Colorado Cross-Disability Coalition v. Too (Delaware)

• Decision Date: 10 November 2004
• Docket Number: No. CIV. 02-B-2235 (CBS).,CIV. 02-B-2235 (CBS).
• Citation: 344 F.Supp.2d 707
• Parties: COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation, Carrie Ann Lucas, and Robin Stephens, Plaintiffs, v. TOO (DELAWARE), INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Colorado

344 F.Supp.2d 707

COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation, Carrie Ann Lucas, and Robin Stephens, Plaintiffs, v. TOO (DELAWARE), INC., a Delaware corporation, Defendant.

No. CIV. 02-B-2235 (CBS).

United States District Court, D. Colorado.

November 10, 2004.

Kevin W. Williams, Denver, CO, for Plaintiffs.

Jimmy Goh, Holland & Hart, LLP, K. Preston Oade, Jr., Holme, Roberts & Owen, LLP, Bruce W. Sattler, Faegre & Benson, Gregory A. Eurich, Holland & Hart, LLP, United States District Court, Philip Lance Gordon, Littler Mendelson, PC, David H. Goldberg, Schwartz & Goldberg, PC, Sandra Lea Spencer, White & Steele, P.C., Barbara Ann Grandjean, Jacobs, Chase, Frick, Kleinkopf & Kelley LLC, James D. Kilroy, Kyle Paul Seedorf, Snell & Wilmer, LLP, Brent T. Johnson, Fairfield & Woods, P.C., Denver, CO, Philip A. Gordon, Faegre & Benson, LLP, Boulder, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

This is an ADA action brought by wheelchair-bound Plaintiffs who bring one claim for declaratory judgment that the ADA requires retail clothing stores to maintain wheelchair-width access routes around moveable display racks. Plaintiffs also seek an affirmative injunction requiring Defendant to comply with the ADA as Plaintiffs interpret it. Plaintiffs move for partial summary judgment as to the meaning of the ADA in this context. Defendant Too (Delaware), Inc. ("Too") also moves for partial summary judgment.

The question presented by these cross-motions is whether the higher "readily accessible" standard of 42 U.S.C. § 12183(a)(1) or the lower "readily achievable" standard of 42 U.S.C. § 12182(b)(2) applies to Too's movable display racks in its stores. With the benefit of both the papers and oral argument, I hold that the latter standard applies to this case.

I. Undisputed Facts

The parties' arguments rely wholly on interpretation of law, so the facts here are necessarily limited to a simple framework for my analysis of the applicable law.

Defendant is a retailer who sells goods for children and young adults. Plaintiffs are wheelchair-bound shoppers who shop in Defendant's store at the Flatirons Crossing Mall outside of Boulder, Colorado. On more than one occasion, Plaintiffs have entered Defendant's store, attempted to navigate around the moveable clothing display racks. The moveable display racks exist in a variety of forms. Circular racks are "rounders"; rectangular ones: "gondolas," or "T-stands"; "three-ways"; and "four ways." These moveable racks are arranged to visually entice potential shoppers to enter the store, and to present merchandise to customers. All of the moveable racks are on wheels, and store employees regularly move the racks to reflect marketing concepts reflective of seasonal themes.

Defendant says that it maintains maximum access to store merchandise and that moveable display racks are evenly spaced throughout the store. It also contends that its policies are handicapped-friendly, and require sales associates to actively assist handicapped customers in a variety of ways. Defendant contends that Plaintiffs may proceed unhindered by movable displays to the cash-wrap stand, the handicapped-accessible fitting rooms, and around the perimeter of the store. Defendant submits that maintaining a wheelchair-width space to and around every display would significantly reduce the amount of merchandise its store may offer for purchase, negatively affect marketing strategies, and ultimately reduce profits.

II. Law

A. Summary Judgment

The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). I shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Because the question presented at this stage of the case is purely one of law I need not determine whether genuine issues of material fact exist.

III. Discussion

Defendant's cross-motion for partial summary judgment and Plaintiffs' motion for partial summary judgment, along with the respective responses, replies, and surreplies, address the same legal question. I address Plaintiffs' contentions in the context of Defendant's interpretations of the law.

There is only one question for me to resolve. It is this: Whether the ADA's statutory provision defining discrimination in the context of a "readily achievable" standard, or in the context of a "readily accessible" standard, governs the arrangement of moveable displays in a retail store. Answering that question requires me to closely read the applicable statute sections, regulations, cases, and Department of Justice technical manuals and correspondence.

A. Statute and Legislative History

42 U.S.C. § 12182(b)(2)(A)(iv) states:

[Discrimination ... includes] a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable.

42 U.S.C. § 12183(a)(1) states:

[Discrimination ... includes] a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter.

It is undisputed that these provisions apply to retailers like Defendant. Under the "readily achievable" standard, I must consider the economic impact of the proposed accommodation, including loss of sales space. See 42 U.S.C. § 12181(9) (listing factors to be considered). Under the "readily accessible" standard, the disabled must be accommodated without consideration of cost. That standard applies only to facilities constructed for first occupancy after January 26, 1990. The parties agree that Congress contemplated the costs to businesses to retrofit existing buildings and decided that the more flexible, "readily achievable," standard was warranted, in contrast with the "readily accessible" standard for new buildings where ADA-related costs are included in the building's overall cost of construction. It is also agreed that there is no mention in these sections, on their faces, of moveable displays.

Plaintiff contends that the second, "readily accessible," standard applies to moveable displays. Defendant argues the opposite.

As a threshold issue, I note that Plaintiffs ask me to liberally construe the statute's sections and regulations within the broad scope of the ADA in protecting the rights of people with disabilities. Where a statute's text and legislative history do not support such a broad definition, however, I may decline to apply such a liberal construction. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). That said, my "first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). "To the extent that there may be doubt concerning the meaning of statutory text, ambiguity is easily removed by looking at the legislative history." Sutton at 500, 119 S.Ct. 2139.

As an alternative to their specific arguments, Plaintiffs ask me to ignore the provisions of the statute, the legislative history, and the regulations that deal with retail buildings, fixed displays, and moveable displays under the ADA, and instead interpret the ADA "generally" under the "full and equal enjoyment" language of 42 U.S.C. § 12182(a) as forcing compliance with Plaintiff's view. I decline to do so, as such an interpretation would be inappropriate.

The moveable displays in this case are located within facilities whose design and construction was subject to the "readily accessible" standard because the facilities (the Flatirons Crossroads Mall building) were first occupied after January 26, 1993. Defendant contends that this fact is inconsequential to my analysis because Congress intended to regulate the arrangement of moveable displays under the "readily achievable" standard regardless of when the facility that houses the displays was constructed. I note that to the extent Plaintiffs argue the definition of "facility" includes "any equipment or personal property located on the site," they ignore the multiple definitions of "facility" in the ADA and its associated federal regulations, see below, that tie it synonymously to "building." See 42 U.S.C. § 12181; 56 C.F.R. 35408 et seq.

Section 12183(a)(1) (all statute sections herein are 42 U.S.C. sections) defines discrimination to include "a failure to design and construct facilities for first occupancy... that are readily accessible to and usable by individuals with disabilities." (Emphasis added.) Thus, Defendant argues, by its own terms that section does not govern arrangement of objects after a facility has been designed and constructed for first occupancy. The legislative history bears out the argument that design and construction refers to actions taken during the building process: "Because it costs far less to incorporate accessible design into the planning and construction of new buildings and of alterations, a higher standard of `readily accessible to and usable by' persons with a disability has been adopted in the ADA for new construction and...