On March 7 of this year the District Court for Colorado granted a summary judgment in a class action challenging the design of the front porch at the entrance of most Hollister stores. Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 2013 WL 856510 (D.Colo. 2013). There are several good discussions of the merits of the case, including Julie Mills’ blog at juliesmills.typepad.com, but what struck me was the irony of the fact that the first thing a disabled shopper encounters at a Hollister store isn’t very welcoming. Of course this nationwide class is enough to get anyone’s attention, but it has one thing in common with the vast majority of ADA and FHA cases concerning physical barriers to access. They all seem to start at the front door.
I’ve been looking at FHA cases filed in the last few years while preparing to speak at the annual Texas Apartment Association’s 2013 Education Conference & Lone Star Expo in Houston. I was struck by the fact that most complaints include an allegation that there was no accessible parking at the leasing office or that the accessible parking was improperly designed or blocked. A large number followed with an allegation that there was no accessible route to the leasing office and that the leasing office itself and its restrooms were not accessible.
The same thing is true in most shopping center cases. The leading allegation is a lack of accessible parking or improperly designed accessible parking, followed by the lack of an accessible route from the accessible parking to individual stores.
I grew up at the end of the era in the South houses had a parlor. Even if the rest of the house was in a shambles, the front porch, front hall and parlor were always tidy, because that is what guests saw. That idea of being hospitable and making a good first impression is one that owners and operators of public accommodations or multi-family housing should take to heart. Being hospitable is always good business, but in this case it is also a good strategy for avoiding litigation. If the cost of remediation for an entire shopping center or apartment complex is more than a business can afford in the short-term, at least make sure that the accessible parking is marked and properly measured, and that disabled prospective tenants and customers can get to and in the front door. When business organizations refer to plaintiffs who never intend to shop as “drive by” plaintiffs they point to the solution. Fix up the parking and accessible routes and these plaintiffs will never go far enough to find something to sue about.