Compliance or Defiance?

It’s an epidemic – one that could take thousands of dollars to cure. Facilities across the United States that have failed to comply with the Americans with Disabilities Act (ADA) are now being plagued with the consequences.The likelihood of litigation against unresponsive owners is increasing – a fact confirmed by the “drive-by” lawsuits that have proliferated in states like Florida and California. “The ADA was signed in 1990 and it became effective in 1992, on January 26. If five percent of the actual building owners out there have done what they’re supposed to, I’d be amazed. I drive up and down the street and I can see that people have not done anything to their facilities. All these attorneys can see the same thing,” explains Michael P. Gibbens, owner, National Access Compliance Products LLC, Thousand Oaks, CA.Whether it’s the result of greedy lawyers or inattentive owners, the fact remains the same: Lack of compliance has very real (and very expensive) legal ramifications. “There is a whole group of lawyers out there who have organizations for which they file lawsuits, and at this point, a lot of them are getting attorney’s fees that are now exceeding $50,000,” says Thomas Schmokel, ADA consultant, Networking Consulting, Tallahassee, FL.The ADA can be confusing, its language subject to interpretation, and its requirements misunderstood. “I think that most building owners don’t have the time to fully understand what their obligations are under the ADA, as well as understand all of the other codes and regulations they need to be aware of as a building owner,” says Karen O. Haney, principal, Compliance Design Consultants, Newport Beach, CA. Myths, misconceptions, and confusion provide owners with an illusion of compliance, making it all that much more difficult to own and manage accessible facilities.Confused about what the ADA requires? You’re not alone.The ADA is a civil rights law, not a building code. It was created to ensure that individuals with disabilities are treated with dignity, respect, and fairness under the law. Three areas are enforced under the ADA to prevent discrimination: employment practices (Title I); public services (Title II); and public accommodations and commercial facilities (Title III). All newly constructed facilities occupied as of Jan. 26, 1993, are required to be accessible and must comply with the ADA Standards for Accessible Design. These standards also apply to facility alterations (remodeling, renovation, rehabilitation, reconstruction, historic restoration, etc.). The ADA defines an alteration in Title III, Section 36.402, as: “A change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.”Existing facilities that are classified as “public accommodations” are required to remove communication and structural barriers to increase accessibility when readily achievable, under the Removal of Barriers provision stated in Title III, Section 36.304. “Readily achievable means easily accomplished and able to be carried out without much difficulty or expense,” explains Gibbens. Because the language is somewhat ambiguous, many building owners are left questioning whether they’re doing enough. “There is a good deal of misunderstanding. [People] think it requires a lot more than it actually does,” he says.It’s important to understand the distinctions between what the law requires for new facilities vs. existing buildings. “The thing that is causing so many problems right now is that many advocates are saying existing buildings must comply with the ADA Standards for Accessible Design. That misnomer is causing a great deal of confusion among building owners and designers,” says John P.S. Salmen, publisher, Universal Design Newsletter and president, Universal Designers & Consultants Inc., Takoma Park, MD.It’s equally important that owners recognize the ADA does not contain a grandfather clause. “[Owners] think it’s a building code and they believe that they’re grandfathered in,” says Schmokel.What you don’t know about the ADAwill hurt you.The person that coined the phrase “ignorance is bliss” was never referring to the ADA and its requirements for new and existing facilities. As you continue on your journey toward increased accessibility, keep the following facts in mind:Your state and local codes may differ from the ADA. Many state building codes are based on the American National Standard Institute’s document A117.1. While this document served as a basis for the ADA Standards for Accessible Design, the two do differ. New construction and alteration projects must comply with both building codes and the ADA to reduce the risk of litigation. “Modifications can be made that are only in compliance with one and it then makes you out of compliance with the other,” says Haney. “It’s very important that building owners not only comply with the Federal ADA but that they’re also aware of these other state and local requirements for disabled access compliance. When there are differences between those two, the more stringent code must always be used.”Currently, the Department of Justice (DOJ) has certified that the state laws, local building codes, or similar ordinances in five states meet or exceed the ADA Standards for Accessible Design for new construction and alterations. Over the past 12 years, Florida, Maine, Maryland, Texas, and Washington are the only states to have DOJ-certified codes. To find out more, visit (www.ada.gov/certcode.htm).Both landlords and tenants are responsible for ADA compliance. The ADA places legal obligation on both parties, regardless of what is stated in a tenant’s lease.Tax incentives are available. Building owners can take advantage of two different tax incentives to help fund ADA-related facility modifications. Established under Section 190 of the Internal Revenue Code, a maximum tax deduction of $15,000 is available for the removal of architectural and transportation barriers.
An additional tax credit is also available, but only to small businesses. The credit, established under Section 44 of the Internal Revenue Code, applies to any business that reported revenues less than or equal to $1 million, or 30 or fewer full-time employees during the previous tax year. A tax credit of up to $5,000 per year is available to qualified businesses to assist with the cost of eligible access expenditures.
These incentives can be used annually. For more information, view the ADA Tax Incentives Packet located online (www.usdoj.gov/crt/ada/taxpack.htm).
Notification is not required before a lawsuit is filed. According to Schmokel, “There is no requirement of notification before a plaintiff files a complaint against a defendant in an ADA discrimination suit.” Congressman Mark Foley (R-FL) is leading the charge to change this process. On Feb. 12, 2003, Foley re-introduced his ADA Notification Act (H.R. 728). This legislation would provide businesses with a 90-day grace period to remedy ADA violations after they have been alerted, before a lawsuit can be filed. The Notification Act is extremely controversial, and many individuals are doubtful it will pass.No amount of action can protect you against a lawsuit. “Even if a business does make a change under the removal of barriers obligation, there’s always a chance a patron will still file a lawsuit claiming that it wasn’t enough,” explains Bemmie Eustace, director, Site Development Services, Interplan LLC, Orlando, FL. If removal of certain barriers cannot be achieved without much difficulty or expense and remain in place, an owner may find itself justifying this decision in a court of law. “Even though [the building owner company] may be technically in compliance, it still has to pay the legal fees to respond to a legal claim,” Eustace says.The DOJ, along with the Key Bridge Foundation, has established a mediation program to help resolve ADA disputes informally. The recommended process invites an impartial third party to help find solutions which are mutually satisfactory to disputing individuals. View the DOJ’s ADA Mediation Program online at (www.ada.gov/mediate.htm).Reduce your risk of litigation.The best approach to ADA compliance is a proactive approach. If your progress in the last 12 years has been minimal or you’ve just purchased a building, it’s wise to consider conducting a compliance survey. Whether conducted by trained, in-house facilities professionals, an architect, or an ADA consultant, the survey will reveal all areas of public accommodation that exhibit ADA violations. From this data, a short-term and long-term strategy (referred to as a “transition plan” in the ADA) can be created to remedy problems and increase accessibility over time. “Building owners need to be doing much more, but at a very minimum, they have to be poised to respond and react quickly,” says Eustace. “They’ve got to get their facilities evaluated and have a plan in place and be acting on that plan. Otherwise, the attorney has nothing to defend.”Not only is it imperative that a plan be created, but that action items have been completed and progress toward greater accessibility demonstrated. “By having everything well-documented, you have a much better paper trail of your good faith efforts and your readily achievable barrier removal,” says Haney. Continuous actions that are well-documented are a real asset during a lawsuit.When examining a list of necessary modifications, use the Americans with Disabilities Act Checklist for Readily Achievable Barrier Removal (www.usdoj.gov/crt/ada/racheck.pdf) to prioritize. The checklist suggests first working to ensure accessibility at your building’s approach and entrance, and identifies access to the facility’s goods and services and restroom accessibility as the second and third priorities. “The first parking stall that you ever put in has to be a van-accessible stall with a big, wide eight-foot access aisle. It’s very easy to pick out when you drive up to a facility. If you don’t have one, you’ve literally proven that unless you just bought your facility, you haven’t done one of the typically cheapest things you could to comply. When that happens, you have pretty much lost your lawsuit,” Gibbens says. Restriping the parking lot, putting a curb ramp in, and adding parking lot signage may cost as little as $1,000 to $1,500. For building managers with small budgets, experts like Bemmie Eustace suggest putting your money where the greatest amount of accessibility is going to be achieved first.Providing consistent accessibility requires more than a cursory evaluation and modifications. Training staff is an essential element of maintaining an accessible facility. Building maintenance and management professionals should be aware of which elements in the building are necessary for ADA compliance. William E. Endelman, principal, Seattle-based Endelman & Associates PLLC, agrees. “Have your maintenance staff trained to some level to at least recognize what things are ADA issues,” he says. If painters remove signage that provides directions to an elevator and never replace it, maintenance professionals can immediately rectify the problem. “A lot of ADA compliance can be done as routine maintenance. If you have a broken piece of hardware, a broken drinking fountain, or a broken sink faucet, replace it with an accessible one,” says Endelman.Communicate what the accessibility of the facility is through signage, brochures, website information, and advertising. If areas of a building are not accessible, make sure staff communicate to patrons, guests, or visitors that assistance can be provided. “Letting people know what to expect, training the staff to be attentive to issues, and ensuring that the facilities themselves are as accessible as they need to be,” says Salmen, “that is the way people are able to avoid lawsuits and resolve problems.”If you are not confident that a facility assessment conducted by in-house staff will reveal all your facility’s compliance deficiencies, it’s best to contact an expert. ADA consultants and architects specializing in the law’s requirements can provide you with in-depth survey results, advice, budgetary recommendations, and more. Because there is no ADA certification available to professionals in this field, it’s best to do your homework when searching for a true expert. “Seek out firms that specialize in disabled access compliance. I think firms that have been in business for over 10 years are the ones that got in right at the beginning of the regulations, when they were first enacted, and those firms have a lot more experience dealing with different types of accessibility situations and how to solve problems,” Haney says. Other important criteria include: familiarity with state and local codes in addition to the ADA, construction knowledge, a list of references, and examples of surveys conducted for other clients.No building owner should seek ADA compliance simply to avoid a lawsuit; however, you should be aware that litigation can be the penalty for not removing readily achievable barriers. Aside from abiding by the law, there are many reasons to implement accessible design. “If there are lots of [unresolved] accessibility issues associated with removal of barriers, that affects building value,” Endelman explains. The positive impacts of implementing ADA requirements range from creating a positive corporate image to reducing trip-and-fall incidences. Ignoring your obligations to the ADA can have very real consequences. Evaluate. Train. Implement. Before the law catches up with you.Jana J. Madsen (jana.madsen@buildings media.com) is managing editor at Buildings magazine.