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11‑P‑1847                                       Appeals Court

J.M. HOLLISTER, LLC  vs.  ARCHITECTURAL ACCESS BOARD.

No. 11‑P‑1847.

Suffolk.     May 3, 2012.  ‑  April 19, 2013.

Present:  Berry, Milkey, & Sullivan, JJ.

Architectural Access Board.  Handicapped Persons.  Administrative Law, Judicial review, Substantial evidence, Agency’s interpretation of regulation.  Statute, Construction.  Zoning, Variance.  Words, “Entrance.”

Civil action commenced in the Superior Court Department on June 25, 2010.

The case was heard by John C. Cratsley, J., on a motion for judgment on the pleadings.

Daniel P. Dain for the plaintiff.

Douglas S. Martland, Assistant Attorney General, for the defendant.

SULLIVAN, J.  The Architectural Access Board (board) issued a final order on May 26, 2010, requiring that the retailer J.M. Hollister, LLC (Hollister), make all entrances to its Kingston, Massachusetts, store accessible to persons with disabilities.^[1]  Hollister sought review in the Superior Court pursuant to G. L. c. 30A, and a judge granted the board’s motion for judgment on the pleadings.  We affirm.

Facts and procedural history.  Hollister is a clothing retailer that leases and operates a store in the Independence Mall in Kingston.  Hollister began operating that store in late 2005.  When it took over the space within the mall, Hollister replaced the existing, fully accessible mall-level interior entrance with two adjacent doorways.  The central doorway is a “California surf shack” entryway that consists of two steps leading to a roofed porch extending to the sides of the door and outward from the wall of the store into the mall.  The porch contains large plants, pictures, and other decorative items.  In other stores, the porches contain chairs and magazines for customers.  At the back of the porch, on the left and right side, are two steps leading back down to ground level and into the store proper, one leading to the men’s clothing section (the “Dudes”), and one to the women’s clothing section (the “Bettys”).

The second doorway is a ground level, unadorned doorway with a mechanically operated door, located to the left of the porch.  To the right of the porch (at that time) were a series of windows extending to the floor with plantation shutters, and a fire door, built to look like the windows.  The door on the left also is designed to look like the plantation shuttered windows to the right, and the over-all theme is that of a California-style porch flanked by windows.  A person entering the store through this left hand accessible door finds him or herself in the same location as if having entered through the porch and descended the stairs to the left.

Because the stairs lead up to the porch and then down again into the store, the porch doorway is not accessible.  Eleven of the Hollister stores in Massachusetts use the stepped porch design, while others have the theme of a California surf shack entrance with no stairs.  At the time of the initial complaint, disabled persons wishing to patronize the Kingston store had to use the mechanically operated door on the left.

In January of 2008, Jennifer Niles, a wheelchair user, submitted a formal complaint to the board that the Kingston store was not accessible.  The accessible doorway to the left of the central porch doorway did not function on multiple occasions.  As a result of the complaint, the board began an investigation, during which Hollister applied for a variance from its obligation to make all public entrances to the store handicapped accessible.  See 521 Code Mass. Regs. § 4.1 (2006).  The board denied this application on the grounds that Hollister had failed to prove that it was impractical to make the porch entrance accessible.

Hollister appealed and requested an adjudicatory hearing before the board.  See 801 Code Mass. Regs. § 1.02 (1998).  Hollister argued that the multiple doorways at the front of the store were in fact one single entrance; and that since one of the doorways at this single entrance was accessible, the entrance satisfied the board’s regulations requiring that all public entrances be accessible.

After a hearing in November, 2008, the board found that Hollister was not in compliance with 521 Code Mass. Regs. § 2.6 (2006) because the left hand door was still not reliably functional^[2] and the central porch doorway was not accessible.  The board ruled that Hollister had impermissibly 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 ordered Hollister to bring the store into compliance.  See G. L. c. 22, § 13A; 521 Code Mass. Regs. §§ 1.00, 4.00, 26.00 (2006).

Hollister then sought judicial review of the board’s decision.  A judge of the Superior Court remanded the matter to the board to determine whether the left hand door had in fact been made fully functional, for further consideration of the board’s ruling that the (at that time two) doorways were separate entrances, and whether Hollister should be granted a variance.  After the original complaint was filed, and the first hearing was held, Hollister altered the fire exit door to the right of the porch so that it became a second accessible door.  It is identical in appearance to the door on the left, and leads to the same location as the porch stairs inside the store that lead downward to the right hand side of the store interior.  Both the left hand and right hand doors are physically separated from the central porch door.

The board held two evidentiary hearings to address these questions.  The board found that the left hand accessible door was not yet fully functional, but that a newly modified right hand door (previously a fire door) was accessible.  The board then considered whether the three separate doors at the front of the store constituted a single entrance or multiple entrances.

The board concluded that each door was a separate “entrance” as defined in the regulations, and Hollister was therefore required to make each entrance, including the porch entrance, accessible to the disabled.  The board considered whether modifying the porch (by removing or altering the steps) was impractical either because it was technologically infeasible or because the costs of modification outweighed any resulting benefit to the disabled users.  See G. L. c. 22, § 13A.  The board found that modification was feasible, given that Hollister had constructed stores with the porch-like facade but without steps in other stores, and 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, and that Hollister’s cost estimates were not credible.

Hollister appealed this decision of the board, and moved for judgment on the pleadings.  A judge of the Superior Court upheld the board’s finding that the entrances were separate, and found that there was substantial evidence to support the denial of a variance.  This appeal followed.

Discussion.  1.  Standard of review.  Hollister argues that the board’s decision is arbitrary and capricious and contrary to law, because the three doors constitute a single entrance to the store.  See G. L. c. 30A, § 14(7)(c) & (g).  We consider these arguments in the context of the standard of judicial review of administrative decisions.  We review questions of law de novo, see Rosing v. Teachers’ Retirement Sys., 458 Mass. 283, 290 (2010), keeping in mind that the board has been vested by statute with a “wide range of discretion in establishing the scope of its authority” (citation omitted).  Brooks v. Architectural Barriers Bd., 14 Mass. App. Ct. 584, 588 (1982).  See G. L. c. 22, § 13A.  Like all administrative agencies, the board’s interpretation of the statute and regulations is entitled to considerable deference, especially where, as here, the legislative grant of authority is very broad.  See Pyramid Co. of Hadley v. Architectural Barriers Bd., 403 Mass. 126, 131 (1988); Brooks, supra.

2.  Entrance.  a.  Statute and regulations.  The statute provides that the board is fully empowered to adopt regulations “designed to make public buildings accessible to, functional for, and safe for use by physically handicapped persons . . . .”  G. L. c. 22, § 13A, as amended by St. 1986, c. 642, § 2.  The intent of the regulations, consistent with the remedial purpose of the enabling legislation, see Iodice v. Architectural Access Bd., 424 Mass. 370, 375 (1997), is to “provide persons with disabilities full, free, and safe use of all buildings and facilities . . . .”  521 Code Mass. Regs. § 2.2 (2006).  All new construction of or in public buildings must comply in full with the requirements of the statute and the board’s regulations.  See G. L. c. 22, § 13A; 521 Code Mass. Regs. § 3.2 (2006).

The term “accessible” is defined in § 13A, as amended by St. 1986, c. 642, § 2, to mean “the state of a . . . building . . . that complies with this section and any rules or regulations promulgated hereunder and that can be approached, entered and used by physically handicapped persons.”  The regulations require that “[a]ll public entrance(s) of a building or tenancy in a building shall be accessible.”  521 Code Mass. Regs. § 25.1 (2006).  The term “all” was added to the regulations in 1996.  Prior to this change, the regulations required access only at the “primary public entrances.”  See Iodice v. Architectural Access Bd., supra; 521 Code Mass. Regs. § 26.1 (1987).

The board found that the three doors were separate entrances because each door constituted a separate access point to the store.  The board’s regulations define entrance as “[a]ny access point to a building or portion of a building or facility used for the purpose of entering.  An entrance includes the approach walk, stairs, lifts, ramp, or other vertical access leading to the entrance platform; the platform itself; vestibules, if provided; the entry door(s) or gates . . . .”  521 Code Mass. Regs. § 5.35 (2006).  The board also found that the entrances were functionally different.  The porch entrance provided an ostensibly central point of access, giving customers a choice as to which side of the store to patronize, while the side doors do not.

Judged by the definition of entrance in the regulations, the decision is not arbitrary, capricious, or contrary to law.^[3]  The central doorway was on a raised platform, separate and distinct from the other doorways.  The board acted well within its powers when it ruled that the term “any access point” could be construed to mean access points differentiated in this manner.  The raised platform entrance was separately constructed.  Hollister converted a previously accessible entrance to an inaccessible one.  Other Hollister stores did not have the porch entrance.  Furthermore, the board had amended its regulations in 1996 to require that all entrances be accessible in order to protect “full, free, and safe” access.  The regulations have the force and effect of law.  See Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983).

Hollister maintains that the board’s own regulations contemplate that steps may be part of the design of a single entryway, and that there is therefore only one entrance.  The fact that the regulations refer to stairs does not mean that the board was required, as a matter of law, to consider a door which is accessible by stairs alone to be the same entrance as doors that are physically separate and accessible, but at a different grade.^[4]  Nor is the board required, contrary to its own regulations, to approve new construction that creates architectural barriers where none previously existed.^[5]  Hollister would have the board draw a different conclusion regarding the impact of the placement of the stairs in relation to the central porch door and the side doors, but this court “may not displace an administrative [agency’s] choice between two fairly conflicting views . . . .”  Embers of Salisbury, Inc. v. Alcoholic Bev. Control Commn., 401 Mass. 526, 529 (1988).  See Dotson v. Commissioner of Rev., 82 Mass. App. Ct. 378, 385 (2012).

Hollister also maintains that the board’s regulations permitting handicapped accessible doors adjacent to a central revolving door compels approval of the central porch design.^[6]  See 521 Code Mass. Regs. §§ 25.1, 26.2, 26.3 (2006).  The board was not required to treat the porch door in the same manner as revolving doors.  The applicable regulations provide that nonaccessible revolving doors and turnstiles are permitted so long as there is an “adjacent door” that is accessible and permits the “same use pattern.”  See 521 Code Mass. Regs. §§ 26.2, 26.3.  The board’s regulations thus make a limited exception to the requirement of full accessibility at every point of access only for revolving doors and turnstiles.  The regulations did not extend this exception to the porch design and the board declined to endorse any further exception.  That determination is one which falls within the board’s broad discretion and special expertise, and we will not disturb it.  See Pyramid Co. of Hadley v. Architectural Barriers Bd., 403 Mass. at 131; Provencal v. Commonwealth Health Ins. Connector Authy., 456 Mass. 506, 514 (2010).^[7]

b.  Statutory purpose and legislative history.  Hollister’s fundamental argument is that the agency is not entitled to deference because it has acted in excess of its statutory authority by embarking upon a hypertechnical interpretation of the regulations that is contrary to the statutory mandate.  The statutory purpose, Hollister submits, is sufficiently fulfilled by having two accessible and one inaccessible door in close proximity because patrons can get into the store, and once inside, can go from the “Dudes” side to the “Bettys” side within the store.

This argument fails in two respects.  First, as discussed above, it misperceives the breadth of authority granted to the agency.  See Brooks v. Architectural Barriers Bd., 14 Mass. App. Ct. at 588.  This statute is one in which the legislature has given expansive powers to an administrative agency to promulgate and enforce regulations.  See Iodice v. Architectural Access Bd., 424 Mass. at 375.  The statutory definition of accessibility incorporates those regulations.  See G. L. c. 22, § 13A.  “When the Legislature delegates to an administrative agency a broad grant of authority to implement a program of reform or social welfare, the administrative agency generally has a wide range of discretion in establishing the parameter of its authority pursuant to the enabling legislation.”  Lindsay v. Department of Social Servs., 439 Mass. 789, 797 (2003), quoting from Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 525 (1979).

Second, this argument misperceives the nature and purpose of the statute.  We therefore turn to the legislative history of the statute.  See Tyler v. Michaels Stores, Inc. 464 Mass. 492, 496-499 (2013).  The origins of the Massachusetts statute date to 1957, when then President Eisenhower formed the Committee on the Employment of the Handicapped (committee).  The committee was charged with addressing the accessibility issues faced by, among others, the approximately 2000 service members who had returned from World War II as paraplegics.^[8]  The President’s committee worked with other organizations to develop standards of accessibility for public buildings.^[9]  These standards were published in 1961 by the American National Standards Institute (ANSI).  All states were urged to adopt the ANSI standards.  See Goldman, Architectural Barriers:  A Perspective on Progress, 5 W. New Eng. L. Rev. 465, 467-468 (1983).

Massachusetts did so in 1962, requiring that all new buildings built by the Commonwealth or its political subdivisions comply with the ANSI standards.  See St. 1962, c. 662.  In 1967, the General Court enacted G. L. c. 22, § 13A, see St. 1967, c. 724, § 1, which created what is now known as the Architectural Access Board, and extended the reach of the statute to new construction in, and remodeling and repair of, existing public buildings.  The scope of the statute was, over time, steadily expanded to include all manner of public spaces, including shopping malls.^[10]

In 1986, the Senate conducted a complete review of the agency and its enforcement actions and considered further amendment to the statute.  See Senate Committee Rep. No. 2096, Final Report of the Committee on Human Services and Elderly Affairs Relative to the Problems of Handicapped Persons in Relation to Architectural Access and Barriers in the Commonwealth (September 8, 1986) (Senate Committee Report).  Highly critical of the performance of the board, the Senate Committee Report urged more systematic and aggressive enforcement, and set forth a number of recommendations, virtually all of which were then adopted either by passage of new legislation,^[11] amendment of regulations,^[12] or administrative action.  In that report, the Senate Committee set forth in unambiguous terms its view of the purpose of the statute and the then pending 1986 amendments.  The “goal of the law was to ensure that all new construction and major renovations be designed and built in such a way as to provide 100 [percent] accessibility to disabled persons.”  Senate Committee Report at 6.  The Senate Committee Report characterized the statute as part of a “new public policy rooted in . . . guarantees of equal protection and equal opportunity.”  See id. at 10-11.

“A statute must be interpreted in such a way as to effectuate the legislative intent underlying its enactment.”  Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 329 (2011).  In this context, an administrative agency’s means of implementing the statutory goals will stand “so long as the regulation is rationally related to those goals.”  Id. at 331, quoting from American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 477, cert. denied, 464 U.S. 850 (1983).  Given this 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.^[13]

Hollister also claims that the board’s consideration of “experiential factors” is an invitation to “standardless” adjudication.  In light of the articulated legislative purpose, the board did not err in considering the actual experience of customers of Hollister in wheelchairs, who testified that they felt excluded and were, in fact, excluded by the design.  The board did not exceed its authority by considering this testimony in addition to the more finite measures of grade, level, and distance.  The porch provided not only a more convenient central point of access to the store, it provided amenities and decorative elements not associated with the handicapped accessible entrance.^[14]  When the unadorned accessible door failed — a not unforeseeable event — customers in wheelchairs were blocked from entry entirely.  One witness testified that he had to be carried into a Hollister store at a different location.  Far from being standardless, the requirement that “any access point” to a building or portion of a building be accessible is a concrete, bright line measure, which ensures accessibility.  While the legislative mandate does not compel the board’s conclusion here, it does not preclude it either.  In light of this record and the legislative history, the board’s decision was not arbitrary, capricious, or contrary to law.

4.  Variance.  Hollister requested, in the alternative, that the board grant a variance.  In order to obtain the variance, Hollister must show either that compliance is not technologically feasible or that it would result in “excessive and unreasonable costs without any substantial benefit to physically handicapped persons.”  G. L. c. 22, § 13A.  See 521 Code Mass. Regs. §§ 4.1, 5.1.^[15]  For the reasons stated above, the board’s determination of substantial benefit is not contrary to law and is supported by the record.  “A cost-benefit analysis is not relevant if . . . the board determines that there would be substantial benefit.  Only if there is no substantial benefit does the issue of the cost of complying with the regulation become important.”  Pyramid Co. of Hadley v. Architectural Barriers Bd., 403 Mass. at 131.  Given the board’s finding with respect to substantial benefit, the board was not obligated to consider cost, nor was it obligated to accept Hollister’s estimate.

Even if cost were considered, the board did not find the construction estimates of between $ 64,000 and $ 100,000 to be adequately supported in the record.  Although Hollister provided a cost estimate, the board considered the estimate excessive.^[16]  This determination was for the fact finder.  See id. at 130-131.  The statute specifically envisions that individuals with experience in construction and design will sit on the board.  We give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.”  Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010), quoting from Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836 (2006).

The Superior Court judge’s decision denying the motion for judgment on the pleadings and entering judgment on behalf of the board is affirmed.

Judgment affirmed.

BERRY, J. (dissenting).  The defined term “entrance” in the Architectural Access Regulations, 521 Code Mass. Regs. § 5.1 (2006), cannot, in my opinion, be deconstructed in the manner that the Architectural Access Board (board) proposes in this case.  That a single entrance into a building at one particular location on the building footprint has multiple doors framed into that single entrance does not transform that single entrance into multiple separate entrances, as the board has written.

The board’s deconstruction of, then reconstruction of, what constitutes an entrance to a building, which lifts and repositions various words and phrases — from within the very defined term at issue, “entrance” in § 5 — is not sustainable as a matter of administrative law.  Nor is the board’s single and conclusory rewrite sentence, which contains no legal or reasoned analysis.  The board gives us only the following, and sole, sentence in a “Conclusion” section:

“The doors into the [J.M.] Hollister Co. [(Hollister)] Store at the Independence Mall are separate entrances since they are separate access points into the tenant space.  Therefore, all are required to comply in full with 521 [Code Mass. Regs. §] 25.1.”  (Emphasis added.)

That this rewriting by the board of the term “entrance” is not supportable is starkly evident if one juxtaposes the board’s single sentence deconstruction with the actual plain text of “entrance” as appearing in § 5.1, which is as follows:

“Any access point to a building or portion of a building or facility used for the purpose of entering.  An entrance includes the approach walk, stairs, lifts, ramp or other vertical access leading to the entrance platform; the entrance platform itself; vestibules, if provided; the entry door(s) or gate(s); and the hardware of the entry door(s) or gate(s).”

A comparison of the board’s rewriting against the actual regulatory language demonstrates that, under the regulation, “door(s)” are not, contrary to what the board writes, “separate entrances,” and are not, contrary to what the board writes, “separate access points.”  Rather, under the regulation, “door(s)” are what “[a]n entrance includes.”  Indeed, the term “entrance” in § 5.1 envisions that there may be multiple “door(s)” in a single “entrance.”

Section 5.1, on its face, is predicated on an architectural and building construction mode that ensures that any entrance, which serves as an access point to a building at a particular place within the building footprint, must be fully handicapped accessible.  Under this model, if there were several entrances into a building that served as access points at other various locations within the building footprint, each such variously located entrance would be fully handicapped accessible.  But these architectural construction principles are not the same as, and cannot be reworked by word shifting to mean, that a single entrance at a single and particular location in a building footprint, which happens to be framed with multiple doors, is somehow transformed into multiple and separate entrances at the one building location, with each door constituting a separate entrance.^1,2  This is precisely, and in error of law, what the board has done.

It is perfectly clear that “all public entrances of a building or tenancy in a building shall be accessible.”  521 Code Mass. Regs. § 25.1 (2006).  It is further perfectly clear that, in enacting G. L. c. 22, § 13A, and establishing the Architectural Access Board, our government intended to protect and vindicate rights of access for persons with disabilities.  This is a fundamental and important government mission.  That mission, however, for which the majority gives very extensive background, does not resolve the outcome-determinative issue presented in this appeal concerning what constitutes an “entrance” under the black and white text of § 5.1.

The board’s deconstruction, then, of the term “entrance” in a manner which makes each and every door, although framed within a single “entrance,” into separate multiple “entrances” is, I submit, an error of law.  See G. L. c. 30A, § 17.  “Where an agency’s determination involves a question of law . . . it is subject to de novo review.”  Springfield v. Department of Telecommunications & Cable, 457 Mass. 562, 568 (2010).  Although we may afford deference to an agency’s interpretation of its own regulations, “[n]o such deference is appropriate, however, when the commission [or board] commits an error of law.”  Boston Police Superior Off. Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991).  The standard of review involves appropriate deference to well-grounded agency analysis of regulations, but “this principle is deference, not abdication, and courts will not hesitate to overrule agency interpretations when those interpretations are arbitrary, unreasonable, or inconsistent with the plain terms of the regulation itself” (emphasis supplied).  Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991).  In this matter, the board’s error of law, if left undisturbed, has ramifications that will affect the future construction of, the architectural renderings of, and the construction cost of buildings all over the Commonwealth — including buildings of greater stature and monument than this commercial entrance to a commercial store in a shopping mall.³

There is little reason for this court to afford deference to the board’s reading of the term “entrance” in this case, because its decision lacks any reasoned analysis and is “inconsistent with the plain terms of the regulation itself.”  Ibid.  There are several flaws that demonstrate the error of law in the board’s rewriting of what an entrance is, and which undercut administrative deference in this appellate review.  See Boston Police Superior Off. Fedn. v. Labor Relations Commn., supra.

First, as noted above, the board in its single sentence fiat has not set forth any reasoned analysis that supports its rewriting of the defined term “entrance.”  In fact, the rewriting clashes with the black and white text of § 5.1.⁴

Second, the lack of reasoned analysis is evident when one considers the full procedural history of this case.  The decision of the board is a second attempt by the board to address what the term “entrance” encompasses.  The first board decision, dated November 18, 2008, was sent back to the board on remand by a Superior Court judge following a first G. L. c. 30A review (Superior Court docket no. SUCV2008-05540) (hereinafter Hollister I).  As stated in the second board decision, on remand the board was directed to address three omissions in its first decision including:  “1) the jurisdiction of the [b]oard, 2) whether or not the doors at the front of the Hollister [sic] consist of one or more entrance(s), and 3) if it is determined that more than one entrance is provided, if a variance to 521 [Code Mass. Regs. §] 25.1 should be granted” (emphasis added).

In remanding on the second question concerning what constitutes an “entrance,” and whether multiple doors framed in one entrance make for multiple “entrances,” the Superior Court judge found that the administrative record in Hollister I on this precise issue was “thin” and that the board did not “elucidate this issue.”⁵  Following the remand and further hearings, the board issued a second decision dated May 26, 2010.  This second board decision was affirmed by a different judge in a new and separately docketed Superior Court proceeding for review under G. L. c. 30A (Superior Court docket no. SUCV2010-02567).⁶  Notwithstanding this affirmance, this second board decision does not make the record less “thin,” nor does this second decision provide any “elucidat[ion]” of the board’s revamping of the defined term “entrance.”