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Victory can be measured, quite literally, by the inches. Precisely 32 inches. After a federal district judge in California ruled in October that Macy’s San Francisco Union Square department store had violated the Americans with Disabilities Act — by failing to provide adequate access for wheelchairs and scooters, among other things — the main issue of just how much space there should be between merchandise racks appears to be settled. The case was the first in the nation to address the responsibility retail stores have to provide disabled people access. The suit was brought in 1996 by Oakland’s Disability Rights Advocates, a nonprofit group that since then has filed a wave of suits against retail industry giants who are concerned that too much space between racks will hurt their bottom line. At a joint status conference hearing Wednesday, California’s Northern District Chief Judge Marilyn Hall Patel ordered the store to include in its ADA compliance plan a specific “target” for the amount of rack navigation space. Patel listened, but wasn’t persuaded by a defense plea from Washington, D.C., attorney David Copus, who said “our compliance should be measured by our efforts and not by our results. Did we do what was reasonably appropriate?” Macy’s did not want to commit to a minimum level of access, said Copus, of counsel at Jones, Day, Reavis & Pogue. Instead, the store offered to “strive reasonably to maximize access” with aisles between 28 and 36 inches wide in the context of Macy’s Business Model, which in part says to maximize sales per square foot. “Thirty-two inches is right in the middle,” Patel said. “Isn’t it possible to come up with that as a target, and have some weasel words around that? It gives you less of a moving target, and you probably won’t be in here that often.” If Macy’s consistently falls below the 32-inch target, Patel said, then it “will raise questions as to whether the defendant is giving its best efforts.” She said she would appoint a special master to oversee compliance if that happened. Patel gave both sides 30 days to agree on how to phrase the spacing clause and submit it for her approval. Another conference hearing is scheduled Aug. 30. Patel did not decide on two other issues attorneys also have not been able to agree upon: access to fixed merchandise displays that are in areas of the store under construction or are being remodeled, and where to place customer service brochures designed for disabled people. Plaintiffs’ attorney Laurence Paradis, with Disability Rights Advocates (DRA), an Oakland-based group that filed the suit four years ago on behalf of Ellen Lieber and Glen Vinton and persons in similar situations, said that “it is a bright new day for people with disabilities when it comes to being able to move around department stores.” The status hearing was about one Macy’s store, but the same access issue applies in every other DRA suit against retail industry giants, including Mervyn’s, Robinson’s-May in Southern California, and Burdines in Florida. Attorneys filed suit against Mervyn’s last week after it became clear, Paradis said, that the company’s attorneys “would not commit to a fix.” The group has filed separate suits against Sacramento’s Macy’s and all Macy’s 70 California stores.

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