# New Construction: Sales and Service Counters



## Papio Bldg Dept (Jul 6, 2012)

I am re-evaluating my definition of equivalent facilitation in light of an interpretation by our Region VII ADA Center regarding sales and service counters in new construction.  I have never before permitted a fold-down counter in new construction for sales and service counters while using the 2006 IBC/ANSI or the 2010 ADA SAD.

A current tenant finish is wishing to install a 96 inch long by 43 inch tall sales counter from a previous location as a fixed element.  They are requesting to add a 36 inch long by 36 inch tall fold down counter at one end rather than provide a fixed counter as they say it will not work with their chair and walk-through layout.   Rather than boil over about how it is new construction and they should be able to provide a compliant design with equivalent service elements at the same point of sale/service, I am instead asking for your input and advice.

Please add code sections that I may have omitted.  Thanks in advance.

*103 Equivalent Facilitation.*  Nothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.

_*Advisory 103 Equivalent Facilitation.*__ The responsibility for demonstrating equivalent facilitation in the event of a challenge rests with the covered entity. With the exception of transit facilities, which are covered by regulations issued by the Department of Transportation, there is no process for certifying that an alternative design provides equivalent facilitation._

*227 Sales and Service*

*227.1 General.* Where provided, check-out aisles, sales counters, service counters, food service lines, queues, and waiting lines shall comply with 227 and 904.

*227.3 Counters.* Where provided, at least one of each type of sales counter and service counter shall comply with 904.4. Where counters are dispersed throughout the building or facility, counters complying with 904.4 also shall be dispersed.

_*Advisory 227.3 Counters.*__ Types of counters that provide different services in the same facility include, but are not limited to, order, pick-up, express, and returns. One continuous counter can be used to provide different types of service. For example, order and pick-up are different services. It would not be acceptable to provide access only to the part of the counter where orders are taken when orders are picked-up at a different location on the same counter. Both the order and pick-up section of the counter must be accessible._

*904 Check-Out Aisles and Sales and Service Counters*

*904.1 General. *Check-out aisles and sales and service counters shall comply with the applicable requirements of 904.

*904.2 Approach.* All portions of counters required to comply with 904 shall be located adjacent to a walking surface complying with 403.


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## north star (Jul 6, 2012)

*+ + +*

Their "proposed" 36 inch long by 36 inch tall dimensions seem

to comply with Sections 904.4.1 & 904.4.2 for the parallel and

forward approach clearances / requirements [ from the 2010

ADA Standards for Accessible Design ].......Not purdy, but

compliant!     

*+ +*


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## mark handler (Jul 6, 2012)

I still would not permit a fold-down counter in new construction for sales and service counters.

I would use it Only in existing.

A fold-down counter is not always readily accessible, someone needs to raise it and lower it.

A fold-down counter does not provide equal or greater access


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## Francis Vineyard (Jul 6, 2012)

Analysis and Commentary on the 2010 ADA Standards: "The accessible part of the counter must also be staffed and provide an equivalent level of service as that provided to all customers." 



My question is where does it say the countertop must be fixed? 



Attended ADA class last week and the attorney's favorite answer to questions; "it depends" there's no certification for equivalency.

Francis


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## mark handler (Jul 6, 2012)

SEE THE OP

Where provided, check-out aisles, sales counters, service counters, food service lines, queues, and waiting lines *shall comply* It does not say anything about Equivalent Facilitation. The elements shall comply.

Equivalent Facilitation:


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## mark handler (Jul 6, 2012)

Equivalent Facilitation. notice the white only is cooled, not so much for equal.....


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## Francis Vineyard (Jul 7, 2012)

Mark we know you're very passionate in this area and I look forward to the knowledge and expertise you impart upon us, but sometimes . . . stay on topic. 

The grist of what I received from the attorney is the code is written for reasonable accommodations; example that a percentage not all of elements and conveniences be made accessible. The code gives both a minimum/maximum or mandate but still allows for some flexibility or alternatives in designs. 

Each one of us has and will enforce differently from our own perspective of what’s best meets the intent. When the attorney said it depends; it's up to the courts and will ultimately be the owner's responsibility; even though everyone that touches it will be mentioned.

Francis


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## mark handler (Jul 7, 2012)

Francis

ADA is a civil rights law. The courts recognize it as being the same as other civil rights laws. To tell a person in a wheelchair that they must use what you deem as “equal facilitation” is the same as telling blacks they must use a separate drinking fountain.

What you may deem “equal facilitation” may not be “equal”. That is the purpose of the graphic pictures.

Separate but equal, is not “equal”.

All new construction should comply.


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## Francis Vineyard (Jul 7, 2012)

Mark, I had a different impression; interesting perspective.

Your honor the accessible counter is fixed and made of granite, the route to the counter is hardwood floor while all the other countertops are hinged made of press wood and the floor is covered with cheap carpet.



As a code official I determine if it meets the scoping requirements, I don’t involve myself into making the design of its appearances or the way it functions; I believe it’s the court’s decision to determine if the application is or non-discriminatory. 

Francis


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## mark handler (Jul 7, 2012)

Francis Vineyard said:
			
		

> As a code official I determine if it meets the scoping requirements, I don’t involve myself into making the design of its appearances or the way it functions; I believe it’s the court’s decision to determine if the application is or non-discriminatory. Francis


Everyone that determines what equal facilitation is should, Spend a day in a wheelchair.

It will push the limits of frustration that you thought you can handle off the scale.

5 challenges to be completed by the end of the day.

 1. Go to the toilet. Just try to go to the toilet when you can't use your legs.

 2. Cross a challenging intersection.

 3. Go through a supermarket.

 4. Get something out of the store room at work.

 5. Get a coffee from the local cafe and bring it back to your office.

Your ideas of “equal facilitation” might change.

Now do the same thing with a blindfold on.


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## Papio Bldg Dept (Jul 9, 2012)

Francis Vineyard said:
			
		

> Each one of us has and will enforce differently from our own perspective of what’s best meets the intent. When the attorney said it depends; it's up to the courts and will ultimately be the owner's responsibility; even though everyone that touches it will be mentioned.Francis


Thanks for your input Francis.

I have informed the owner that I can not give her legal advice, and that our adoption of accessibility standards/codes and our enforcement of them is to provide usable and accessible environments for both the public and employees as well as afford them a baseline for compliance with the ADA.  I can not give her advice on playing the percentages with the DOJ or a customer, however we base our interpretations and enforcement off of what we understand from training that will  provide readily accessible elements in a manner of equivalent facilitation.

While it is not specifically addressed/required by the scoping or standards, my training under legal aspects of the ADA leads me to believe that this is not an acceptable provision for new construction or change of occupancy, and would be inconsistent with our enforcement policies.

Added to my boil on Friday was the fact that it was the third time that week someone had told me that they had "handicapped" friends who were okay with it as it was (one even had them attend a site meeting).  It all just smacked a little too much of an "ism."


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## Francis Vineyard (Jul 9, 2012)

Papio, I have had similar experience and the priviledge of an ADA coordinator in our office and the Independent Resource Center; (known by different names in different places) for advice. Though there have been several court cases about this install and interpretations from the hospitality associations and independent states with more restrictive code language than ADA; to my knowledge it has not been before the DOJ for further clarification.

There is a number on the DOJ website for technical advice.

Perhaps Mark will provide additional insight.

Francis


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## mark handler (Jul 9, 2012)

There is no process for certifying that an alternative design provides equivalent facilitation.

What you think is equivalent, may not be to a disabled person.

Is waiting for an employee to fold up a counter so you can write a check equivalent? How bout when twenty people are in line waiting for you ....How does that make you feel, Equal?


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## Papio Bldg Dept (Jul 9, 2012)

mark handler said:
			
		

> Everyone that determines what equal facilitation is should, Spend a day in a wheelchair.It will push the limits of frustration that you thought you can handle off the scale.
> 
> 5 challenges to be completed by the end of the day.
> 
> ...


Nice list mark.  I wouldn't be able to leave our block.  The cross slopes at the intersections would send me right out into heavy traffic.  We bring a wheelchair for our final inspections on large commercial inspections or where compliance is an issue.  It is usually a wake up call for the contractor's if not the owner/tenant.


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## Papio Bldg Dept (Jul 9, 2012)

I have contacted technical assistance.  I am waiting to hear back.


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## Jim B (Jul 9, 2012)

*The counter shall be independently usable by a disabled individual:*

_ANSI A117.1-2003;101 Purpose The technical criteria in Chapters 3 through 9, and Sections 1002, 1003 and 1005 of this standard make sites, facilities, buildings and elements accessible to and usable by people with such physical disabilities as the inability to walk, difficulty walking, reliance on walking aids, blindness and visual impairment, deafness and hearing impairment, incoordination, reaching and manipulation disabilities, lack of stamina, difficulty interpreting and reacting to sensory information, and extremes of  physical size. __The intent of these sections is to allow a person with a physical disability to independently get to, enter, and use a site, facility, building, or element__._

*A Flip up/ down counter may not provide operable hardware that meets grasping and force requirements:*

_ANSI A117.1-2003; 309.4 Operation. Operable parts shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts shall be 5.0 pounds (22.2 N) maximum._

*What is the counter height in the flipped down mode? I would believe that the height of the counter is now infinite. The accessible portion is never given a range of height above 36” AFF*

*Also, the accessible portion is required to extend from front to back at this 36” height. How can this be achieved if there is a “bump up” beyond this 36” maximum counter?*

_ANSI A117.1-2003; 904.3 Sales and Service Counters. Sales and service counters shall comply with Section 904.3.1 or 904.3.2. __The accessible portion of the countertop shall extend the same depth as the sales and service countertop__._

_ANSI A117.1-2003; 904.3.2 Forward Approach. A portion of the counter surface 30 inches (760 mm) minimum in length and 36 inches (915 mm) maximum in height above the floor shall be provided. A clear floor space complying with Section 305, positioned for a forward approach to the accessible counter, shall be provided. Knee and toe clearance complying with Section 306 shall be provided under the accessible counter._

_ANSI A117.1-2003; 904.3.1 Parallel Approach. A portion of the counter surface 36 inches (915 mm) minimum in length and 36 inches (915 mm) maximum in height above the floor shall be provided. Where the counter surface is less than 36 inches (915 mm) in length, the entire counter surface shall be 36 inches (915 mm) maximum in height above the floor. A clear floor space complying with Section 305, positioned for a parallel approach adjacent to the accessible counter, shall be provided._


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## Papio Bldg Dept (Jul 9, 2012)

I spoke with Region VII ADA Center, and clarified that it is an acceptable (or rather specifically prohibited) design in terms of the 2010 Standards for Accessible Design Guide, however, it is not preferred.  It also has to be attached to the adjoining cabinetry, and not an adjacent wall from which it can swing down and attach to the cabinetry.  Semantics.

I have one more call to make to the DOJ, and will post what I hear back from them.

Thanks for all your input.


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## Papio Bldg Dept (Jul 9, 2012)

Jim B said:
			
		

> *The counter shall be independently usable by a disabled individual:**What is the counter height in the flipped down mode? I would believe that the height of the counter is now infinite. The accessible portion is never given a range of height above 36” AFF*
> 
> *Also, the accessible portion is required to extend from front to back at this 36” height. How can this be achieved if there is a “bump up” beyond this 36” maximum counter?*


The proposed design is calling for a counter that flips up and has a supporting leg fold down as it goes up, technically making approved for both a forward and parrallel approach.  As a former designer, there is not much I like about this approach/loop-hole/interpretation, but as a plans examiner, it does not need to meet my design criteria/interpretation, it simply has to meet the code _minimum_ and BCO's interp.  If it is approved, I will require a letter from the owner/tenant noting that the alternative design is not approved/certified for equivalent facilitation, nor is it readily accessible, and that her staff will be trained to raise the counter and not place objects (display cases, chairs, etc.) in this area.


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## mtlogcabin (Jul 9, 2012)

If this flip up counter is part of the staffed checkout counter I would not have a problem. However if it is in a self service area of the store then absolutly not for the reasons noted above.


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## mtlogcabin (Jul 9, 2012)

> How does that make you feel, Equal?


Feelings, nothing more than feelings,

Trying to forget my feelings......

Did not know that the ADA was based on feelings.


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## Francis Vineyard (Jul 9, 2012)

Papio I look forward to the reply either way to see if it's consistent.

The new 2010 SAD retains the concept in section 103 Equivalent Facilitation 

â€œNothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.â€�

There is a grey advisory text box immediately below this that indicates in the case of a challenge, the burden of proof rests with the covered entity. However, these grey text boxes are not to be considered as establishing enforceable requirements. 

In 1991, 7.2(2) Sales and Service Counters required a transaction counter at a public accommodation to be 36â€� wide minimum and no higher than 36â€� above finished floor. However, in 7.2(2)iii Equivalent Facilitation provided 3 examples which included a folding shelf, the use of the space at the side of the counter, or at the concierge desk for handing materials back and forth. It was also, typically agreed that a clip board could be provided as a means of Barrier Removal. In my opinion, there is a significant difference between a 36â€� wide granite countertop in line with other stations compared to a flip up counter; a counter at the end/around the side of the main counter; or a clip board, but all of these were considered acceptable. 

In 2010, the concept of Equivalent Facilitation is preserved in the text, but when pressed, DOJ Tech line operators appear to be extremely hesitant to acknowledge the concept when Pool Lifts are discussed. Specifically, they could not address the technical merits between a porta

http://www.adaconferences.org/ADAAA/Questions/

The contents of this website were developed under award #H133A110029 from the U.S. Department of Education through the auspices of the National Institute on Disability and Rehabilitation Research (NIDRR). However the contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal government. The contents are solely the responsibility of the Great Lakes ADA Center and do not necessarily represent the official views of any other agencies. © 2012

Francis


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## Big Mac (Jul 9, 2012)

Pappio said - "The proposed design is calling for a counter that flips up and has a supporting leg fold down as it goes up, technically making approved for both a forward and parrallel approach. As a former designer, there is not much I like about this approach/loop-hole/interpretation, but as a plans examiner, it does not need to meet my design criteria/interpretation, it simply has to meet the code minimum and BCO's interp. If it is approved, I will require a letter from the owner/tenant noting that the alternative design is not approved/certified for equivalent facilitation, nor is it readily accessible, and that her staff will be trained to raise the counter and not place objects (display cases, chairs, etc.) in this area."

My question would be, can the disabled person push a button and make this writing surface appear in a useable form, or does it need to be manually changed by an employee or other assistant?  I think the real key here is whether or not equal access has been provided as is usually the case.  If there is no equal access without assistance I think there is a problem.  There are design standards for elevators, swim lifts, etc. etc. etc.  Almost always it comes down to the issue of whether the disabled person can accomplish said task without assistance.

That would be a big key for me.


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## Papio Bldg Dept (Jul 9, 2012)

Francis Vineyard said:
			
		

> Papio I look forward to the reply either way to see if it's consistent.


The three examples are well noted, but I have a hard time applying them in new construction and change of occupancy.  The part of this that really makes it a moot point, and one I haven't heard brought up yet, is that there is no guideline or requirement to keep this area clear of equipment or displays.  The whole thing could be taken up with cash registers, visa machines and slim jims.


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## north star (Jul 9, 2012)

*= + =*





> "If this flip up counter is part of the staffed checkout counter I would not have a problem..........However if it is in a selfservice area of the store then absolutly not for the reasons noted above."


I concur with mtlogcabin in that if this "fold down / up" counter

is staffed and not at an independent location within the store,

then I would think that equivalent facilitation and access has

been met.

IMO, if 20 other people are in line behind the one in the wheel

chair / crutches / limited sight abilities, then they can just

wait, or the store can have additional cashiers to assist, or

even the store manager.

Papio,

There is no way to ensure that additional stuff won't be

crammed is various spaces, even when the elements and

design are compliant.......The ensuring that access, at all times,

is provided is up to the DOJ.

*+ = +*


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## Papio Bldg Dept (Jul 10, 2012)

Spoke with both Region VII and the access-board TA, and they concur that, while this is a less than ideal situation, there is nothing in the standards to prohibit this installation, however, they noted that these are the minimum standards and an AHJ can reserve the right to require more than the minimum and may choose stricter enforcement to remain consistent within their jurisdiction.  It was also noted that the fold-up/down counter be attached to the sales counter element and not an adjacent wall, and meet the requirements for graspable objects and maximum forces for staff operating the fold-up/down counter.

They also noted that meeting the minimum standards does not guarantee protection from the claims filed in regards to the ADA, and that the business owner is ultimately liable.

According to TA, equivalent facilitation is conceptually directed towards functions, services, and events, and not towards singular elements.

I will discuss this internally to see how we want to proceed and recommend that if we do accept the proposed design we require a letter of acknowledgement and operations regarding this alternative design.

Thanks for all of the input.


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## Francis Vineyard (Jul 10, 2012)

Francis Vineyard said:
			
		

> Papio I look forward to the reply either way to see if it's consistent.


That answer from TA is what I meant to see if it's consistent.

Thanks

Francis


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## north star (Jul 10, 2012)

*+ = +*

Papio,

Thanks for the update!

*+ = +*


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