DEVELOPMENT ADVISORY BOARD

Modification Appeal Hearing Minutes

Applebee's/4609 E Chandler Boulevard

Mr. Pete Hemingway, DAB Chairperson, convened the meeting at 3:05 p.m.

Pete Hemingway:
At this time I'd like to call this public hearing to order.

We have two items on our agenda today. The first being Applebee's, a modification appeal hearing. Applebee's is located at 4609 East Chandler Boulevard in Phoenix.

The issue is to create an accessible bar service counter location that meets all current City of Phoenix regulations on accessible codes as adopted for accessibility in a bar environment. The representative for the staff will be Mr. David Sandvig. For the applicant will be Mr. Rahib Sarela. Ten minutes will be allotted for David followed ten minutes for the applicant. At that time, if we have any community input we will hear them at that time. We will then have a five minutes summation by David, along with five minutes for the applicant. Following the presentation, we can have open board discussion. Please show respect for the time and if you are presenting a presentation, please state your name and who you are representing for the record. David Sandwig

David Sandvig:
Good afternoon, my name is David Sandvig. I work for the City of Phoenix and am the Building Code Reviewer for the Applebee's project at 4609 East Chandler Boulevard.

As we just heard the issue today is to create an accessible bar service counter location. This means all current City of Phoenix regulations and accessible codes has adopted for accessibility in a bar environment. The key phrase here is "all current City of Phoenix regulations and accessible codes." The bar environment is unique in the fact that it is a place where patrons can go for food or refreshments and at the same time talk with other patrons, the bartender, or just to watch the ball game on TV.

An equivalent atmosphere cannot be achieved in an adjacent table.

As a reviewer, I have been mandated to review all projects based on the Uniform Building Code. Section 1101.3 states that for a building to be considered to be accessible it shall be designed and constructed to the minimal provisions of this chapter or in accordance with the Attorney General Administrative Rule R10-38401-404.

The code writes that the greatest degree of accessibility is the Uniform Building Code. In Chapter 11, specifically Sections 1105.4.2 and 1105.4.4.2.

Section 1105.4.2 states when fixed or built in seating or tables are provided, at least 5% but not less than 1% shall be accessible in dining and drinking establishments subseating or tables shall be distributed throughout the facility.

Section 1105.4.4.2 states where customer sales and services counter a window shall be provided. A portion of the counter or at least one window shall be at accessible.

Both these sections are written in mandatory language. This cannot be varied unless granted by the Building Official through the Modification process. This has been through the process and was denied.

The solution that was proposed was a flip-up type shelf that would require a staff member to clear the area at set it up special for a handicapped patron. This solution is more of a fix for an existing condition and is the Building Official opinion that simply lowering a 30 inch section of the bar surface would not comply to 34 inches, and providing the required knee clearance is neither or unusual or unreasonable in new construction.

Pete Hemingway:
Thank You, David. Rahib

Rahib Sarela:
My name is Rahib Sarela with Will Hayes Architects. What I would like to do is present Mr. Bill Hillard. He is the Executive Vice President and councel for Applebee's.

Bill Hilliard:
My name is Bill Hillard. Thank you for coming here today. I would just like you to know that we have 79 Applebee's in seven sates. We have 22 of them here in Arizona. We really like Phoenix. This will be our 18th Applebee's here in Phoenix. We really like Phoenix and we are all, even though this appears to be an adversarial type thing, we're all on the same team. It's our hope and wish that our restaurants will be as accessible as possible as necessary. We want to maximize our number of guests, obviously that is our intention.

Our intention is to have the best atmosphere throughout the whole restaurant that we can. We want to be accessible to the handicap. This is consistent with our goal of having an Applebee's Restaurant, as we are required to have Applebee's International. Applebee's international establishes the design for our bar and requires what equipment needs to be behind the bar and things like that.

The Building Inspector, and all due respect to Rick Doell and David Sandvig, we would assert that 1105.04 is exactly what we're showing in our case. (Pointed to a drawing of the Restaurant) It deals with bars and restaurants. 1105.4.4.2 deals with sales and service counters. Now the term "sales and service counters" is not defined in the Uniform Building Code. However, the words "sales and service counters" that is a term point in Architectural terms.

What we're handing out to you now, is a copy of the ordinance that outlines sales and service counters. Those exact words. Attached to that, as the second page, is a copy of the ADA Accessibility Requirements for bars and restaurants. It's very, very specific and we do comply. Excuse me, counters and bars.

We contend that 5.2 of the ADA is exactly the same thing as it's covered 1105.4.2. The next provision, 1105.4.4.2. is entitled sales and service counters. The third page of what I handed out to you is the ADA regulation for sales and service counters. Notice that it uses the exact same words "sales and service counter". If you look down there, it talks about what are examples of sales and service counters. Paragraph number 1 talks about department stores and miscellaneous retail stores where counters have cash registers and are provided for sales or distribution of services. Paragraph number 2 talks about at ticketing counters, counter stations at a bank, registration counters in hotels and motels, box office ticket counters, and other counters that may not have a cash registers, but where services are sold.

We would submit that 1105.4.4.2 complies those types of sales and service counters. It is not intended to pertain to bars and restaurants. Instead 1105.4.2 does, in fact, deal specifically with dining in a restaurant establishment. It allows alternative seating anywhere in the bar area.

I'd like to direct your attention up here for a minute (Mr. Hillard points to a drawing of the Applebees restaurant). This is the bar area of one of our Applebees restaurantds and they all look the same or potentially the same. We have handicapped seats at this table and it doesn't show on here, but we have another table that has a handicap seat in it.

We would submit first and foremost that we don't have to have any area at all at the bar accessible for handicap. Not that we don't want to. We're just saying in a strict reading of the regulations we don't have to have anything. What we're submitting, as Jeff talked about it, the specifics of it, is an area right here (points to the bar area), where we would have a flip out table or counter that would be accessible right here. This is in an especially selected location for it. I think that we have a drawing that will show you exactly what we're proposing to do.

Very briefly we would submit that we don't have to have any area of the bar, but even if we do have to have the area, we have submitted that we will put this area right at the tip, towards the corner of the bar.

Jeffrey Will, Will Hayes Architects:
Good afternoon. My name is Jeffrey Will and I'm with the firm of Will Hayes Architects. We're currently involved in several restaurants. We have come across this issue in several of the cities in the metropolitan Phoenix area. The City of Phoenix is currently taking this stance of absolutely requiring the lowered section at bars. We're finding big problems with that. I'll give you some examples in a minute.

Because of that requirement there is a strict interpretation of the code that the City has interpreted as a mandatory statute that any bar you have must have, at the bar itself, a lowered section. We have found out in restaurants, just recently I was in a restaurant at Central and Camelback, the lowered sections are not being utilized properly. We find right now that the realistic approach that lower bar sections are becoming clutter points. Dirty dishes are being put there. Napkin set ups for the tables at the bar are being put there. It's not a useable, practical situation.

What we're trying to do is correct that from now on, especially in the City of Phoenix. We've been successful so far in the City of Scottsdale and a few other cities. That is to provide when you have a bar area, then you have a different circumstance. When you have just a plain bar, and that's all you've got is a bar, you have to do something like this. You've got to do what the cities interpretation is. You have to lower the section down, you have to have a flip or something. You have to create that condition. But, if you follow the strict interpretation of ADA and the state code, which is 5.2, which addresses counters and bars. This points out when you have a bar area, which has a bar this is a defined area that has tables in that bar, that the arrangement can be made, and the specific terminology is that you provide either a lower section at the bar or accessible tables in the bar.

Now we're trying to think of a practical approach to this, because we think that's the most important thing. How to accommodate accessible patrons in the most practical way?

What we find is the following:
If you have just the bar section and the code requires that it's just one seat 30 inches wide for a person, if you do that, it's very uncomfortable in terms of a group or several people. What if two handicapped people come in? We're trying to find a way to accommodate all the variables that occur in a social environment in the bar.

For example, if there is several people that need accessibility, we have tables. Those tables can be lowered down and two, three, or four handicap patrons or accessible patrons can then have their capabilities in the bar area. If we have a person who needs accessible space and he's with friends, we have lowered chairs. We bring the chairs around, the table goes down, and they all can be together.

If we have a single person and they want to sit at the bar, we've gone the next step. We've gone beyond what we think the code is. We've provided an area at the bar that's truly part of the bar. If you notice on the drawing, it's right at the corner. It works extremely well. By having that corner sectioned, we have a fold down at bar height that meets all the requirements for code in terms of knee distance, in terms of the top bar, everything is met. Now you have a way of actually having that person sit at the corner of the bar. If he's with a friend he can have eye contact, he can talk to them, he has all of the features that any of the other bar people have. For example, they can watch TV, they can communicate with the bartender, the can communicate with people at the bar because of the forward position, and being part of the overall bar social environment.

This has been very difficult to convey in some cases. Not just the City of Phoenix but other Cities as well, have taken a strict, what they feel is an interpretation of the code, and first of all we feel that they have misrepresented the code, it doesn't say that. It's clear in our minds, and I hope it's in your minds clear, that it doesn't say that. That you have the option of an accessible table, you have met the handicapped requirement, you have met the accessibility requirement.

Furthermore, we're taking a practical approach to make sure that we're going to accommodate any of the patrons that could possibly come in that needs the accessibility requirement by having the lower table and fold down bar section.

Bill Hilliard:
(Distributed a copy of the bar to the Board.) I'd like you to look at the top drawing. There are two things that I'd like to point out. We've located the accessible counter in an area where if someone's sitting there, they have the least amount of interference of everyone else in the bar. This is the widest area of the aisle space in our bar area. Second, I think this is more importantly, if you look at the dotted lines that are going around that diner, he is in the line of sight. He is in front of actually other people sitting at the bar. Instead of being at the bar behind them because of the 19-inch clearance, we've located it so that he is actually equal to or in front of the diners that would be on either side of him. We think that would be inclusive, that would be including him in the bar environment, as opposed to putting him down on the somewhere. We've selected that area because it's the widest area with the most open space in the bar. He or she can see three television sets from that spot. He is right across from the sales station is and is immediately accessible for the bartender and he/she is in the line of site of the diners or guests that comes in from either side.

One last thing that I'd like to say, that we consider a drawback for the lowered bar area, is that able-bodied customers can reach over into the back of the bars. In our bars we have beer sitting in coolers back there. We have open bar flippers, we have blenders, we have other things in there and we would want to not allow other patrons to be able to reach over and grab behind the bar and help themselves to the bar equipment and alcohol.

Jeffrey Will:
Do you have any questions? We are finished with our presentation.

Pete Hemingway:
Right now we're opening it up to discussion. Do we have any community input or anyone that would like to make any statements? At this time we will allow 5-minutes of summation by staff. Followed by 5-minutes for the customer. After that time we will open it up to questions.

David Sandvig:
First of all, the areas of the code where they're saying meets the state code. They are correct it does meet the state code, but it does not meet the strictest code, which is the building code. That is what we're going on.

We do view the bar as a built in table or counter and it does provide a service. The proposed solution for the bar we still view as a fixed or an existing non-compliant condition rather than a good design or new construction. There really is not an apparent reason why a solution that complies with the code cannot be achieved. This is brand new construction, the objective is not to fix a bar that has not even been built yet, but to create one that works and meets the intent of the building code. The presented solution does not meet the intent as we view it.

Bill Hilliard:
I would want to point out that we do believe that the sales and service counter, although not defined in the building code, it is clearly consistent with those definitions in the ADA regulations. I would, also, point out that the next section in the Uniform Building Code talks about checkout aisles. In the next section in the ADA is checkout aisles.

So these terms of ours, that they use in the building code, are identical to the terms that are used in the ADA. We think that this would clearly indicate that the overall planners had an intention that this particular section 1105.4.4.2 would not be applicable over and above this specific section that's in the building code that talks about restaurants, bars, and dining areas.

With respect to this solution, underneath our bar we have equipment that is required by Applebees International. We have to have a certain width of aisle way for a bartender to work back there. It makes it difficult for us to move and would be impossible to keep that same equipment in there and move the bar area down. We believe that the location that we set forth here in the corner (pointing to a map) achieves, even if we are required to comply with 1105.4.4.2, we believe that what we're proposing here is a very, very acceptable and workable solution. We would certainly submit that it should be approved.

Ben Barcon:
As a point of clarification on the design, did it say somewhere in here that the tables were adjustable up and down?

Bill Hilliard:
Yes. In the handout that I handed out, you'll see that there are two tables in our bar area. We're only required to have one, but we do on every bar where these tables telescope down. We also have four accessible tables to the regular dining area of the bar. So these two tables will go down. That is what we are using in virtually all of our other restaurants.

Ben Barcon:
David, if this were an existing bar would the flip down counter be acceptable.

David Sandvig:
It's a possibility. If it were an existing condition and you were trying to make it better. But this is brand new construction.

Ben Barcon:
How do you respond to the definition of counter and windows.

David Sandvig:
This is a counter. It's a built in counter with a bar service and the bartender is providing a special service to the patrons at that counter.

Ben Barcon:
Is there some precedence or is there some definition someplace that we can refer to that will tell us that? I mean, I see the point where we are talking about windows and thins like that. Is there a definition someplace.

David Sandvig:
This is a counter providing a special service. It is a unique atmosphere.....(very faint on tape... could not hear the end comment)

Judy Pavsek:
You were saying it is a counter, yet the ADA code does call a counter and bar, they call them counters there too. They are complying with the ADA.

David Sandvig:
Yes, they still would be complying with ADA. Our code mandates the strictest of three accessible codes. The strictest is the Uniform Building Code.

Judy Pavsek:
Do you consider the restaurant a customer service facility.

David Sandvig:
Yes, with a bar.

Larry Litchfield:
Why are there differences between those three codes if they're all trying to achieve the same purpose?

David Sandvig:
I believe the Uniform Building Code is actually new to the accessibility and I think this is the first time that we've put to the test. They want to make it about the minimum requirements of others. They want to go to the next step and make it better.

Larry Litchfield:
So ADA is older than .....

David Sandvig:
Yes

Larry Litchfield:
OK. So all three of them are referenced in the code. The language is in there for some and the reference to ADA is in there for the rest of it and where ever those requirements are in conflict the most restrictive shall apply. Is that how it works?

Jeffrey Will:
I'll respond to that if you don't mind, I just want to say one thing. If you follow what David is saying and you follow the strict point of the code you would have just a 30-foot inch wide section when we're done with the bar. That is a very uncomfortable situation. It's not workable, it's not good, and it's not in the best interest of the patrons. So we're trying to take another step and that's where we fall into the ADA requirement, which gives us the leeway to put tables in and have accessible tables.

Gary Coley:
Does this basically, I guess I'm asking this of the whole, is this a point of definition of whether we're applying the counters and windows definition as opposed to the other definition of this. I've built lots of reception areas and service counters where the people have to come to "a spot" to sign in or whatever part of business they doing and they don't have the alternative unless you physically take them to another room, which some companies do as an accommodation. If you weren't serving individual people and you had to go to a window and get your drink, I guess I could see a definition of calling a bar under the counters and windows, but it's just a higher seating area than the other tables and stuff around there.

I guess I'm confused about whether this hinges on is it 44.2 or 542 (Referring to 5.2, 1105.4.2 or 11054.4.2) To me this seems to be a key issue. I'd like to dialogue with that with the rest of the Board.

Pete Hemingway:
You raised a good question. Larry did you want to comment?

Larry Litchfield:
No, another question. This is for the applicant. The drawings show a bracket type hinge that the lower bar lift would flip up on. How much weight can that hold up? Do you know? Have you looked at it yet?

Will Hayes:
It will be designed to take full body weight. It's going to have the hinges, actually the lock in type hinges. We've got a hardware guy working on it right now.

Larry Litchfield:
It would be stiff, it wouldn't be flex or anything.

Will Hayes:
Exactly. No, it wouldn't be flex at all, it would be stiff.

Larry Litchfield:
Because a lot of the wheel chair people, if they slip down a little bit, then they'll use the counters. Mike (Colletto) can tell you that.

Will Hayes:
We're very familiar with that. That's why the weight code in that bar would take full body weight.

Larry Litchfield:
So what, 200 pounds?

Will Hayes:
Yes, 200 pounds. Correct

Scott Mardian:
Pete, I have a question.

Pete Hemingway:
Certainly.

Scott Mardian:
This is for Will Hayes. This is a reason that Mike (Colletto) can help. This is not a technical question, more like practicality. In the current condition where it's built in lower, your saying that collects dishes and things like that, it's an uninviting space.

Will Hayes:
Yes it is.

Scott Mardian:
So if a person comes in looking for an accessible spot, in your solution, that bar will be up in place. It will look pretty much like the rest of the bar. What's to prevent a person that doesn't need that space from occupying it? From a practical standpoint, it being under the terms of the City, you would see that and say, "hey, that's an unusual spot." Under your solution, what prevents a regular person or.

Will Hayes
We think the condition is the same. No matter if you've got a permanent or you have a flip up.

The difference is, for example, if you don't have flip up and you've got the lower section, that doesn't mean that somebody can't stand there and have a cocktail or whatever the case may be. That doesn't mean that they can't slide the stool around and sit in front of it. That condition exists. What we've seen, and we think works well no matter what condition you have, is the hostess can go over and say, "excuse me, this is the accessible area, would you gentlemen and ladies mind moving just a little bit" and then make room for that space. It's very easy to do and it's very understandable. From the operational standpoint, it's done all the time.

Now, however, when you have, if you following the city's interpretation of the code, you only have that one spot and that's all we have to do. But by taking our approach and using the ADA requirement, 5.2, we have accessible tables as well. So we have the option of having a number of different locations to take care of accessible needs. Whereas, in the city's approach, we have only one.

Pete Hemingway
Ok now, but this flip up won't be flipped up all the time.

Will Hayes:
It would be down most of the time.

Pete Hemingway:
It would be down most of the time.

Will Hayes:
Yes, that's correct. It would be down most of the time so operationally when the need arises we have to come back, flip it up, and then set it up.

Bill Hilliard:
If I may, we've added original handout materials for you, the training materials that we use, all of our restaurants are required or need to require a hostess at the front door. They are all trained in knowing where the accessible areas of the restaurant are. If someone does come in a wheelchair and they do desire to sit at the table or the bar, she's immediately to say, "here's an accessible table, here's an accessible table if you wish to sit at the bar." It's being designed so that a female hostess can easily go over there and operate the spring loaded bracket and make it accessible in a matter of minutes without being obtrusive to the other guests.

Pete Hemingway:
I want to back up before we get to far from Gary's point. Did you get your point addressed?

Gary Coley:
No. I guess I'm caught between the Building Officials definition of whether it's a counter and bar or a service window. I'm not clear if that's what this hinges on or not.

Pete Hemingway:
I guess what we're saying, you do agree tht it is a sales and service counter and that

Bill Hilliard:
No

Pete Hemingway:
You do not.....

Bill Hilliard:
Absolutely not. We think that the sales and service counter is not defined in the building code, but it in the exact same wording as the preexisting ADA documents. It's that it's preexisting and that says that sales and service counters and if that answers you, it talks about (cannot make out last word).

Pete Hemingway:
I just want to get (cannot make out word).

Gary Coley:
So your position then is that 5.4.2 fixed or built in seating or tables apply to you and 4.4.2 does not.

Will Hayes:
That is correct. In other words, 4.2 is airline counters and all those things that you've got a very specific and definite required need and we understand that.

Pete Hemingway:
I think I had Judy first then you.

Judy Pavsek:
You were saying if you followed the strictest (cannot make out word) of the ADA ruling, you have two tables you have designed for this. From what I see on the design, we're talking about six at each table, so there's 12 plus one at the bar, so you can seat 13 accessible seating locations as opposed to if you go with the city's you'll only have to comply with one.

Will Hayes:
That is correct. That is exactly the point is that with the city, you only require, the city's only saying, follow our interpretation with one space...

Judy Pavsek:
OK

David Sandvig:
The building code is only minimum. We can only require a minimum of one space. If they provide them, that's great, that's above and beyond what they're required to do. They're doing that for a business reason.

Pete Hemingway:
Greg

Greg Russell:
How difficult is it to lowe those tables. Is it a case where any hostess can do that or is that something you're going ot have three (cannot make out work) do that?

Bill Hilliard:
We have the tables at (cannot make out word) every one of our restaurants in the country and we've never, they tell us (cannot make out word) they usually get them down. It's more difficult to get them back up. They're easy to get down. When a guest comes in (cannot make out words).

Steve Speer:
I was looking at your drawing cross section of the bar with the fold out flipped up. Is it fair to assume that on the inside of the bar there's going to be some kind of equipment I'm used to seeing on the inside of the bar like a cooler or something? My question really comes to, is the person at the flip up going to be served by the bartender reaching across the top of the equipment, reaching across the top of the high bar down 9½" to set whatever it is the customer is ordering. Is that the plan?

Will Hayes:
That is the plan. That's why this design has this top counter that folds in so that now this can be easily accessible from the bar side.

Steve Speer:
That's what I'm trying to get a feel for, is how close. Because you don't have dimensions or show any of the equipment on the backside of the bar. My familiarity is that there might be 16 or 18 inches of equipment on the back of the bar.

Will Hayes:
I'd like to address that. Yes, that's one of the reasons why we picked a corner location, because it's the easiest to get right up to, there isn't any equipment. Notice the equipment along here and along here (points to a diagram). It does exactly what you're saying. It sticks out that far. But here at the corner it doesn't. We can get right up here to the edge and, as you can see, the reach distance is very small. So you can stand right up to the edge of that bar, unlike other location in that bar.

Bill Hilliard:
Operationally our food service at the bar is provided by the servers from the kitchen. So they won't serve over the bar.

Steve Speer:
If I'm there and I order a beer, do I have to wait for a waitress to bring me a beer at the bar or is it going to be served over the top like everybody else's?

Will Hayes:
It is, it's served over the top like everybody else's.

Ben Barcon:
So, I to like Gary, I'm kind of confused about the gray area that seems to be here. The Application for Modification from the Construction Code would say, regardless to how we're interpreting this thing, if we're interpreting this to be a service counter, they're asking for a modification to that code to proceed with that fix. This would be either acceptable or not acceptable. I think the City's position is it's not acceptable, is that correct? So our determination could also be, is this an acceptable solution to the code regardless of how it's interpreted here? Does it meet the intent and provide reasonable service for these people.

Gary Coley:
Do you have any idea how many bars and restaurants are presently being reviewed for permits or maybe this year.

David Sandvig:
I don't have a number, but we're getting accessible (cannot make out word) getting accessible bars, getting over counter spaces.

Gary Coley:
So this question is coming up a lot. Is that the answer? You guys are reviewing this quite a bit.

David Sandvig:
Sure, if the bar comes in it's already declined. It already has (cannot make out word).

Gary Coley:
And the answer is half the bar is at 60 inches and the other half is at 30 at the other side.

Pete Hemingway:
Now you guys have how many restaurants, you said...

Bill Hilliard:
We have 79 in the country, this would be our 22nd here in Arizona.

Pete Hemingway:
In Phoenix?

Bill Hilliard:
18 is in Phoenix.

Pete Hemingway:
The others

Bill Hilliard
There's four in Tucson.

Pete Hemingway:
I mean in Phoenix, as far as the bar area, how did you handle the accessibility?

Bill Hilliard:
This is Curtis, our Regional Manager that is in charge of our Arizona stores. We have shelves below attached to the dry wall in selected areas in the restaurants. We've been asked to go back add an accessible area at the bar.

Pete Hemingway:
So none of your other restaurants do you have the lowered bar.

Bill Hilliard:
We have no lowered bar.

Judy Pavsek:
Have you had the tables that lower.

Bill Hilliard:
We have the telescope tables.

Judy Pavsek:
In all of them?

Bill Hilliard:
Yes

Ben Barcon:
If I can add, at least from my perspective, a lot of times people don't know that there is this kind of an avenue not to drop the bar surface. Some people won't pursue that. Some people won't even ask the question. The city says this is what you need to do and then that's what you go out and do. So I don't think that, you know, because that there's a hundred of them out there have already dropped the counters and one that won't, or prefers not to, you know, we ought to use that as any kind of a factor.

Gary Coley:
I'm not saying that we have to use it as any factor, I was just curious as to what's happening in the market place. I personally don't like bars, I prefer to sit at the table.

Larry Litchfield:
Where are the locations of the waiter/waitress stations. Do they come up to the bar? Is this one of them?

Bill Hilliard:
No. The servers are back here at the service area. (Points to a layout drawing of the bar)

Larry Litchfield
On both sides.

Bill Hilliard:
Well this is the service area right here. (Points to a layout drawing of the bar)

Larry Litchfield
So that wouldn't be a service area changing into a handicap accessible area?

Bill Hilliard:
At one point we talked to David (Sandvig) about that, but this area back here doesn't allow patrons to see this elevation to see this.

Larry Litchfield:
Where do you put the barstool for that seat for that area when the counter is down? When the counter is down, you put the stool where?

Bill Hillard:
(Pointing to a layout drawing of the bar) The barstool is right here. There's a footrest on the bar. All the rest of the bar is eliminated. We put it back here in the back.

Larry Litchfield:
Is that the same height as the other barstool? I mean, not on the bar, but on the tables?

Bill Hillard:
All of these are the same height.

Larry Litchfield:
OK

Scott Mardian:
Is there anything that's preventing the Building Official from making any comment on this? Can I ask Rick if he has anything to add? Is there anything that hasn't been covered from the city's point of view?

Rick Doell:
David (Sandvig) has done a very good job. I think the clarification on these two sections that the Uniform Building Code, in its attempt to be, is certified ADA compliant has added stuff into the code and put things in there without definition. It doesn't necessarily fall into either one of those sections. Its both sections apply to it. So in the case of the telescope seating, and I don't believe we discussed this, are those telescopic tables fixed? If they're fixed tables then the 5% rule kicks in. The parts of our discussion has always been at the bar itself. So whether it's consider a fixed table as the bar service, or if it's a counter or bar, either one of those two sections would tend to make one believe that we need to have a section lowered.

Pete Hemingway:
Mike what's your input.

Mike Colletto:
Just in general. I believe that restaurants and facility like restaurants can design things that can be accessible to everybody and to blend in where you don't have to have a varying degree. In the bars is a separate item, its kind of unique. But I tend to agree with the city. They are trying to make a stricter code on this, in that I tend to agree with.

As far as the seating around the tables, if this drawing is to scale, I only see one possibly in the corner table, there is only one place a wheelchair can fit in there. In the other areas, possible two, but that backs up into the entry way into the bar area. So really there is only one wheelchair seating at each one of those tables.

Pete Hemingway:
Now, these tables are fixed?

Bill Hilliard:
No, they're movable.

Pete Hemingway:
I know they telescope up and down, but are they movable.

Bill Hilliard:
Generally we move them to bring parties together in the restaurant. Again, this is the bar area. We've got six accessible tables in the rest of the dining room area that is now shown on this drawing, as we were just addressing the bar area.

Greg Russell:
I think that anytime you have to change the condition of the area, it is excluding the handicap person. I think that it's all well and good that it can be modified. It has to take time and also makes them feel like they're, I don't know whether it's not welcome, but at least not part of the scheme, that they have to do something special to include them in there, which is really excluding them from the environment. Most will not take that initiative, I don't think.

Gary Coley:
So Greg, so if these tables were permanently at 28 inches, would that be ok with you?

Greg Russell:
That would make me feel a whole lot better.

Gary Coley:
They're at automatically at wheelchair height though.

Greg Russell:
That sits a whole lot better in my mind.

Steve Speer:
I feel the same way. I look at the fold up and say, gee that's the same if we just leave the tables up and we have a pull down at the tables. So we're all set up here and then you can sit down here.

Greg Russell:
You're below us at this point.

Steve Speer:
Yes

Greg Russell:
It makes me feel like they're second class citizens, and I don't think they are. I think that's what we're doing to them.

Ben Barcone:
Once again, how many times have a gone to the bar with three or four people. It's really inconvenient for the four of us to talking to Gary way down there at the end so you stand outside and instead of using the stool you're standing or whatever. So you make modifications to accommodate the conversation, the situation, or whatever the case may be. Again, I think that if this is ok for an existing bar, it should be ok for new a bar with a flip counter. I think that if we felt more comfortable as a committee with these tables being down to 28 inches, rather than bar height, then that's something that we ought to look at. In that case that would give you two, four, six, it would give you a lot more than two wheelchair accommodations.

Steve Speer:
I realize that, but I don't find that acceptable. My point is, if you lowered all the tables then you would make all the accessible spots at the same elevation, but you wouldn't have it at the bar.

John Augustine:
Not having spent too much time at the bars or anything. Bars are fluid places. People are moving around and all kinds of stuff. The intent of this is to accommodate everybody. If you want to read it, and read it, and read it, and interpret it, and interpret it, then there's no end to it. But the intent is, just like you were saying, if somebody has to come over here and they have to pull it out then lower it, well it's a lower environment that they're pulling into and what's the different. Who is going to go into a bar and lock themselves in one spot? Everybody handicapped or not handicapped, and maybe everybody is a bit handicapped in there, is moving around. I don't see the point in locking one person into one spot and that's it. If you want to go to a table, people accommodate things. I just don't see it, we can go nitpicking this thing to death. These people over here are a very successful company and they know how to accommodate customers, which is every kind of customer likely. They seem to do it very well. They say it works. I personally don't see a problem.

Ben Barcone:
That brings up another point. It's like saying that we're going to make this corner one a disabled location, but what if he wants to sit at the end? What if he'd rather sit on the other side? What if he'd rather sit somewhere else? We're saying "no". If you want to sit you have to go sit at that corner over there.

I think to me it's better to have flexibility with the tables that you can move around or do whatever, than it would to force them to go to that corner if they wanted to sit at the bar.

Larry Litchfield:
Let me take it back about 12 years ago when the ADA provisions first came out and the interpretation that a lot of building officials made at the time for accommodation in access in the buildings. The concept was, there is a step there, I'm not going to redesign the building, and building permits were issued accordingly. But yet the accommodations were to put a door buzzer at the front entryway of the building. Ushers or waiters or somebody would come out and assist the handicapped person in. This is a classic case in courts in a restaurant in Berkley that did that.

They were sued and lost several millions of dollars as a result in it. The concept of the building official in Berkley at that time and of the designer at the time, it was ok to have a waiter or waitress or assistant assists the handicap person into the building. That met ADA requirements.

Obviously that might be a little bit more severe than sitting at a bar. But the concept that came out of the court case is that this is an architectural barrier requirement. There should be no architectural barriers to restrict a person the freedom of going to the bar and sitting down and having a drink with no other assistance. If they are a private type of person, and they've been injured in a car accident and still dealing with the trauma of their accident that their going to be sitting in the wheelchair for the rest of their lives, it's a very traumatic situation for them to ask for assistance.

What the ADA law was trying to say and what the ANSI requirements say is, don't ask for assistance, you need to build features in buildings and features in buildings that accommodate you without asking for the assistance. This situation requires that a handicapped ask for assistance.

In 1991, Berkley, that restaurant, thought that that met the requirements. In 2001, these architects feel that they can produce architectural barriers that prevent people from the freedom of having a drink in their establishment by requiring them to ask for assistance. The lower tables or raises a table, so I can sit down and have a drink. I think that actually violates the ADA. There has been conversation to that affect. Every year the ADA requirements get more restricted because architectural barriers are continuing to be place in buildings. So you can sort of tell where I'm coming from on this.

Therefore, I'll make a motion to support the city staff on their decision on this.

Greg Russell:
I second this

Pete Hemingway:
Ok. We have a motion and it has been seconded that we affirmed the decision of the building official in regards to this issue. Do we have further discussion/

Julie Stiak:
I just beg the indulgence of the City Building Official to clarify. I tend to agree to with the applicant on the interpretation of the code. When I read this it's very evident that the code that we should be debating the merits of this request are solely 1105.4.2 only. We should not be considering this as a counter. So I will beg the indulgence of the City of Phoenix to evaluate that legally and make sure that all further cases are debated on merits that have been established standards and regulations.

Gary Coley:
To clarify the results of the vote, if we deny the applicants applications then they need to go back and redesign the bar to provide that lower height as a design element, is that correct?

Pete Hemingway:
David (Sandvig) what he's asking now is, if we support the city's or ruling, would they required to come back and build a lowered area.

David Sandvig:
That is the result.

Peter Hemingway:
Now that area, as I understand, has to be total length along 30 inches.

David Sandvig:
Minimum

Peter Hemingway:
Minimum of 30 inches. 32 inches have met the minimum.

Gary Coley:
As I understand it, and I'm trying to figure it out to decide my vote, if we support the city's position a portion of this bar somewhere will have to be at a height of 34 inches or less.

David Sandvig:
It has to have the proper knee clearance.

Gary Coley:
Knee clearance and width is 30 inches minimum. So a portion of the bar will be lower than the rest of the bar or all the bar.

Larry Litchfield:
Or they can design it some other way.

Scott Mardian:
That's what I wanted to clarify. If we support the building official's position, that means that the applicant/architect has to come back with a solution, another solution that's all it means.

Pete Hemingway:
Yes, but his solution could be more than just one section of the bar.

Gary Coley:
Or the whole bar.

Pete Hemingway:
Well, yea but if he. Let's see if I'm misinterpreting so you help me. They come back to you know with a design and it's got a big lowered are of 32 inches wide, the right knee height and everything, that's the only portion that they have to lower. Then they've met your intent.

David Sandvig:
That's all that we can require.

Pete Hemingway:
That's all that they're required to do. And Larry, I understand what you were saying, but does that not also create a situation where now somebody that has met the requirement, met the UBC, met ADA, and all the requirements, now we've sectioned off an area that now somebody just addressed as a fixed area. Now we're sitting them in that fixed area, but you can't move that area on the bar either.

Larry Litchfield:
They're going to have their lowered down tables. They have two of them.

Bill Hillard:
Not necessarily

Pete Hemingway:
But that's not necessary

Larry Litchfield:
You made that statement in your introductory comment that you have those tables in all your restaurants.

Bill Hillard:
For the purpose of complying with the statutes.

Larry Litchfield
So if you lower the bar you're not going to provide the lower down tables.

Bill Hillard:
We can lower to 32 inches high and that's the only thing that we have to do to the entire bar area to comply. Because that's a bar and it's accessible. We don't need these tables (points to the diagram) it doesn't have to be here. 32 inches here (points to the bar area).

Gary Coley:
I guess my point was to meet the intent of what Larry is saying, the only way really do that is to make the entire bar accessible.

Pete Hemingway:>BR> Which is way above and beyond if I'm understanding the building code and the ADA requirements. There is no requirements that they do that.

Scott Mardian:
We don't even know if that's a possibility, because of the equipment or whatever. That's their operation.

Pete Hemingway:
Right. Just so we understand that we're all on the same page. Just because we support the building official, they don't have to lower the whole bar. The can lower a 32 inch section.

Steve Speer:
We're not saying what they're going to design. What we're saying whether or not this fix is acceptable to meet the code. That's all we're doing.

Ben Barcon:
No. We're saying that this fix is acceptable to us as a committee, because it's a modification from the code.

Steve Speer:>
Sure. But only whether or not this is acceptable or not, they can design anything else they want, as long as it meets the code.

Pete Hemingway:
Right. So if it meets the code this issue I think that the issue a lot of us raise, as far as this being a fixed area, and this being, as Greg said, treating them as second class citizens, what they're going to come back to, and I'm not designing it, I'm just going to lower this 32 inch wide area. I'm going to lower it to proper knee clearance that's all I have to do. It won't come back to us, they've the requirements and you approved their plans.

Mike Colletto:
I don't believe they'll deviate. I don't believe they'll deviate from that. They want to put their lowered down section over in the far corner, like he said, that will not be to their benefit either. I don't buy that.

Gary Coley:
The whole intent is to try and make it all uniform and friendly and I agree it's not good business to do the minimum of anything, as far as I can tell. I can tell you if our clients to the minimum, everybody pays for it eventually.

Greg Russell:
I'd like to call for the vote.

Larry Litchfield:
Clarify on what we're going to vote on.

Pete Hemingway:
It's been moved and probably second that we affirm the decision of the building official that the Application for Modification for the bar having a flip counter be denied and that they have to comply with the Uniform Building Code for having a fixed lowered area at the bar to accommodate accessibility.

Larry Litchfield:
Just wanted clarification, David (Sandvig). On the plans that are pending now, do they show the two lowered tables?

David Sandvig
I don't recall on the base floor plan.

Larry Litchfield:
Well they're showing them to us, that's why I asked. What I see here, what they're presenting, their handout is two tables that have a lowered option and this flip-up arrangement. What we're doing as a Board is denying the flip-up arrangement. We're not saying eliminate these tables.

Pete Hemingway:
No. But that is an option that they have.

Larry Litchfield:
As an amendment to the motion?

Judy Pavsek:
That's not a part of it.

Gary Coley:
I don't know that we can make stipulations to the Building Code.

Pete Hemingway:
Right Margaret? We can't make any stipulations with a part, we can only affirm ..

Margaret Wilson:
Right, we can affirm, demand, or reverse.

Pete Hemingway:
Would reverse or modify the decision of the Building Official. Under that can we create, is that when we could create a stipulation. I'm asking your interpretation.

Margaret Wilson:
Yes, I guess you could. Aren't you affirming it?

Pete Hemingway:
Well that's the motion on the table now. Just so they all know what options, the Board wants to know what options that they have.

Margaret Wilson:
Ok, your options are to affirm, remand, reverse, or modify the decision of the Building Official.

Pete Hemingway:
Ok, the motion on the table right now is to affirm the Building Official's recommendation. Does everyone understand the motion?

Gary Coley:
And if that motion fails, then does that approve their modification.

Margaret Wilson:
No, you need another vote.

Pete Hemingway:
All in favor of affirming the decision of the Building Official please raise your hands so we can get a count.
VOTE IS:
6 Affirming
4 Opposed
1 Abstention

Pete Hemingway:
I want to thank everyone for your presentation and input.

Ben Barcon:
Before we leave this issue in general, is there some way the City officials can give us some definition or whatever it is to clear this up for future applicants or situations.

Larry Litchfield:
A solution to that is, we've already talked about is, when the adoption of a new code just make a reference to the ADA. You get rid of the three options. That's actually, I think, the option that they'll vote. The NFPA 5000 is looking at just adopting the ADA by reference and then you'll only be with ADA, then it's a more universal code.

Gary Coley:
Another point, International Code will do that to.

Ben Barcon:
Just out of curiosity, had we had that now….

Gary Coley:
It wouldn't have been an issue.

Larry Litchfield:
Right.

Rick Doell:
Mr. Chair to that point, all our intention was/is to create a policy as soon as we can so that staff has consistent interpretation to do this so we can tell the customers so they know what to expect.

Ben Barcon:
When you call it a policy is that something that comes through the Process and Procedures Subcommittee

Rick Doell:
Yes

Hearing adjourned at 4:10 p.m.

Respectfully submitted:

 
Rick Doell, P.E.
Deputy Director, Building Official

Minutes Prepared by:
Carole Borrego, Secretary III

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