SCOTT JOHNSON v. STARBUCKS CORPORATION - AMICUS BRIEF

I. BACKGROUND

A. Title III of the ADA and its Implementing Regulations

Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Discrimination includes a failure to design or construct facilities, or make alterations to the maximum extent feasible, that are “readily accessible to and usable by individuals with disabilities . . . in accordance with standards set forth or incorporated by reference in regulations” issued under Title III. Id. § 12183(a)(1)-(2).

The ADA directs the United States Attorney General to promulgate implementing regulations and, with respect to physical access, to ensure consistency with the minimum guidelines and requirements of the Architectural and Transportation Barriers Compliance Board, now known as the Access Board. Id. § 12186(b)-(c). The Title III regulation details how places of public accommodation and commercial facilities are “to be designed, constructed, and altered in compliance with the accessibility standards” set out in the regulations. 28 C.F.R. § 36.101(a). The ADA Standards for Accessible Design (ADA Standards), comprising both the 1991 Standards and 2010 Standards, set out the relevant accessibility standards for evaluating compliance with the statute and regulation. See 42 U.S.C. §§ 12183, 12186; 28 C.F.R. §§ 36.102; 36.304(d) and Subpart D.

B. The ADA Standards for Accessible Design

The Department has promulgated two sets of ADA Standards. The 1991 Standards were published on July 26, 1991, and are contained in Appendix D of the Title III regulation. 28 C.F.R. pt. 36, App. D. The 1991 Standards are based on the Access Board’s ADA Accessibility Guidelines (1991 ADAAG), which were published the same day. The Access Board issued updated ADA Accessibility Guidelines in 2004 (2004 ADAAG), with the goal of harmonizing existing federal accessibility standards and model building codes. See 36 C.F.R. pt. 1191. The Department promulgated the 2010 Standards on September 15, 2010.

The ADA Standards cover “fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site." 28 C.F.R. § 36.406(b); see 28 C.F.R. pt. 36, app. A at 860-61 (Section 36.406(b)). They establish the minimum scoping and technical requirements for a facility or part thereof to be “readily accessible to and usable by individuals with disabilities.” 2010 Standards, Overview, § 101.1; see generally 1991 Standards, § 4 (setting out scope and technical requirements for accessible elements and spaces). The ADA Standards do not address, however, every conceivable disability impact in a physical space. Rather, they are designed to provide a convenient degree of access for most people with disabilities to approach, enter, and use a facility. See H. R. Rep. No. 101-485, pt. 2, at 117-18 (1990) (noting that “the term [readily accessible to and usable by] contemplates a high degree of convenient accessibility, entailing accessibility of parking areas, accessible routes to and from the facility, accessible entrances, usable bathrooms and water fountains, accessibility of public and common use areas, and access to the goods, services, programs, facilities, accommodations, and work areas available at the facility”).

The determination of whether a feature or element of a covered facility complies with the relevant ADA Standards begins with the scoping requirements set forth in Chapter 2. As relevant here, Section 227.1 states that, “[w]here provided, check-out aisles, sales counters, service counters, food service lines, queues, and waiting lines shall comply with 227 and 904.” 2010 Standards § 227.1. Section 227.3 further specifies that “[w]here 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.” 2010 Standards § 227.3. The advisory to Section 227.3 addresses scenarios where one counter is used to provide multiple services:

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.

2010 Standards § 227.3 Advisory.¹

Chapter 9, entitled “Built-In Elements,” sets out the technical requirements for sales and service counters. See 2010 Standards, Chapter 9. Section 904.1 generally mandates that “[c]heck-out aisles and sales and service counters shall comply with the applicable requirements of 904.” 2010 Standards § 904.1. Section 904.2 requires that “[a]ll portions of counters required to comply with 904 shall be located adjacent to a walking surface complying with 403.” 2010 Standards § 904.2. The advisory to Section 904.2 further specifies that, “[i]f a cash register is provided at the sales or service counter, locate the accessible counter close to the cash register so that a person using a wheelchair is visible to sales or service personnel and to minimize the reach for a person with a disability.” 2010 Standards § 904.2 Advisory.

Section 904.4 provides additional technical requirements for sales and service counters. It requires that “[s]ales counters and service counters” designed to accommodate a parallel approach by a person in a wheelchair “shall comply with 904.4.1,” and further directs that “[t]he accessible portion of the counter top shall extend the same depth as the sales or service counter top.” 2010 Standards § 904.4.

Section 904.4.1 provides:

Parallel Approach. A portion of the counter surface that is 36 inches (915 mm) long minimum and 36 inches (915 mm) high maximum above the finish floor shall be provided. A clear floor or ground space complying with 305 shall be positioned for a parallel approach adjacent to the 36 inch (915 mm) minimum length of counter.

EXCEPTION: 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.

2010 Standards § 904.4.1.

Thus, the relevant 2010 Standards address only limited aspects of sales and service counters: the counter's height and length and the required clear floor space based on the available approaches for people who use wheelchairs or other mobility devices. Sections 227 and 904 of the 2010 Standards do not address any other aspects of sales and service counters. 2010 Standards §§ 227, 904.4.1.

C. Defendants' Transaction Counter

"The parties agree" that at "the subject facility, defendant Starbucks has one continuous transaction counter, uniform in height and depth, designed for customers using wheelchairs to make a parallel approach.” ECF 106 at 1. “Two cash registers are located on the transaction counter and adjacent to each cash register is space provided for customers to make their transaction.” Id. at 1-2. “The transaction counter is also used to display merchandise.” Id. at 2. “The counter uniformly measures less than 36 inches high.” Id. The submissions from the Court and the parties do not clearly state the length of the transaction counter as built. See id. But “[b]ecause of the cash registers and merchandise displays . . . defendant does not provide a 36-inch-long clear counter surface.” Id.