Justice Department: Businesses Can Provide Less Than 36" Of Clear Sales/Service Counter Space If Counter Is At An Accessible Height

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Seyfarth Synopsis:  DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.

Retailers and other businesses should be pleased with the DOJ’s pronouncement on February 25, 2019, that they can lawfully provide sales/service counter space that is less than 36” long, as long as the entire space is at an accessible height of 36” or lower.  While we always thought the 2010 ADA Standards for Accessible Design (“2010 Standards”) were unambiguous on this point, plaintiffs filed many lawsuits claiming the ADA requires retailers to provide a minimum 36” length of lowered accessible counter that is entirely clear of all objects.  Courts have reached different conclusions, and now the DOJ has weighed in.

The DOJ’s statement came in the form of an amicus brief which Judge William Alsup of the Northern District of California had requested in connection with a pending motion for summary judgment.  The sales/service counter at issue in the case was at an accessible height (i.e., 36” or less above the floor), but did not provide a 36” length because it included items such cash registers and merchandise displays on the counter.  The DOJ stated that this counter complies with the Exception to Section 904.4.1 of the 2010 Standards because it is at a uniform accessible height, even if the space provided is not 36” long.  The DOJ also said that the placement of merchandise displays and a cash register on a sales/service counter that is 36” long does not violate the 2010 Standards because Section 904.4.1 “does not so much as mention, let alone prescribe any requirements regarding ‘clear’ counter space.”

While this DOJ pronouncement provides much needed clarification, businesses should consult their ADA Title III specialist attorneys before filling up their accessible lowered counters with anything more than a register and some merchandise displays, particularly if high counters are provided for use by non-disabled customers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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