September 5, 2014

Court Says "Porch-Like Structures" Do Not Violate ADA

Holland & Knight Regulatory Litigation Blog
Lynn E. Calkins | Rafe Petersen | Christine N. Walz

In an important decision for retailers and other public accommodations, the Tenth Circuit overturned a lower court decision requiring that every "porch-like" entrance to Hollister retail establishments be remediated to be accessible to persons with disabilities. 

Under Title III of the Americans with Disabilities Act, retail establishments are "public accommodations" prohibited from discriminating against the disabled in the full and equal enjoyment of public accommodations. In Colorado Cross-Disability Coalition v. Abercrombie & Fitch, Plaintiffs argued that the Defendants' Hollister stores violated Title III of the Americans with Disabilities Act because the stores had inaccessible "porch-like structures" that served as the stores' center entrance. The porch had multiple uses: functioning "as a customer lounge and as a distinct marketing space, designed to draw customers into the store and strengthen the Hollister brand and image." 

The District Court held that the porch structures at the retail establishments violated Title III of the ADA and ordered the Defendants to bring all of its Hollister stores with porches into compliance with Title III of the ADA within three years. The District Court said that Defendants could modify the porches in one of three ways: "(1) making the porch entrance "level with the surrounding floor space"; (2) placing a ramp on the porch; or (3) closing the porch off from "any public access." Defendants appealed the decision. 

On appeal, the Tenth Circuit held that the ADA regulations do not require every "space" within a retail establishment to be accessible. The Court further said "…the idea that the porch is a 'lobby' or 'customer lounge' is a weak one, as the porch is not destination in itself but a means of passage into the store." 

The Court further held that the current ADA regulations require only that 60% of entrances be accessible--They do not specify which entrances be accessible.  The Court also noted that the Plaintiff's had produced no evidence to suggest that the majority of people visiting or working in the store, used the porch entrance. 

Accordingly, the Court concluded that "It was error to impose liability on the design of Hollister stores based on 'overarching aims' of the ADA. It was also error to impose liability based on the holding that the porch as 'space' must be accessible. Finally, it was error to hold that the porch must be accessible because it is the entrance used by a 'majority of people.'"  It therefore, reversed the district court's grant of summary judgment to the Plaintiffs', vacated the court's permanent injunction, and remanded the case for proceedings consistent with the opinion.         

Colorado Cross-Disability Coalition v. Abercrombie & Fitch, Case No. 13-1377 (10th Cir.)

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