Seating Area Supporting Retail

[AccessoryUser]

Dear All. We manage a building which is primarily office use. The ground floor is 9,000 SF. There is a retail unit at the entrance of the building. That retail unit has the use classification of M (Mercantile). The retail unit is c. 1,600 SF. There are four retailers in this mercantile space: a book seller, a flower vendor, a person selling cupcakes and a person selling wine by the glass (with the relevant liquor license). We placed a few tables at the centre of the retail store for customers to sit while reading a book, nibbling on a cupcake and sipping wine. The Building Code Inspector came along and ordered the removal of all seating. "Seating is occupancy Class B. This retail space is use classification M. So, remove all seating, and apply for the appropriate permit".

I am reading the Building Code and it seems that the use for a "Small assembly spaces ... shall be classified as a Group B occupancy or as part of that occupancy" (303.1.2).
So there is a choice. The use classification can be one of the following

1. Group B, or
2. Part of that occupancy (i.e., Group M, in our case).

So the question for this forum is this: What do I have to do to tell the building inspector that the seating area in the middle of the retail unit is "part of that occupancy" as opposed to Use Class B? Where there is a choice "Group B", or "part of that occupancy", who decides which of the two it is?

I note that the commentary raises two further points:

• The first is that Section 508.2 does not apply. "The allowances given to assembly spaces in buildings containing multiple uses reflect a practical code consideration that permits a mixed-use condition to exist without requiring compliance with the provisions for mixed occupancies (see Section 508)." That is very useful as it means that we do not have to deal with two occupancy classes. This suggests that the assembly area should always be "part of the occupancy class". If it isn't then by definition, we will have two occupancy classes: Group B, and the "main occupancy" class.
  
  
• The commentary also refers to 10% and makes it clear that the 10% does not apply "these assembly spaces are not required to be less than 10 percent of the story on which they are located (IBC Interpretation No 20-04)." I don't understand how the 10% comes in to this. There is no reference to 10% in 303.

Thank you for helping out.

 

[ICE]

How many tables and chairs are involved? It seems odd that the inspector would ask that the tables and chairs be removed. Do they allow seating in shoe stores? Are barber shops standing room only?

Did the inspector indicate that there are requirement(s) other than a permit that were not met?

 

[AccessoryUser]

How many tables and chairs are involved? It seems odd that the inspector would ask that the tables and chairs be removed. Do they allow seating in shoe stores? Are barber shops standing room only?

Did the inspector indicate that there are requirement(s) other than a permit that were not met?

When the inspector visited the premises he found 3 tables, each table having 4 chairs. He said that the tables can stay, but the chairs had to be removed. The inspector did not want any on site consumption, and thus instructed us to remove the chairs. It seems he cannot stop patrons from buying cupcakes and eating them standing up.

Do you have any idea how we argue that the seating we want to have is "part of the occupancy" (i.e., existing Class M) as opposed to Class B (which is what the inspector seems to be pushing us towards)? It is our understanding that the inspector's only requirement is change of occupancy use. As the Class M use will continue, this can only mean dual occupancy (both B and M). This seems to contradict the "allowance" in Code Section 303.1.2. Yet, that code section does state that the occupancy class will be B, or "part of the existing occupancy". So I can't definitively say that the inspector is wrong. Hence, I am asking you guys to help us out here.

 

[Yankee Chronicler]

Almost every Walmart around here has a Subway in it, with seating for probably 20 to 25 people. They are open to the main store -- no separation. None are in my town so I have never seen the plans, but I very much doubt that the Subway is classified as anything different from the M classification of the overall store.

In the instance you cite, 3 tables times 4 chairs each equals 12 people. How many square feet are involved? If the total of the retail (M) space is only 1,600 s.f., the portion given over to this mini food court can't be very substantial. This would seem to fit perfectly with the Commentary language accompanying IBC 303.1.2:

Where the occupant load of the assembly
space is less than 50, or where the floor area of the
space used for assembly purposes is less than 750
square feet (70 m2), a classification of other than
Group A is permitted. In both cases, the purpose of the
assembly space must be accessory to the principal
occupancy of the structure (i.e., the activities in the
assembly space are subordinate and secondary to the
primary occupancy). If either the maximum occupant
load or floor area limit requirement is satisfied and the
purpose of the assembly space is accessory to the
principal occupancy, the space is permitted to be classified
as either a Group B occupancy or as part of the
principal occupancy.

 

[AccessoryUser]

Almost every Walmart around here has a Subway in it, with seating for probably 20 to 25 people. They are open to the main store -- no separation. None are in my town so I have never seen the plans, but I very much doubt that the Subway is classified as anything different from the M classification of the overall store.

In the instance you cite, 3 tables times 4 chairs each equals 12 people. How many square feet are involved? If the total of the retail (M) space is only 1,600 s.f., the portion given over to this mini food court can't be very substantial. This would seem to fit perfectly with the Commentary language accompanying IBC 303.1.2:

Thank you for the reply. I fully agree with your analysis. Yes, the assembly area is accessory to the principal occupancy, and its occupancy load is less than 50, so the area qualifies as "either a Group B occupancy or as part of the principal occupancy" (as you write, but with my change of emphasis). But, which is it? Is it "Group B", or is it "part of the principal occupancy"? We clearly want it to be "part of the principal occupancy", but the inspector is telling us it must be Group B. That requires us to apply for a change of use class permit, which requires us to bring the space (or entire building?) up to latest code. If we are indeed required to apply for a change of use class, then the "allowance" supposedly embedded in Section 303.1.2. seems to be hollow. So how do we know if the occupancy class is "group B", or "part of the existing occupancy"?

 

[Yankee Chronicler]

The language of the code allows the AHJ to classify the accessory use as either Occupancy and group B OR part of the principal occupancy. The best I can suggest is to approach him with other examples and hope he'll change his mind. In the end, though, he is the AHJ.

Beyond the Subway in Walmart example, you could also mention Barnes & Noble book stores. I don't know if they do this everywhere, but the ones around here all have a small cafe area in one corner, where people can buy a cup of coffee and a pastry and sit at a table to read their new book. Again, I have never seen the plans for a Barnes & Noble, or the certificate of occupancy, but I would be amazed if the cafe section is classified as anything other than part of the M classification for the overall store. And the Barnes & Noble cafes have more than 12 seats.

If you think he can't be persuaded -- what's the actual downside to calling it B? Look at Table 508.4. Use groups B and M are listed together. They don't require any fire separation, so the retail area can be treated as a non-separated mixed use portion of the building.

 

[bill1952]

Sounds like the old fashioned drug store with lunch counter.

 

[steveray]

The designer declares the occupancy and the BO agrees or disagrees....I suspect Your inspector is wrong you are on the right track with 303.1.2....

 

[north star]

# ~ #

AccessoryUser,

Ask the inspector [ politely & courteously ] to please provide
you the Code Section or Sections he is referencing, so that you
have something for your own records.

# ~ #

 

[AccessoryUser]

The language of the code allows the AHJ to classify the accessory use as either Occupancy and group B OR part of the principal occupancy. The best I can suggest is to approach him with other examples and hope he'll change his mind. In the end, though, he is the AHJ.

Beyond the Subway in Walmart example, you could also mention Barnes & Noble book stores. I don't know if they do this everywhere, but the ones around here all have a small cafe area in one corner, where people can buy a cup of coffee and a pastry and sit at a table to read their new book. Again, I have never seen the plans for a Barnes & Noble, or the certificate of occupancy, but I would be amazed if the cafe section is classified as anything other than part of the M classification for the overall store. And the Barnes & Noble cafes have more than 12 seats.

If you think he can't be persuaded -- what's the actual downside to calling it B? Look at Table 508.4. Use groups B and M are listed together. They don't require any fire separation, so the retail area can be treated as a non-separated mixed use portion of the building.

You ask what is the downside of calling it B. Technically, a change of use class requires a permit, and there is a risk that we will need to bring the entire space (or the entire building?) up to current code as a result of the change of use. We are worried, for example, that the city will demand that we upgrade the restrooms to meet current ADA requirements.

 

[classicT]

To me it seems like this should be treated as a change of use. The outdoor area likely did not have an assigned occupancy or use, but it now being used as an outdoor seating area. Depending upon the size (occupant load) of the area, the occupancy classification could be B or A-2.

Under the IEBC, this is a Change of Occupancy (definition follows). The local inspector is correct to flag this. With the additional occupants, those served by the patio area, it could be enough to drive up the required number of restrooms and if under the roof, can even trigger items such as occupancy separations, fire sprinklers, etc. (hint - think about the definition of fire area).

I handled a significant number of these during and immediately after the COVID pandemic wherein businesses wanted to have outdoor seating areas due to reduced capacity indoors. In a lot of ways, these are akin to an addition; albeit, no structural modifications to the existing building.

2021 IBC
[A] CHANGE OF OCCUPANCY. Any of the following shall be considered as a change of occupancy where the current International Building Code requires a greater degree of safety, accessibility, structural strength, fire protection, means of egress, ventilation or sanitation than is existing in the current building or structure:

1. Any change in the occupancy classification of a building or structure.
2. Any change in the purpose of, or a change in the level of activity within, a building or structure.
3. A change of use.

[A] CHANGE OF USE. A change in the use of a building or a portion of a building, within the same group classification, for which there is a change in application of the code requirements.

 

[ICE]

Heavy handed code enforcement makes all of code enforcement look bad. This is a perfect example of a business owner attempting an innocuous improvement that might have an outsized impact on the bottom line… but along comes an inspector with a big nose. Right or wrong, the grief outweighs the benefit…. They can keep the chairs and take out a loan to build ADA bathrooms?

 

[classicT]

Heavy handed code enforcement makes all of code enforcement look bad. This is a perfect example of a business owner attempting an innocuous improvement that might have an outsized impact on the bottom line… but along comes an inspector with a big nose. Right or wrong, the grief outweighs the benefit…. They can keep the chairs and take out a loan to build ADA bathrooms?

I wholeheartedly disagree. I' have run into this issue several times, including a bar/casino that took the liberty of converting an existing covered walkway into an outdoor gaming area. What was a walkway with no occupancy value (non-enclosed, exterior) had screening put up, gaming tables and equipment installed, and all-said had increased the occupancy by over 50. Now, that was my scenario and it is not the same as the OP's... but I do not agree with your assessment. Tiger Code I suppose, right?

Really... for the benefit of the OP. Go meet with the local BO. Have a sit down with them and see what can be done with the patio area before you trigger any requirements for additional bathrooms or other occupancy/fire driven requirements. Be forewarned that the BO may tell you that you have to go get an architect to do a code analysis... in my state (WA), that would be required given the building is greater than 4000sf.

 

[Yankee Chronicler]

I wholeheartedly disagree. I' have run into this issue several times, including a bar/casino that took the liberty of converting an existing covered walkway into an outdoor gaming area. What was a walkway with no occupancy value (non-enclosed, exterior) had screening put up, gaming tables and equipment installed, and all-said had increased the occupancy by over 50. Now, that was my scenario and it is not the same as the OP's... but I do not agree with your assessment. Tiger Code I suppose, right?

Really... for the benefit of the OP. Go meet with the local BO. Have a sit down with them and see what can be done with the patio area before you trigger any requirements for additional bathrooms or other occupancy/fire driven requirements. Be forewarned that the BO may tell you that you have to go get an architect to do a code analysis... in my state (WA), that would be required given the building is greater than 4000sf.

Who said it was a patio? When I read the question, I assumed the seating is inside the retail space -- like the Subways in Walmarts and the cafes in Barnes & Noble.

 

[ICE]

Who said it was a patio? When I read the question, I assumed the seating is inside the retail space -- like the Subways in Walmarts and the cafes in Barnes & Noble.

Me too...oh no... change that to 'same here'

 

[classicT]

Who said it was a patio? When I read the question, I assumed the seating is inside the retail space -- like the Subways in Walmarts and the cafes in Barnes & Noble.

My mistake, I had responded initially yesterday and had it on my mind that it was... reread the OP and my mistake.

 

[mtlogcabin]

You do not have to do a darn thing as far as Accessibility improvements if you just put a few tables and chairs.

SECTION 305
ACCESSIBILITY FOR EXISTING BUILDINGS
2018 IEBC

305.4.1 Partial change of occupancy.
Where a portion of the building is changed to a new occupancy classification, any alterations shall comply with Sections 305.6, 305.7 and 305.8.

[A] ALTERATION. Any construction or renovation to an existing structure other than a repair or addition.

A M or B occupancy with a few tables and chairs added is not a significant "change of use" that will trigger any code improvement requirements that I can think of based on 305.4.1 and 506.1rT

506.1 Compliance.
A change of occupancy shall not be made in any building unless that building is made to comply with the requirements of the International Building Code for the use or occupancy. Changes of occupancy in a building or portion thereof shall be such that the existing building is not less complying with the provisions of this code than the existing building or structure was prior to the change. Subject to the approval of the building official, changes of occupancy shall be permitted without complying with all of the requirements of this code for the new occupancy, provided that the new occupancy is less hazardous, based on life and fire risk, than the existing occupancy.