clutterI buy small gifts for the holidays at a handful of stores with inexpensive products and cluttered aisles.  I’ve even been told by clients that clutter can be a marketing strategy because it coveys the idea of bargain prices. Unfortunately, it may also violate the ADA by making otherwise accessible aisles too narrow and otherwise accessible counters too crowded. That, at least, was the finding in the most recent chapter of the long running lawsuit between Byron Chapman and Pier 1 Imports. The case has been pending for more than eight years, and has already generated two opinions from the Ninth Circuit. The last of these seemed to be a complete victory for Pier 1, but on remand and with an amended complaint Chapman obtained a summary judgment and permanent injunction. The case is headed once again for the Ninth Circuit, but the facts and holding should be of interest to any retailer.

Mr. Chapman, who requires a wheelchair for mobility, had two complaints about Pier 1. The first was that the aisles were frequently cluttered with merchandise and could not be navigated. The second was that the accessible counter for making purchases was frequently cluttered and therefore unusable. Although Pier 1 cleaned the store, at least while its experts were visiting, the District Court was not persuaded that the cleanup was permanent given the number of visits during which Mr. Chapman encountered cluttered aisles.  The Court entered a permanent injunction that requires Pier 1 to keep the aisles and counters clear except for what the Court called “transitory” obstructions.

The distinction between what the Court called “transitory” obstructions and the goods found in the aisles by Mr. Chapman is an important one for retailers. The Court recognized that a store inevitably has goods in the aisles when it is restocking, and that a customer who is buying something will put the goods on the counter.  This did not violate the ADA because the intention was that they would be present only a short time and removed as soon as they were no longer in use. On the other hand, a “temporary” display of merchandise or the temporary use of aisle space for overflow inventory was not acceptable because there was no intent to immediately remove the merchandise even though it could be removed at any time.  It was also of no help that the obstructions could be moved upon request because, as the Court found, the purpose of the ADA was to permit those with disabilities the same kind of access as others, and others would not need to find a clerk and ask for help. Retailers in hurley burley of holiday shopping, and perhaps even more in the chaos of the post-holiday sale season, need to be aware that “temporary” obstructions may constitute ADA violations.

There is also an interesting lesson concernin mootness in Chapman v. Pier 1. Pier 1 argued that the claims were moot because on a few specific days the aisles and counters were clear of obstructions. The Court was not persuaded that the problem had been permanently fixed, and so found that the claims were not moot. This and other cases make it clear that in situations where employees create temporary barriers to access the defendant needs a written policy that forbids the conduct creating an ADA violation in order to demonstrate that the removal is permanent.  That kind of policy can lead to a finding that the complaint is moot.

Cluttering up store aisles may or may not be a good marketing strategy, but it certainly appears to be a risky strategy vis a vis the requirements of the ADA, a risk that retailers, restauranteurs and shopping center owners need to be aware of.