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

DEFENDANTS’ RAISED PORCHES

Defendants own and operate clothing stores across the country, 249 of which have raised porches at the entrances.  Defendants’ Motion for Summary Judgment, or in the Alternative, to Vacate August 31, 2011 Order (“Defs.’ Mot.”) 1 at ¶1, ECF No. 164; Plaintiffs’ Motion for Summary Judgment and Entry of Injunction and Entry of Judgment (“Pls.’ Mot.”) 3 at ¶5, ECF No. 162.   The raised porches are accessed from the exterior of the stores by ascending two steps from ground level. From atop the raised porches, the interior of the store is reached by proceeding through an opening without a door and descending two steps.  See Order 3, ECF No. 109.  Because one has to negotiate steps to reach them, the raised porches are inaccessible to people with mobility impairments, including those who use wheelchairs.  Defendants do not dispute that the raised porches can only be accessed by climbing up or down two steps.  Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment and Entry of Injunction (“Defs.’ Opp.”) ii, ECF No. 167.  At each of the 249 stores in question, two public entrances with doors that are not part of the porch flank the raised porch.  Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment or, In the Alternative, to Vacate August 31, 2011 Order and Plaintiffs’ Reply In Support of Motion for Summary Judgment (“Pls.’ Opp.”) 5 at ¶2, 7-10, ECF No. 171; Order 3, ECF No. 109.  The parties assume, for purposes of their motions, that these two other public entrances with doors are accessible.¹  Order 3 n.2, ECF No. 109.  

Defendants use the raised porches as an important part of the Hollister experience, intended to invite customers in to interact with props displayed to advertise their brand and attract customers.  Defs.’ Mot. 1 at ¶¶1-2, ECF No. 164.  Defendants explain that “the Hollister brand exemplifies a Southern California beach lifestyle” and that the raised porches “create the aesthetic appearance of a Southern California surf shack.”  Id.  To produce that aesthetic, the raised porches are covered by a roof and have furniture such as chairs and lamps and are decorated with items such as plants and oars.  Order 3, ECF No. 109; Pls.’ Opp. 6 at ¶¶3-5, 7-10, ECF No. 171.  Marketing images and mannequins dressed in clothes that are for sale within the store are arranged on the raised porches.  Pls.’ Opp. 6 at ¶5, 7-10, ECF No. 171.  The entrances with doors that flank the raised porches are not similarly covered by a roof and do not have furniture, marketing items, and a wooden floor.  Id. at 7-10.

¹ The United States believes the side entrances with doors are in fact not accessible.  U.S. Statement of Interest 2 n.1, ECF No. 97.