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Equivalent Facilitation at Bars

Jean Tessmer-HI said:
Phil B - here is a response from the US Access Board the federal agency that writes the ADA standards for the DOJ to enforce. I hope this helps. Jean Tessmer

Access is required to at least 5% of the seating spaces and standing spaces at dining surfaces. If a space only has a bar or counter, access must be provided at the bar or counter. If a space also has fixed tables, access must be provided at the fixed tables and at the bar or counter, even if the same service is provided at both locations. Previously, access could be provided only at the fixed tables if the same service were provided at both locations, but based on recent interpretations by the DOJ, accessible dining surfaces must now be provided at both locations. See the settlement agreement between the United States of America and HARRISBURG MILLWORKS LLC. Providing access to non-fixed dining surfaces instead of to fixed dining surfaces required to be accessible is not recognized by the Standards.

Josh Schorr
TA Coordinator/Accessibility Specialist
U.S. Access Board
1331 F. Street, NW, Suite 1000
Office: 202.272.0029
Cell: 202.480.7206
Website: www.access-board.gov
Click to expand...
I mentioned I had not seen any official interpretation. Case law is a pretty decent interpretation I can use. I have appropriately and with humility amended my viewpoint on this. I have saved the case in my files for the inevitable challenges to my comments on the subject.

Thanks. I'm 100% sure I have mentioned how much help this forum provides so I won't do it again.
 
Jean Tessmer-HI said:
Phil B - here is a response from the US Access Board the federal agency that writes the ADA standards for the DOJ to enforce. I hope this helps. Jean Tessmer

Access is required to at least 5% of the seating spaces and standing spaces at dining surfaces. If a space only has a bar or counter, access must be provided at the bar or counter. If a space also has fixed tables, access must be provided at the fixed tables and at the bar or counter, even if the same service is provided at both locations. Previously, access could be provided only at the fixed tables if the same service were provided at both locations, but based on recent interpretations by the DOJ, accessible dining surfaces must now be provided at both locations. See the settlement agreement between the United States of America and HARRISBURG MILLWORKS LLC. Providing access to non-fixed dining surfaces instead of to fixed dining surfaces required to be accessible is not recognized by the Standards.

Josh Schorr
TA Coordinator/Accessibility Specialist
U.S. Access Board
1331 F. Street, NW, Suite 1000
Office: 202.272.0029
Cell: 202.480.7206
Website: www.access-board.gov
Click to expand...

Thank you for posting this.
 
Sifu said:
I mentioned I had not seen any official interpretation. Case law is a pretty decent interpretation I can use. I have appropriately and with humility amended my viewpoint on this. I have saved the case in my files for the inevitable challenges to my comments on the subject.

Thanks. I'm 100% sure I have mentioned how much help this forum provides so I won't do it again.
Click to expand...
This type of information helps me out too. When I am asked these types of questions that do not appear very clearly stated in the ADA, these bits of info help. Aloha, Jean Tessmer
 
The state audits inspectors for accessibility per the IBC, not ADA in my state. I never got written up for not requiring an accessible space at a bar when tables nearby comply as an accessible seating. I just need to make sure they are not single column tables, because of the large base they have they do not have the required toe space.
 
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Mr. Inspector said:
The state audits inspectors for accessibility per the IBC, not ADA in my state. I never got written up for not requiring an accessible space at a bar when tables nearby comply as an accessible seating. I just need to make sure they are not single column tables, because of the large base they have they do not have the required toe space.
Click to expand...
So your State is wrong too then?
 
Mr. Inspector said:
The state audits inspectors for accessibility per the IBC, not ADA in my state. I never got written up for not requiring an accessible space at a bar when tables nearby comply as an accessible seating. I just need to make sure they are not single column tables, because of the large base they have they do not have the required toe space.
Click to expand...

As I have commented previously, the accessibility requirements in the IBC (and the technical requirements in A117.1) are the codification of the ADA, which is (and which was written as) legislation rather than as code. Perhaps the best example of this is the "20% rule" for the cost of accessibility upgrades in existing buildings (IEBC 306.7.1, Exception #1). This didn't just happen. It was added to the codes because the ADA language says something to the effect that the cost of making accessibility improvements shall not be "unreasonable."

"Unreasonable." Well, that's a can of worms. How can anyone determine what's reasonable vs. unreasonable in a specific situation? As might be expected, a number of cases made it into court over this issue and, over time, courts more or less settled on 20% of the construction cost as being a "reasonable" number. So the ICC write that into the code. It was originally in the IBC (Section 3409.6 in the 2003 IBC), then it moved to the IEBC. So, although like many (most?) states, my state has not "adopted" the ADA and our code officials do not "enforce" the ADA, we shouldn't put on blinders and pretend that it doesn't exist.
 
Massachusetts amends out of the codes the ICC language for accessibility and replaces it with 527 CMR the MA Architectural Access Board Regulations (thank them and the legislators) which regulates public spaces and public buildings. So I have to enforce the requirement for equal services at the bar and table areas. For housing I have to enforce some requirements for accessible housing units and common spaces. All the employee area stuff is up to the RDP and their client to comply with.
 
Mr. Inspector said:
The state audits inspectors for accessibility per the IBC, not ADA in my state. I never got written up for not requiring an accessible space at a bar when tables nearby comply as an accessible seating. I just need to make sure they are not single column tables, because of the large base they have they do not have the required toe space.
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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 54 Pa.B. 3772 (June 29, 2024).
This code requires compliance with the ADA. Here is the Link - https://www.pacodeandbulletin.gov/D...ecure/pacode/data/034/chapter60/s60.2.html&d=
 
Mr. Inspector said:
The state can't be wrong, it's the state's code.
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Only if the state has exemptions that their interpretation is final and cannot be challenged in court.

I recently rendered a decision on an appeal and that was appealed to our court of appeals. The appeals judge certainly could have told me I was wrong in my interpretation.
 
Many years ago, Texas submitted its access code to the DOJ and had it "certified" as being equivalent to the ADA. Then a nationally-known architect designed some new movie theaters for a national theater chain (Cinemark, if I remember correctly). Some folks with disabilities felt that the wheelchair seating locations didn't provide equal viewing (in some regard, the details of which I don't remember), so they went to the DOJ with a complaint, whereupon the DOJ sued Cinemark, who in turn sued their architect.

There was no dispute that the design for the theaters was in full compliance, and there was no dispute that Texas had gotten its access code blessed by the DOJ as equivalent to the ADA. Nevertheless, the DOJ's position in the lawsuit basically came down to "Yes, we certified the Texas access code as equivalent to the ADA but we didn't mean it."

The feds won, Cinemark had to alter their brand new theaters, and it cost the architects a boatload of money.

My state had made a decision NOT to submit our access code to the DOJ for certification, and the Cinemark case demonstrated why this was a wise decision.
 
Yankee Chronicler said:
No state can exempt itself from federal law.
Click to expand...
I was referring to their interpretation of their code.

I would agree with you that a state functionally re-writing a federal law into a state building code does not magically shift the law from the federal level to the state level.
 
"The state audits inspectors for accessibility per the IBC, not ADA in my state. I never got written up for not requiring an accessible space at a bar when tables nearby comply as an accessible seating. I just need to make sure they are not single column tables, because of the large base they have they do not have the required toe space."

Excerpt from the IBC Chapter 11 2018 -
1108.2.9.1 Dining surfaces.
Where dining surfaces for the consumption of food or drink are provided, at least 5 percent, but not less than one, of the dining
surfaces for the seating and standing spaces shall be accessible and be distributed throughout the facility and located on a level
accessed by an accessible route.
 
Yankee Chronicler said:
A state's interpretation of its code can certainly be challenged in court. Happens all the time.
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In Canada, the provinces have the ability to exempt themselves from this process, but it is very rare. Only one that I know of has done so.

The concept is that where the provinces establish their own rules related to provincial court, they can also establish exceptions or alternative dispute resolution systems.

I would assume the same is possible in the US given the federalism system at play, but have no direct evidence for this.
 
Why would not this section comply to bars?

1109.11 Seating at tables, counters and work surfaces.
Where seating or standing space at fixed or built-in tables,
counters or work surfaces is provided in accessible spaces, at
least 5 percent of the seating and standing spaces, but not less
than one, shall be accessible.
Exception: Check-writing surfaces at check-out aisles not
required to comply with Section 1109.12.2 are not
required to be accessible.
 
Mr. Inspector said:
Why would not this section comply to bars?

1109.11 Seating at tables, counters and work surfaces.
Where seating or standing space at fixed or built-in tables,
counters or work surfaces is provided in accessible spaces, at
least 5 percent of the seating and standing spaces, but not less
than one, shall be accessible.
Exception: Check-writing surfaces at check-out aisles not
required to comply with Section 1109.12.2 are not
required to be accessible.
Click to expand...
There have been varying interpretations of "at the bar" or "in the bar"....
 
Yankee Chronicler said:
Many years ago, Texas submitted its access code to the DOJ and had it "certified" as being equivalent to the ADA. Then a nationally-known architect designed some new movie theaters for a national theater chain (Cinemark, if I remember correctly). Some folks with disabilities felt that the wheelchair seating locations didn't provide equal viewing (in some regard, the details of which I don't remember), so they went to the DOJ with a complaint, whereupon the DOJ sued Cinemark, who in turn sued their architect.

There was no dispute that the design for the theaters was in full compliance, and there was no dispute that Texas had gotten its access code blessed by the DOJ as equivalent to the ADA. Nevertheless, the DOJ's position in the lawsuit basically came down to "Yes, we certified the Texas access code as equivalent to the ADA but we didn't mean it."

The feds won, Cinemark had to alter their brand new theaters, and it cost the architects a boatload of money.

My state had made a decision NOT to submit our access code to the DOJ for certification, and the Cinemark case demonstrated why this was a wise decision.
Click to expand...
My state (California) submitted to DOJ for certification, but section 1.9.1 of the CBC includes this warning:

In addition, to incorporate standards at least as restrictive as those required by the federal government for barrier-free design under (1) Title III (Public Accommodations and Commercial Facilities), Subpart D (New Construction and Alteration) (see 28 C.F.R., Part 36), and (2) Title II (Public Entities), Section 35.151 (New Construction and Alterations) (see 28 C.F.R., Part 35) both from the Americans with Disabilities Act of 1990, 2004 Americans with DisabilitiesAct Accessibility Guidelines, as adopted by the U.S. Department of Justice (see 36 C.F.R. Part 1191, Appendices B and D), and (3) under the Fair Housing Amendments Act of 1988. Some of these regulations may be more stringent than state law in order to meet the federal requirement.
 
What's the diffrance between 1108.2.9.1 and 1109.11 besides 1108.2.9.1 is just for dining areas and 1109.11 is for everywhere. Why do we need both?

1108.1 General. In addition to the other requirements of this
chapter, the requirements of Sections 1108.2 through 1108.4
shall apply to specific occupancies.
1108.2.9.1 Dining surfaces. Where dining surfaces for
the consumption of food or drink are provided, at least
5 percent, but not less than one, of the dining surfaces
for the seating and standing spaces shall be accessible
and be distributed throughout the facility and located
on a level accessed by an accessible route.

1109.1 General. Accessible building features and facilities
shall be provided in accordance with Sections 1109.2 through
1109.15.
1109.11 Seating at tables, counters and work surfaces.
Where seating or standing space at fixed or built-in tables,
counters or work surfaces is provided in accessible spaces, at
least 5 percent of the seating and standing spaces, but not less
than one, shall be accessible
 
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