The opinion of the court was delivered by: Patel, Chief Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs are persons with disabilities who have asserted a
number of barriers to access at Macy's Union Square department
store. Some of the barriers allegedin this action are
inaccessible merchandise sales counters (referred to by Macy's as
"cashwraps"), inaccessible fitting rooms, inaccessible restrooms,
blocked main or secondary aisles, and a number of other
miscellaneous access barriers. However, the central issue in the
case concerns the extent to which Macy's provides enough
clearance between display units for people with certain mobility
disabilities, such as wheelchair users, to access the merchandise
The court conducted a bench trial in this action. Having
considered the testimony and evidence presented at trial, the
briefs of counsel, and for the reasons set forth below, the court
now enters the following Findings of Fact and Conclusions of Law
in accordance with its obligations under the Federal Rules of
Civil Procedure. See Fed. R. Civ. Proc. 52(c) (A judgment under
Rule 52(c) "shall be supported by findings of fact and
conclusions of law as required by subdivision (a) of this
1. Macy's Union Square is a landmark retail facility in San
Francisco. Macy's Union Square consists of a Main Store occupying
almost an entire city block and a Men's Store located across the
2. The Main Store contains eight levels and a basement which
have display areas open to customers. The Men's Store has five
floors each of which has display areas open to the public.
Altogether Macy's Union Square contains 567,000 square feet of
space, approximately 450,000 sq. ft. of which is currently used
to display merchandise for sale to the public. The court notes
that Macy's Union Square has recently undergone a major
renovation project, affecting both the Main Store and the Men's
Store. Macy's witnesses testified that this renovation was slated
to cost over $130 million.
3. Macy's Union Square consists of multiple components. The
pertinent portions for this action are known as the Old I. Magnin
Building (now referred to as the North Building), the Allen and
Balley Building, the Dorman Building, and the Main Store. Macy's
witnesses testified that the Old I. Magnin Building was completed
gutted except for the external shell, and rebuilt as a part of
Macy's Main Store. From the fourth floor up, the new North
Building has been incorporated into the Main Store. The court
thus finds that all portions of the North Building are subject to
the new construction/alteration standard.
4. Macy's witnesses testified that the Allen and Balley
Building has been completely demolished, and that an entirely new
structure is being built on its former site to be fully
integrated with the Main Store. Thus, the court finds that all
portions of the new structure on the site of the Allen and Balley
Building are subject to the new construction/alteration standards
5. The Dorman Building has been part of the Macy's Union Square
site for some time. However, Macy's witnesses testified that it
is being completely remodeled in conjunction with the new
construction at the Allen and Balley Buildings. This will affect
the usability of the entire Dorman Building. Thus, the court
finds that, upon completion of the major renovation project now
taking place, all portions of the Dorman
Building will be subject to the new construction and alteration
6. The court specifically finds that the following additional
portions of both the Men's Store and the Main Store Macy's Union
Square (hereafter "areas of alteration") have been altered so as
to affect their usability:
(A) Based on the testimony of Vincent Heitzmann,
Director of Construction for Federared Stores, floors
2-4 of the Men's Store have been altered in their
(B) Based on the testimony of Heitzmann, floor 1 of
the Men's Store, has been altered in its entirety,
except for the south-west corner.
(C) The lower level of the Men's Store in the areas
containing the Mossimo Department, the Calvin Klein
Department, the Silver Tab Department, the Nike Shop,
and the Calvin Klein Shop, as well as the route to
such areas, and the restrooms on the lower level
(which serve areas of alteration) have been altered.
(D) Based on the testimony of Andrew Brezina,
Director of Store Planning for Federated, floor 2 of
the Main Store in the Junior Dresses has been altered
in its entirety.
(E) Based on the testimony of Brezina, floor 4 of
the Main Store in the Junior Dresses area has been
(F) All portions of the North Building that are
currently open to the public have been altered.
(G) All portions of the Allen & Balley Buildings
that are open to the public have been altered.
Plaintiffs established that numerous barriers to access still
exist at Macy's Union Square. Such barriers include restrooms
with various features mounted at heights that exceed ADAAG's
reach requirements (including toilet paper dispensers, towel
dispensers, soap dispensers, and seat cover dispensers); lack of
proper signage at entry doors; locking devices that require
grasping, pinching, or twisting of the wrist; and other features
that affect the usability of the restroom for people with
mobility disabilities. Plaintiffs also established that numerous
fitting rooms which purport to be accessible contain features
that fail to conform to ADAAG requirements, such as benches that
are not 24" by 48", and door handles that require tight grasping.
7. The court finds that Macy's conceded that removal of many of
these barriers was readily achievable. Martin Gusky, the Vice
President of Properties for Macy's West, testified that he
recently reviewed the barriers described by Mr. Margen, in
consultation with an access expert hired by Macy's for the
purposes of this litigation. Mr. Gusky testified that, based on
such review, he initiated plans to remove most of the barriers
described by Mr. Margen (other than cash wraps and crowded
pathways) within two months of the date of the trial.
8. Overall, the court finds that, despite limited efforts to
remove barriers at Macy's Union Square, multiple and pervasive
access barriers still existed at the time of trial. With regard
to many of the barriers that are structural in nature, such as
inaccessible fitting rooms, restrooms, bridal registries and
elevation changes, the court notes that, at trial, Macy's
announced new plans to remedy such barriers.
9. Plaintiffs also presented credible evidence that Macy's has
repeatedly blocked even the main and secondary aisles (those
leading between pads) by placing merchandise displays in the
aisles so as to constrict the paths of travel to less than 36"
wide. Various plaintiffs and class members testified that they
have difficulty getting from the main store entrance to the
elevators because of such obstacles. Defendant presented no
explanation or justification for the presence of such barriers,
and did not claim it was not readily achievable to remedy them.
Accordingly, the court finds that Macy's failed to make adequate
efforts under the readily achievable standard to maintain even
the main and secondary
aisles in an accessible condition at all times.
10. In areas of alteration, Macy's is also required to maintain
at least one 36" accessible route to all fitting rooms and cash
wraps, regardless of whether such routes pass through merchandise
areas. Plaintiffs established that Macy's has failed to maintain
36" accessible routes to fitting rooms and cashwraps in areas of
alteration. Peter Margen identified numerous pathways in altered
areas of the Men's Store in which routes to fitting rooms and
cashwraps were blocked by moveable merchandise display units.
11. While Macy's witnesses clam that they seek to maintain
accessible routes to fitting rooms and cashwraps, this testimony
is not credible, since Macy's did not present or name any person
at the Union Square Store who directly accepts responsibility to
maintain such pathways. Macy's Director of Stores, Rebecca
Canfield, who previously served as the store manager of Macy's
Union Square indicated that this issue has never been addressed
by any Macy's or Federated policy, or even by a memo.
12. Throughout the display areas, most of the merchandise is
placed on racks, shelves and other structures designed to hold
and display the merchandise. Some of these structures such as
shelving are clearly attached to walls as are heavy display
counters called "caselines". Mr. Heitzmann testified that case
lines are fixed, despite the fact that they are not physically
attached to the floor. He indicated that they are considered
fixed because they are "wired," or electronically attached to
their locations on the floor. Macy's presented no evidence to
contradict Mr. Heitzmann. The court thus finds that caselines are
fixed so as to be subject to ADAAG § 4.1.3(12)(b) in all areas of
alteration. Other various types of tables and display structures
are moveable, according to Macy's personnel. These include a
variety of metal racks variously called 2-ways (or T-stands),
4-ways, and rounders. Within the retail industry all of these
display features, whether fixed or moveable, are termed
"fixtures." To avoid confusion with the legal definition of a
fixture in real estate law, however, the court will refer to all
of the merchandise display features at issue here as "display
units," a term utilized in the Americans with Disabilities Act
13. The merchandise display units throughout Macy's Union
Square are generally "self service" such that customers are
expected to obtain merchandise by independently browsing and/or
searching through the display areas for an item that they wish to
purchase, removing that item from the display unit on their own,
and bringing the item to a cash register to process their
14. Although Macy's sales clerks (called "associates" by
Macy's) are to some extent available to assist customers in
locating and/or obtaining merchandise to the extent permitted by
the clerk's other duties (such as processing purchases at the
sales counter), Macy's admits that the Store is generally
operated according to a self-service model.
15. Macy's merchandise display areas are generally organized
according to departments, each of which focuses on a particular
type of merchandise. Each department consists of one or more
"pads" in which the merchandise is placed on display units.
16. "Main" and "secondary" aisles lead patrons into the
facility from various entrances and from one pad to another.
Macy's admits that the display units are generally positioned
within the pads with a certain clearance between each unit for
the purpose of enabling customers to get to the merchandise.
17. Ms. Canfield, who previously served as the store manager of
Macy's Union Square, testified that Macy's practice generally is
to try to provide 24" to 30" clear space between its merchandise
18. Macy's stipulated at trial that a 30" pathway was, in fact,
unusable for various class members.
19. Ms. Canfield estimated that, at the time of trial, 15% —
25% of the display units would have to be removed just to provide
a 30" clear space between all display units. In the Men's Store,
Ms. Canfield testified that 5%-15% of the units likely would need
to be removed to provide 30" of clearance.
20. Defendant's professional floor planner, Kevin Ellis, the
head of Macy's West Planning, Design and Construction
Departments, testified that his departments use 36" between
display units as the standard. Once the facility is designed and
constructed, however, he turns responsibility for maintaining
clearance over to the store's operational personnel, such as Ms.
21. Similar testimony was presented by Andrew Brezina, the head
of Federated's planning and design department. Mr. Brezina's
department is responsible for designing the layout of the display
areas in newly constructed and renovated Federated Stores,
including most of the Macy's Union Square Store which has been
undergoing a comprehensive renovation. (The Men's Store
renovation was completed in early 1997; the Main Store renovation
was ongoing at the time of trial.) Mr. Brezina testified that he
plans such layouts to provide 30" to 36" of clear space between
the merchandise placed on units. He testified that this is a
"comfort zone" required for customers to be comfortable shopping.
22. Mr. Brezina admitted that he had no control over the
merchandise layouts once the operations people (such as Ms.
Canfield) take control of the facility, and that he routinely
observed unit layouts at Macy's Union Square that did not comport
with the plans prepared by his planning and design departments.
23. Plaintiffs' expert, Peter Margen, documented numerous
instances at the Union Square Store facility where pathways
between merchandise racks in pads provided substantially less
than 36" of clear width. Pathways often start out with sufficient
clearance and then narrow at one or more points due to a lack of
organized layout within the pads.
24. Ms. Canfield initially claimed that this limited spacing
was designed to provide a "comfort zone" for all shoppers,
including wheelchair users. On cross-examination, Ms. Canfield
admitted that the 24" — 30" spacing practice is based solely on
her personal perception of the needs of able-bodied customers. In
fact, she admitted that she has no idea how wheelchair users
actually get to the merchandise display at Macy's Union Square
and admitted in her deposition that wheelchair users would have
difficulty accessing at least 25% of all the merchandise on
display units even at the slowest time of the year when
inventories are lowest. She further admitted that conditions get
even more congested at the holiday season (Thanksgiving to New
Years) when inventories are significantly higher.
25. Ms. Canfield testified that she had never consulted with
Mr. Brezina, Federated's in-house expert on department store
planning, and that she was unaware that he considered 30-36"
spacing to be necessary for able-bodied patrons to be
26. Ms. Canfield testified that she is unaware of any formal
policy or memo directing staff to maintain any minimum clearance
between display units, and does not know if anyone within Macy's
or Federated has gone through the Union Square store at any time
to try to maximize the extent to which wheelchair users can get
up to the merchandise on displays inside of pads, even without
losing any selling space.
27. Ms. Canfield admitted that she doesn't know the extent to
which her 24"-30" standard is generally followed at the stores
under her supervision.
29. Macy's witnesses testified that the merchandising strategy
at Macy's Union Square consists of placing all inventory on the
selling floor when it arrives at the store, and requiring each
department to "clear" all of its own inventory. Macy's personnel
stated that the store generally does not use stock rooms to hold
duplicates of items, nor does it generally use clearance outlets
to dispose of items that are not selling at its mainline stores.
Further, Macy's witnesses testified that Macy's Union Square does
not transfer merchandise from one store to another within the
Macy's West chain, nor does it attempt to renegotiate inventory
purchases with vendors, except on very rare occasion. Thus,
according to Macy's personnel, when stock does not sell as well
as expected, the merchandise generally remains on the floor even
as more merchandise is delivered and placed out on displays.
30. The primary mechanism specifically described by Macy's for
promoting inventory control is the use of price mark-downs on
31. Various witnesses testified that certain of the display
units utilized at the store are substantially more efficient in
terms of holding more merchandise in a given area. Rounders
generally hold the most merchandise in a given space, while
tables and two-ways generally hold the least. Macy's personnel
testified that many of the display units used at Macy's Union
Square are chosen for the "look" they present to customers (i.e.,
the visual appeal) even though they are not the most efficient
use of space.
32. Macy's vice president of floor planning, Kevin Ellis,
admitted that Macy's occasionally uses high efficiency units, but
generally relies upon less-efficient units. Macy's also utilizes
display units provided by vendors ...