee Laird brought this action in the United States Dis-
trict Court for the District of Maryland against Redwood Trust, LLC
and 200 East Redwood Street, LLC (Redwood Trust). Laird alleged
that Redwood Trust violated the Americans with Disabilities Act
(ADA) by failing to install an elevator in a nightclub it owned and
operated. The district court granted summary judgment for Redwood
Trust, and Laird appealed. For the reasons stated, we affirm the judg-
ment of the district court.

                                     I.

  The building at issue was originally the headquarters of the Mer-
cantile Safe Deposit and Trust Company of Baltimore, Maryland. In
2001, Redwood Trust bought the building and renovated it. In
November 2001, the building opened for business as a sushi
bar/restaurant and night club offering alcoholic beverages and live
and recorded music.1

   The building, as renovated, has three levels: a basement and a first
and second level. The basement level, which was formerly the bank
vault, is roughly 6,500 square feet and consists of lounge space, a
dance floor, and storage. At times, the basement level has its own
music and entertainment separate from the first and second levels. At
other times, the music played in the basement is the same as that
played on the first and second levels.

  The first level is located on the ground floor and is roughly 6,400
square feet. It contains the sushi bar/restaurant, separate bars for pur-
    1
   Plaintiff’s attorney advises that after the case was filed, the sushi bar,
called Sushi-San, was converted to a restaurant called Red Tapas. At oral
argument, counsel for Redwood Trust informed us that Redwood Trust
has ceased operating the business entirely and that the building is cur-
rently closed. It is unclear whether the business will be reopened in the
future.
                    LAIRD v. REDWOOD TRUST LLC                        3
chasing alcoholic beverages, lounge space and a dance floor. The
entrances to the building are located on the first level.

   The second level is roughly 5,100 square feet and has a large open-
ing in the center that provides a view of the dance floor on the first
level below. The opening is rectangular, and its width is about 45%
of the width of the building. There is a lounge area on either side of
the large opening, and the width of each lounge is about 27% of the
width of the building. The lounge areas are connected to each other
by a walkway at one end and a bar at the other. The second level also
has a disc jockey booth, a bar, and the owner’s office. Patrons on the
first and second levels listen to the same live or recorded music.
There are no other floor levels above the second level.

   Carolee Laird suffers from spina bifida. On December 15, 2001,
she visited the Redwood Trust building. She could not access the
basement or second level because the building does not have an ele-
vator. On February 13, 2002, Miss Laird brought suit against Red-
wood Trust in the United States District Court for the District of
Maryland alleging violations of the ADA. She argued that the ADA
required Redwood Trust to install an elevator in the building. The dis-
trict court granted summary judgment for Redwood Trust, holding
that Redwood Trust was exempt from the requirement of installing an
elevator because the building was fewer than three stories. Miss Laird
appealed.

                                  II.

   We review the district court’s grant of summary judgment de novo.
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 766 (4th Cir.
2003). Summary judgment is appropriate when the "pleadings deposi-
tions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)). There is no genuine issue for trial if
the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
4                   LAIRD v. REDWOOD TRUST LLC
   The Americans with Disabilities Act prohibits discrimination 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." 42 U.S.C. § 12182(a). The ADA
defines discrimination with respect to renovations of a place of public
accommodation as the failure to "make alterations in such a manner
that, to the maximum extent feasible, the altered portions of the facil-
ity are readily accessible to and usable by individuals with disabili-
ties, including individuals who use wheelchairs." 42 U.S.C.
§ 12183(a)(2). Redwood Trust concedes that Laird is a qualified per-
son with a disability, and that the building is a recently renovated
place of public accommodation.

  The ADA provides a specific exemption from the requirement to
make a place of public accommodation readily accessible to all dis-
abled individuals. The exemption provides:

    (b) Elevator

    Subsection (a) of this section shall not be construed to
    require the installation of an elevator for facilities that are
    less than three stories or have less than 3,000 square feet per
    story unless the building is a shopping center, a shopping
    mall, or the professional office of a health care provider or
    unless the Attorney General determines that a particular cat-
    egory of such facilities requires the installation of elevators
    based on the usage of such facilities.

42 U.S.C. § 12183(b). The statute does not define "story." However,
the statute requires the Attorney General to issue regulations to imple-
ment its provisions, including defining terms used in the statute, and
we look to those regulations where the statute is silent. See Olmstead
v. L.C. ex rel Zimring, 527 U.S. 581, 591 & n.5 (1999); 42 U.S.C.
§ 12186(b) (1995). In response to the requirements of 42 U.S.C.
§ 12186(b), the Attorney General released the ADA Accessibility
Guidelines for Buildings and Facilities. 28 C.F.R. pt. 36, app. A
(2002). The guidelines define the term "story" as follows:

    That portion of a building included between the upper sur-
    face of a floor and upper surface of the floor or roof next
                      LAIRD v. REDWOOD TRUST LLC                            5
      above. If such a portion of a building does not include
      occupiable space, it is not considered a story for purposes of
      these guidelines. There may be more than one floor level
      within a story as in the case of a mezzanine or mezzanines.

28 C.F.R. pt. 36, app. A § 3.5 (2002). The term "mezzanine" is
defined as

      [t]hat portion of a story which is an intermediate floor level
      placed within the story and having occupiable space above
      and below its floor.

28 C.F.R. pt. 36, app. A § 3.5.

   The district court held that the definition of mezzanine "is impre-
cise and consequently difficult to apply to the facts of this case."
Laird v. Redwood Trust LLC, 240 F. Supp. 2d 423, 425 (D. Md.
2003). The district court therefore looked beyond the plain language
of the statute and interpreted the regulations using a "pragmatic exam-
ination of the floor’s functional space and the services provided on
the floor." Laird, 240 F. Supp. 2d at 425.2 Although we agree with the
district court’s result, our reasoning is somewhat different. We con-
strue the language in the statute and the regulatory guidelines to
describe the second level as a mezzanine, and thus not a third story.

   Webster’s Dictionary defines "portion" as "an often limited part set
off or abstracted from a whole." Webster’s Ninth New Collegiate Dic-
tionary 916 (1985). "Intermediate" is defined as "being or occurring
at the middle place, stage or degree or between extremes." Webster’s
Ninth New Collegiate Dictionary 632. Thus, by defining a mezzanine
as "[t]hat portion of a story which is an intermediate floor level," the
guidelines distinguish a mezzanine from an ordinary floor level in two
ways. 28 C.F.R. pt. 36, app. A § 3.5. (emphasis added). First, a mez-
zanine must be less than a story, as it is only a "portion" of one. Sec-
ond, a mezzanine must exist in the "middle place" or "between
extremes" of a story because it is an "intermediate level."
  2
   The plaintiff, br. at p.18, agrees with the district court that the regula-
tions are imprecise, but comes to the opposite conclusion.
6                   LAIRD v. REDWOOD TRUST LLC
   The definition also provides that a mezzanine must have "occupi-
able space above and below its floor." 28 C.F.R. pt. 36, app. A § 3.5.
The word "floor" in this context refers to the physical barrier separat-
ing space between floor levels. The guidelines define a story as "[t]hat
portion of a building included between the upper surface of a floor
and upper surface of the floor or roof next above." 28 C.F.R. pt. 36,
app. A § 3.5. When distinguishing a mezzanine from a separate story,
however, the guidelines state that "[t]here may be more than one floor
level within a story as in the case of a mezzanine or mezzanines." 28
C.F.R. pt. 36, app. A § 3.5 (emphasis added). A "floor" therefore is
a physical separation of space, which contains an "upper surface." A
floor level, by contrast, refers not only to the physical barrier between
levels, but also to the occupiable space above the upper surface of that
barrier. Thus, the bottom floor level of a building could not be a mez-
zanine because there is no occupiable space below its floor. However,
the second level of a building, where there is occupiable space both
below the floor’s lower surface (the ceiling) and above its upper sur-
face, satisfies the guidelines requirement.

   Applying these definitions to the facts in this case, we are of opin-
ion that the second floor level of the Redwood Trust building meets
the definition of a mezzanine under the ADA Accessibility Guide-
lines. First, the second level is less than a story by itself, because it
has occupiable space only in the limited area around the large opening
that allows patrons to view the dance floor below. Second, the level
is an "intermediate floor level" within a story because it is located
between the first floor and the roof of the building. 28 C.F.R. pt. 36,
app. A § 3.5. Finally, the second floor meets the literal regulatory def-
inition of "mezzanine" by having "occupiable space above and below
its floor" because there is occupiable space both on the first level
below and on the second floor level itself. 28 C.F.R. pt. 36, app. A
§ 3.5. Therefore, we are of opinion and hold that the second level is
a mezzanine within the meaning of the ADA Accessibility Guidelines
and summary judgment for Redwood Trust was appropriate.

  Laird also argues that Redwood Trust must provide elevator or lift
access to the second floor under the ADA Accessibility Guidelines
applicable to restaurants and cafeterias.3 28 C.F.R. pt. 36, app. A
    3
  Although Laird does not address the conflict between the require-
ments of guidelines § 5.4 relating to restaurants and cafeterias and the
                      LAIRD v. REDWOOD TRUST LLC                           7
§ 5.4. Section 5.4 provides that "[i]n new construction, all dining
areas . . . shall be accessible." 28 C.F.R. pt. 36, app. A § 5.4. How-
ever, "[i]n alterations, accessibility to . . . dining areas . . . is not
required provided that the same services and decor are provided in an
accessible space usable by the general public and are not restricted to
use by people with disabilities." 28 C.F.R. pt. 36, app. A § 5.4. The
term "alteration" is defined as "a change to a building . . . [including]
remodeling, renovation, rehabilitation, reconstruction, historical resto-
ration, changes or rearrangement of the structural parts or elements,
and changes or rearrangement in the plan configuration of walls and
full-height partitions." 28 C.F.R. pt. 36, app. A § 3.5. Though Red-
wood Trust concedes that the renovations to the building were exten-
sive, they are, nonetheless, renovations. There is no evidence in the
record of any new construction; all of the renovations involved
changes to the existing structure to allow it to function as a restaurant
and night club. We are of opinion that the lengthy set of terms defin-
ing alteration were intended to cover renovations, like those to the
Redwood Trust building, that are extensive but did not involve new
construction. See 28 C.F.R. pt. 36, app.A, § 3.5 Accordingly, we find
that the renovations to the Redwood Trust building were "alterations"
under guideline §§ 3.5 and 5.4. We also find that the record shows no
difference in the services or decor between the first and second floor
dining areas. Therefore, we find that the district court’s grant of sum-
mary judgment was proper.4

elevator exemption contained in 42 U.S.C. § 12183(b), we assume Laird
is arguing the exemption does not apply because § 5.4 falls within the
final clause of the statute. That clause provides that an elevator is
required in buildings with less than three stories if "the Attorney General
determines that a particular category of such facilities requires the instal-
lation of elevators based on the usage of such facilities." 42 U.S.C.
§ 12183(b). Presumably, Laird believes that the use of the unqualified
phrase "all dining areas . . . shall be accessible" indicates that the Attor-
ney General intended to require the installation of elevators in restaurants
and cafeterias regardless of the number of stories. However, because
Laird’s claim under § 5.4 fails even if the final clause of 42 U.S.C.
§ 12183(b) applies, we decline to reach this issue.
   4
     Laird’s counsel conceded in oral argument that if the building falls
under the "alteration" standards rather than the new construction stan-
dards, Laird’s claim under guideline § 5.4 fails.
8                    LAIRD v. REDWOOD TRUST LLC
   In sum, we are of opinion that the language of the ADA and the
ADA Accessibility Guidelines is properly construed so that the Red-
wood Trust building has fewer than three stories because the second
floor is a mezzanine. We also find that the building does not violate
the ADA Accessibility Guidelines requirements for restaurants and
cafeterias. Therefore, although we need not rely upon the district
court’s finding that the regulatory definitions are ambiguous, we
agree that summary judgment was appropriate. See SEC v. Chenery,
318 U.S. 80, 88 (1943) (holding that a district court must be affirmed
if the result is correct although we may rely upon a different reason)

    Accordingly, the judgment of the district court is

                                                            AFFIRMED.

SHEDD, Circuit Judge, concurring:

   I concur in the majority opinion but write separately to address the
analysis of the dissenting opinion.* The dissent would rewrite an
unambiguous Department of Justice (DOJ) regulation. Even more
remarkably, the dissent would redraft this regulation by adding a spe-
cific provision that the DOJ clearly rejected.

   The DOJ deliberately attempted to make its regulations consistent
with model building codes whenever the dictates of the model codes
were consistent with the purposes of the ADA. 56 Fed. Reg. 35,418
(July 26, 1991). Despite its specific knowledge of the model codes,
the DOJ adopted a definition of "mezzanine" substantially different
from that of the model codes. The DOJ regulation defines "mezza-
nine" as:

      That portion of a story which is an intermediate floor level

   *The dissent faults the majority opinion for "avoid[ing] the difficult
task of interpreting the parameters of a poorly drafted regulation." I do
not believe that this court’s duty is to explore the "parameters" of how
the regulatory definition might be applied to all conceivable factual sce-
narios. Instead, this court must simply apply the regulatory definition to
the facts of the concrete dispute in this particular case.
                    LAIRD v. REDWOOD TRUST LLC                         9
    placed within the story and having occupiable space above
    and below its floor.

28 C.F.R. pt. 36, app. A § 3.5. The model codes, on the other hand,
define "mezzanine" as:

    An intermediate level or levels between the floor and ceiling
    of any story with an aggregate floor area of not more than
    one-third of the area of the room or space in which the level
    or levels are located.

INTERNATIONAL BUILDING CODE (2003), § 502.1 (emphasis added);
BOCA NATIONAL BUILDING CODE, § 201 (1987) (similar language).
Thus, the model codes contain an objective test under which a level
cannot be deemed a mezzanine if it is larger than one-third of the area
of the room in which it is located. The DOJ definition of "mezzanine"
does not incorporate this bright-line test.

   Although the DOJ did not adopt this objective test from the model
codes in its definition, it employed an almost identical phrase in
another portion of its ADA regulations governing new construction of
dining areas. That regulation provides that an owner of a new building
need not provide vertical access to a mezzanine if the "area of mezza-
nine seating measures no more than 33 percent of the area of the total
accessible seating area." 28 C.F.R. pt. 36, app. A § 5.4. Thus, the
DOJ obviously knew how to create a bright-line spatial test for deter-
mining issues of access but chose not to do so in its definition of
"mezzanine."

   Nevertheless, the dissent insists that this particular language in the
model building codes creating the bright-line test — which the DOJ
rejected — must be incorporated into the DOJ definition of "mezza-
nine" because the existing definition is a "virtual nullity" and does not
"helpfully define" a mezzanine. I believe such a conclusion, espe-
cially under the facts of this case, is simply not correct. According to
the DOJ definition, a mezzanine must be, among other things, "a por-
tion of a story" and must be "placed within the story." That is, a mez-
zanine cannot be a free-standing story, but instead must be part of,
and within, a larger story.
10                  LAIRD v. REDWOOD TRUST LLC
   The dissent presumes that a floor, like one in a firehouse, with a
hole cut out for a fire pole or a floor that has a drill hole is a mezza-
nine under the DOJ definition. The DOJ definition of "mezzanine"
does not suggest such a conclusion. The floor that has a hole cut out
for a fire pole — just as for a staircase — is a separate story. That
floor is not a "portion of" the lower story, and neither is that floor
"placed within" the lower story. Although the fire pole hole, like the
staircase, connects the two floors, the two floors remain separate from
each other. Further, the existing definition of "mezzanine" is suffi-
cient to draw a distinction between a floor that has a hole drilled in
it and the type of floor involved in this case — where the mezzanine
is clearly a "portion of" and "placed within" the main story of the
Redwood Trust building.

   We are generally bound to construe a regulation according to the
plain meaning of its unambiguous terms, and I concur with the major-
ity because it faithfully does just that. The DOJ definition of "mezza-
nine" is not ambiguous, and based on the plain meaning of that
definition the floor in question qualifies as a mezzanine. We are not
free to write into the DOJ’s definition what is not there, but instead
we should apply the definition as written to the facts before us. See
Maryland State Dep’t of Ed. v. United States Dep’t of Veterans
Affairs, 98 F.3d 165, 169 (4th Cir. 1996) (giving effect to the plain
meaning of a statute).

DUNCAN, Circuit Judge, dissenting:

   Today the majority avoids the difficult task of interpreting the
parameters of a poorly drafted regulation by interpreting it in a way
that could not logically have been intended.1 In doing so, the court
disposes of the case before us, but creates a loophole in the ADA that
could have serious consequences in the future. I therefore respectfully
dissent.
  1
   In his concurring opinion, Judge Shedd calls the regulation in ques-
tion "unambiguous." Such an assertion, however, no matter how
emphatic, does not make it so. I note that even the district court, whose
conclusion Judge Shedd would uphold, does not share his assessment.
Laird v. Redwood Trust LLC, 240 F. Supp. 2d 423, 425 (D. Md. 2003).
                     LAIRD v. REDWOOD TRUST LLC                        11
   As an initial matter, I note that there is much in the majority’s opin-
ion with which I agree. We agree that the key issue in this case is
whether the "elevator exemption" of 42 U.S.C. § 12183(b) applies to
the Redwood Trust facility, specifically whether the second level of
the facility is properly considered a "story" or a "mezzanine". We also
agree that a correct starting point for this determination is the Depart-
ment of Justice’s ("DOJ") regulations defining these two terms. See
28 C.F.R. pt. 36, app. A § 3.5 (2002). Most significantly, we agree
that the district court’s "functional analysis", which distinguishes a
"story" from a "mezzanine" based upon the functions or activities that
take place within it, is impractical and incorrect. Such an approach
would be virtually impossible to apply and has no basis in the regula-
tions. However, I cannot agree with the majority that we should end
our interpretation of the regulation with its "plain meaning" reading,
when such a reading has the potential to undermine the purposes of
the ADA.

   As with the interpretation of statutes, our interpretation of regula-
tions begins with their text. See Maryland. St. Dep’t of Educ. v. Dep’t
of Veterans Affairs, 98 F.3d 165, 169-70 (4th Cir. 1996). In the over-
whelming majority of cases, a textual reading will be dispositive.
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989).
However in a few cases, a literal reading of the regulations cannot be
upheld, as it leads to an absurd result. In these limited instances, a
court may adopt a more restrictive interpretation, so long as it is con-
sistent with the purposes of the regulation and its governing statute.
United States v. Boynton, 63 F.3d 337, 344 (4th Cir. 1995).

   In the DOJ’s regulations, a mezzanine is defined as "[t]hat portion
of a story which is an intermediate floor level placed within the story
and having occupiable space above and below its floor." 28 C.F.R. pt.
36, app. A § 3.5 (2002). The majority holds that a floor level is a
"portion of a story" if there is some open space on that floor level,
regardless of the amount, that makes it have less floor space than a
story by itself. Under this interpretation, it determines that the open-
ing in the center of the floor at Redwood Trust, through which the
dance floor below can be viewed, causes it to qualify as a mezzanine.
Maj. Op. 6. There is superficial appeal to this analysis. It seems
straightforward, tracks the language of the regulation, and easily dis-
poses of this case. However, in my opinion, the unavoidable negative
12                   LAIRD v. REDWOOD TRUST LLC
ramifications of such an interpretation on the broader scheme of the
ADA make such a reading untenable.

   According to the majority’s interpretation, a floor level is a "por-
tion of a story" so long as there is some open space on that floor level
that causes it to have less total floor space than a story by itself. The
majority reads the regulation as having no spatial limitation, thus
making any floor level that happens to have some degree of open
space, or in other words, a hole, a candidate for classification as a
"mezzanine." Under this analysis, the opening surrounding a fire-
man’s pole would give the second floor of a fire station less total floor
space than the story below, thus converting it into a mezzanine. A
ground floor-to-roof atrium in a ten-floor building creates an open
space, turning a ten story building into a single story with nine mezza-
nines. Any floor that happens to have some opening that looks down
upon the level below it, could be determined to be a "portion of a
story" that has "occupiable space above and below its floor", thus
making it a mezzanine, and consequently exempt from the require-
ments of the ADA. The majority’s interpretation contains no limita-
tions; if followed to its logical conclusion, it renders the ADA’s
elevator requirement a virtual nullity for anyone with the foresight to
purchase a drill.2

   Perhaps the majority would not follow its line of reasoning to its
logical end, and would hesitate to hold that a fire pole opening or a
floor-to-roof atrium converts a story to be converted into a mezza-
nine. However it could not do so under its current interpretation of the
  2
     Judge Shedd’s concurring opinion suggests that the majority’s inter-
pretation of the DOJ definition of "mezzanine" does not require such
conclusions. According to Judge Shedd, the level with a hole cut out for
a fire pole or a staircase qualifies as a separate story because the floor
is not a "portion of" the lower story, nor is it "placed within" the lower
story. Conspicuously absent from his conclusory assertion, however, is
any reasoning to support it. The regulation contains no spatial limitation
that would prevent the DOJ from applying its definition to a level with
a fire pole hole or staircase and claiming that such a floor is a "portion
of" and "placed within" a lower story. Judge Shedd’s conclusion that
such floors are separate stories simply because he says they are, offers
little comfort to the disabled, and certitude strikes me as an inadequate
substitute for analysis.
                     LAIRD v. REDWOOD TRUST LLC                         13
regulation. It is not enough for the majority to say that such an
extreme example is not before us when there is no basis for any dis-
tinction under the interpretation it adopts.

   While recognizing that the majority’s interpretation is grounded in
the text of the regulation, I cannot believe that such a result was
intended. It creates a loophole that could swallow the rule and ulti-
mately stymie the purpose of the ADA — to integrate individuals
with disabilities into mainstream life by guaranteeing them reasonable
access to places of public accommodation. cf. 42 U.S.C. § 12101;
P.G.A. Tour, Inc. v Martin, 532 U.S. 661, 675 (2001). Because of
this, I believe the interpretation is unsustainable. See In re Vial, 115
F.3d 1192, 1196 (4th Cir. 1997) (en banc). Therefore, the question
arises as to what interpretation that is faithful to the regulations
should replace it.

   The district court, recognizing that the DOJ’s definition of mezza-
nine was "imprecise and consequently difficult to apply", attempted
to create a new "pragmatic" approach based upon the floor’s available
space and the services provided upon it. Laird v. Redwood Trust LLC,
240 F. Supp. 2d 423, 425 (D. Md. 2003). Using this test, the court
found that because of the second floor’s "limited functional space"
and the fact that the Club did not play different music on the second
floor, thus offering no "unique services" on it, the second level could
properly be characterized as a mezzanine. Id. While I applaud the dis-
trict court’s efforts to grapple with a poorly drafted regulation, its pro-
posed solution creates more problems than it solves. Primarily, the
court never defines "functional space," leaving it as an ambiguous
concept that finds no justification in the regulations and is extremely
difficult to apply. The court concludes that one-third of the space on
the second floor was not "functional," because it was used for an
office, two bathrooms, a bar, a storage room and two staircases. But
it does so without explanation, and its logic is far from apparent.

   And even if the concept of "functional space" could be defined, the
question as to whether a floor provides "unique services" would cause
a myriad of other problems. For example, the district court focuses on
the fact that the seating arrangement on each floor is similar and that
the music provided on each level is generally of the same type. I can-
not believe that the Department of Justice truly intended the decision
14                   LAIRD v. REDWOOD TRUST LLC
as to whether an elevator must be put in a place of public accommo-
dation to hinge on a federal judge’s decision as to whether the rock
music on a club’s first floor and the rap music on its second were dif-
ferent enough to create a "unique" experience on each level. Further,
both the function and usage of a club can easily change — certainly
far more easily than that building’s structure. Having the applicability
of the mezzanine exemption follow the function and usage of the
space would make ADA compliance unnecessarily expensive, uncer-
tain, and susceptible to manipulation.

   Since the majority’s reading of the DOJ definition is without limi-
tation and creates an untenable loophole in the ADA, and the district
court’s functional interpretation created to replace it is equally prob-
lematic, another interpretation of the regulations that is consistent
with the goals of the ADA must be sought. In a different context, the
Supreme Court has recently said that when a regulation does not
"helpfully define" a term, courts may seek to find Congressional
intent by looking at the common meaning of that term (in that case
the common law definition). See Clackama Gastroenterology Assoc.,
P.C. v. Wells, 538 U.S. 440, 444 (2003).

   Although there is no common law definition of "mezzanine", its
definition in the model building codes has gained wide acceptance.
Mezzanine is defined in the International Building Code ("IBC") and
the Building Officials & Code Administrators International, Inc.
("BOCA") National Building Code as "[a]n intermediate level or
levels between the floor and ceiling of any story with an aggregate
floor area of not more than one-third of the area of the room in which
the level or levels are located." IBC, 2003 ed. § 502; BOCA 1999
National Building Code § 502.0. This is the definition used by a large
number of states in their building codes, and serves as the most com-
mon definition of mezzanine currently used. See e.g., Cal. Health &
Safety Code § 19995.3; 71 Ill. Adm. Code 400.210; Wis. Admin.
Code § 51.02. The applicability of a one-third limitation to the regula-
tion before us has appeal. It creates an objective criterion that is easily
applied, familiar to the construction industry, and unlike the majori-
ty’s reading, furthers the ADA goal of facilitating access.

   Such an application is, however, not without its problems. DOJ
included the one-third limitation in another part of its regulations
                     LAIRD v. REDWOOD TRUST LLC                        15
dealing with mezzanines, thus acknowledging its familiarity with the
standard. Despite that awareness, it declined to include the phrase
within the definitions at issue. See C.F.R. § 36, App. A., 5.4 (vertical
access to the mezzanine is not required if the area is "no more than
33 percent of the [total] area"). Thus one might argue that the expres-
sio unius est exclusio alterius ("the expression of one thing is the
exclusion of another") maxim should apply, reading the lack of incor-
poration of the one-third standard in the mezzanine definition as being
intentional. However as courts have recognized, the expressio maxim,
while a helpful tool for statutory construction, can often be mislead-
ing. United States Immigration & Naturalization Serv. v. Fed. Labor
Relations Auth., 4 F.3d 268, 272 (4th Cir. 1993). Its purpose, or that
of any other principle of statutory construction, is simply to serve as
a guide to ascertaining legislative or regulatory intent. If applying the
maxim in a particular situation does not clarify the drafter’s intent,
then the maxim serves no purpose. As explained before, I do not
believe that the DOJ intended to define "mezzanine" in such a way
so as to create a large loophole in the statute. Applying the expressio
maxim rigidly in this case, thus eliminating reference to the one-third
limitation, would create such a loophole. A statutory maxim intended
to help decipher drafter intent will expressly counter it, thus leaving
us with the unfettered interpretation adopted by the majority and the
potential for the goal of access to be unrealized.

   Ultimately, as the district court implicitly and astutely recognized,
the Justice Department needs to clarify its regulations. In the interim,
however, I would rely on the one-third standard adopted by the build-
ing codes as an initial point of departure. As problematic as building
codes may be, no other objective standard appears. And with one-
third of a floor as the frame of reference for determining the existence
of a mezzanine, it is not difficult to conclude that a level which is
75% of the floor space of the stories between which it falls, is too
large. Indeed, it is disconcertingly close to my firepole/atrium analo-
gies.

  For the foregoing reasons, and with full understanding of the
majority’s decision to opt for its simpler reading, I respectfully dis-
sent. In the long run, the goal of facilitation of access for the disabled
demands it.
