Thursday, July 31, 2008

Cal. Ct. App. on Barrier Removal in Public Accommodations

Yesterday, the California Court of Appeal, First District, issued an opinion in Californians for Disdability Rights v. Mervyn's. The case involved a challenge, under state law, to inaccessibility in Mervyn's stores (stores that had been built before the ADA's effective date). In particular, the plaintiffs contended (and the defendants conceded) that displays were placed so close together that people who used wheelchairs and other mobility aids were effectively prevented from accessing large swaths of the stores. The court of appeal found that plaintiffs had established a vioplation of the ADA, and thus declined to decide whether state law provided more protection than the ADA (a question on which a number of amicus briefs had been filed).

The court concluded that the displays constituted architectural barriers that Mervyn's was required to remove if "readily achievable," and that the plaintiffs had made out a prima facie case that barrier removal in Mervyn's stores was, in fact, readily achievable. But, based on evidence that "Mervyn's would suffer annual lost sales of $70 million, and up to $30 million in lost profits" if it placed its displays sufficiently far apart to permit access, the court of appeal concluded that the company had adequately rebutted that prima facie case. Nonetheless, the court found an ADA violation, because Mervyn's had not adopted alternative methods to provide full and equal access to its goods and services. Mervyn's contended, rather ridiculously in the opinion of your humble correspondent, that it provided adequate alternative methods because its new and newly renovated stores were all accessible (as required by the ADA's new-construction provisions). But the court of appeal, sensibly, rejected that argument: "Mervyn's does not satisfy its obligation to make its merchandise accessible to a disabled shopper at its Cupertino store by constructing a new store 150 miles away in Folsom."

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