CREEC and co-counsel file respose brief in Hollister appeal

We filed our response brief to the 10th Circuit in the Hollister case yesterday.     As our many blogfans know, CREEC and the Colorado Cross Disability Coalition are challenging the Raised Porch Entrances at Hollister clothing stores as violations of Title III of the ADA:

{Image:  Porch-like structure in front of a mall store. The porch is surrounded by a railing, and only accessible by two steps in the middle of the front of the porch. At the back of the porch is a photo -- spanning the height and width of the rear wall -- of a male model with no shirt on. The roof of the porch like structure is sloped and tiled to look like a beach shack.}

Shoppers who use wheelchairs have no access to the porch or the entrances from it to the store; instead, they have to go around to the side to accessible entrances decorated to look like shuttered windows.

We prevailed before the district court and Hollister appealed to the Tenth Circuit Court of Appeals.   The appeal is a real law-nerd smörgÃ¥sbord*:   Hollister challenged standing, class certification, the merits (why the porches violate the ADA), and the injunction to fix the porches.   Our response brief addresses all of these arguments.   From the statement of the case:

        The Americans with Disabilities Act (“ADA”) is a “broad mandate” to eliminate discrimination against people with disabilities, and to “integrate them “˜into the economic and social mainstream of American life.'”   PGA Tour, Inc. v. Martin, 532 U.S. 661, 675-76 (2001) (citations omitted).   Congress found that “historically, society has tended to isolate and segregate individuals with disabilities.”   42 U.S.C. § 12101(a)(2).   Thus, “[i]ntegration is fundamental to the purposes of the ADA.   Provision of segregated accommodations and services relegate persons with disabilities to second-class citizen status.”   H. Rep. 101-485(III), 101st Cong., 2d Sess, at 56, reprinted in 1990 U.S.C.C.A.N. 445, 479 (“House Rep. pt. 3″).   The goal of the ADA is to “”˜eradicat[e] the “invisibility of the handicapped.”’   Separate-but-equal services do not accomplish this central goal and should be rejected.”   Id. at 50 (citations omitted).

[ ¶]**

Starting seven years after Title III of the ADA (“Title III”) required all newly constructed public accommodations to be accessible, Appellants began constructing Hollister stores, 231 of which have a raised front porch entrance which, Appellants testify, is an essential part of the Hollister experience, but which is inaccessible to customers who use wheelchairs.

[ ¶]

In response to Appellees’ argument that the porches must be accessible, Appellants downplay their importance, asserting that they are only intended to provide a visual experience, something those with and without disabilities can all enjoy.   Reversing course for a third time, when the District Court gave Appellants the option — in the injunction — to close off the porch to foot traffic so that the experience was purely visual for everyone, they announced that this would “destroy the brand.”   Aplee. Supp. App. at 256 (Tr. at 12:11-14). Appellants cannot have it both ways: If access to the porch is so important that its absence would “destroy the brand,” that access must be provided to all.

As usual, it was a team effort with our amazing co-counsel at the Colorado Cross-Disability Coalition, Lewis, Feinberg, Lee, Renaker & Jackson, and Campins Benham-Baker.

Hollister will get to file a reply brief and both parties have requested oral argument.   Stay tuned!

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* This former linguistics major is so happy WordPress lets me reproduce all of the diacriticals in “smörgÃ¥sbord!”

** But I can’t make WordPress separate the paragraphs no matter how many hard returns I add.