Nitty Gritty AlbumI’ve observed that in many ADA and FHA cases there is little dispute about the existence of barriers to access, but this isn’t always true. A decision from the Seventh Circuit in the first week of January serves as a reminder that sometimes the outcome of a case turns on the nitty gritty of the regulations about accessibility rather than on procedural battles over standing or limitations.

In Scherr v Marriott International the plaintiff claimed that the spring hinges installed in Marriott hotels violated the ADA because they closed the door more quickly than the original 1991 Standards and 2010 Standards permitted. There was a standing battle, of course, but both the District Court and the Seventh Circuit found that  the plaintiff had standing with respect to the hotel she actually visited. This limited her claim, but did not eliminate it. The Seventh Circuit also found that although the plaintiff’s suit was filed more than four years after the plaintiff’s visit the applicable two year limitations period had not run. Like other courts the Seventh Circuit found that as long as the access barrier existed and deterred the plaintiff from returning to the hotel there was an ongoing violation of the law.

Despite these procedural victories the plaintiff still lost. The Seventh Circuit found that the spring hinged doors were in compliance with the 2010 Standards, and that Marriott was entitled to rely on them. This was because the 2010 Standards, unlike the earlier 1991 Standards, included a specific provision for closing time of spring hinged doors that was different (and shorter) than the time for “door closers.”  The door failed the “door closer” standards but met the spring hinge standards.

The language of the 2010 Standards requires this result, but there is an interesting twist to the story. The parties to the lawsuit agreed that Marriott could take advantage of either the 1991 Standards or the 2010 Standards. However, when the plaintiff first visited the Marriott in 2006 the 2010 Standards were not yet effective. The spring hinges did not comply with the 1991 Standards, which only had a single standard for door closers. It would seem that if the suit had been brought or heard before the September 15, 2010 effective date of the DOJ regulations adopting the 2010 Standards Marriott might have lost.

The agreement of the parties that either the 1991 or 2010 Standards could apply avoided  an issue not addressed by the regulations; that is, whether the 2010 Standards can apply to facilities in existence before 2010 that only meet the 2010 Standards.  28 C.F.R. §36.304(d)(2)(i) provides that facilities not altered before March 15, 2012 must only comply with the 1991 Standards.  §36.304(d)(2)(ii) requires that before March 15, 2012 existing facilities that do not comply with the 1991 Standards must be modified to meet either the 1991 or the 2010 Standards, and that after March 15, 2012 they must be modified to meet the 2010 Standards.  In each case the regulations seems to assume that  the 2010 Standards are stricter than the 1991 Standards, which in Scherr v. Marriott turned out not to be the case.

It’s a narrow point that illustrates a larger principle. In ADA and FHA litigation the regulatory details can be outcome determinative, and there is more to ADA or FHA defense than attacks on standing or other procedural maneuvers.