Small Merchants May Run Afoul Of Rules on Restroom Access Many Shops Are Unaware Of State Codes Requiring Public Access to Facilities
July 26, 2005; Wall Street Journal
While shopping last month at a Rochester, N.H., Salvation Army thrift store, a local woman found herself unexpectedly in need of a restroom but was denied access to one because of the store's "employee only" toilet policy. Unable to make it elsewhere in time, the shopper had an accident in the store.
It might have ended as just an unfortunate incident; after all, scores of stores around the country decline to let the public use their toilets because of the costs of cleaning and monitoring such facilities. But what happened next highlights a quiet shift in public policy that affects small businesses nationwide when it comes to restroom facilities.
Police were called to the scene and the state's building inspector eventually was consulted about New Hampshire's plumbing code, which sets out requirements for buildings' toilet facilities, among other things. That brought some surprising news: According to state code, merchants of all sizes and types located in spaces
constructed since the early 1980s, or brought up to code since then, are indeed supposed to provide customers and visitors with restroom access. Violations are considered a misdemeanor punishable by a maximum $1,200 fine.
"We were not aware of the law in New Hampshire," says Trish Raines, community-relations manager for the Salvation Army's Eastern territory. She says the Rochester store is now allowing the public access to its restrooms and says all new or updated thrift facilities will do the same.
As it turns out, many U.S. merchants may be unwittingly in violation of plumbing codes when it comes to letting the public use their bathrooms. A growing number of states now include language in their
codes spelling out requirements for customer restroom facilities in mercantile and other business spaces. New
Jersey's code has done so since 1983; California's does also, as well as Virginia's and Florida's. Indeed, a
majority of state legislatures, including New York's, have adopted codes with similar requirements.
"Most small businesses, I talk to them, and they have no idea about these rules," says Robert Brubaker, who heads up the public-restroom initiative for the American Restroom Association, an advocacy group pushing for the availability of clean, safe, well-designed public restrooms. His group's Web site
www.americanrestroom.org1 chronicles the ins and outs of plumbing codes and experiences of customers turned away from bathrooms.
As awareness grows, however, a backlash may arise as more small businesses consider the potential costs and liabilities associated with public-restroom facilities.
"I don't think our legislatures should be worried about people being able to go to the bathroom in any location in the nation," says Matt Webb, owner of 1-800-Flowers, a retail florist shop in Tampa, Fla. With only one or two employees in his store at any given time, he says, it would be a strain to have them regularly cleaning toilets.
Plus, there are liability issues for business owners, says Andrew Langer, manager of regulatory policy for the National Federation of Independent Business, a small-business advocacy group. "If someone starts shooting up heroin and the cops bust in, theoretically, you could be liable," he says. "In the end, it should not be left to the states to decide what is best for the small-business owner. It should be up to the small-business owner."
The issue of public-toilet access isn't clear-cut. For starters, states issue codes of many types, plumbing included. But while some states mandate that all of their jurisdictions adopt the state version of code, others let municipalities go their own way. Regardless, code is always enforced at the local level, where building officials vary in how they interpret a code's intention. What's more, codes have changed through the years and are not retroactive, which means different businesses in the same town may be subject to different requirements.
New York City, for instance, currently adheres to a plumbing code adopted in 1968. The 1968 city code sets out toilet-facility requirements based on general occupancy levels for public buildings, including mercantile establishments. But city officials say they do not interpret that to mean every business must let anyone use their toilet facilities.
"We look at the functionality of the business and the intent of time spent there by customers," says James P. Colgate, executive architect at the New York City Department of Buildings. A clothing store, souvenir shop, jeweler or take-out deli would not have to let a customer use their bathroom under the city's interpretation, he says, while a restaurant or Barnes & Noble with a cafe and sit
down tables would, because food and drink are served there. "No one's ever questioned me, and that's the way it's always been," he says.
However, New York City is now considering adopting a version of the state's plumbing code, which includes language clearly stating that: "Customers, patrons and visitors shall be provided with public toilet facilities in structures and tenant spaces intended for public utilization." If it passes, Mr. Colgate says, all merchants in spaces built to that code could have to comply, depending on how the provision is interpreted.
Most state plumbing codes are based on one of three constantly evolving models: the International Plumbing Code, or IPC; the Uniform Plumbing Code, or UPC; or the National Standard Plumbing Code, or NSPC. All three are developed by third-party associations whose members have various building and government backgrounds. While the language is slightly different, all three currently spell out requirements for merchants to have accessible bathrooms for customers in their building, or nearby.
The logic is this: "It's a safety and sanitary issue," says Lynne Simnick, who works with codes and standards development for the International Code Council, which developed the IPC. "If you intend to serve the public in some shape or form, you have to have restroom facilities for the public," Ms. Simnick adds, noting that the IPC currently is used in some form by about 22 states.
But most of the codes' evolution -- and the intent of the codes' creators -- falls under the radar of small-business owners, not to mention the general public. "Most people take for granted that they cannot use the bathrooms," says Jay Peters, senior director of codes and education for the International Association of Plumbing and Mechanical Officials, which develops the UPC.
To mitigate the uncertainty, the American Restroom Association is lobbying for model codes to require signs directing the public to bathrooms inside stores. "It would solve more than half the battle," Mr. Brubaker says.
For his part, Mr. Brubaker says greater bathroom access could raise a business's sales by encouraging customers to shop longer. He also says that broader toilet access will reduce the burden on those merchants who currently offer toilets and get sent bathroom-seekers from stores who don't.
http://americanrestroom.org/np/WSJ_Bounds_Restroom_A22p.pdf
