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Is a window accessed by the public required to be accessed by a wheelchair?

S

Stanovby

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Joined
Nov 5, 2013
Messages
67
Location
Baltimore, maryland
In the restaurants that we work on occasionally we have to add a walkup window that customers use to pickup their orders. I have a situation where I am limited for space and I dont think that I can make this area totally 100% compliant. I would have to add a curb ramp and there is not room to do this. My questions is does it have to be accessed by a wheelchair? I know that sometimes when you remodel a space you can argue that something does not allow you to make something totally ada compliant.
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Stanovby said:
In the restaurants that we work on occasionally we have to add a walkup window that customers use to pickup their orders. I have a situation where I am limited for space and I dont think that I can make this area totally 100% compliant. I would have to add a curb ramp and there is not room to do this. My questions is does it have to be accessed by a wheelchair? I know that sometimes when you remodel a space you can argue that something does not allow you to make something totally ada compliant.
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Please provide:
1. The location of the restaurant, at least specific enough to determine applicable codes.
2. Describe whether this restaurant building is existing or new/proposed.
3. If #2 = existing, then describe whether the window itself is existing or proposed.
4. Describe whether this window is the only possible transaction counter. Does a customer have a way to go inside the building to pick up their order?
 
The basic answer is, yes -- a take-out window must be accessible.

The longer answer is, unless making it accessible is technically infeasible. The process for getting it recognized as technically infeasible seems to vary from one jurisdiction to another, so I won't offer any specifics.
 
Yikes said:
Please provide:
1. The location of the restaurant, at least specific enough to determine applicable codes.
2. Describe whether this restaurant building is existing or new/proposed.
3. If #2 = existing, then describe whether the window itself is existing or proposed.
4. Describe whether this window is the only possible transaction counter. Does a customer have a way to go inside the building to pick up their order?
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The building is in Brooklyn so its NYC. We would be using the New York City building code. The restaurant is existing so this is a remodel. The purple colored walls with the shading are new walls where a window used to be. The door and the order pickup window are also new. This is the window in question. There is a main counter inside of the restaurant. They do have what's called a late night delivery pick up window, but I am not sure if this is one of those or its accessed all day long. I asked my boss this question, but I haven't gotten an answer yet. I should know later today.
 
Unless NYC has an exception from federal law, or NYC thinks itis exempt from all the premise of having equal access to all, it it s public window and the same service needs to be available to all persons of differing ability.

Exception, if it can be presented to the approving authority that it is technically infeasible and relief is granted in writing, the window needs to be barrier free for all.
 
TheCommish said:
Unless NYC has an exception from federal law, or NYC thinks itis exempt from all the premise of having equal access to all, it it s public window and the same service needs to be available to all persons of differing ability.

Exception, if it can be presented to the approving authority that it is technically infeasible and relief is granted in writing, the window needs to be barrier free for all.
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Yes thank you. This is where my confusion is. This would have to be presented to someone to see if the technically infeasibility would be granted? How does that process work? You would present the whole drawing set and at the same time ask for a technically feasibility ruling?
 
Refer to the process in the "Chapter 53 Maryland Accessibility Code".....



FYI,

2010 ADA Standards​

Defines Technically Infeasible.
"....With respect to an alteration of a building or a facility, something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements."
 
mark handler said:
Refer to the process in the "Chapter 53 Maryland Accessibility Code".....



FYI,

2010 ADA Standards​

Defines Technically Infeasible.
"....With respect to an alteration of a building or a facility, something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements."
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Yes, it would be the second part of that statement that would apply to my situation. There are existing site conditions that is making it difficult to achieve total 100% accessibility. There is not room for a curb ramp so that someone with a wheelchair can access it.
 
Stanovby said:
Yes thank you. This is where my confusion is. This would have to be presented to someone to see if the technically infeasibility would be granted? How does that process work? You would present the whole drawing set and at the same time ask for a technically feasibility ruling?
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The ADA itself doesn't state who you ask for a determination of technically infeasible. But the ADA also includes language telling us that "technically infeasible" means to make something accessible you would have to remove or modify a "major" structural element. Read the section quoted by Mark Handler. If the pickup window is new, I can't see any way you can argue that it's technically infeasible. Maybe the argument that you don't have room to install a compliant ramp could satisfy the technically infeasible criterion. Without seeing complete plans, including the site plan with grade elevation data, it's not possible to verify that you don't have room to create a ramp.

In my state, a determination of technically infeasible requires the applicant to submit a written request for waiver to the fooice of the state building inspector. As I wrote previously, each jurisdiction is different. I have no idea what the procedure is in New York City.
 
Stand by, as you may be aware, the building department will enforce locally adopted codes at time of plan check.
ADA is federal civil law, and is enforced in civil courts when someone sues you for discrimination. Sadly, that creates a bit of a mess for building owners when it comes to things like technical infeasibility. Some patron may see they can;t use the window, and then sue you while not knowing you had made a good faith effort at compliance.
The best thing you can do in a situation of technical infeasability is to carefully document it on your permit set of plans. Don’t just show what you want to build; provide a narrative of the argument and call it “Owner’s Statement of Techncial Infeasibility”. Explain why you can’t make the window lower, or the ground higher, or whatever is necessary for normal accessibility. It had better be a physical reason, not a convenience or security reason. Explain what equivalency you will offer, for example that an employee will walk outside to hand-deliver the food to a person who cannot reach the window.

This will not prevent an ADA lawsuit, but it will be part of your paper trail for defense
 
Yankee Chronicler said:
The ADA itself doesn't state who you ask for a determination of technically infeasible. But the ADA also includes language telling us that "technically infeasible" means to make something accessible you would have to remove or modify a "major" structural element. Read the section quoted by Mark Handler. If the pickup window is new, I can't see any way you can argue that it's technically infeasible. Maybe the argument that you don't have room to install a compliant ramp could satisfy the technically infeasible criterion. Without seeing complete plans, including the site plan with grade elevation data, it's not possible to verify that you don't have room to create a ramp.

In my state, a determination of technically infeasible requires the applicant to submit a written request for waiver to the fooice of the state building inspector. As I wrote previously, each jurisdiction is different. I have no idea what the procedure is in New York City.
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This is NYC so I will search for a similar thing in that code or where it is in the ADA. I believe the NYC building code is based on IBC so I should be able to find it. Thanks for the help everyone.
 
Stanovby said:
This is NYC so I will search for a similar thing in that code or where it is in the ADA. I believe the NYC building code is based on IBC so I should be able to find it. Thanks for the help everyone.
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2022 New York City Building Code
1101.3.5.1 Application Process
Each application for a waiver shall be made to the commissioner in writing, setting forth each requirement sought to be waived and the specific reason or reasons therefore. The commissioner shall determine, under all of the circumstances presented by such application, which of such requirements may appropriately be waived. The commissioner shall render such determination in writing, which shall set forth in detail, the commissioner's findings and conclusions with respect to each requirement sought to be waived. A copy of such written determination shall be forwarded to the applicant. Such written determination shall be filed with the department and shall be available for public inspection.
1101.3.5.2 Waiver Recommendation
The Mayor's Office for People with Disabilities or its successor agency shall be consulted by and shall advise the commissioner concerning each application for a waiver under Section 1101.3.5.
 
mark handler said:
2022 New York City Building Code
1101.3.5.1 Application Process
Each application for a waiver shall be made to the commissioner in writing, setting forth each requirement sought to be waived and the specific reason or reasons therefore. The commissioner shall determine, under all of the circumstances presented by such application, which of such requirements may appropriately be waived. The commissioner shall render such determination in writing, which shall set forth in detail, the commissioner's findings and conclusions with respect to each requirement sought to be waived. A copy of such written determination shall be forwarded to the applicant. Such written determination shall be filed with the department and shall be available for public inspection.
1101.3.5.2 Waiver Recommendation
The Mayor's Office for People with Disabilities or its successor agency shall be consulted by and shall advise the commissioner concerning each application for a waiver under Section 1101.3.5.
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Thanks. This is what I needed.
 
NYC seems to be based on the 2015 IBC, and does not appear to have adopted the IEBC. They adopted A117.1-2009 without amendment, and they also cite the ADA (according to UpCodes). A117.1 only provides technical standards, not scoping or applicability. So A117.1 won't provide any criteria for what establishes technical infeasibilty.

The IEBC includes a provision that the cost of providing accessibility upgrades in existing buildings and facilities doesn't need to exceed 20% of the project cost. In a jurisdiction that doesn't adopt the IEBC, you have no way of getting to that provision. But ... that provision is a codification of the ADA provision:

1726156995634.png

I can't provide you a link to the 2010 ADA Standards for Accessible Design (ADASAD, formerly ADAAG), but they are available on-line. I downloaded and saved the PDF years ago so I can have access to it when I'm not on-line. You can find it yourself. The "20% rule" is in the ADASAD, reproduced above. If you can document spending 20% of your construction cost on other accessibility improvements, that satisfies the ADA (and it would also satisfy the IEBC if it were in effect). Whether or not that will satisfy NYC I don't know.
 
Yankee Chronicler said:
NYC seems to be based on the 2015 IBC, and does not appear to have adopted the IEBC. They adopted A117.1-2009 without amendment, and they also cite the ADA (according to UpCodes). A117.1 only provides technical standards, not scoping or applicability. So A117.1 won't provide any criteria for what establishes technical infeasibilty.

The IEBC includes a provision that the cost of providing accessibility upgrades in existing buildings and facilities doesn't need to exceed 20% of the project cost. In a jurisdiction that doesn't adopt the IEBC, you have no way of getting to that provision. But ... that provision is a codification of the ADA provision:

View attachment 14279

I can't provide you a link to the 2010 ADA Standards for Accessible Design (ADASAD, formerly ADAAG), but they are available on-line. I downloaded and saved the PDF years ago so I can have access to it when I'm not on-line. You can find it yourself. The "20% rule" is in the ADASAD, reproduced above. If you can document spending 20% of your construction cost on other accessibility improvements, that satisfies the ADA (and it would also satisfy the IEBC if it were in effect). Whether or not that will satisfy NYC I don't know.
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Thanks. I have the ADA downloaded already. It does list the definition of technically infeasible. I could not find that definition in the NYCBC, but maybe I can argue that the site conditions wont allow for 100% compliance. We are updating the entire restaurant with accessibility including the toilet rooms and dining area.
 
In similar situations we have provided the necessary ramps within the public right of way to provide access. This requires an encroachment agreement. The determination of feasibility does not end at your property line
 
Stanovby said:
Thanks. I have the ADA downloaded already. It does list the definition of technically infeasible. I could not find that definition in the NYCBC, but maybe I can argue that the site conditions wont allow for 100% compliance. We are updating the entire restaurant with accessibility including the toilet rooms and dining area.
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I would then look at invoking the "20% rule" and ask the city if they're satisfied with that.

To do that, you'll need a fairly accurate/complete cost breakdown.
 
Stanovby said:
In the restaurants that we work on occasionally we have to add a walkup window that customers use to pickup their orders. I have a situation where I am limited for space and I dont think that I can make this area totally 100% compliant. I would have to add a curb ramp and there is not room to do this. My questions is does it have to be accessed by a wheelchair? I know that sometimes when you remodel a space you can argue that something does not allow you to make something totally ada compliant.
View attachment 14276
Click to expand...
 
Maybe I'm missing something. Is there an existing accessible space in front of the window (I'm assuming that's a sidewalk)? If so can you just lower the sill of the take-out window to 34"?
 
There is an existing walkup window there now without a curb ramp not built by us. The original plan was to move the window all the way out to the front to make it flush with the main dining room wall so that it could be accessed from public access, but that requires some helical piles so we are trying to figure out a way to get around that.
1726168315001.png

McDonald's has something they call a BDAP, which I forget what it stands for, but there is kitchen equipment and they want to be able to have a door going out of the area and also have a walkup window. There will be new equipment where the existing walkup window is so that's why the space for a curb ramp is getting even less.

1726168435861.png
 
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