Billy Joel StrangerBilly Joel had a major pop hit in 1977 with “Get it Right the First Time” from “The Stranger.” Forty years later Starbucks has proven just how true this is.  In Crandall v. Starbucks Corp., 2017 WL 1246749 (N.D. Cal. Apr. 5, 2017) the Court reminded Starbucks and every other public accommodation that “get it right the next time” is not the same thing as getting it right the first time.  In fact, it is the difference between winning and losing.

The issue of interest in Crandall v. Starbucks concerned access to a counter that was blocked by a point of sale display. This is not a first for Starbucks as we described a couple of years ago in  POS Marketing and ADA Compliance – you can’t have it both ways. In the earlier Kalani v. Starbucks case the defense was that POS sales items were only temporary barriers because they could be easily removed. The Court disagreed because, in its view, the POS displays were intended to be permanent even though they could be moved.The displays at issue in Crandall were a standing display placed so close to the counter that it intruded into the required 36 inches of clearance as well as displays on the counter itself. Some time after the lawsuit was filed the standing display was moved out of the way and the counter displays were removed. This, according to Starbucks, eliminated the need for any relief and required a defense summary judgment.

The Court disagreed, noting that the changes were not structural or permanent because the displays at issue were easily movable. Equally important, there was no evidence that Starbucks had adopted any policy against on-counter displays or concerning the placement of merchandise displays. Because Starbucks could re-create the barriers to access at any time the case was not moot.

So far, so bad, but worse was coming. The Court found the existence of a violation at the time the plaintiff visited and on two later occasions was established as a matter of law, refused to credit Starbucks’ argument that its employees would always move the displays to a correct position, and granted summary judgment for the plaintiff. “Get it right the first time” and there’s no lawsuit at all. “Get it right the next time” and you’ll be paying the plaintiff’s attorneys fees while contemplating a permanent injunction. In cases involving things like displays that employees place and move, getting it right the first time means having a policy in place before there is a lawsuit that requires employees to maintain an accessible premises.*

As a final note, the court mentions in passing a theory of accessibility that isn’t mentioned anywhere in the ADA Standards but creates a significant stumbling block for businesses that trying to make their premises accessible. As a rule, accessibility means a 36 inch wide route to all the relevant parts of a store or restaurant. There is even a picture in the DOJ’s primer for small business:
Screen Shot 2017-05-07 at 7.03.41 PM

Crandall v Starbucks includes a complaint that the required route was not 36 inches wide, but it seems the Court granted summary judgment for the plaintiffs because it was undisputed “that when there are customers in the store the displays make the path of travel too narrow.” Id. at *14. The Court also found that accessible routes might be blocked in the future based on the “absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel.” In both cases the problem identified by the Court is not any structural feature of the restaurant, or even a problem with where the furniture was placed by the staff, but rather a problem with the conduct of other customers.

It isn’t difficult to imagine that in an informal space like a coffee house or bar customers will feel free to move chairs and even tables, and may congregate in areas that are part of an accessible route. The ADA prohibition on “discrimination” applies to the design and construction of public accommodations and the removal of “architectural barriers and communication barriers that are structural in nature.” It doesn’t say anything about regulating the behavior of other customers. Starbucks has not been afraid in the past to take cases to the Ninth Circuit, and it would be nice in this case to get a definitive rejection of the notion that businesses are required to regulate customer behavior in order to comply with the ADA. In the meantime, businesses that are crowded or are pushing the limits of accessibility should be be careful.

*In a ruling this week a Magistrate Judge in the Western District of Pennsylvania approved class certification for a lawsuit against Steak & Shake that appears to rest primarily on a failure to properly maintain its parking lots. Last year this time we blogged about a similar lawsuit against Cracker Barrel restaurants brought by the same law firm. Does the ADA Require a Compliance Policy? Every temporary barrier caused by a lack of maintenance can turn into a permanent injunction if the right policies are not in place before a lawsuit is filed.