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By: Jonathan R. Mook, DiMuroGinsberg, P.C. and Howard (Skip) Maginniss, MAGINNISS + DEL NINNO ARCHITECTS
One goal of the Americans with Disabilities Act of 1990 (the ADA or the Act) is to ensure that commercial facilities and public accommodations are accessible to persons with disabilities. As a result, ADA regulations have far-reaching effects on both newly constructed and existing buildings.
THIS ARTICLE EXPLAINS ADA ACCESSIBILITY REQUIREMENTS and provides guidance to commercial real estate owners and building managers (and their counsel) on how to comply with these requirements.
In 1990, Congress enacted the ADA.1 The Act provides comprehensive civil rights protection for individuals with disabilities.
The ADA has as much impact on the real estate industry and the architectural design of buildings as it has on the operation of any business. The Act affects the design and construction of new facilities and the maintenance, alteration, and renovation of existing facilities, essentially mandating that all such construction and alterations accommodate persons with disabilities.
The ADA protects three categories of individuals with disabilities:
The definition is minimal and, according to Congress, is to be interpreted in a broad and expansive manner.
While minor impairments, such as simple myopia, a broken leg that heals normally, or a trick knee do not constitute disabilities, more serious medical conditions generally are covered. The Department of Justice has said that the following conditions “should easily be concluded” to constitute disabilities:
Commercial Facilities and Public Accommodations Covered
Title III of the ADA applies to a variety of facilities, most particularly commercial facilities, and public accommodations.4
Commercial facilities are broadly defined as nonresidential facilities whose operations affect commerce. They include office buildings, factories, and warehouses.5
A place of public accommodation means a facility that is operated by a private entity and whose operations affect commerce and falls within one of the following categories:
The list is broad and the places of public accommodation that are not covered by the Act are few.
Prohibition on Discrimination against the Disabled
The ADA provides that any person who owns, leases, or operates a place of public accommodation cannot discriminate against an individual on the basis of a disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations or is otherwise in violation of the Act.7 The scope of this obligation includes a duty to make reasonable modifications in policies, practices, and procedures when such modifications are necessary in order to provide facilities, accommodations, goods, or services to an individual with a disability.8
Who is Liable under the Act?
The ADA applies to most parties with an interest in real estate. Hence, owners, landlords, management companies, tenants, architects, contractors, and other entities that own, use, lease, manage, design, or construct facilities not only have the potential to be liable themselves but to pass on the liability to the parties with whom they contracted.9 The Act basically provides for joint and several liability where a property is not in compliance. Thus, both an owner and a tenant of a property can be liable for discrimination. This liability, however, can be traded off or allocated under an indemnification clause of a lease.10
For example, ABC Company leases space in a shopping center it owns to XYZ Boutique. In their lease, the parties have allocated to XYZ Boutique the responsibility for complying with the barrier removal requirements of Title III within that store. However, if XYZ Boutique fails to remove barriers, both ABC Company (the landlord) and XYZ Boutique (the tenant) are liable for violating the ADA and can be sued by an XYZ customer.
Allocation of Liability through Indemnification Clauses
Looking to the example above, in a lease, ABC Company could require XYX Boutique to indemnify it against all losses caused by XYZ’s failure to comply with its obligations under the lease. However, such matters would be between the parties and would not affect their liability under the ADA.
Contracts Related to Construction and Alteration
In an effort to limit liability, when entering any contract for construction or alteration, there should be some provision to ensure that the architect, designer, engineer, or builder has undertaken a review so as to try to ensure compliance with the ADA and its attendant regulations. A certification of that compliance may be a valuable provision of such a contract. Moreover, some type of indemnification clause where compliance is not met should exist. Additionally, the contract should cover the cost of any compliance measures necessary if a violation is found. The indemnification clause should be broad and include indemnification for damages, costs of corrective action, attorney’s fees, and other defense costs. To be acceptable to most design professionals and be insurable under errors and omissions policies, such indemnification must not demand more than the standard care of professional practice.
Americans with Disabilities Act Accessibility Guidelines (ADAAG)
As a general rule under the ADA, discrimination includes a failure to design and construct a facility that is readily accessible to and usable by individuals with disabilities.11 All new construction (and alterations) must comply with the architectural standards for accessibility known as the Americans with Disabilities Act Accessibility Guidelines (ADAAG or Guidelines). These Guidelines were issued by the Architectural and Transportation Barriers Compliance Board and were published as an appendix to the federal regulations.12 The rules for the construction of new facilities are much stricter than those that apply to the removal of barriers in existing structures, which only require compliance where readily achievable. The rules for new construction apply to public accommodations and commercial facilities: in essence, any nonresidential facility whose operations may affect commerce (i.e., practically any type of commercial or business structure).
Other Standards and Building Codes
Facilities covered by the ADA that are constructed or altered must also follow local and state laws, typically building codes. Building codes for most jurisdictions are based on model building codes, the most prevalent being those of the International Code Council (ICC). Jurisdictions often add or amend scoping and standards contained in the model building codes that make them more or less stringent than the ADAAG. For example, the state of Florida has substantially amended the accessibility requirements of its building code.13
The ICC is a nonprofit association that provides a range of building safety solutions, including the development of model building codes. The American National Standards Institute (ANSI) is a private, not-for-profit that oversees the development of standards for a variety of services and products. ICC model codes reference ANSI 117.1 as the standard for meeting accessibility. ANSI 117.1 was first comprehensively promulgated in 1961 and subsequently referenced in some state building codes in various forms between 1961 and 1990. ANSI 117.1 (2009) is the standard/guideline that most model building codes reference, and it established the basis and structure for ADAAG. ANSI has adopted a 2017 version containing some significant more stringent changes, but this version will probably not find its way into codes adopted by the states for several years. On a practical level, those seeking to be fully compliant must be cognizant of both ADAAG and other jurisdictional accessibility requirements. While the ADA relies on civil rights enforcement, local or state code compliance employs building permit plan reviews and inspections.
ADA Standards for New Construction
General Design Standards
The Guidelines contain general design standards (often referred to as technical standards) for building and site construction and improvements. These standards include:
The requirements of the ADAAG for new construction are very extensive. The following are examples of new construction requirements:
Requirements for Specific Facilities
The ADAAG also contains specific technical standards for restaurants, medical care facilities, mercantile facilities, libraries, and transient lodgings, such as hotels and various shelters.
The following are examples of specific requirements required in the new construction of special types of facilities, such as restaurants, medical care facilities, mercantile establishments, libraries, and hotels:
Technical and scoping requirements for alterations are sometimes less stringent than those for new construction. For example, when compliance with the new construction requirements would be technically unfeasible, one accessible unisex bathroom per floor is acceptable.
In the new construction of small structures of limited use, there is an exemption for the requirement of an elevator. Where a facility is less than three stories and has less than 3,000 square feet per story, an elevator need not be included unless the building is a shopping center, a shopping mall, a professional office of a health-care provider, or the U.S. attorney general determines that a particular category of facilities requires the installation of elevators based on the usage of those facilities.14
Therefore, some small office buildings and other facilities may be exempted from the elevator requirement as it applies under the ADA. However, there may be other state and local regulations that may not permit the same exemption for elevators.
Exemption for Structurally Impractical Construction
As stated above, as a general rule under the ADA, discrimination includes a failure to design and construct a facility that is readily accessible to, and usable by, individuals with disabilities.15 This standard is applicable unless it can be demonstrated that it is structurally impractical for the facility to meet the requirements of the Act.16 Compliance is considered structurally impractical only in rare circumstances when unique characteristics of the terrain prevent the incorporation of accessibility features.17 Moreover, if providing accessibilities to individuals with some types of disabilities is structurally impractical, accessibility to other types of disabilities is still required.18
When alterations are made to existing buildings, the Act requires an analysis of the building’s accessibility to the disabled so as to encourage implementation of the Act’s accessibility requirements. An alteration is a change that affects the usability of a facility. For example, if during remodeling, renovation, or restoration, a doorway is being relocated, the new doorway must be wide enough to meet the requirements of the ADAAG. Alterations that affect the usability of a facility include remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes, or rearrangement in structural parts or elements and changes or rearrangements in the planned configuration of walls and height partitions.19 Local and state building codes may also mandate changes to improve accessibility beyond the area being altered. Normal maintenance, reroofing, painting, and wallpapering, asbestos removal, or changes to heating, ventilation, and air conditioning systems, or electrical systems are not alterations for purposes of the Act unless they affect the usability of the facility.20
For example, flooring in a store is being replaced. This is an alteration because it can affect whether or not an individual in a wheelchair can travel in the store. The new floor must comply with ADAAG requirements for a nonslip surface or with the ADAAG carpeting requirements.
As another example, an electrical outlet is being relocated. The location of the new outlet can affect usability by an individual who uses a wheelchair because, if the outlet is placed too low, the individual will be unable to reach it. This is an alteration that must be done in accordance with ADAAG reach requirements.
There are two general rules with regard to the alteration provisions of the Act. The first rule requires altered portions of a facility to be made accessible to, and usable by, disabled individuals. The second rule requires that any alteration that affects the usability of or access to an area of the facility that contains a primary function be constructed so that the path of travel to the altered area be accessible to, and usable by, disabled individuals.21
Accessible and Usable
If a facility is altered in a manner that could affect its usability, the alterations will be treated as discriminatory if they do not, to the maximum extent feasible, make the altered portions of the facility readily accessible to and usable by disabled individuals.22
The architectural standards (i.e., ADAAG) for accessibility are the same as those covering new construction. Thus, all alterations must comply with the architectural standards contained in the ADAAG. The ADAAG specifies how many, and under which particular circumstances, accessibility features must be incorporated into existing facilities and buildings that are to undergo alterations.23 They are similar in nature to the requirements of new construction.
Primary Function and Path of Travel
The second rule relating to alterations provides that any alteration affecting the area of the “primary function” of a facility must also affect the “path of travel” to that altered area (and to bathrooms, telephones, drinking fountains, and other features that serve the altered area) so as to make it accessible to, and usable by, individuals with disabilities. This must be achieved to the maximum extent feasible, as long as the scope and cost of these alterations prompted by the Act are not disproportionate to the overall cost of the alterations.24 When analyzing what alterations are necessary to the path of travel within an altered area, the primary function of the facility must be identified and analyzed.
Primary function is defined in the regulations as a “major activity for which the facility is intended.”25 This, presumably, will include areas such as the customer services lobby of a bank, the dining area of a cafeteria, meeting rooms of a conference center, and offices and other work areas in business facilities where the purpose of the facility is carried out. The primary function concept does not include alterations to such attendant locations as mechanical rooms, boiler rooms, supply rooms, employee lounges or locker rooms, supply closets, entrances, corridors and restrooms, entry vestibules, etc.
An alteration to an area of primary function might include:
Possible repairs to a primary function area which may not affect the usability of the area might include alterations to windows, hardware controls, electrical outlets, signs, and similar features.
Path of Travel
The concept of “path of travel” means a continuous, unobstructed pedestrian passage by which the altered area can be entered or exited, and which connects the altered area with an exterior approach to the facility (e.g., sidewalk, parking lot); an entrance to the facility; or other parts of the facility.26 Thus, path of travel may consist of:
Importantly, alterations to the path of travel must be provided unless otherwise disproportionate to the overall alterations.27 The alterations to provide an accessible path of travel are considered disproportionate if those renovation costs exceed 20% of the cost of the alteration to the primary function area. This calculation is based upon the entire renovation cost.28 This requirement cannot be evaded by undertaking a series of small alterations if they could have been performed in a single undertaking. The regulations require the cost analysis to consider all alterations within a three-year period to be aggregated to determine whether or not the alterations are disproportionate.
Costs of expenditures to create an accessible path of travel include:
As with other exceptions and exemptions of the Act, the exception for disproportionate alteration costs has limited applicability. Even if the costs of the alterations along the path of travel are disproportionate, the owner or operator of the facility must still make alterations to the path of travel to the extent they are not disproportionate.
When determining which alterations should be made along the path of travel, the regulations offer the following priorities to be followed:
A further limitation on the path of travel requirement applies to multi-tenant properties. If a tenant makes alterations in an area that only the tenant occupies, the path of travel obligation will not be triggered against the landlord as to facilities exclusively under the landlord’s control, as long as those areas are not otherwise being altered.31 This provision saves the landlord from prospective remodeling each time a tenant might want to make improvements under a lease.
Facilities eligible for listing in the National Register of Historic Places must comply with the alteration requirements of the ADA to the maximum extent feasible. To the extent compliance in the normally prescribed manner is not technically feasible, alternative methods of access must be provided to individuals with disabilities.32 “Technically infeasible” means “an alteration of a building or facility that has little likelihood of being accomplished because of the existing structural frame or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with minimum requirements for new construction and that are necessary to provide accessibility.”33
Readily Achievable Barrier Removal
Under the Act, discrimination includes a failure to remove from existing facilities architectural barriers and communication barriers that are structural in nature.34 Not all barriers need to be removed however. Removal is required only where removal is readily achievable. This term is defined as that which is “easily accomplishable and able to be carried out without much difficulty or expense.”
Readily Achievable Standard
Whether any of these measures is readily achievable is to be determined on a case-by-case basis in light of the particular circumstances presented.35 For instance, costs that are insignificant to one business may present a tremendous hardship to another. Factors in making such a determination include:
Types of Barrier Removal
Examples of architectural and communicative barriers that may need to be removed or alterations that may need to be made as being readily achievable include:
Priority in Barrier Removal
The measures taken to comply with the barrier removal requirements must conform with the specific architectural standards for alterations and new construction as described in the ADAAG.
The regulations suggest that architectural and communication barriers be removed to provide access to individuals with disabilities, in the following order of priority:
Where Barrier Removal Not Readily Achievable
Where alterations are not readily achievable, an obligation remains upon a place of public accommodation to make “ . . . its goods, services, facilities, privileges, advantages or accommodations . . . ” available through other readily achievable methods.38 For example, the fact that a ramp with the mandated degree of slope cannot readily be installed does not excuse the obligation to install a ramp with a steeper slope if that will enhance accessibility for individuals with disabilities. Similarly, where removal of a barrier is not readily achievable, alternative methods must be implemented to make the goods or services available, such as home delivery, curbside service, or retrieving items from inaccessible shelves.
The Justice Department may institute action against alleged violators of the ADA in cases of general public importance or where a pattern of practice of discrimination is alleged. The attorney general may seek monetary damages (not including punitive damages) and civil penalties may be awarded.39 Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.40 In considering the appropriateness of a civil penalty, the court will consider any good faith effort or attempt to comply with the ADA.41
In exercising its authority, the Justice Department has investigated potential violations of Title III of the ADA and, in most cases, has been able to reach settlements to ensure accessibility. For example, in 2019, the Justice Department reached settlements with three medical providers to ensure that their facilities had accessible parking spaces, accessible medical equipment, and accessible entrances.42
In addition, private parties are permitted to bring actions to obtain court orders to stop discrimination.43 In the case of a private party suit, the court may:
Importantly, no monetary damages are available in suits brought by private parties. A reasonable attorney’s fee, however, may be awarded.45
Since the provisions of Title III of the ADA took effect in 1992, there have been thousands of lawsuits brought alleging inaccessibility of commercial facilities and public accommodations. The federal government does not keep statistics on Title III lawsuits, but according to one private source, in 2018, there were more than 10,000 ADA Title III lawsuits filed in federal court.46 Lawsuits have brought against retail stores, restaurants, grocery stores, and motels and hotels alleging that their facilities are inaccessible due to architectural barriers.47
In addition to private lawsuits alleging that a particular facility covered by Title III is inaccessible, private plaintiffs also have instituted class actions against chain restaurants for having plans or designs that do not comply with the accessibility requirements of the ADA.48 Similar suits have been brought against owners or operators of hotels, medical facilities, and movie theaters.49 Class actions also have been instituted against owners or operators of retail store chains.50
The ADA regulations allow states and local governments to apply to the U.S. Assistant Attorney General for Civil Rights, or his or her designee, for certification that a building code meets or exceeds the minimum requirements of the Act pertaining to the accessibility and usability of commercial facilities and public accommodations.51 If the assistant attorney general finds the code acceptable, a certification of equivalency will be issued.52 The regulations define a “certification of equivalency” as final certification that a code “meets or exceeds the minimum requirements of Title III of the Act for accessibility and usability of facilities covered by that title.”53 A certification will be deemed a certification of equivalency only with respect to those elements that are specifically covered by the certified code and addressed by the standards against which the equivalency is measured.54 Only Florida and a small handful of other states are currently certified by the Department of Justice.
If an enforcement proceeding is brought against a party under Title III of the ADA, the certification will be considered rebuttable evidence that such state law or local ordinance “does meet or exceed the minimum requirements of Title III.”55 However, certification will not be effective where a building code official permits a facility to be constructed or altered in such a way that it does not conform with the applicable provisions of the certified code. Thus, if a building code official waives an accessibility element or permits a change that does not provide for equivalent facilitation, the code’s certification will no longer be evidence that the facility has been constructed or altered in accordance with the ADA.56
Jonathan R. Mook is a partner in the law firm of DiMuroGinsberg, P.C., with offices in Alexandria, Virginia. Mr. Mook concentrates his practice in the areas of employment and labor law. Mr. Mook regularly provides consultation to clients on a wide variety of employment issues, including matters pertaining to employment discrimination, wrongful termination, and workplace torts. He is a frequent lecturer on topics dealing with employment law and the Americans with Disabilities Act. Mr. Mook is the author of Americans with Disabilities Act: Employee Rights & Employer Obligations (Matthew Bender), as well as Americans with Disabilities Act: Public Accommodations & Commercial Facilities (Matthew Bender), and of a volume on the ADA that is a part of the multi-volume LexisNexis treatise, Labor & Employment Law. Howard (Skip) Maginniss is cofounder and principal of MAGINNISS + DEL NINNO ARCHITECTS. The 12-person architectural design, planning, and consulting firm located in Alexandria, Virginia provides services in the Washington, DC metropolitan region and east coast region. The firm is recognized for its environmentally sensitive designs. Mr. Maginniss and the firm’s design professionals are LEED-certified and committed to promoting resilient and carbon neutral buildings. The firm has completed both LEED Gold and LEED Platinum certified projects.
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1. 42 U.S.C.S. § 12181 et seq. 2. 28 C.F.R. § 36.104 3. Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008, 81 Fed. Reg. 53,204, 53,224 (Aug. 11, 2016); 28 C.F.R. § 105(d)(2)(iii). 4. 42 U.S.C.S. § 12189; 28 C.F.R. § 36.102. 5. 42 U.S.C.S. § 12187. 6. 42 U.S.C.S. § 12181(7); 28 C.F.R. § 36.104. 7. 42 U.S.C.S. § 12182(a). 8. 28 C.F.R. § 36.302(a); 42 U.S.C.S. § 12182. 9. 42 U.S.C.S. § 12182(a); 28 C.F.R. § 36.201. 10. 28 C.F.R. § 36.201(b). 11. 42 U.S.C.S. § 12183(a)(l); 28 C.F.R. § 36.401(a). 12. 28 C.F.R. pt. 36, app. A. 13. See Fla. Stat. Ann. § 553.502. 14. 42 U.S.C.S. § 12183(b); 28 C.F.R. § 36.401(d). 15. 42 U.S.C.S. § 12183(a)(1); 28 C.F.R. § 36.401(a). 16. 42 U.S.C.S. § 12183(a)(1); 28 C.F.R. § 36.401(c). 17. 28 C.F.R. § 36.401(c)(1). 18. 28 C.F.R. § 36.401(c)(3). 19. 28 C.F.R. § 36.402(a). 20. 28 C.F.R. § 36.402(b)(1). 21. 42 U.S.C.S. § 12183(a)(2). 22. 42 U.S.C.S. § 12183(a)(2). 23. See 28 C.F.R. pt. 36, app. A. 24. 42 U.S.C.S. § 12183(a)(2); 28 C.F.R. § 36.403. 25. 28 C.F.R. § 36.403(b). 26. 28 C.F.R. § 36.403(e). 27. 42 U.S.C.S. § 12183(a)(2); 28 C.F.R. § 36.403(f). 28. 28 C.F.R. § 36.403(f). 29. 28 C.F.R. § 36.403(f)(2). 30. 28 C.F.R. § 36.403(g)(2). 31. 28 C.F.R. § 36.403(d). 32. 28 C.F.R. § 36.405. 33. Id. 34. 42 U.S.C.S. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a). 35. 28 C.F.R. § 36.104. 36. 28 C.F.R. § 36.304(b). 37. 28 C.F.R. § 36.304(c). 38. 28 C.F.R. § 36.305(a). 39. 42 U.S.C.S. § 12188; 28 C.F.R. § 36.503(b). 40. 28 C.F.R. § 36.504. 41. 42 U.S.C.S. § 12188, 28 C.F.R. § 36.504(d). 42. See U.S. Department of Justice, “Americans with Disabilities Act Investigations Ensure Accessibility at Three Medical Providers” (Feb. 21, 2019). See also U.S. Department of Justice, “Justice Department Reaches Agreement with Teachers Test Prep to Ensure Equal Access for Individuals with Disabilities” (June 27, 2018). 43. 28 C.F.R. § 36.504(a)(1). 44. 42 U.S.C.S. § 12188(b)(2)(A). 45. 42 U.S.C.S. § 12205; 28 C.F.R. § 36.505. 46. See http://nwadacenter.org/news/ada-newsjanuary-28-2019. 47. See Nat’l Alliance for Accessibility, Inc. v. Macy’s Retail Holdings, Inc., 2012 U.S. Dist. LEXIS 156170 (M.D.N.C. Oct. 30, 2012); Molski v. Arby’s Huntington Beach, 359 F. Supp. 2d 938 (C.D. Cal. 2005); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013); D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031 (9th Cir. 2008); Nat’l Alliance for Accessibility, Inc. v. CMG Bethesda Owner LLC, 2012 U.S. Dist. LEXIS 173655 (D. Md. Dec. 7, 2012). 48. See Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003); Castaneda v. Burger King Corp., 264 F.R.D. 557 (N.D. Cal. 2009); Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2003). 49. See Civil Rights Educ. & Enforcement Ctr. v. Hosp. Properties Trust, 867 F.3d 1093 (9th Cir. 2017); Access Now, Inc. v. AHM CGH, Inc., 2000 U.S. Dist. LEXIS 14788 (S.D. Fla. July 12, 2000); Arnold v. UA Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994). 50. See Colo. Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014); Mielo v. Steak ‘N Shake Operations, Inc., 897 F.3d 467 (3d Cir. 2018); Ass’n for Disabled Americans v. 7-Eleven, Inc., 2002 U.S. Dist. LEXIS 6163 (N.D. Tex. Apr. 10, 2002). 51. 28 C.F.R. § 36.602. 52. 28 C.F.R. § 36.602. 53. 28 C.F.R. § 36.601. 54. 28 C.F.R. § 36.607(a)(1). 55. 28 C.F.R. § 36.602. 56. 56 Fed. Reg. 35,544, 35,555–35,556 (1991).