July 2006
SHORT REPORT:
Update:  ADA Construction Law
By Brian Ward

Say “Americans With Disabilities Act” to a roomful of facilities designers, and watch their body language. Some tense just a little. Some writhe. Seldom has a federal law triggered such uncertainty and anxiety.

But there is light against the darkness, and with each passing year since the law was passed in 1990, the legal patterns and interpretations have become clearer. Or at least they did for awhile. In July last year, a revised version of the ADA Accessibility Guidelines was adopted by the U.S. Access Board, renewing uncertainty.

Keep in mind that the law was only enforceable when the Department of Justice adopted the original ADAAG in ’91, and that version is still the law for what’s being built today, attorney Teresa Jakubowski, Barnes & Thornburg, recently told attendees at a meeting of the Multi-Unit Architects, Engineers and Construction Officers, a study group of the National Restaurant Association. Last July’s revised version of the ADAAG will not be binding until adopted by the DOJ, she said, and it’s virtually certain that won’t happen for another year or more.

Big Settlements On The Books

A key source of confusion, barrier removal at existing locations, has been the topic of several significant legal settlements in recent years, Jakubowski said. In one settlement, a major restaurant chain coughed up $200,000 to plaintiffs along with making the required structural changes. Another case involved a $215,000 settlement plus removing or modifying customer queues for wheelchair accessibility. A major retailer had to provide “tactually discernible” point-of-sale devices for sight-impaired customers who would otherwise be unable to gain equal access to the usual credit/debit card swipes at checkout counters.

“Existing facilities (those constructed prior to January of ’93), must remove architectural barriers to access where such removal is ‘readily achievable,’” Jakubowski said. The rub, she acknowledged, is in interpreting the phrase “readily achievable.” Clarification says it means easily accomplishable without much difficulty or expense. But that’s not much clarification.

In actual practice, a “sliding scale” based on resources is used to define what’s readily achievable, she said. Thus a small operation with limited resources is not held to the same standard as a large operation for whom modifications represent less of a hardship.

Judges Like To See Good Faith Effort

Importantly, Jakubowski said, the passage of time is changing the legal view of what’s readily achievable. She asserted that a record of improvement works in an operator’s favor, but a violation that’s gone unaddressed for years is hard to defend.

As for new-construction standards, Jakubowski clarified that “public accommodations and commercial facilities designed and constructed for first occupancy after Jan. 25, 1993, must comply with the ADA Accessibility Guidelines.” She went on to say that the law says “alterations undertaken after Jan. 26, 1992, also must comply to the maximum extent feasible.”

Further confusing the issue, several states have passed their own versions of ADA laws, but not all of them are strictly identical. To date, the federal government has certified as “equivalent” similar accessibility and barrier laws in Florida, Maine, Maryland, North Carolina, Texas and Washington. Pending certification are comparable laws in California, Indiana, New Jersey, Utah and a new code in Washington.

The key thing to understand is that compliance with those certified equivalent state laws provides a presumption of compliance with the ADA, and it shifts burden of proof of noncompliance to the plaintiff.

Toward the end of a chock-full meeting session, Jakubowski quickly outlined a long list of changes to the requirements that likely will be adopted as currently suggested. Among them

Possibly of widest concern, she said, 5% of all seating spaces and standing spaces at dining surfaces must be accessible. (The key word there is “spaces,” not just “seats.”) Also of note, accessible routes to and from each such space must be available. And finally, those accessible spaces must be spread throughout the facility. These requirements are higher than before and essentially mean you’ll need a bigger footprint or fewer dining surfaces to create the accessibility across the facility.

The new standard also will require that 60% of all public entrances will have to be accessible, as opposed to the current level of 50%.

Tolerances Vs. Ranges

Existing standards, which frequently cited absolute dimensions and made allowances for minimal construction tolerances, are now being replaced. The new standards tend to quote an allowable range, but allowance for construction tolerance beyond that is no longer applicable. This could make a difference, for example, in water-closet measurements.

And another biggie that awaits some evaluation by DOJ: Work areas of more than 1,000 sq. ft., which excludes most kitchens, now must have all common-use circulation paths within work areas to be accessible. Before, accessibility was only required to and from, not within.

One change that’s more likely to face resistance requires that <i>all<i> direct pedestrian entrances from parking structures must be accessible. The downside: Certain parking lot situations, particularly busy drive-through areas, pose a greater threat to mobility-impaired patrons, and creating accessibility at those points might create a new danger.

To see the current standard in its entirety, check out www.ada.gov.

To see side-by side comparisons of current and to-be-proposed standards, go to www.access-board.gov.