THE ADA LAWS
By John A. Salat
ADA, or "American Disabilities Act" may be the most important element in site selection or pursuing any facility alteration. What a tenant needs in writing may be the ammunition to a preventive collision course on ADA enforcement.
HISTORY OF ADA
The ADA revolution does not stop with new construction, ADA enforcement applies nearly equally in weight for existing facilities. The "grandfather" (existing predetermined codes) clause seldom applies as depicted in some of the federal guidelines. Each State rewrites federal codes making it difficult to apply the "grandfather" clause to existing facilities.
Every state creates laws, codes and regulations differently from other states at the Federal level. In the past, building codes have been specific regarding safety and health issues. There are now twists in building code regulations that target a new protected class. Civil laws influenced by traditional building code enforcements create unusual circumstances in today's real estate and building industry.
These civil rights protect a class of people, all disabled. The federal guidelines set minimum standards by a descriptive approach while each state has the option to enforce additional guidelines on a prescriptive approach. Since the state cannot enforce federal guidelines, it is in their advantage to rewrite the codes. Rewriting federal ADA laws to a state code enables them the right to regulate and enforce laws while amending additional restrictions. This is why every state has different performance guidelines for interpreting ADA construction methods.
CONFLICTS AND RESOLUTIONS
Many states do not exercise ADA laws as comprehensively as others. In either case, ADA is controversial, yet sensitive while exercising Civil Rights into our building codes. Most importantly, ADA addresses honest issues for humanitarian reasons. It is hard to compromise or deny the needs of individuals of a particular group because they lack ease in access of everyday goods, services or even employment possibilities.
The first guidelines geared toward designing buildings for wheelchairs users dates back to the sixties. However, this was not apparent until the ground breaking of new construction from the early seventies. Yet, not all handicap codes were properly enforced and the building codes had no amendment for these references. There was no recourse for municipal omission regarding construction plan check and inspection. From previous decades, the architect was solely responsible for adhering to handicap laws. The state informed architects of the penalties for non-compliance, but the guidelines were not always enforced thoroughly by local city officials. A combination of poorly written guidelines, multiple agency involvement, and constant supplementary updates made it difficult to interpret codes during the seventies and eighties. Most model building codes did not even address handicap issues until mid eighties, even then, the references were outmoded due to new state supplements and updates. It's no wonder why so many buildings are obsolete by today's standards and facilities are going through second and third generation retrofit. Yet, even the nineties have been turbulent with annual revisions and amendments adding further restrictions.
Most recently, architect designers may be apprehensive in the use ADA guidelines to delineate the liberal space requirements for wheelchair maneuverability, especially when the design solution dictates unusual space proportions. A toilet room for example may become larger than the lobby space, or the high number of handicapped parking stalls banked at entrances are never fully used--Many may ask, "Does this really apply?". It's no wonder why many architects choose the most lenient resources for guidelines favoring design problems. Despite designer solution, the owner must recognize the general golden rule, "Where codes conflict, the most stringent applies."
The state and federal government often convey differences on codes themselves. There are multiple disability codes that conflict with each other. For example: The California state requires a one-half inch beveled lip at the bottom of a curb ramp to act as a warning detection for the blind. However, a wheelchair user will see this as an obstacle causing the wheelchair to hang-up from the different surface change. In fact, the one-half inch minimum raised lip for the blind conflicts with the one half inch maximum lip wheelchair requirement making no forgiving tolerance for construction. Another controversial code matter is truncated domes seen adjacent to driveways at pedestrian walkways (Often seen as white round caps applied to walking surfaces). Those tactile devices act as a warning for the blind, and yet some with minor walking disabilities may find it a tripping hazard while straddling the uneven surfaces. Sometimes in wet or icy conditions these domes can further create potential hazards of slipping. Hopefully, these confusing waters will clear as agencies concur on code differences bringing an end to the chaos.
CASE IN POINT
Now, city officials are finding they are personally liable for not enforcing ADA. In one case, a city official was sued for a large amount by the State Attorney General for not following the proper state code enforcements. I am sure that this lawsuit has created a recent paranoia among local building law enforcement agencies.
Even recent construction projects may not comply due to different inspectors changing regulated climate from the initial inspection. It is as if each city has initiated a new task force to fine tooth comb existing facilities after the owner pulled permits for tenant improvement work. .
More recently inspectors , even on initial visits may scrutinize the entire existing site for ADA violations. Violations posted are not limited within the scope of work, but can now be observed through the entire complex. These citations make critical notations from the parking lot exterior to the building interior. As a result, the city can postpone the occupancy and offset the move-in dates for tenants until the owner has made the appropriate corrections.
In one case, a merchant planned to relocate his retail store to the other end of town into a newer shopping complex. His lease closing and opening dates were closely synchronized with moving time frames during the tenant improvement drawing process. The City halted work because the shopping center was in violation with ADA at a unrelated remote portion of the site. Because of these delays, the prospective tenant was forced to put merchandise in storage until ADA items were corrected. This was tragic for the merchant since sales were suspended during the months of construction.
So to answer the question, "How do you avoid conflicts with ADA when renewing a lease, modernizing or considering relocation?". With law complexity, one should undergo a detailed ADA facility analysis by hiring a qualified consultant. An ADA survey will not only avoid delays in construction, but can be useful tool in negotiating contract terms for lessee and lessor. A refined design and plan can be sought while stipulating long and short term goals for ADA transition. If improvements have not been implemented, find out the property owner's intentions for an ADA transition and execution. An independent survey team will identify the likelihood of ADA violations before the city initiates involvement and will assist in sound decision making.
Furthermore, an ADA survey not only makes an assessment, but allows for a brief analysis of what needs to be done. An ADA report also establishes a master plan for compliance. You may also consider looking into tax incentive programs which distribute the initial costs of all ADA transition work over the years, but consult your CPA and legal advisor for long-term plan against annual tax deductions.
Often you can avoid unnecessary retrofit cost and work if it is technically unfeasible. Sometimes, appeals can be filed for set backs concerning major capital demands, referred to as "undue hardship". Because codes are interpreted differently within jurisdictions, not all city building officials may be consistent or helpful regarding reasonable alternatives. Just remember, if it is the law to make these adjustments, you must take the responsibility to comply.
In expanding on the monetary hardship issue, an appeal can be filed depending on circumstances of project improvement budget, building usage and size. Monetary limits, or "cost threshold" are formulated on the "hardship rule" -- on the first $80,700, take 20 percentage of the remodel cost to apply strictly for ADA retrofit. ($80,700 applies by averaging facility remodel work cost for last three years). When remodel cost exceeds $80,700,it is unlikely an appeal will be granted. As an example, new elevator construction alone could start at $75,000, but this may not nullify other work that must be accomplished at the site beyond this expense. Furthermore, elevators may be mandated depending on more complicated situations.
Building officials are not at liberty to give advice on how to comply with the requirements. A licensed architect can assist in ADA design scheme options, produce detailed cost comparisons, and complete all paper work including construction drawings to satisfy local officials. In bringing project closure, it's not a bad idea to have a separate ADA building interior review conducted for coordinating final movable furnishing and equipment installations.
RETROFIT IS AN INVENT
Every site invites interesting possibilities where many options surface during the ADA field analysis. Each site has a personality to be treated on a case by case basis while seeking solutions for "Barrier Free Design." It can be a challenge seeking methods of retrofit without major construction alterations, especially when maintaining integrity of a existing buildings. Sometimes "RETROFIT" may be an invent of materials, products and systems that will not compromise aesthetics or other functions of a complex.
Never should retrofit set a stage to chastise the image for the physically challenged. Examples of shoddy props are bare plywood ramps, ropes for pull doors and sticks for hard to reach areas. The intent for ADA modernization is to honor those who are physically challenged. Showing disinterest for proper ADA improvements could reflect patronization to protected class.
Depending on the age of the facility, many commonalties for violations may exist within sites. The most popular violations include on-site access, inadequate rest room vestibules/ toilet stall spaces, the lack of appropriate side clearances at doors, non conforming curb ramps, lacking parking van stall space, adequate aisle width, braille signage, and visual alarms not integrated with existing audio alarm systems.
ADA retrofitting need not be costly. Some provisions can be coordinated through various facility personnel. For example: The mail box units located at an office complex had exceeded the height reach from a wheelchair. Since you might assume that more than 5% of the mailboxes are under the maximum height limit, the property manger could inform tenants that certain mailbox units are reserved for wheelchair users. This solution is a lot easier than replacing or relocating an entire mail box bank unit system.
Wheelchair users often come to mind when one thinks about the disabled, but the ADA laws also protects the blind, hearing impaired, speech impaired, amputees and other individuals with motion or dexterity problems. From a human resources side, personnel may not always recognize the limitations of individuals to provide special accommodations. Because ADA protects a wide spectrum of disabilities, it may include disabilities not visibly or profound such as the mental disability of ADD, or Attention Deficit Disorder.
Often, the Human Resource divisions are up to par and informed on discriminatory practices, policies, services and activities. Unfortunately, many facilities are lagging on ADA upgrades due to property managers reservations and reluctance of exploring possibilities for facility improvements. As a result of a non complying facility, personnel are confronted by side stepping laws for these awkward circumstances.
Here are some points to consider while preparing for site selection: Employment practices can be cumbersome with facilities not suited to
serve those with disabilities. The Human Resource officer of your organization should be active with the site selection team. Secondly, site selection should be carefully chosen by type of service, business and occupancy usage utilized to you, "the tenant". Remember the ADA, laws can be less forgiving for medical, retail and other high public uses. You could increase business by 5% if means of access are accommodated for the disabled. The property thus becomes more valuable, marketable and potential civil liability diminished.
Though, most importantly, ADA construction impacts should be identified with objectives in mind for site selection, planning, and time frames. Look for low cost methods for barrier free removal while professionally recognizing the most stringent code applications. The common problem in design for existing buildings is use of stand alone federal guidelines while ignoring state laws.
Wheelchair access is the most difficult when adapting its use to the environment. Ramps and maneuverability space take a big toll in design. It almost seems like an R & D problem for M.I.T. Believe or not, there is no such thing as a disabled person, just handicapped technologies that limit the human potential for apparatus to a challenging site. Already, we abandon the word handicap and substitute the term "Physically Challenged". Perhaps a future society will be wheelchair adaptable for the existing environment rather than taking on costly site adaptation resulting from deficient wheelchair sensitive design.
ADA laws have the most critical effect on site selection, general planning, design and can therefore offset move-in dates. Do not rebut or attempt to handle the situation without proper professional assistance when dealing with your local official. An owner's efforts in good faith may have repercussions if not properly guided. The cost of litigation by filed grievance may exceed the appropriate physical retrofit expense. An established ADA program is a positive pro-active approach and makes good business sense.
copyright (c) 1996, John Salat All rights reserved Note: This material is dated and may not be current with present status to laws and regulations