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Mervyn's Doesn't Have to Widen Aisles, Judge Says

November 05, 2003|Leslie Earnest | Times Staff Writer

A state court judge ruled Tuesday that Mervyn's department stores will not have to widen the aisles to make it easier for disabled shoppers to maneuver through the retailer's California locations because most of its merchandise is accessible.

The ruling from Alameda County Superior Court Judge Henry E. Needham Jr. was a blow to advocates for the disabled who had brought the lawsuit, but it was a relief for Mervyn's, a unit of Minneapolis-based Target Corp. that has logged 24 consecutive months of sales declines amid fierce competition.

The Hayward, Calif.-based chain had maintained that it would lose $30 million a year in profit and be forced to close many of its underperforming stores if it had to reduce the amount of goods to create wider aisles in its 126 California outlets.

"We are certainly disappointed both by the findings of fact and the conclusions of law," said Monique Olivier, an attorney for Californians for Disability Rights, the Sacramento advocacy group that filed the lawsuit. The group was considering whether to appeal, she said.

The lawsuit, filed in May 2002, claimed that Mervyn's discriminated against disabled shoppers in California because it didn't have a policy setting spacing requirements. The suit sought to have the court force the retailer to widen all pathways to at least 32 inches.

In his ruling, the judge said Mervyn's provided "adequate physical access" to its merchandise "80% to 85% of the time," and he agreed with the company's argument that to mandate a chainwide expansion of all aisles "would be disastrous, resulting in lost sales to Mervyn's of tens of millions of dollars."

"This would also create a competitive disadvantage for Mervyn's," Needham said.

The company said it was pleased with the ruling. "We were confident from the very beginning that the California state court would find the plaintiffs' claims unsubstantiated."

The case was the first legal challenge to the state's disabled rights law -- known as the Unruh Civil Rights Act -- to make it to trial, attorneys said. The lawsuit hinged on the question of what constitutes "full and equal access" for disabled shoppers under state law.

Similar legal challenges have been settled out of court.

Mervyn's has said it spent $5.5 million in recent years updating its 267 stores nationwide in accordance with the federal Americans With Disabilities Act, which defines requirements for bathrooms, ramps and parking lots but does not specify the amount of space disabled shoppers need between racks and displays of merchandise.

The chain also has said it would eliminate more space impediments as part of a $110-million store revamping project underway for the last two years.

Mervyn's has been fighting discrimination charges since 1999, when the disability rights group first filed its lawsuit in U.S. District Court in Northern California, accusing the retailer of violating ADA and state unfair business practices statutes.

A judge ruled that U.S. laws didn't contain specific spacing standards for movable fixtures, prompting Mervyn's to take its case to state court last year.

Mervyn's attorney, Harold McElhinny in San Francisco, said earlier that the chain needed to have plenty of merchandise on the floor for customers to look at because "if they don't see it, they don't buy it." As a mid-market discount chain, he said, Mervyn's does not have the luxury of keeping merchandise in stockrooms to be presented upon request, as might happen at, say, Nordstrom.

But at least one disabled shopper was hoping that the store could find ways to overcome the lack of space.

"I'm extremely disappointed because I was really looking forward to being able to go shopping there without having to arrange a time with my family to take someone with me," said Sharon Pliska, 49, who said she had trouble maneuvering her wheelchair through two Mervyn's stores in Bakersfield.

Pliska said some of the aisles became easier to navigate after the lawsuit was filed.

"I'm afraid now that the ruling has come down the way it has that they'll take away what little floor space they had given up ... and fill it back with merchandise again, which would mean I'll be back where I started," she said.

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