Colorado Cross-Disability Coalition, et al. Plaintiffs, v. Abercrombie & Fitch Co., et al., Defendants. - Statement of Interest on the Parties' Motions for Summary Judgment

C. Raised Porches Are Part Of the Store That Must Be Made Accessible and Located On An Accessible Route.

The raised porches also violate the 2010 Standards because: (1) the porches are part of the store that must be accessible, and (2) they are not located on an accessible route.

1. Defendants’ raised porches are part of the store and must be accessible.

The raised porches violate the 2010 Standards because they are part of the store itself that must be made accessible.  An analysis under the 2010 Standards starts with the requirement that all spaces must be accessible unless specifically exempted.  2010 Standards, § 201.1.  The advisory note to Section 201.1 states that “[t]hese requirements are to be applied to all areas of a facility unless exempted . . . .”  2010 Standards, § 201.1 (Advisory).  Moreover, where a space contains more than one use, “each portion shall comply with the applicable requirements for that use.”  2010 Standards, § 201.2.  The requirements for accessible spaces are set forth in the 2010 Standards at Chapter 3: Building Blocks.  Pursuant to Chapter 3, accessible spaces must have compliant floor surfaces, compliant turning space, and compliant clear floor space, among other requirements.  2010 Standards, §§ 301-309.

Defendants admit that the raised porches are used as more than just entrances.  They state that the porches are designed to “create the aesthetic appearance of a Southern California surf shack.”  Defs.’ Mot. 1 at ¶2, ECF No. 164.  They use the porches as interactive advertising to draw the attention of shoppers.⁷ The raised porches are a unique space that invites customers to pass through, inspect clothes for sale and enjoy furniture and decorations in an interactive way not available to customers viewing a window display. As stated, Defendants’ raised porches are part of the public retail space of the store.

Because the raised porches are used as both public retail space and public entrance, they must meet the requirements for both uses.  2010 Standards, §§ 106.5 (definition for “entrance” and “space”), 201.2.  Therefore, the raised porches are required to be accessible as public spaces⁸ and as public entrances.  See 2010 Standards, § 201.1.⁹ 

⁷ Defendants further admit that displays such as those on the raised porches are critical to their business because “[r]ather than advertise through traditional methods, [Defendant] markets virtually exclusively through its in-store experience.”  Defs.’ Mot. 1 at ¶1, ECF No. 164.

⁸ Although not applicable to Defendants’ raised porches, there are thirteen exemptions to the requirement that public spaces must be accessible.  2010 Standards, § 203.  The four exemptions addressing raised spaces are inapplicable here:

• “Raised Areas.  Areas raised primarily for the purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.”  2010 Standards, § 203.3.
• Raised refereeing, judging, and scoring areas.  Id. at § 203.10.
• Raised boxing or wrestling rings.  Id. at § 203.13.
• Raised diving boards and diving platforms.  Id. at § 203.14.

⁹ Defendants’ raised porches are similarly covered by the analogous provisions of the 1991 Standards regarding public and common use areas.  See 1991 Standards, §§ 3.5 (defining “public use” as “spaces that are made available to the general public” and “common use” as spaces that are “made available for the use of a restricted group of people”), 4.2.3 (turning space), 4.2.4 (clear floor space), 4.2.4.3 (surfaces), etc. 

2. Defendants’ raised porches must be on an accessible route.

The raised porches must be located on an accessible route.  The 2010 Standards require that all spaces required to be accessible – such as the raised porches – be connected by an accessible route.  2010 Standards, § 206.2.4.  The requirements for accessible routes are set forth in the 2010 Standards at Chapter 4: Accessible Routes.  Pursuant to Chapter 4, Section 403, accessible routes must have compliant walking surfaces, slopes no greater than 1:20 in the direction of travel and cross slopes no greater than 1:48, vertical changes in level no higher than ¼”, and sufficient clear width and passing spaces, among other requirements.  2010 Standards, §§ 401-410.  Raised areas such as raised porches are specifically addressed in an advisory note that states, “Accessible routes must connect all spaces and elements required to be accessible including, but not limited to, raised areas and speaker platforms.”  Id. at § 206.2.4 (Advisory).  The raised porches do not meet any of the exceptions that would allow them to remain unconnected by an accessible route.  See, id. §§ 206.2.3 (listing exceptions for multi-story facilities), 206.2.4 (listing three general exceptions).  However, Defendants’ raised porches are not located on an accessible route because each is only reachable by steps having a vertical change in level greater than ¼”.¹⁰

¹⁰ Defendants’ raised porches are similarly in violation of the analogous provisions of the 1991 Standards regarding accessible routes to public and common use areas.  See 1991 Standards, §§ 4.1.3 (requiring an accessible route connect accessible entrances with all accessible spaces within a facility), 4.3.2 (requiring at least one accessible route from public streets to the accessible building entrance they serve, which “shall, to the maximum extent feasible, coincide with the route for the general public.”), 4.3.3 (width), 4.3.6 (surface textures), 4.3.7 (slope), 4.3.8 (changes in level), etc.