No UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 1 No. 13-1377 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT COLORADO CROSS-DISABILITY COALITION, ANITA HANSEN and JULIE FARRAR, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. ABERCROMBIE & FITCH CO., ABERCROMBIE & FITCH STORES, INC., and J.M. HOLLISTER, LLC, Defendants-Appellants. Appeal from the U. S. District Court for the District of Colorado The Honorable Wiley Y. Daniel, Senior United States District Judge Civil Action No. 09-cv-2757-WYD-KMT APPELLEES PETITION FOR REHEARING AND REHEARING EN BANC Amy F. Robertson Timothy P. Fox Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 Kevin W. Williams Andrew C. Montoya Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Bill Lann Lee Lewis, Feinberg, Lee, Renaker & Jackson, PC 476-9th Street Oakland, CA 94607 Julia Campins Hillary Benham-Baker Campins Benham-Baker, LLP 8 California Street, Suite 703 San Francisco, CA 94111 Attorneys for Plaintiffs-Appellees

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT PURSUANT TO RULE 35(b)(1)... 1 I. Introduction... 3 II. Hollister s Porches... 4 III. Spaces in Places of Public Accommodation Must be Made Accessible Unless Specifically Exempted... 5 A. The DOJ Standards Provide that All Spaces in New Construction Are Require to Be Accessible Unless Specifically Exempted... 5 B. The Dissent s Interpretation Is Supported by the DOJ s Contemporaneous Interpretation... 7 C. The Dissent s Interpretation Is Supported by the DOJ s Technical Assistance Manual... 7 D. The Dissent s Interpretation Is Supported by Other Title III Regulations... 8 E. The Dissent s Interpretation Is Supported by the Existence of Explicit Exceptions to the General Requirement of Access... 9 F. The Dissent s Interpretation Is Supported by Decisions of the Third and Ninth Circuits... 10 IV. Defendants May Not Provide Unequal Access to the Hollister Experience... 11 V. The DOJ s Regulations, Its Interpretation of the ADA and Its Own Regulations, Its Technical Assistance Manual, and Its Amicus Brief Are All Entitled to Deference... 12 VI. Conclusion... 15 i

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 3 TABLE OF AUTHORITIES Cases Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165 (9th Cir. 2010)... 2, 12 Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012)... 2, 12 Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036 (10th Cir. 2014)... 3, 14, 15 Bragdon v. Abbott, 524 U.S. 624 (1998)... 3, 13, 15 Caruso v. Blockbuster-Sony Music Entm t Ctr., 193 F.3d 730 (3d Cir. 1999)... 2, 10 Colorado Cross Disability Coal. v. Hermanson Family Ltd. P ship I, 264 F.3d 999 (10th Cir. 2001)... 3, 13, 15 Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012)... 10 Fortyune v. City of Lomita, --- F.3d ---, 2014 WL 4377467 (9th Cir. Sept. 5, 2014)... 2, 10-11 Keirnan v. Utah Transit Auth., 339 F.3d 1217 (10th Cir. 2003)... 3, 14, 15 Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008)... 3, 14, 15 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)... 1, 4 Talk Am, Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254 (2011)... 3, 13, 14, 15 ii

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 4 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)... 14 Toomer v. City Cab, 443 F.3d 1191 (10th Cir. 2006)... 3, 13, 15 Statutes The Americans with Disabilities Act 42 U.S.C. 12182(a)... 1 42 U.S.C. 12182(b)(1)(A)(i)... 2, 11, 12 42 U.S.C. 12182(b)(1)(A)(ii)... 2, 11 42 U.S.C. 12182(b)(1)(A)(iii)... 2, 11 42 U.S.C. 12182(b)(1)(B)... 2, 11 42 U.S.C. 12183(a)(1)... 3, 8, 14 42 U.S.C. 12186... 3 42 U.S.C. 12186(a)(1)... 13 42 U.S.C. 12186(b)... 13 42 U.S.C. 12188(b)... 13 42 U.S.C. 12206(a)(1)... 7 42 U.S.C. 12206(c)... 13 Regulations Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities 28 C.F.R. 36... 3 28 C.F.R. 36.401(c)(1)... 8 28 C.F.R. 36.401(c)(2)... 9, 10, 13 28 C.F.R. 36.405... 9 Department of Justice Standards for Accessible Design, 1991 Standards, 28 C.F.R. pt. 36, Appendix D... 5 4.1.1(1)... passim 4.1.1(5)(a)... 9, 10, 13 4.1.1(5)(b)(ii)... 9 4.1.2... 5, 6, 7 4.1.2(2)... 10 iii

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 5 4.1.2(6)... 9 4.1.3... 5, 6, 7 4.1.3(19)... 10 4.1.3(20)... 9 4.1.6... 5, 7 4.1.7... 9 4.1.7(3)(d)... 9, 13 Department of Justice Standards for Accessible Design, 2010 Standard, 36 C.F.R. 1191, App. B... 5 201.1... 5, 6, 7 203.3... 10 203.10... 10 203.13... 10 203.14... 10 206.2.3... 10 206.2.4... 10 Section by Section Analysis and Response to Comments, 56 Fed. Reg. 304374, republished at 28 C.F.R. pt. 36, app. C (2013)... 7, 8 Rules FED. R. APP. P. 35(b)(1)(A)... 3 FED. R. APP. P. 35(b)(1)(B)... 3 Other Authorities Department of Justice Title III Technical Assistance Manual http://www.ada.gov/taman3.html (1993)... 7-8, 12 III-7.3100... 7-8 III-5.3000... 8 Attachment Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co. No. 13-1377, Slip Op. (10th Cir. Aug. 29, 2014). iv

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 6 Statement Pursuant to Rule 35(b)(1) 1. May a public accommodation build a new facility after the effective date of Title III of the Americans with Disabilities Act ( ADA ) that includes a significant inaccessible space that is not covered by any exception to the Department of Justice Standards for Accessible Design ( DOJ Standards )? 2. May a public accommodation build a new facility after the effective date of Title III with a space that arguably complies with the DOJ Standards but use that space in a way that excludes customers with disabilities from privileges and benefits the public accommodation considers important? These two legal questions, answered in the affirmative by the Majority and in the negative by the Dissent, are of exceptional importance to the enforcement of Title III and thus to the full and equal enjoyment of public accommodations, 42 U.S.C. 12182(a), and the integration of people with disabilities into the economic and social mainstream of American life. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). The Majority s opinion on these two questions -- and its refusal to defer to the Department of Justice ( DOJ ) in resolving them -- bring the Majority into conflict with decisions of the Supreme Court, this Circuit, and sister circuits, cited in the paragraphs that follow. For these reasons, Appellees respectfully urge that the Dissent s analysis of the applicable Title III regulations is correct, that rehearing or rehearing en banc be granted, and the District Court s decisions granting summary judgment to Appellees be affirmed. 1

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 7 The Majority held that only those elements specifically identified in the DOJ Standards are required to be accessible and, since porches are not mentioned in the Standards, the raised porches at Hollister s post-ada mall-based stores did not have to be accessible. The Dissent (and the DOJ) concluded that, in new construction such as this, all spaces must be accessible unless excused by an exception. The Majority s approach will permit common but unenumerated elements to be inaccessible in new construction and thus conflicts with decisions of the Third and Ninth Circuits concerning the breadth of the DOJ regulations. Fortyune v. City of Lomita, --- F.3d ---, 2014 WL 4377467, at *2 (9th Cir. Sept. 5, 2014); Caruso v. Blockbuster-Sony Music Entm t Ctr., 193 F.3d 730, 738-39 (3d Cir. 1999). Appellants, by their own testimony, provide an essential part of the Hollister experience on their raised porches, which are off-limits to customers with disabilities. The Majority permits such use, notwithstanding the ADA s language prohibiting public accommodations from denying participation or providing unequal or separate benefits, 42 U.S.C. 12182(b)(1)(A)(i), (ii) & (iii), and requiring integration, id. 12182(b)(1)(B). This conflicts with decisions of the Ninth Circuit that the ADA prohibits public accommodations from providing people with disabilities an inferior experience. Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012); Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174 (9th Cir. 2010). The Majority conflicts with decisions of the Supreme Court, this Court, and sister circuits in failing to give deference to the DOJ s regulations, the DOJ s 2

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 8 interpretation of the ADA and its own regulations, and DOJ technical assistance materials, all of which support the Dissent s reading of the ADA and the Standards. See Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2260-61 (2011); Bragdon v. Abbott, 524 U.S. 624, 646 (1998); Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036, 1062 (10th Cir. 2014); Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008); Toomer v. City Cab, 443 F.3d 1191, 1196 (10th Cir. 2006); Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1222 (10th Cir. 2003); Colorado Cross Disability Coal. v. Hermanson Family Ltd. P ship I, 264 F.3d 999, 1004 n.6 (10th Cir. 2001). The conflicts with Talk America, Bragdon, Hermanson, Toomer, Keirnan, and Biodversity merit rehearing pursuant to FED. R. APP. P. 35(b)(1)(A). The questions of exceptional importance and inter-circuit conflicts listed above merit rehearing based on FED. R. APP. P. 35(b)(1)(B). I. Introduction An essential purpose of Title III is to ensure that people with disabilities are not provided unequal benefits in public accommodations. It promotes architectural inclusion by requiring that facilities built after January 26, 1993 ( New Construction ) be readily accessible to and useable by people with disabilities, unless specifically excepted. 42 U.S.C. 12183(a)(1). Congress charged the DOJ with implementing this statute, mandate, 42 U.S.C. 12186, and the DOJ has issued detailed regulations and design specifications to ensure architectural accessibility, 28 C.F.R. pt. 36. The Majority and Dissent differ on this crucial question: In New Construction, 3

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 9 (1) do only those spaces and elements specifically identified in the DOJ Standards have to be accessible while anything not specifically mentioned may remain inaccessible? Or (2) do all spaces and elements have to be accessible unless specifically excepted in the Standards. 1 The Standards answer this question: Consistent with the statutory language, all spaces must be accessible unless specifically excepted. The DOJ has repeatedly taken this position in commentary, technical assistance materials, and an amicus brief in this case; this is also the view of the Third and Ninth Circuits. The resolution of these questions will have a far-reaching impact. It was impossible for the Standards to enumerate every feature that may exist in the broad array of public accommodations. The Dissent s inclusive reading is essential to ensure that the ADA can accomplish its broad mandate to integrate people with disabilities, and to reinforce the ADA s comprehensive character, PGA Tour, 532 U.S. at 675. II. Hollister s Porches. The Hollister stores at issue here -- mall-based New Construction -- have raised front porches containing large upholstered chairs and clothing displays. This area of the store is accessible to customers who are able to walk up the steps to the porch, but inaccessible to customers who use wheelchairs; these customers must use smaller doors to either side of the porch, visible below in the far right-hand side of the photo. 1 Both the majority and the dissent recognized that this was a fundamental difference in their opinions. Compare Slip op. at 36, with Dissent, Slip op. at 11. 4

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 10 (Images at Aplee. Supp. App. at 31 and Aplt. App. at 299.) These inaccessible porches are not incidental areas of the store; they are -- according to Hollister executives -- key feature[s] of the store s design, Aplee. Supp. App. at 922-23, and a significant aspect of the stores branding and marketing efforts. Aplt. App. at 336. The porches are so important to the Hollister experience that their absence would destroy the brand, Aplee. Supp. App. at 256, yet they are completely off-limits to Hollister s customers who use wheelchairs. III. Spaces in Places of Public Accommodation Must Be Made Accessible Unless Specifically Exempted. A. The DOJ Standards Provide that All Spaces in New Construction Are Required to Be Accessible Unless Specifically Exempted. Section 201.1 of the 2010 Standards 2 requires that [a]ll areas of newly designed and newly constructed buildings and facilities... shall comply with these requirements. Section 4.1.1(1) of the 1991 Standards is similar: All areas of newly designed or newly constructed buildings and facilities required to be accessible by 4.1.2 and 4.1.3 and altered portions of existing buildings and facilities required to be accessible by 4.1.6 shall comply with these 2 The DOJ issued Standards in 1991 ( 1991 Standards ), currently published at 28 C.F.R. pt. 36, app. D, and revised them in 2010 ( 2010 Standards ), currently published at 36 C.F.R. 1191, apps. B & D. 5

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 11 guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section. The central flaw in the Majority s opinion is to read 4.1.1(1) only to require access in enumerated features, permitting areas not specifically mentioned to be inaccessible. (The Majority did not address section 201.1 of the 2010 Standards.) The Dissent summarizes the misunderstanding succinctly: As the majority reads the guidelines, spaces in a newly constructed facility need not be accessible unless a specific standard directly requires as much. As I read the guidelines, all spaces in a newly constructed facility must be accessible unless specifically exempted. Slip op., Dissent at 11. The Dissent explains: When the phrase in section 4.1.1(1), required to be accessible by 4.1.2 and 4.1.3, is read to modify newly designed or newly constructed buildings and facilities, the meaning becomes clear: All areas of newly designed or newly constructed buildings and facilities... shall comply with these guidelines, 4.1 through 4.35, unless otherwise provided in this section or as modified in a special application section. Id. Under this reading, if a new building is subject to the requirements of 4.1.2 or 4.1.3, then all areas of that building must also comply with the guidelines, unless otherwise provided. Id. at 13. While 4.1.1(1) might have benefitted from clarifying punctuation, the Dissent s reading is the only one that makes sense in light of the purpose of the ADA in general and the New Construction requirement in particular. At the very least, 4.1.1(1) is ambiguous, requiring deference to the DOJ s interpretation. Dissent, Slip Op. at 14. As explained in Sections III.B through E below, the DOJ s interpretation uniformly supports the Dissent s reading; as explained in Section IV, this 6

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 12 interpretation is entitled to deference and compels reconsideration. B. The Dissent s Interpretation Is Supported by the DOJ s Contemporaneous Interpretation. When the DOJ published its ADA regulations, it also published a Section by Section Analysis and Response to Comments, 56 Fed. Reg. 304374 (July 26, 1991), republished at 28 C.F.R. pt. 36, app. C (2013) ( DOJ Commentary ), which explained: Section 4.1.1, Application, provides that all areas of newly designed or newly constructed buildings and facilities and altered portions of existing buildings and facilities required to be accessible by 4.1.6 must comply with the guidelines unless otherwise provided in 4.1.1 or a special application section. Id. at 940. By eliminating 4.1.1(1) s limiting phrase required to be accessible by 4.1.2 and 4.1.3 -- which was at the center of the Majority s and Dissent s conflicting interpretation -- and because 4.1.6 applies only to alterations, the DOJ Commentary makes clear that the Dissent is correct: all areas of newly designed or newly constructed buildings and facilities... must comply with the guidelines unless exempted. Similarly, the DOJ s Advisory to section 201.1 (2010) states: These requirements are to be applied to all areas of a facility unless exempted, or where scoping limits the number of multiple elements required to be accessible. C. The Dissent s Interpretation Is Supported by the DOJ s Technical Assistance Manual. Also pursuant to statutory mandate, 12206(a)(1), in 1993 the DOJ issued its Title III Technical Assistance Manual ( Manual ), which explained 4.1.1(1) in a manner fully consistent with the Dissent s reading: ADAAG applies to all areas in new construction and alterations, except where limited by scoping requirements. Id. 7

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 13 III-7.3100. 3 The Manual also explains that when the Standards do not address a specific type of facility, at least one such facility should be accessible: What if ADAAG has no standards for a particular type of facility -- such as bowling alleys, golf courses, exercise equipment, pool lifts, amusement park rides, and cruise ships? In such cases, the ADAAG standards should be applied to the extent possible. Where appropriate technical standards exist, they should be applied. If there are no applicable scoping requirements (i.e., how many features must be accessible), then a reasonable number, but at least one, must be accessible. Id. III-5.3000. For example, in bowling alleys, the Standards do not specify how many alleys need to be accessible.... [I]f a reasonable number, but at least one, of the alleys is designed to be accessible, no ADA violation will be found. Id. Illustration 2. Under this authoritative interpretation, the fact that there are no specific standards for porches does not excuse them; rather, at least one porch must be accessible. D. The Dissent s Interpretation Is Supported by Other Title III Regulations. The Dissent s reading -- that access is required except where specifically exempted -- finds further support in regulatory language regarding the only statutory defense to full access in New Construction: Access is not required where it is structurally impracticable. 42 U.S.C. 12183(a)(1). This defense, not at issue here, applies only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features. 28 C.F.R. 36.401(c)(1). Both 3 http://www.ada.gov/taman3.html (publication date noted on http://www.ada.gov/ta-pubs-pg2.htm). The 1991 Standards were based on the Americans with Disabilities Act Accessibility Guidelines, and are thus often referred to as the ADAAG. See Commentary at 892. 8

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 14 the DOJ s Title III regulations and its 1991 Standards explain that, where full compliance is not structurally practicable, any portion of the facility that can be made accessible shall be made accessible to the extent that is not structurally impracticable. 28 C.F.R. 36.401(c)(2) (emphasis added); 1991 Standards 4.1.1(5)(a) (same). Similarly, although both the regulations and the 1991 Standards permit reduced access in historic structures, 28 C.F.R. 36.405, 1991 Standards 4.1.7, the latter establish the minimum requirement that [a]ccessible routes from an accessible entrance to all publicly used spaces on at least the level of the accessible entrance shall be provided. Id. 4.1.7(3)(d) (emphasis added). Based on these regulations, if Hollister stores were built on extreme terrain or in a historical building, the porch would have to be accessible. It makes no sense that the standard would be lower when applied to a raised area added to a newly constructed store in a flat shopping mall. These provisions thus also support the Dissent s reading of 4.1.1(1). E. The Dissent s Interpretation Is Supported by the Existence of Explicit Exceptions to the General Requirement of Access. Finally, the Dissent s reading is supported by the exceptions to the general requirement of access, which would not be necessary were access only required in enumerated areas. Slip op., Dissent at 13 (citing 1991 Standards 4.1.1(5)(b)(ii) ( nonoccupiable spaces... frequented only by service personnel for repair purposes are not required to comply with the guidelines)); see also, e.g., 1991 Standards 4.1.2(6) (exception for portable toilets), 4.1.3(20) (exception for drive-up ATMs); 2010 9

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 15 Standards 203.3, 203.10, 203.13, 203.14, 206.2.3, 206.2.4. As a general principle of statutory interpretation, if a statute specifies exceptions to its general application, other exceptions not explicitly mentioned are excluded. Contreras-Bocanegra v. Holder, 678 F.3d 811, 817 (10th Cir. 2012). Because the Standards specify exceptions for spaces that do not have to be accessible, it would be improper to read other exceptions -- for Hollister s porches -- into them. F. The Dissent s Interpretation Is Supported by Decisions of the Third and Ninth Circuits. The Majority opinion conflicts with the Third Circuit s holding in Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3d Cir. 1999), requiring access to the lawn area of an outdoor amphitheater despite the fact that lawn areas were not specifically enumerated in the Standards. The defendant argued that the Standards only required access where fixed seating was required. Id. at 738 (citing 1991 Standards 4.1.3(19)). The Third Circuit rejected this argument, holding that the plaintiff was entitled to an accessible route to the lawn seating area: regardless of whether or not the facility is also required to meet the more specific DOJ Standards concerning fixed seating plans. See 28 C.F.R. 36.401(c)(2) ( [A]ny portion of the facility that can be made accessible shall be made accessible to the extent that is not structurally impracticable. ); id., Part 36, App. A, Standard 4.1.1(5)(a) (same); id. Standard 4.1.2(2) ( At least one accessible route... shall connect... accessible spaces that are on the same site. ). Id. at 738-39. The Majority opinion also conflicts with Fortyune v. City of Lomita, --- F.3d ---, 2014 WL 4377467 (9th Cir. Sept. 5, 2014), published three days after the decision 10

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 16 here. There, the defendant city argued that accessible on-street parking was not specifically required by the regulations. The Ninth Circuit rejected that argument, holding that as a general matter, the lack of specific regulations cannot eliminate a statutory obligation. Id. at *2. Under City of Lomita, the fact that the Standards do not refer to porches by name doesn t permit the porches to be inaccessible; rather, the statutory obligation that the store be readily accessible to and useable by people with disabilities affirmatively requires the porches to be accessible. IV. Defendants May Not Provide Unequal Access to the Hollister Experience. Even if, in the alternative, Hollister s raised porches complied with the technical requirements of the Standards, the way Hollister uses them -- by making that inaccessible feature a key part of the Hollister brand and experience -- violates the ADA s prohibition on denying participation, providing unequal or separate benefits, and failing to provide an integrated setting. 42 U.S.C. 12182(b)(1)(A)(i), (ii), (iii) & (b)(1)(b). The Majority misconstrued this argument, asserting that, none of these uses are what deny disabled people access to the porch -- it is the porch itself that effects that alleged injury. Slip op. at 32. This is precisely backward. It is not the use -- as an essential part of the Hollister experience -- that denies access to the porch; it is the inaccessible porch that denies access to an essential part of the Hollister experience. By placing trees, decorations, upholstered chairs, mannequins displaying merchandise, and a large marketing image on the back wall of the porch entrance, Abercrombie has provided a facility, privilege, advantage, or accommodation to 11

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 17 some of its customers while denying some customers the opportunity to participate on the basis of their disability. 42 U.S.C. 12182(b)(1)(A)(i). Dissent, Slip op. at 28. Even if Hollister s entrances comply with numerical requirements, it cannot privilege the inaccessible entrances -- through the raised porch -- as the ones providing an experience so crucial its absence would destroy the brand, while placing the accessible entrances off to the side of this display and thus apart from that crucial experience. Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience. Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012); see also Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174 (9th Cir. 2010) (rejecting as equivalent facilitation solutions that merely provide a substitute experience that lacks the customer s personal participation in the selection and preparation of the food that the full Chipotle experience furnishes. ). V. The DOJ s Regulations, Its Interpretation of the ADA and Its Own Regulations, Its Technical Assistance Manual, and Its Amicus Brief Are All Entitled to Deference. The Majority s opinion conflicts with decisions of the Supreme Court, this Court, and sister circuits by refusing to defer to the DOJ s ADA regulations, its interpretation of the ADA and its own regulations, the Manual, and the DOJ s amicus brief. As demonstrated above, the Dissent s reading of 4.1.1(1) of the 1991 Standards is the correct reading. At the very least, 4.1.1(1) is ambiguous. Dissent, Slip Op. at 14. In the absence of any unambiguous statute or regulation,... we defer to an 12

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 18 agency s interpretation of its regulations, even in a legal brief, unless the interpretation is plainly erroneous or inconsistent with the regulation or there is any other reason to suspect that the interpretation does not reflect the agency s fair and considered judgment on the question. Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2260-61 (2011). No such error, inconsistency, or any other reason exists here. Other DOJ Title III regulations ( 36.401(c)(2) and 4.1.1(5)(a), requiring all areas to be accessible except where structurally impracticable, and 4.1.7(3)(d) requiring, even in historic structures, that all publicly used spaces on at least the level of the accessible entrance be accessible), the DOJ s Commentary, its Technical Assistance Manual, and its amicus brief in this case all support the Dissent s reading of 4.1.1(1). All are entitled to deference under on-point Supreme Court and Circuit precedent and cases from a number of sister circuits. As a primary matter, [a]s the agency directed by Congress to issue implementing regulations, see 42 U.S.C. 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, 12206(c), and to enforce Title III in court, 12188(b), the [DOJ s] views are entitled to deference. Bragdon v. Abbott, 524 U.S. 624, 646 (1998); see also Colorado Cross Disability Coal. v. Hermanson Family Ltd. P ship I, 264 F.3d 999, 1004 n.6 (10th Cir. 2001) ( The Supreme Court has given significant deference to the DOJ s Title III regulations, ); Toomer v. City Cab, 443 F.3d 1191, 1196 (10th Cir. 2006) (deferring to Department of Transportation ( DOT ) Title III regulations promulgated pursuant to 12186(a)(1)). 13

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 19 The DOJ s interpretation of its own regulations is entitled to deference. Talk Am., Inc., 131 S. Ct. at 2260-61; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) ( [T]he agency s interpretation [of its own regulation] must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. ); Miller v. California Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008) (applying these principles to the DOJ s Title III regulations); Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1222 (10th Cir. 2003) (giving controlling weight to the DOT s interpretation of its own Title III regulations). The Manual in particular is entitled to substantial deference, and will be disregarded only if plainly erroneous or inconsistent with the regulation. Miller, 536 F.3d at 1028. No such error or inconsistency warranted the Majority s refusal to defer to the DOJ here; indeed, the DOJ s interpretation is the only one consistent with the statutory mandate that New Construction be readily accessible to and useable by people with disabilities except when structurally impracticable. 42 U.S.C. 12183(a)(1). Finally, the interpretation expressed in the DOJ s amicus brief is entitled to deference. See Talk Am., 131 S. Ct. at 2261 ( [W]e defer to an agency s interpretation of its regulations, even in a legal brief. ); Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036, 1062 (10th Cir. 2014) (citation omitted) ( If the meaning [of a regulation] is ambiguous, we defer to an agency s interpretation of its own ambiguous regulation, even when that interpretation is advanced in a legal brief, unless plainly erroneous or inconsistent with the regulation). Here, the Majority explicitly refused to defer to the 14

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 20 DOJ on the question of accessible spaces, Slip op. at 35, and did not mention, let alone address, the DOJ s views on the central questions in the decision: Whether architectural elements not specifically identified in the standards must be made accessible; and whether an otherwise (ostensibly) accessible facility can be used in a discriminatory way. The DOJ took clear positions on both questions: [T]he porch entrance... must comply with the general accessibility requirements applicable to all areas or spaces not specifically exempted, Brief for the United States as Amicus Curiae Supporting Plaintiffs Appellees at 11; and Public accommodations can meet the standardized architectural guidelines for accessibility, yet still fail to provide full and equal enjoyment, id. at 17. The Majority s refusal to defer to the DOJ conflicts with the Supreme Court s Bragdon and Talk America decisions, this Circuit s Hermanson, Keirnan, Toomer, and Biodiversity decisions, and (among others) the Ninth Circuit s decision in Miller. VI. Conclusion For the reasons set forth above, Appellees respectfully request that this matter be reheard or reheard en banc. Respectfully submitted, /s/ Amy F. Robertson Amy F. Robertson Counsel for Plaintiffs-Appellees Dated: October 16, 2014 15

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 21 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) All required privacy redactions have been made per 10th Cir. R. 25.5; (2) If required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) The digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec Endpoint Protection, version 12.1.4014.4013, updated October 15, 2014, and according to the program are free of viruses. /s/ Sophie P. Breene Sophie P. Breene Paralegal

Appellate Case: 13-1377 Document: 01019326496 Date Filed: 10/16/2014 Page: 22 CERTIFICATE OF SERVICE I hereby certify that on October 16, 2014 I electronically filed the foregoing using the court s CM/ECF system which will send notification of such filing to the following: Mark A. Kneuve makneuve@vorys.com Michael J. Ball mjball@vorys.com Gregory A. Eurich geurich@hollandhart.com Date: October 16, 2014 /s/ Sophie P. Breene Sophie P. Breene Paralegal Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 Tel: 303-757-7901 sbreene@creeclaw.org