SCOTT JOHNSON v. STARBUCKS CORPORATION - AMICUS BRIEF

II. DISCUSSION

The Court requested that the United States address the following questions:

1. Under the above-described circumstances, does ADAAG 904.4.1’s exception apply such that the sales counter need not meet ADAAG 904.4.1’s 36-inch length requirement?

2. If ADAAG 904.4.1’s 36-inch length requirement does apply, does a defendant violate this requirement by maintaining merchandise or other items on the counter top, thereby failing to maintain 36-inches of clear counter space?

ECF No. 106 at 3.

Section 904.4.1 does not mention, let alone require, that an entity provide any particular amount of “clear” counter space. In fact, a sales or service counter that is uniformly less than 36 inches high satisfies 904.4.1 or its exception. Such a counter satisfies 904.4.1 where it is at least 36 inches long and 904.4.1’s exception where it is less than 36 inches long. Accordingly, 904.4.1’s exception is available on the above-described facts and would be applicable if Defendants’ transaction counter is less than 36 inches long. Moreover, because 904.4.1’s length requirement does not mandate any particular amount of “clear” counter space, Defendants have satisfied that requirement if their transaction counter, as built, equals or exceeds 36 inches in length. Thus, in all events, Defendants’ failure to provide 36 inches of clear counter space does not violate 904.4.1, and Plaintiff’s claim to the contrary fails.

A. Question 1: Applicability of Section 904.4.1’s Exception

Section 904.4.1 and its exception both require that a sales or service counter be “36 inches (915 mm) high maximum above the finish floor,” and Section 904.4.1 further requires that a sales or service counter be “36 inches (915 mm) long minimum.” 2010 Standards § 904.4.1. In practice, comparing a long hotel registration counter to a short ticket window counter illuminates how Section 904.4.1 and its exception operate. Section 904.4.1 requires that a counter that is longer than 36 inches, like a long hotel registration counter, include a portion that is no more than 36 inches high and at least 36 inches long. But 904.4.1 does not require an entity to lengthen a shorter counter to at least 36 inches. Thus, in contrast, a counter that is less than 36 inches long, such as a 24-inch-long ticket counter at a stadium, falls within 904.4.1’s exception. In that scenario, the entire counter provided to all customers, including customers with and without disabilities, must be no more than 36 inches high. See generally id.

In other words, an entity satisfies Section 904.4.1 whenever it provides a sales or service counter that is of a uniform height of less than 36 inches. See generally id. Such a counter either equals or exceeds “36 inches (915 mm) long”—in which case it complies with Section 904.4.1—or is shorter than 36 inches long, in which case it satisfies the exception. Id. Thus, Section 904.4.1’s separate length requirement is triggered only where an entity provides a sales or service counter that is not less than 36 inches high across its entire length. See generally id.

Here, it is undisputed that Defendants’ transaction counter is a uniform height of less than 36 inches. ECF No. 106 at 1-2. Accordingly, Defendants have complied with Section 904.4.1 or its exception. See generally 2010 Standards § 904.4.1.

Thus, the answer to the Court’s first question is that 904.4.1’s exception is available in “the above-described circumstances,” and would be applicable if Defendants’ transaction counter is less than 36 inches long. ECF No. 106 at 3. If, however, Defendants’ transaction counter is equal to or longer than 36 inches as built, Defendants still have complied with 904.4.1 for the reasons explained below.²

B. Question 2: Section 904.4.1 and Clear Counter Space

Defendants have satisfied 904.4.1’s length requirement if their transaction counter, as built, equals or exceeds 36 inches in length. An entity does not violate the length requirement, where applicable, when it “maintain[s] merchandise or other items on the counter top, thereby failing to maintain 36-inches of clear counter space.” ECF No. 106. The inquiry into whether a sales or service counter satisfies Section 904.4.1’s length requirement turns on the length of the counter as built, not on the length of “clear” counter space. See 2010 Standards § 904.4.1. After all, 904.4.1 does not so much as mention, let alone prescribe any requirements regarding, “clear” counter space. See id. Nor would it make sense to construe 904.4.1 to imply such a requirement: 904.4.1’s exception expressly recognizes that a sales or service counter that is less than 36 inches long can satisfy Title III’s mandate to provide ready access and use to individuals with disabilities. See id.; 42 U.S.C. §§ 12182(a); 12183(a)-(b). 

Moreover, 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)) (“Application of Standards to Fixed Elements”). Accordingly, Section 904.4.1’s counter length provision applies to the entire fixed or built-in sales or service counter, regardless of what items are placed on the counter, and not just the clear counter space offered to customers for conducting transactions. 28 C.F.R. § 36.406(b); see 28 C.F.R. pt. 36, app. A at 860-61 (Section 36.406(b)) (“Application of Standards to Fixed Elements”). Section 904.2’s Advisory further directs that, when a cash register is set on a sales or service counter, it should be located where people with disabilities can reach the cash register and where they are visible to sales or service staff. See 2010 Standards Advisory 904.2 Approach; see also 28 C.F.R. pt. 36 app. B at 929 (“A parallel approach to sales and service counters also can provide the accessibility required by the 2010 Standards. Individuals using wheelchairs can approach sales and service counters from the side, and, assuming the necessary elements, features, or merchandise necessary to complete a business transaction are within the reach range requirements for a side approach, the needs of the individuals with disabilities can be met effectively.”). Thus, Defendants’ alleged failure to include 36 inches of clear counter space would not violate Section 904.4.1 in any event.