Thomas and King, Inc. v. City of Phoenix

• Decision Date: 29 June 2004
• Docket Number: No. 1 CA-CV 03-0302.,1 CA-CV 03-0302.
• Citation: 208 Ariz. 203,92 P.3d 429
• Parties: THOMAS AND KING, INC., a South Carolina corporation, Plaintiff-Appellant, v. CITY OF PHOENIX, Development Advisory Board, a municipal corporation, Defendant-Appellee.
• Court: Arizona Court of Appeals

92 P.3d 429

208 Ariz. 203

THOMAS AND KING, INC., a South Carolina corporation, Plaintiff-Appellant, v. CITY OF PHOENIX, Development Advisory Board, a municipal corporation, Defendant-Appellee.

No. -0302.

Court of Appeals of Arizona, Division 1, Department B.

June 29, 2004.

Bryan Cave LLP By Steven A. Hirsch, Merritt L. Bingham, Rodney W. Ott, Phoenix, Attorneys for Plaintiff-Appellant.

Peter Van Haren, Office of the City Attorney By Vicki A. Hill, Assistant City Prosecutor, Phoenix, Attorneys for Defendant-Appellee.

OPINION

LANKFORD, Judge.

¶ 1 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.

¶ 2 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.¹

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.

¶ 3 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.

¶ 4 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 § 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.

¶ 5 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 against the City and the Board (collectively the "City defendants") in superior court for review of the Board's decision.

¶ 6 The superior court held an evidentiary hearing. The court ruled in favor of the City defendants, finding that they had applied the correct code provisions in determining whether T & K's bar counter met the accessibility requirements of the UBC. The court also found that the Board did not act illegally, arbitrarily, or capriciously in denying T & K's application for modification. T & K timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).

¶ 7 T & K's appeal raises two questions: (1) Did the superior court properly interpret the UBC? (2) Did the court properly decide that the Board did not act arbitrarily or capriciously or abuse its discretion in denying T & K's application for modification?

¶ 8 In an appeal from the superior court's affirmance of an agency decision, we must decide whether the agency acted illegally, arbitrarily, capriciously, or abused its discretion in rendering the decision. City of Sierra Vista v. Dir., Ariz. Dep't of Envtl. Quality, 195 Ariz. 377, 380, ¶ 7, 988 P.2d 162, 165 (App.1999). We examine whether the agency's findings are supported by substantial evidence. Sigmen v. Ariz. Dep't of Real Estate, 169 Ariz. 383, 386, 819 P.2d 969, 972 (App.1991). While we give the administrative interpretation of a statute or ordinance some weight, we need not defer to an agency's legal conclusions and may substitute our own. Id.

¶ 9 We first consider the applicability of the UBC provisions. These are ordinances, which we interpret using the rules of statutory construction. Kimble v. City of Page, 199 Ariz. 562, 565, ¶ 19, 20 P.3d 605, 608 (App.2001). "[Administrative rules and regulations] and statutes are read in conjunction with each other and harmonized whenever possible." Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (App. 1994). We must avoid interpretations making any language superfluous or redundant. Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App.1993).

¶ 10 The City has adopted the UBC as the construction code for building projects in Phoenix. The UBC provides that "buildings shall be accessible to persons with disabilities as required by this chapter and by Arizona Revised Statutes [sections] 41-1492 through 41-1492.12." UBC § 1101.1; Ordinance at 58. The UBC also states that "[f]or a building to be considered to be accessible, it shall be designed and constructed to the minimum provisions of this chapter and CABO/ANSI² A117.1, or in accordance with provisions of State of Arizona Attorney General Administrative Rule R[-]10-3-401 through R-10-3-404, whichever standard provides the greatest degree of accessibility." UBC § 1101.3; Ordinance at 58. In turn, A.R.S. § 41-1492.06(B) (2004) states that "[c]ompliance with titles II and III of the Americans with disabilities act [ADA] and its implementing regulations shall be deemed in compliance with this article."

¶ 11 We must determine, then, which guidelines control: the UBC, the ADA or CABO/ANSI. The UBC has its own applicable provisions and references CABO/ANSI guidelines. The Arizona statute references the ADA. Only when applicable ordinances and statutes conflict would the Arizona statute control. City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 109, ¶ 9, 32 P.3d 31, 34 (App.2001) ("When an ordinance regulates an area that is also regulated by state statute, the ordinance may parallel the statute or even reach beyond the parameters of the statute so long as the ordinance does not conflict with the statute.").

¶ 12 The UBC provisions and the Arizona statute do not conflict. The mandate from the UBC is to ensure greater accessibility. When varying standards for design or construction apply to a particular circumstance, the City must apply the standard which provides the "greatest degree of accessibility." UBC § 1101.3; Ordinance at 58. Indeed, the ADA regulations anticipate that local codes may impose greater accessibility requirements. 28 C.F.R. § 36.103(c). This section provides:

Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

Id. The ADA also allows departure from the ADA standards "where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility." 28 C.F.R. pt. 36, app. A, § 2.2. Moreover, A.R.S. § 41-1492.06, the statute making the ADA guidelines applicable, states that "[n]othing in this article is intended to limit the power of any political subdivision of this state to adopt rules or codes that exceed the requirements of this article." A.R.S. § 41-1492.06(D).

¶ 13 The UBC provides the greatest accessibility standards of all applicable provisions. The CABO/ANSI guidelines³ are concerned only with height of fixed or built-in seating or counters. The guidelines do not address the quantity of such seating in a given area, as does the UBC, so there is no conflict.

¶ 14 Nor does the UBC conflict with the Americans with Disabilities Act Accessibility Guidelines pertaining to dining and drinking establishments. The relevant portion states:

5.2 Counters and Bars. Where food or drink is served at counters exceeding 34 in (865 mm) in height for consumption by customers seated on stools or standing at the counter, a portion of the main counter which is 60 in (125 mm) in length minimum shall be provided in compliance with 4.32 or service shall be available at accessible tables

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