The recent trend in dining was outdoor patios. Now, the trend is "rooftop dining." Restaurants, particularly trendy establishments, are renovating their structures to accommodate diners on the roof, with typical targeted marketing. Some restaurants have touted rooftop views of the city, while others offer "rooftop menus" made with fresh produce actually being grown on the roof.
The majority of these establshments do not have elevator access to the roof. (Most existing elevators do not go up to the roof.) Diners using wheelchairs or those who have more serious mobility limitations do not have access to the roof. Will ADA lawsuits follow? A restaurant owner considering a renovation to a new structure to permit rooftop dining asked whether he will face ADA lawsuits. As with most attorney answers, I said "It depends."
If the rooftop dining's seating comprises 25% or less of accessible seating areas then the area is not required to have an elevator. More specifically, an "accessible means of vertical access is not required." (Note that the 1991 Standards "33% rule" changed in 2010 Standards to 25% rule.) Additionally, the decor and services offered in the inaccessible area must be offered in the accessible area. Therefore, a "rooftop menu" should be made available in accessible areas as well.
Obviously, a "rooftop view of the city" cannot be made available to non-rooftop guests. I tend to avoid stating my personal opinion, but a safe means of egress in a fire or other emergency for someone with mobility limitations would be another hurdle.
One example on point of this topic: http://www.press-citizen.com/story/news/local/2014/08/02/hop-rooftop-dining-area-wheelchair-accessible/13503081/.
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