Must there a place at the bar for wheelchair users? Although there seems to be no relevant case law on the subject this is a contentious issue in many of the ADA cases we handle. It’s worthwhile to ask just what the ADA does or should require, or if that question can be answered based on the ADA and accompanying guidance and regulations.†
The usual argument about accessible bars is simple. The 2010 ADA Standards require that “at least 5 percent of the seating spaces and standing spaces at the dining surfaces” be accessible. Most bars are at a height that is comfortable for an adult who is standing, which will be at least a foot higher than the 34″ maximum height for accessible “dining surfaces” under the ADA. As a result, an individual in a wheelchair cannot “belly up to the bar” to order a drink. Plaintiffs argue that at least 5% of spaces at a bar must be accessible so that a wheelchair bound person can do just that.
The Standards themselves are far from clear on this subject. There is no doubt that a bar is a “dining surface.” Advisory 902.1 states this explicitly. The problem comes with the terms “standing spaces” and “seating spaces,” neither of which is defined in the Standards. The phrase “Standing spaces” appears only once in the 2010 Standards. Section 226.1 provides:
Where dining surfaces are provided for the consumption of food or drink, at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall comply with 902. In addition, where work surfaces are provided for use by other than employees, at least 5 percent shall comply with 902.
Section 902 contains the accessibility requirements applicable to wheelchair users; that is, sufficient knee and toe space along with a 34″ maximum height. Therein lies the problem. Any space that complies with Section 902 will always be a “seating space” because it will have a height of only 34 inches, which is far too low for ordinary adults to use comfortably while standing. In fact, because wheelchair users necessarily sit to be served it is an oxymoron to refer to a wheelchair accessible dining surface as a “standing space.” Because of this contradiction application of the 5% rule to “standing spaces” leads to absurdity. Imagine for a minute that a bar with 20 standing spaces is modified to create one space (5% of the total) with knee and toe clearance and a height of 34 inches. As soon as that modification is made there are only 19 standing spaces, none of which meets the requirements of Section 902. Modify another standing space and you get more seating spaces but you only have 18 standing spaces, none of which meets the requirements of Section 902. This would go on until there were no standing spaces at all, which doesn’t appear to be the intent of Section 226.1.
A second problem with requiring that bar seating be accessible comes from the requirement in Section 226.2 that: “Dining surfaces and work surfaces required to comply with 902 shall be dispersed throughout the space or facility containing dining surfaces and work surfaces.” Dispersal of tables throughout a bar or restaurant is easy. Bars, on the other hand, are fixed in one place. If the dispersal requirement applied to each kind of space (standing and seating) then every restaurant and bar would require multiple bars in different locations.
When the 2010 Standards were adopted several commentators observed the problems that came with undefined terms, but the Department of Justice chose to ignore them, writing this in the guidance that accompanied the 2010 Standards:
Commenters stated that basing accessible seating on seating spaces and standing spaces potentially represents a significant increase in scoping, particularly given the ambiguity in what represents a “standing space” and urged a return to the 1991 Standard of requiring accessible seating based on fixed dining tables. The scoping change merely takes into account that tables may vary in size so that basing the calculation on the number of tables rather than on the number of individuals that may be accommodated by the tables could unnecessarily restrict opportunities for persons with disabilities. The revised scoping permits greater flexibility by allowing designers to disperse accessible seating and standing spaces throughout the dining area. Human factors data, which is readily available to designers, provides information about the amount of space required for both eating and drinking while seated or standing.
It is immediately clear that DOJ has not thought through the “standing space” issue. The guidance refers to “accessible . . . standing spaces” when application of the accessibility standards in 902 means there is no such thing as an accessible standing space. The guidance also says the regulation “merely” takes into account that tables may vary in size when, of course, the problem is that tables also vary in height. Finally, the notion that human factors data is readily available to designers ignores the fact that most restaurants are not designed by sophisticated architects but rather by the owner. The owner of a noodle shop in a strip center doesn’t have ready access to human factors data even if he or she knew how to use it. Moreover, most ADA litigation is over existing buildings to which the 2010 Standards are applied under the readily achievable barrier removal requirement. Insisting that the owner of college town dive bar hire a designer in order to use human factors data in determining where accessible dining surfaces should be located is tantamount to inviting him or her to just go out of business. As with DOJ’s claim that no website accessibility standards is good because it allows “flexibility” leaving “standing spaces” ambiguous is just an invitation to litigation. What we have in this guidance is an ivory tower ignorance of life in the real world that is good for neither business nor the disabled.
DOJ could have, and the courts should adopt a more common sense solution. Section 226 isn’t elegantly written, but the use of “and” can be interpreted to mean the 5% requirement applies to standing and seating spaces collectively so that 5% of the total number of dining spaces must be accessible, not that 5% of each kind of dining surface needs to be accessible. A restaurant/bar with 20 standing spaces at the bar and 20 seating spaces at tables would need 2 wheelchair accessible spaces, but both could be among the seating spaces.
Plaintiffs’ attorneys object to this argument because they believe the ADA requires that those with disabilities be able to have the same “experience” of a store or restaurant as those without disabilities. If you are the kind of drinker who wants to lean on the bar and tell the bartender your woes then you need a wheelchair accessible bar. As a practical matter however a 5% requirement for spaces at the bar merely creates the opportunity for a disabled person to sit in a wheelchair looking up at patrons who are standing next to him or her and staring at the behind the bar storage. We also know from the decision in the case involving Hollister store fronts** that when it comes to architectural barriers the 2010 Standards are a true safe harbor – the more general anti-discrimination provisions in the ADA never require more than the 2010 Standards require. The ADA protects the ability of a disabled individual to buy a drink, not to pretend to be Frank Sinatra singing “One for my Baby (and one more for the road).”
There are two situations in which the 2010 Standards clearly require accessible space at a bar. The first is when the bar is primarily a service counter, as is often the case in clubs where there is no table service. If the only way to order a drink is to talk to the bartender then some part of the bar must meet the service counter requirements in Section 904.4. This is not because the bar has “standing spaces” that must be accessible, but because the bar is less a “dining surface” than a service counter. The other is when the bar provides some other essential service not available at a table, as for example when a TV behind the bar offers an opportunity to watch sports that those in tables cannot enjoy because the TV is concealed or too far away. While the ADA does not require equal experiences for all, it does require equal access to services, and the ability to watch hockey while being accosted by a woman in lacy sleeves‡ is one of those services – or at least the watching hockey part is.
It would have been better had DOJ thought through the problem that a standing space can never meet the requirements of Section 902 before adopting the 2010 Standards, but a plausible reading of the regulation and a little common sense make it clear the 5% requirement applies to dining surfaces as a whole, not separately to standing spaces and seating spaces.
† This would ordinarily be a “Quick Hits” blog, but the Federal Courts are running on fumes during the government shutdown and there have been no FHA or ADA accessibility decisions of any note in the last three weeks.
‡ See, “Raised on Robbery” by Joni Mitchell.
* See our blog “ADA website regulation – half empty, half full or just empty?”
** Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 2014 WL 4290589 (10th Cir. 2014), discussed in our blog “The Tenth Circuit makes the ADA 2010 Standards a true safe harbor for business”