Do Bars Have to Have Accessible Seating AT the Bar?

This question is one of my favorites.  The ADA Accessibility Guidelines for Buildings and Facilities, written by the Access Board and published July 26, 1991, includes the following:

Chapter 5 Restaurants and Cafeterias.

5.2 Counters and Bars.

“Where food or drink is served at counters exceeding 34 inches in height for consumption by customers seated on stools or standing at the counter, a portion of the main counter which is 60 inches in length minimum shall be provided in compliance with 4.32 or service shall be available at accessible tables within the same area.”

The ADA & ABA Accessibility Guidelines; Final Rule, written by the Access Board and published July 23, 2004, with an effective date of September 21, 2004, includes the following:

Chapter 2 scoping requirements.

226 Dining Surfaces and Work Surfaces.

226.1 General.

“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.”

Chapter 9 Built-in elements.

902 Dining Surfaces and Work Surfaces.

902.1 General.

“Dining surfaces and work surfaces shall comply with 902.2 and 902.3.”

Advisory 902.1 General.

“Dining surfaces include, but are not limited to, bars, tables, lunch counters, and booths.  Examples of work surfaces include writing surfaces, study carrels, student laboratory stations, baby changing and other tables or fixtures for personal grooming, coupon counters, and where covered by the ABA scoping provision, employee work stations.”

The only mention of bars is found in Section 902.1.  The troubling words come from the 1991 ADAAG: “…or service shall be available at accessible tables within the same area.”  ACCESS was told 10 years ago that there was a civil court case in New York, and that ruling was that the experience of a bartender serving from behind the bar was not the same as a waitress waiting on accessible tables within the same area.  In the opinion of ACCESS, the guidelines are not definitive enough to answer the question; the answer is in PL101-336:

ADA Amendments Act of 2008.

Subchapter III Public Accommodations and Services Operated by Private Entities.

12182 Prohibition of discrimination by public accommodations.

(b) Construction.

(A) Activities.

(ii) Participation in unequal benefit. 

“It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”

In the opinion of ACCESS, sitting at an accessible table served by a waitress is not the same experience as sitting at a portion of an accessible bar being served by a bartender; thus, this is unequal benefit as defined in 36.202(b).

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Hank

The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.