The Law

Store Must Be 100% Accessible by Ron Davis Access to a tenant store at a Massachusetts shopping center must undergo costly redesign to accommodate handicapped customers. The shopping center is Independence Mall in Kingston, and the tenant is J.M. Hollister, LLC., which has operated a store there since 2005. That’s when Hollister decided to replace the existing fully accessible mall-level interior entrance with adjacent doorways. The design of the doorways, however, required customers to use stairs that led to a porch. From there, the stairs descended into the store. For access, disabled customers had to use a mechanically operated door. They also had to negotiate the porch, the descent from the porch, and therefore accessibility to the store. As a result of complaints, the state’s architectural access board began an investigation of Hollister’s entrance design. Hollister countered by applying for a variance from its obligation to make all public entrances to the store handicapped accessible. In so applying, Hollister argued that the three doorways at the front of the store were in fact one single entrance that can be used by a handicapped person. But the architectural board determined that Hollister was not in compliance because the left-hand door was still not reliably functional. The board therefore ruled that Hollister had created the noncomplying condition and failed to show either that compliance was impractical or that the cost of compliance was disproportionate to the benefits it would create for the disabled. The board also found that the three doors were separate entrances because each door constituted a separate access point to the store. Hollister reacted to that ruling by altering the fire exit door to the right of the porch so that it became a second accessible door. But that didn’t satisfy the board. It found that the left-hand accessible door was not fully functional, though a newly modified right-hand door was accessible. Not good enough, the board decided. Its members found that the porch “aesthetic” would not be compromised by the removal of the steps. The board also found that the cost of modification was far outweighed by the potential benefits to disabled users. Hollister rejected those findings of the board. But a Massachusetts court upheld the board’s judgment, determining that the entrances were separate and that there was substantial evidence to support the denial of a variance. Hollister appealed, arguing that the board’s decision was “arbitrary and capricious and contrary to law” The three entrance doors, Hollister maintained, constitute a single entrance to the store and therefore comply with standards. The Appeals Court of Massachusetts ruled, “Given the express legislative mandate ensuring that all buildings are 100 percent accessible, the board’s interpretation of its regulations is consistent with the remedial purposes of the law. We cannot say that the board acted in excess of its authority. (J.M. Hollister, LLC v. Architectural Access Board, 2013 WL 1668976 [Mass.App.Ct.]) Decision: April 2013 Published: May 2013