Seyfarth Synopsis: The Ninth Circuit holds that the ADA does not require a 36 inch length of clear sales counter space when the entire counter provided for all customers is at an accessible height.
When a business provides only one sales counter for all customers to use and that entire counter is at an accessible height of 36 inches or less, does the ADA require that counter be at least 36 inches long and clear of all objects?
Earlier this week, deciding appeals in three separate cases handled by Seyfarth attorneys, the U.S. Court of Appeals for the Ninth Circuit said there is no such obligation. The Court cited the Exception to Section 904.4.1 of the ADA Standards for Accessible Design (the "2010 Standards") as clear regulatory support. The U.S. Department of Justice had reached the same conclusion about this counter configuration in an amicus brief it filed in one of these three cases before the judge granted summary judgment for the defendant, but the plaintiff still sought appellate review.
All three cases involved the same retailer which had covered a portion of the transaction counter with merchandise displays, rendering the counter less than 36 inches long. The Ninth Circuit concluded that the plain language of Exception to Section 904.4.1 of the 2010 Standards permits this: "Where the provided counter surface is less than 36 inches (915 mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum above the finish floor." In a footnote, the court said it was not opining on whether the Section 904.4.1 Exception requires any particular clear length of accessible counter - only that 36 inches of clear length is not required as demanded by the plaintiffs.
The plaintiffs in these cases also argued that the ADA regulation at 28 C.F.R. § 36.211(a) imposed a requirement on the retailer to maintain a clear length of 36 inches of sales counter. This regulation says: "A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part." The Ninth Circuit rejected this argument, stating that "the maintenance requirements cannot be more stringent than the building requirements" which do not require 36 inches of clear length.
Bottom line: Businesses can provide less than 36 inches of clear counter space as long as everyone is using the same counter and that counter is entirely at an accessible height.
Originally published June 18, 2020
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