Resistance to complying with the ADA in Memphis

Resistance Makes No Cents
Norstan Apparel Shops, Inc. paid $7,000 in penalties $3,000 in damages and 9 months of attorney’s fees when making their Fashion Cents stores accessible could have cost them nothing.

By Tim Wheat

A turnstile in a Fashion Cents store. No way in for a person who uses a walker, crutches or a wheelchair.

On July 19, 2001 when Suzanne Colsey and I visited the Center City Fashion Cents the business could have saved over $10,000.00 if they would have removed an unsightly chain wrapped, tied and twisted across the entrance. The woman’s apparel shop owned by Norstan instead attempted to resist accessibility eventually removing the barriers at their entrance, paying penalties, paying damages and paying attorney’s fees.

The issue at Fashion Cents was not only the turnstile that is obviously not accessible to people who use wheelchairs, walkers and crutches; but that the business had no other way to get into the store but through the turnstile. At the Center City shop, the turnstile was made of three rotating bars that a customer must push to get inside and to get out. The particular turnstile at Center City Fashion Cents rotated in both directions while the chain seemed to be used only to herd patrons through the turnstile. Although the US Department of Justice (DOJ) clearly states that turnstiles are not accessible and that there must be an alternate entrance, Fashion Cents only provided one way in to their Center City shop.

It was clear that Fashion Cents had spent money on the entrance to the store. In addition to the turnstile, there are sensors on the right and left side of the entrance, presumably to limit shoplifting. These also help herd customers into the turnstile. What Suzanne had originally identified as the barrier to the store was the unsightly chain just in front of the entrance and beside the turnstile. One part of the barrier was a chain, but it also consisted of a coated cable that was literally tied to the side of the turnstile. 

Suzanne had originally asked that they remove the preposterous chain; however, even if Fashion Cents had removed the chain, the turnstile’s non-moving side consisted of an upright post that had a two-foot pole poking toward the door. It is clear that the entrance has changed from its designed purpose and parts are haphazardly fashioned to shepherd customers to the turnstile. The turnstile was the true physical barrier at Fashion Cents, but Suzanne found the attitude of resistance was the real barrier.

The resistance of Fashion Cents seems bigoted; but their motivations may be understandable. First, it is rare that individual plaintiffs recover damages in ADA complaints. The ADA itself outlines only damages at the request of the Attorney General and then only when a “pattern and practice” of discrimination is shown. Fashion Cents may have not known that Suzanne Colsey had also made complaints to the DOJ and could have concluded that making a stand against the pro se plaintiff was not likely to cost them any money.

A reflection of Suzanne Colsey in the glass door entrance to the Center City Fashion Cents. The pole and ridiculous chain are visible through the door.

Likewise, Fashion Cents may have believed that the company had good legal grounds on which to resist. Although the facts of the case and the ADA violation of Fashion Cents seem clear, Suzanne, as a plaintiff without an attorney was not prepared to out maneuver the battery of experienced corporate attorneys in court. Fashion Cents moved to dismiss the case because “Fashion Cents is a trade name and not a legal entity that can be sued.” 

By taking this strategy however, the defense may have themselves destroyed their own ability to contain the case. Suzanne Colsey responded to the defendants Motion To Dismiss that she indeed may not have sued the proper entity, but that she retained the right to amend her complaint and clearly with the defendant’s motion, the correct entity is the defendant: Fashion Cents owned by Norstan Apparel Shops, Inc.

Suzanne did not only amend her complaint to change the “trade name” of the defendant, but expanded the complaint from the door of her neighborhood shop to Norstan Apparel nationwide. She then made the case to the DOJ that Fashion Cents demonstrated a pattern and practice of discrimination. With her friends in ADAPT, the leading grassroots organization working for the civil rights of people with disabilities, Suzanne identified other Fashion Cents shops with similar problems demonstrating a pattern and practice of discrimination by Norstan.

On February 13, 2002 the DOJ wrote to Norstan and told of their intention to intervene in Colsey v. Fashion Cents. Up to this point, Fashion Cents could have avoided penalties and damages by simply removing the turnstile in the Center City store. Suzanne did not have an attorney to press the issue, nor did her complaint have the authority to demand payments. Fashion Cents chose instead to resist. Eventually settling the case after paying Suzanne $3,000.00 in damages and $7,000.00 to the United States in penalties. 

- Tim Wheat