Court upholds decision on Good Dog Goods access

By Janet Hefler - May 25, 2006

The Massachusetts Superior Court upheld a decision by the state architectural access board requiring Kerry Scott to provide a handicap access ramp at her Good Dog Goods store in Oak Bluffs and imposing fines for her failure to do so.

The decision by the Hon. Raymond J. Brassard upholds the access board's ruling from May 2005 fining Ms. Scott $100 for every day the store remained open without a ramp.

"We were obviously disappointed with the decision," said her attorney, Dan Perry of Perry, Hicks, Crotty, and Deshaies in New Bedford. "We have already filed a notice of appeal. If the attorney general agrees, and we've had some discussions about it, we would ask the court not to take any action on the notice of appeal and simply permit us to go back to the architectural access board at this point and try to find something we could agree on." Mr. Perry also will request that the access board waive the fines.

The architectural access board voted in September 2004 to give Ms. Scott, an Oak Bluffs selectman, until May 1, 2005, to install an access ramp at her store on Circuit Avenue, in compliance with the Americans With Disabilities Act.

The Good Dog Goods store is located at 79 Circuit Avenue in a Victorian-era building once used as a tea room and then converted into four apartments.

"Our position was that because the property had been in public use, and because the amount spent on renovations was very low, we don't think it was subject to the access board's regulations," Mr. Perry said. "The case also involved some fairly technical issues regarding whether or not we could raise that point because Kerry applied for a time variance in 1999."

At the time of the May 2005 access board hearing, Ms. Scott had to attend an emergency Oak Bluffs selectmen's meeting. Her attendance was necessary for a quorum, so she asked the access board to change the time of the hearing, Mr. Perry said. "They refused to change the time and went ahead and had the hearing without her, so she was not able to present what she had tried to do to achieve architectural access," he said.

At the recent Superior Court hearing, Mr. Perry requested the court to consider those issues, he said. "The court did not find it was abuse of discretion for the access board to go forward without giving her a chance to change the time of the hearing, which was a disappointment to me," Mr. Perry said.

Providing handicap access to the Victorian-era building most likely will require the removal of the porch, Mr. Perry said. "It's very difficult to comply with the geometry that is required by handicapped access regulations in the very short area we have to do it."

Ripping out the front porch will affect the second story porch and roof, as well. Ms. Scott said the work would cost at least $100,000.

"There never was a time I didn't want to do something," Ms. Scott said. "I want to provide universal access, not just handicapped access, for people with baby carriages and dogs with sore hips as well."

She recently hired Debbie Ryan, an attorney and architect, who formerly served as the executive director of the access board, to help her find a compromise solution that might save the porch.

During her tenure on the access board, Ms. Ryan wrote variance procedures that could prove helpful in Ms. Scott's case and that no one had made available to her.

"Debbie is very committed to access and believes in achieving the most compliance we can possibly get," Ms. Scott said. "She suggested using a portable ramp when needed, because we probably can't achieve full compliance. Maybe we all can win if we learn that there are compromises that can be made."

Although the access board could potentially recover $100 a day in fines, Mr. Perry said, "I think it's fair to say that the board is less interested in recovering fines than seeing us find a solution to the problem."