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Thomas and King6/29/2004
AFFIRMED
Thomas and King, Inc. ("T&K;) appeals from the superior court's judgment affirming the City of Phoenix Development Advisory Board's ("Board") denial of T&K;s Application for Modification from the Construction Code. The principal issue presented on appeal is whether a portion of a bar in a restaurant with moveable seats must be lowered to allow disabled patrons access pursuant to the 1997 Uniform Building Code ("UBC"). A second issue is whether T&K;was entitled to a modification of any such requirement. We affirm the superior court's correct application of the building code provisions and its affirmance of the Board's denial of T&K;s application for modification from those code provisions.
The relevant facts are as follows. T&K;builds, owns and operates Applebee's restaurant franchises. Four of its restaurants are located in Phoenix, Arizona. In June of 2001, T&K;applied for its fourth building permit from the City of Phoenix ("City"). In response, the City directed T&K;to build the restaurant's bar structure in compliance with section 1105.4.4.2 of the UBC. That provision states:
1105.4.4.2 Counters and windows. Where customer sales and service counters or windows are provided, a portion of the counter or at least one window shall be accessible. The City informed T&K;that it needed to lower thirty inches of its bar surface to a maximum height of thirty-four inches to comply with this UBC provision.
T&K;filed an Application for Modification from the Construction Code with the City. The modification proposed altering the type of seating available to a disabled patron who wished to sit at the bar of the restaurant. Instead of a permanently lowered section of the bar, T&K;proposed mounting a flip-top shelf to the side of the bar. In addition, T&K;would provide other accessible seating, such as telescopic tables, in the bar area. In granting prior permits for Applebee's restaurants in Phoenix, the City's representatives had determined that such accessible seating in the bar or a combination of accessible seating in the bar area and a flip-top accessible counter at the bar satisfied the accessibility requirements of the UBC.
The then Interim Building Official denied T&K;s application. The denial rested on the UBC requirement that the maximum amount of accessibility be provided in the design and construction of accessible seating. The UBC mandates that accessible buildings be designed and constructed pursuant to "whichever standard provides the greatest degree of accessibility." UBC ยง 1101.3; Phoenix, Ariz., Ordinance No. G-4159 at 58 (Feb. 10, 1999) ("Ordinance"). The official's denial stated, in pertinent part:
In summary, while the solutions you offer to achieve equal accessibility to the bar are allowed by both [the Arizona Disability Act] and [the Americans with Disabilities Act], the building code requirement provides for the highest degree of accessibility of the applicable standards. Therefore, in order to satisfy the intent of the code in this case, your application is denied.
Under Section 104.2.7.3 Modifications, you are required to demonstrate unusual or unreasonable difficulties involved in carrying out the literal provisions of this code. It is the building official's opinion that simply lowering a 30" section of the bar surface to a maximum height of 34" and providing required knee clearance is neither unusual nor unreasonable in new construction.
T&K;appealed this decision to the Board. After a hearing, the Board voted six to four (with one abstention) to uphold the official's decision. T&K;then filed a special action
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