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National Association of Convenience Stores NACS 30 years of service 1961-1991 April 17, 1992 Mr.

John L Wodatch, Director Office of the Americans with Disabilities Act Civil Rights Division U.S. Department of Justice P.O. Box 66118 Washington, D.C. 20035-6118 Dear Mr. Wodatch: The National Association of Convenience Stores respectfully requests guidance on the interpretation and application to the convenience store industry of certain provisions of the final regulations implementing the Americans with Disabilities Act ("ADA"), which the Department of Justice issued on July 26, 1991. 56 Fed. Reg. 35,543 (1992). NACS is a national trade association representing over 1,400 retail members that operate more than 64,000 convenience stores. A typical convenience store ranges from only 1,500 to 5,000 square feet in size with a majority between only 2,000 and 3,000 square feet. Convenience stores are usually densely stocked with 2,000 to 3,500 units of merchandise, including grocery items, tobacco products, health and beauty aids, and confectionery items. Many convenience stores also offer prepared foods to go, frozen foods, beer and wine, general merchandise, and gasoline. Convenience stores generally offer extended hours of operation. In 1989, the most recent year for which statistics are available, the average convenience store had 5.9 employees. However, on average, only one to two employees were generally on duty at any given time. Specifically, NACS seeks guidance concerning the requirements for barrier removal under section 36.304 of the final regulations. 56 Fed. Reg. at 35,597-8. First, NACS is concerned about the extent of its obligation to remove barriers under subsection 36.304(d)(2). That part states: If as a result of compliance with the alteration requirements specified in paragraph (d)(1) of this section, the measures required to remove a barrier would not be readily achievable, a public


April 17, 1992 Page 2 accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than those mandated by the alterations requirements. The requirements specified in paragraph (d)(1) are the requirements applicable to alterations under sections 36.402 and sections 36.404-36.406 of the final regulations. 56 Fed. Reg. at 35,559-35,602. Subsection 36.406(a) specifically requires that alterations meet the ADA Accessibility Guidelines ("ADAAG") that were published by the Attorney General as an appendix to the final rules. 56 Fed. Reg. at 35,605. Thus, it appears that places of public accommodations must remove barriers only if removal of those barriers results in reaching or exceeding the ADAAG standards. However, NACS is concerned that the final regulations may be interpreted to require barrier removal even if such removal would not result in reaching or exceeding the ADAAG accessibility standards. Thus, if widening, a continuous aisle to 32 inches is readily achievable, such widening could be required even though the ADAAG accessibility standard for continuous aisle width for a single wheelchair is 36 inches. See 56 Fed. Reg. at 35,620. NACS seeks the Justice Department's guidance on this issue. Second, NACS seeks guidance on whether the reach range requirements of sections 4.2.5 and 4.2.6 of the ADAAG are relevant to the barrier removal requirements for convenience store operators. See 56 Fed. Reg. at 35,620-35,625. The ADAAG accessibility standards for new construction do not require "[s]helves or display units allowing self-service by customers in mercantile occupancies" to comply with requirements for accessible reach range. ADAAG 4.1.3(12)(b); 56 Fed. Reg. at 35,615. Thus, it appears

that while newly constructed convenience stores need not comply with the reach requirements, existing convenience stores must remove barriers to satisfy those requirements if doing so would be readily achievable. NACS requests your assistance in resolving this apparently anomalous situation. NACS looks forward to working with the Justice Department to assist its members in complying with the ADA. Thank you very much for your assistance with these requests. Sincerely,

Marc N. Katz Manager, Congressional Affairs