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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.


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