Letter 213

February 10, 1998

David A. Copus, Esquire

Jones, Day, Reavis & Pogue

Metropolitan Square

1450 G Street, N.W.

Washington, D.C. 20005

Dear Mr. Copus:

I am writing in response to your letter of January 8, 1998, concerning the application of title III of the Americans with Disabilities Act of 1990 (ADA) and the Department's regulations implementing title III, 28 C.F.R. pt. 36, to the operation of retail stores. Specifically, you asked if the Department of Justice interprets Section 4.1.3(12)(b) of the Standards for Accessible Design ("Standards")⁽¹⁾, 28 C.F.R. pt. 36, App. A, to require an accessible route to both fixed and movable display units in retail stores.

The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. Pursuant to that authority, this letter provides informal guidance to assist you in understanding the ADA. However, this technical assistance does not constitute a legal interpretation of the statute, and it is not binding on the Department.

Section 36.406 of the title III regulation, which implements section 303 of the ADA, requires new construction and alterations subject to the ADA to comply with the Standards. Because the ADA Standards establish the requirements for the construction or alteration of a covered building or facility, the Standards apply only to "fixed" building elements -- not to movable furniture or equipment.⁽²⁾

The specific provision about which you inquire, Section 4.1.3(12)(b) of the Standards, requires that "Shelves or display units allowing self service by customers in mercantile occupancies shall be located on an accessible route complying with 4.3." Standards, § 4.1.3 (12)(b). The ADA Standards require an accessible route -- i.e. one that complies with Section 4.3 of the Standards - connecting "accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site." Standards, § 4.1.2. Thus, for example, in a newly constructed mercantile establishment, a 36-inch wide, unobstructed path must be provided between the accessible front entrance and the store's fixed display racks.

Because the Standards set the requirements for new construction elements that are fixed, section 4.1.3(12) does not extend to movable units. The reference in subsection (a) of the same section to "fixed or built-in storage facilities," should not lead to the inference that subsection (b) is not limited to fixed units. It has consistently been our view, that the Standards only ever cover "fixed or built-in" units, not the movable items within a building. The redundant use of "fixed" in subsection (a), and the lack of the terms "fixed" or "built-in" in subsection (b), lack any legal significance.

Compliance with the new construction requirements does not, however, exhaust a covered entity's obligations under the ADA. Retail businesses, as places of public accommodation, are also required, by Section 302 of the ADA and section 36.304 of the title III regulation, to undertake readily achievable barrier removal. Entities covered by the ADA must remove barriers to accessibility regardless of whether the facility is new construction or pre-existing. In addition, barriers must be removed whether they are movable or fixed. The Department's ADA title III regulation instructs businesses to remove barriers, specifically display racks, and that remains the longstanding and consistent position of the Department.⁽³⁾

Section 36.304 of the regulation includes 21 examples of modifications that may be readily achievable, including: "[r]earranging tables, chairs, vending machines, display racks, and other furniture." 28 C.F.R. 36.304(b)(4). In addition, the regulation explains that businesses may be required to provide accessibility by moving display racks: "Second [in order of barrier removal requirements], a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks..." 28 C.F.R. § 36.304(c)(2). see also, ADA Title III Technical Assistance Manual, Section 4.4100 (1993).

The Department has issued a series of technical assistance materials related to this question, including several "Question and Answer" documents, and other guidance, samples of which are attached. As the Guide To Small Businesses explains with regard to barrier removal,

Some businesses will have difficulty providing enough maneuvering space between all displays and shelving without a significant reduction in selling space that may substantially affect the profitability of the business. This fact can be considered in determining if it is readily achievable to provide access to all sales areas. If access is not provided to all sales areas, then alternative services such as having staff available to retrieve items, must be provided, if doing so is readily achievable. Guide at 10.

The Department's interpretation of requirements for movable display racks is consistent with congressional

intent expressed in the House Education and Labor Committee's Report:

This section may require the removal of physical barriers, including those created by the arrangement or location of such temporary or movable structures as furniture, equipment, and display racks. For example, a restaurant may need to rearrange tables and chairs, or a department store may need to adjust its layout of display racks and shelves, in order to permit access to individuals who use wheelchairs, where these actions can be carried out without much difficulty or expense.

The purpose of this provision is to provide individuals with disabilities access to a representative selection of merchandise available in a department. The committee does not intend that a department store separate each and every display fixture in order to provide wheelchair clearance maneuverability. It is sufficient if a customer who uses a wheelchair is able to determine, once in a department, that the store offers, for example black leather jackets. Once that is determined, the customer can rely upon a salesperson to retrieve a black leather jacket in the customer's size.

H.Rep. 101-485, Part 2; 101^st Cong. 2d Sess. 110 (May 15, 1990).

In sum, the ADA requires that accessible paths be provided to all fixed racks and shelving in new construction, and that accessible paths be provided to movable racks to the extent that it is "readily achievable" to do so. Under this obligation, a retail store must analyze which of its removable racks constitute barriers and in what numbers such racks can be readjusted to permit access to persons who use wheelchairs, without much difficulty or expense. This determination is, of course, heavily fact specific and must be made on a case-by-case basis. Factors that should be considered in this analysis would include, but not be limited to, how many movable racks and display units intrude on accessible paths, and the impact on sales volume of the loss of selling space created by widening aisles and removing racks and display units. The Department has not established a mathematical formula for making that determination. Nor are we currently aware of any judicial determinations on the topic.

Attachments:

ADA Title III Technical Assistance Manual,

November, 1993

ADA Guide to Small Businesses

May, 1997

Title III Highlights

ADA Questions and Answers

cc: Mr. Larry Paradis, Esq.

Disability Rights Advocates

449 15^th Street

Suite 303

Oakland, California 94612

(Via Federal Express)

1. Section 4.1.3(12)(b) provides:

Shelves or display units allowing self-service by customers in mercantile occupancies shall be located on an accessible route complying with 4.3. Requirements for accessible reach range do not apply.

2. The preamble to the ADA Accessibility Guidelines issued by the Architectural and Transportation Barrier Compliance Board, which were adopted as the ADA Standards, states that: "These guidelines are intended to address only that equipment that is fixed or built into the structure of the building..." 56 Fed. Reg. 35415 (July 26, 1991).

3. The preamble to the final regulation published contemporaneously with the final regulation and the Standards provides:

The requirement to remove architectural barriers includes the removal of physical barriers of any kind. For example, Sec.36.304 requires the removal, when readily achievable, of barriers caused by the location of temporary or movable structures, such as furniture, equipment, and display racks. In order to provide access to individuals who use wheelchairs, for example, restaurants may need to rearrange tables and chairs, and department stores may need to reconfigure display racks and shelves. As stated in Sec.36.304(f), such actions are not readily achievable to the extent that they would result in a significant loss of selling or serving space. If the widening of all aisles in selling or serving areas is not readily achievable, then selected widening should be undertaken to maximize the amount of merchandise or the number of tables accessible to individuals who use wheelchairs. Access to goods and services provided in any remaining inaccessible areas must be made available through alternative methods to barrier removal, as required by Sec.36.305.

28 C.F.R. Part 36, App. B, p. 608 (1993) >