F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C H R I S K O H L E R , Plaintiff-Appellant

,

v

.

B E D B A T H & B E Y O N D O F C A L I F O R

N I A , L L C, DB A B e d B ath & B ey ond #538, Defendant-Appellee

. N o. 12-56727

D.C. No. 2:11-cv-04554- DMG-MAN

OPI NI ON

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District J udg e, Presiding

Arg ued and Submitted F ebruary 3
, 2015—Pasadena California

F iled F ebruary

19, 2015

B efore: Stephen Reinhardt and Ronald M. Gould, Circuit J udg es, and J . F rederick Motz , Senior District J udg e. *

O pinion by

J udg e Gould

* T h e Ho n o rab l e J

. F r e d e rick Mo tz, Sen io r District J u dg e f o r t h e U .S. District Co u

rt f o r th e District o f

Mary l an d , sittin g b y

d esig n atio n

.K O H L E R V

. B E D B A T H & B E Y O N D

2

SUMMARY * *

Am ericans w ith Disabilities Act

The panel affirmed the district c ourt’s summary judg ment

o n claims under Title I I I of the Americans with Disabi l i t i e s Act related t o the necessary maneuvering clearance for a restroom door in a store.

The panel affirmed the district court’s conclusion that the ADA d o e s not require wall space w ithin the maneuvering clearanc e n e x t to the frame o f a restroom door that must be pulled open.

The panel also affirmed the district court ’ s ruling that, because the d oor lacked a “latch” withi n the meaning o f standards g o verning ADA compliance, no mane u v e r i n g s p a c e

was r equired nex t to the frame of a restroom d oor that must be pushed open.

COUNSEL

S co ttly nn J

. Hubbard, I V ( argued), L aw Offices of L y n n Hubbard, Chico, California, for Plaintiff-Appellant.

Martin H. Orlick (arg

ued), and Matthew S. K en e f ick, J effer Mang el s Bu tler & Mitchell L L P, San F rancisco, California, for Defendant-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.K O H L E R V

. B E D B A T H & B E Y O N D 3

OP INION

GOUL D, Circuit J udg e :

Chris Kohler appeals from a g rant of summary judg ment to d efendant B ed B ath & B ey ond of California (“B B & B ”) on K ohler’s claims u nder Title I I I of the Americans wit h Disabi l i t i es Act (“ADA”). Kohler contends: (1) that the district c o u r t erred in concluding that the ADA does not require wall space within the maneuvering clearance nex t to the frame of a restroom door that must be pulle d o p e n , and (2) that the d istrict court erred in ruling that, b ecause the door lacked a “latch” within the meaning of standa r d s governing ADA complian c e, no maneuvering space was required nex t to the f r ame of a restroom door th a t m u s t b e pushed o pen. W e have jurisdiction under 2 8 U.S.C. § 1291. W e conclude that Kohler’s claims related to the n e c e s sary maneuvering clearance must be rejected. W e affirm.

I

Kohler is parapleg ic and requires the use of a wheelchair
to move in public. On two d ay s in May 2011, Kohler u s ed the restroom in the B B & B store in Riverside, Californi a. During those visits h e encountered purported architectural barri er s that h e claimed impeded his a b ility to fully use the
store. The alleg ed barriers relevant to this appeal r elate to floor a nd wall s p a ce adjacent to the restroom door. Kohler broug ht suit ag ainst B B & B in the U.S. District Court for the Central District of California. Kohle r c l a imed violations o f the ADA, 42 U.S.C. § § 1 2 1 01–12213, and related state law provisions. The parties f iled cross-motions for summary judg ment.K O H L E R V

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The rec o r d shows that there was less than ten inches o f strike-side 1 wall space o n the pull side 2 o f B B & B ’s restroom door, b u t t h e re was more than four feet of clear f loor space bey ond this w all space. Kohler allege d that the lack of w all
space made it difficult for him to pull open the restroom door by pushing off the strike-side wall with one hand while pulling the door handle with the other. There w a s a l s o less than three inches of strike-side wall or floor space o n the push side of the door, making it d ifficult fo r K o h l er to open the door.

W ith r espect to the claims o f insufficient strike-si d e clearance ne x t to the restroom d oor, the district court

c o n c l u d e d t h a t t h e A D A A c c es s i b i l i t y G u i d e l i n e s (“Guidelines”), which set out the ADA compl i a nce requirements for phy sical structures, require only e i ghteen inches o f s trike-side floor space (rather than floor and w all space) on the pull side of a door. The distr i c t court also determined that strike-side clearance of at least twelve inches of floor space on the push side is required only if the d oor has

a “latch,” which the district court inte r p re t e d to mean a privacy latch. Otherwise, no st r i k e side clearance, whether floor or wall space, is required on the push side.

O n t h i s basis, the d istrict c ourt denied Kohler’s motion and g ranted B B & B ’s motion on Kohler’s ADA claims. The d i s trict court declined to ex ercise supplemental jurisdicti o n

1 T h e “ strik e sid e” is th e sid e o f th e d o o r th at strik es th e d o o rf ram e (as

o p p o sedto th e h in g e sid e).

2 “P u l l sid e” (as o p po sed t o p u sh sid e) m ean s th at th e p erso n p as s i ng th ro u g h th e d oo r is on t

h e sid e w h ere f o r en try th e d o o r is p u lled to w ard th at p erso n

in stead o f

p u sh ed aw ay

.K O H L E R V

. B E D B A T H & B E Y O N D 5

over Kohler’s state law claims and dismissed them without prejudice.

Kohler timely appealed th e d i strict court’s judg ment, which is now before us.

II

W e review a district court’s g rant of summary judg ment de novo

. Doran v. 7-Eleven, Inc. , 524 F .3d 1034, 1 047 (9th Cir. 2008). Summary judg ment should be g ranted if “there is

no g enuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.” F e d

. R

. Civ. P. 56(a).

W e may affirm the district court on any basis supported by the record. Forest Guardians v

. U

. S

. Forest Serv.
, 329 F .3d 1089, 1097 (9th Cir. 2003).

III

Title I I I of the A DA “prohib i t s discrimination on the basis of disability in the ‘fu ll and equal enjoy ment of the
g oods, servi c e s , facilities, p rivileg es, advantag es, o r accommodations of a

ny place of p ublic accommodation’ with

a nex u s in interstate commerce.” O l i ve r v. Ralphs G rocery Co.
, 654 F .3d 903, 904 (9th Cir. 2011) (quotin g 42 U .S.C. §§ 2000a(b), 12182(a)). The ADA requi r e s that “new facilities b e ‘readily accessible to and usable b y individuals with disabilitie s , ” unless this w ould be ‘structurally impracticabl e

. ’” Id. at 904–05 (quoting 42 U .S.C. § 12183(a)(1)). A facility is g enerally “readily a ccessible” within the meaning o f the ADA if it complies with the Guidelines. Id. at 905.K O H L E R V

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6

I t would be hard to overstate the sig n ificance of the ADA for a person w i t h a disability who could e njoy a public facilit y with reasonable modification to make it accessible, b u t w ho is otherwise precluded f rom u se and shut out b y a n architectural barrier. Recog niz ing that it is g ood business, a s well a s th e r e q u i rement of the law, to accommodate the disabled and thereby to enlarg e the market for one’s g oods o r services, most companies have g ladly g iven their support fully to leg al compliance with the ADA. B ut invariably questions about whether parti cular a c commodations satisfy the ADA’s leg al requirements will arise.

W e have ex plained that the Guidelines, which were promulg a ted by the Attorney General, set out the technical requirements that places o f public a ccommodation must meet to comply with the ADA. S e e Chapman v. Pier 1 Imports ( U.S.) Inc
., 631 F .3d 939, 945–46 (9th Cir. 2011) (en ban c ). The parties refer to both the 1991 and the 2010 Guidelines in their briefs. The 2010 Guidelines went into effect on March 15, 2012. See 28 C.F .R. § 36.304(d)(2)(ii)(B ). B ut the new requirements have a “safe h arbor” pro v i sion under which a building that c omplied with the 1991 Guidelines and h as not been altered on or after March 15, 2012 will not be r equired
to make any c h an ges to comply with the 2010 Guidelines. 28 C.F .R. § 36.304(d)(2)(i).

Kohler a rg ued below that the 1991 Guidelines controlled the district court’s d e c ision based on when B B & B ’s
construct i on p ermits were issued. He argues here that because B B & B was not in compliance with the 1991 Guidelines, the safe harbor provision does not apply and the 2010 G uidelines control. W e conclude that Kohler’s position is unpersuasive under either the 1 991 or the 2010 Guidelines.K O H L E R V

. B E D B A T H & B E Y O N D 7

A. Neither the 1991 nor the 2010 Guidelines require a minimum amount of

strike-side wall length o n the pull side of a door.

Kohler a rg ues that the dist rict court erred in g ranting
summary judg ment to B B & B because the Guidelines require
at least eig hteen inches of clear w all leng th on the strike side of a door that is pulled open. B ut Kohler’s argument f ails because w e h old that the Guidelines’ maneuvering clearance requirements relate only to floor space and to the air above it,
not to wall space. B oth the tex t and structu re o f the Guidelines support our conclusion.

The first f

l a w in Kohler’s contention relates to tex t. Kohler’s arg ument relies on an imp l au s i b le reading of the relevant provision of the 1991 Guid e l i n e s , § 4 .13.6. The requirement reads: “Minimum mane uvering clearances at doors that a

re not automatic or power-as sisted shall be a s shown in [ F ig ure] 25. The floor or g round a rea within the required clearances shall be level and clear.” 2 8 C

. F.R. Pt. 36, App. D § 4.13.6. F ig u re 25(a), reproduced below, shows the required clearance for a front approach to the pull side o f

a door, and uses both solid and dotted lines, as well a s a thick solid line:K O H L E R V

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8

The 1991 G uidelines’ Graphic Conventions indicate that

a dotted line sig nifies the “ bound a r y of clear floor area,” while a solid line is a “ty pical dimension line showing U.S. customary units (in inches) above the line

. . . . ” See 28 C

. F. R

. Pt. 36, App. D § 3.1 tbl.1. The thick solid line is
not ex plained by

the Graphic Conventions. Id.

The tex t a ccompany

ing Fi gure 25 say s that “[ f] ront appro a c h e s to pull side of swing ing doors shall have maneuvering space that e x tend s f r om the hing e side of the door to 18 inches (455 mm) minimum, 24 inches (610 mm) preferred, bey ond the latch side o f the door a n d 6 0 inches (1525 m m ) minimum p erpendicular to the doorway

. ” 28 C.F .R. Pt. 36, A p p

. D. I f we interpret “maneuvering space” to mean the same thing when it refers to space

ex tending past the latch side of the door that it d o es when referring to space perpendicular to the doorway

, then adopting Kohler’s view would require that the six ty inches o f maneuvering space perpendicular to the doors have walls all around it, such that an ADA-compliant door would need to be built into a six ty -inch deep alcove. Common sense does not permit us to adopt such an understanding

, and Kohler in oral
argu m en t ag reed that the A DA and Guidelines were not intended to require such alcoves. More important is the fact
t h at the word “wall” is absent from F ig ure 25(a) and the
accompany

ing note. B ut the floor ar e a i s ex plicitly referenced in § 4.13.6, to which F ig ure 25 is attached. Also, the eig hteen-inch space is called “maneuvering space,” which we understand to mean the space needed for a wheelchair to navig ate up to and throug h a d oorway

. W e interpret the 1991 Guidelines to r equire eig hteen inches of clear floor space a nd clear air space above that flo or so that a person in a wheelchair can maneuver freely

.K O H L E R V

. B E D B A T H & B E Y O N D 9

L ooking to the 20 1 0 G uidelines only reinforces our conclusion. Kohler argues that b e c ause the 2010 Guidelines’ Graphic Conventions at F ig ure 104 include the description o f

a solid black line convention as representing “a wall, a f loor, ceiling or other element cut in section or plan,” it means w all

s p a ce is required. See 36 C.F .R. Pt. 1191, App. B § 1 0 4

. 3 fig .104. Moreove r , K o h ler argues that his position is streng thened because the la n gu a ge in § 4.13.6 of the 1991 Guidelines, that “ the f

loor or g r ound area within the r equired clearanc e shall be level and clear,” was moved from § 404.2.4—the maneuvering clearance provision of the 2010 Standards parallel to § 4 .13.6 of the 1991 Guidelines—to another subsection. S

ee id. Pt. 1191, App. D. W e disag ree.

Section 404.2.4.1 of the 20 1 0 G uidelines say s that “[ s] wing ing doors and g ates shall have maneuvering clearances comply ing with Table 404.2.4.1.” That table i n d i c a t e s t hat the minimum strike-side maneuvering c l e a r a n c e

o n the pull side of a door is eig hteen inches parallel t o t h e do o rway , a s shown in F ig ure 404.2.4.1(a), which is reproduced below:K O H L E R V

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As with F ig ure 25(a) in the 1991 Guidelines, in which the dotted line r epresents a “boundary of clear floor area,” the dashed line in F ig ure 404.2.4.1(a) of the 2010 Guidelines shows the “boundary of c l ear floor space or maneuvering clearance.” 36 C.F .R. Pt. 1191, App. B
, § 104.3 fig .104. The word “or,” a s it is used to describe the dashed line, f requently “introduces a definitional equivalent,” such that maneuvering clearance and clear floor space would mean the sam e t h i n g

. Antonin Scalia & B ry an A. Garner, Reading Law: The Interpretation of Legal Texts 122 (2012) (g iving an ex ample with the same construction as i s used in the Graphic Conventions). B ut even if the u se of the word “ or” in the 2 0 1 0 G r a p h i c C o nventions’ description of dashed lines means that the maneuvering c learance is not the same as c lear floor
space, but rather that it must refer to more than the floor area,

we read it to mean the a ir above the floor, which must be free of obstructions to a llow a wheelchair to operate on the f loor. Maneuvering c learance cannot include wall leng th because the tex t accompany

ing § 404.2.4 say s th a t “ [ m] aneuvering clearances shall ex tend the full width o f t h e doorway ,” a nd the dashed line showing the maneuverin g c learance boundaries in Fig ure 4 04.2.4.1(a) continues across the doo r w a y

. S

ee 36 C.F .R. Pt. 1191, App. D § 404.2.4.1 fig .404.2.4.1(a). Kohler does n ot ex p lain how “maneuvering clearances” under the 2010 Guidel i nes could mean a wall if that wall had to ex tend the full width of t h e d o o r way

— indeed, if his view were correct there would be no doorway

. The tex t of neither the 1991 nor the 2 0 10 Guidelines supports Kohler’s cont e ntion that there must be unobstructed w all space on the strike side of the door.

A second flaw in Kohler’s argu m e n t relates to the
structure of the Guidelines. T he comprehensive n a ture of the Guidelines, see Chapman

, 6 31 F .3d a t 945 (stating that “[ t] heK O H L E R V

. B E D B A T H & B E Y O N D 11

[ Guidelines’] requirements a re as precise as they a r e thoroug h”), sug g ests that if the Guidelines c o n templated requiri n g clear wall space to f acilitate someone pushing off from the wall to open a door

, they would have specified the
tex ture of the wall and its structural streng th. F or ex ample, the 1991 G uidelines require that a handrail “and any wall or other surface a djacent to it” must be f ree of any s h a rp o r abrasive elements. 28 C

. F. R

. Pt. 36, App. D § 4.26.4. Similarly

, the 1991 Guidelines regulate the structural streng th of g rab bars, shower seats, and mounti n g d e v ices. Id. § 4.26.3. The 2010 Guidelines have parallel provisions. See,
e.g. , 36 C.F .R. Pt. 1191, App. D §§ 5 05.8, 609.8. As we see it, the absence of any specifications r elated to surface tex ture

or struct u r al streng th in connection with maneuvering clearances f

or doorway s provides further ev i d e n c e that the Guidelines do not r equire that a person b e able to p ush off o f

a wall. The Guidelines are clear and ex plicit as to w hat they require, and the leg al requirements of the ADA should not be modified merely to reflect an individual’s preference for open wall when the applicable Guidelines did not cover that. 3

W e conclude that under either th e 1 9 9 1 or the 2010 Guidelines, the phrases “maneuvering clearances” a nd

3 W e rej ect Ko h ler’ s arg u m en t t h a t b ecau se a d o cu m en t f ro m th e Dep artm en t o f Ju stice ref ers to “ w a l l sp a ce,” w all sp ace is req u i red to

co m ply w ith th e A DA

. T h e A DA C h e c k l i s t f o r New L o d g in g Facilities d o es u se th e term “ w all sp ace” to d escrib e th e m an eu v erin g sp ace w h ich

ex ten d s p arallel to th e d o o rw ay , p ast th e latch

. S ee DOJ D isab ility Rig h ts Sectio n , “ A DA Ch eck list f o r New L od g in g Facilities,” at 1 4
, a va ila b le a t h ttp ://w w w .ad a.g o v /h su

rv ey .p d f

. B u t as th e d istrict co urt reaso n ed

, th ere is n o in d icatio n th at th is statem en t is an y th i n g o th er th an

an im p recisely

w o r d ed sh o rth an d ref

eren ce to th e f

lo o r sp ace ex ten d in g b ey on d

, an d
p arallel to , th e do o rw ay

. It do es n ot ov erco m e t h e lan g u ag e an d stru cture

o f th e Gu id elin es th em selv es, w h ichto g eth er d o o m

Ko h ler’ s arg u m en t.K O H L E R V

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12

“maneuvering space” r efer to a clear area on the floor and in the air above it, free of phy sical hindrances or protrusions that would prevent a wheelchair user or other disabl e d p erson f rom maneuvering freely

. W e affirm the district c o u r t ’s conclusion on this issue.

B. No strike-side clearance is required o n the push side of B B& B’s door beca u s e t h e door does not have a latch.

Kohler arg ues that the G uidelines a l s o r e quire twelve inches of strike-side clearance on the pus h s i d e of the door. B ut because that requirement only applies to doors with both

a closer and a latch, and the door to B B & B ’s restroom does
not hav e a latch, we affirm the district court’s ruling that under the ADA, no strike-side c learance is required on the push side of B B & B ’s restroom door.

There is no dispute about the phy sical c haracteristics o f B B & B ’s restroom door. I nstead, the parties dispute whether such characteristics mean that the door has both a closer a nd

a l a t c h

, trig g ering the requirement of twelve inches o f additional clearance. See 2 8 C

. F. R

. Pt. 36, App. D § 4.13.6 fig .25(a) (1 991 Guidelines); 3 6 C.F .R. Pt. 1191, App. D § 404.2.4.1 tbl. 404.2.4.1 (2010 Gu i delines). The parties
ag ree that B B & B ’s r e stroom d oor h as a closer and that the push si d e o f the door does n o t have twelve inches of strikeside c learance. B B & B argues t h at this is no problem under the ADA because the r estroom door does not h ave a latch mechanism, and thus that no additional clearance is required. Referencing

Table 404.2.4.1 of the 2010 Guidelines, Kohler contends that “latch” is used to describe the stop that prevents

a door from swing ing in two d irections. Kohler argu es that because B B & B ’s restroom door has such a door stop and lessK O H L E R V

. B E D B A T H & B E Y O N D 13

than twelve inche s o f s trike-side clearance, it violates the ADA. W e ag r ee with B B & B ’s position and reject Kohler’s.

Kohler’s arg u ment that B B & B ’ s restroom door has a latch is wholly unpersuasive. He does n ot address § 4.13.9 of the 1991 Guidelines, entitled “Door Hardware,” which say s that “[ h] andles, pulls, latches, locks, and other operating devices

on accessible doors shall h ave a shape tha t is easy to g rasp

. . . and does not requir e t i gh t gr a s ping

. . . to o perate.” 28 C.F .R. Pt. 36, App. D § 4.13.9. S i m i l a r l y , § 404.2.7 of the 2010 Guidelines say s that “ [ h ] a ndles, pulls, latches, locks, and other operable p arts on doors

. . . shall comply with 309.4.” 36 C.F .R. Pt. 1191, App. D § 404.2.7 ( e m p h as is in orig inal). I n b oth, “latch” is included in a l i s t o f o perable parts within the section that provides requirements to ensure disabled users are able to easily operate devices o n d oors. W e do not think there is a sensible ex planation for how a disabled user would operate a “ stop” t hat prevents a door from swing ing in b o th directions, or ho w s u c h a stop would have an easy -to-g rasp shape, which would be necessary if his proposed reading

of “latch” made sense. Nor d oes Kohler’s contention fit with common-sense definitions of “latch.”

W h ile “latch ” i s n o t defined in either the 1991 or 2010 Guidelines, the 2010 Guidelines s t a t e that the “meaning o f
terms n ot specificall y d e f ined

. . . shall be as defined b y colleg iate dictionaries in the sense that the contex t implies.” Id. Pt. 1191, App. B § 106.3. E ven without a similar instruction in the 1991 Guidelines, u sing contex t and the most natural readi n g is a common interpretive principle. Dictionaries define a “latch” as “a device that holds a door

. . . closed and that consists of a bar that f a l l s i n to a holder when it is closed and that is lifted w hen it is open,” as “a ty pe of door lock that can be opened from the inside by turning aK O H L E R V

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14

lever or knob

. . . . , ” Latch

, Merriam- W e b s t er, h t t p : / / w w w

. m e r r i a m

- w e b s t e r

. c o m / d i c t i o n a r y / l a t c h ( l a s t visited F eb. 4, 2015), or as a “fastening

, as for a door o r g ate, ty pically consisting of a bar that fits into a notch or slot a nd i s l i fted f

rom either side by a lever or string ,” Lat ch

, A m e r i c a n H e r i t a g e D i c t i o n a

r y , http://www.ahdictionar y

. c o m / word/search.html? q=latch (last visited F eb. 4, 2015). These definitions are more consistent w ith the usag e in the Guide l ines discussed above and with the log ic of the Guidelines’ g eneral scheme; if t here is a latch that must be opened, a dditional c learance is needed so a p e rson can

maneuver his or her wheelchair close enoug h to unfasten the latch. I n the absence of a latch that in some way fast e n s the door, no clearance is needed for the person to p ush open the door with the foot pedals of the wheelchair.

B e cause of the clear contex t of the Guidelines, we reject Kohler’s interpretation of the word “latch.” W e a ffirm the district court’s ruling that no strike

- s i d e clearance was required on the push side of B B & B ’s door, because that door was not equipped with a latch.

IV

The district court did not e r r in g ranting summary judg ment to B B & B on Kohler’s ADA claims.

AF F IRMED.