ADA: What must be done and at what cost - Americans With Disabilities Act affects building design

Real Estate Weekly, July 22, 1992 by Gary M. Rosenberg, Michael E. Lefkowitz

As readers of the Real Estate Weekly are aware the landmark American with Disabilities Act ("ADA") requires the owners and tenants of millions of different types of establishments across the country begin removing architectural and communication barriers from their premises.

The ADA prohibits discrimination on the basis of disability by private entities in places of public accommodation and commercial facilities. New commercial facilities must be designed, and altered commercial facilities and places of public accommodation must be retrofitted so as to be readily accessible to, and usable by, persons with disabilities.

Rosenberg & Estis, P.C. has counseled several owners of commercial facilities regarding compliance with the ADA. The first question always asked by clients is: How much is compliance with the ADA going to cost?

Our analysis of the ADA and the accompanying U.S. Justice Department regulations suggest that both commercial facilities and public accommodations can comply with ADA without incurring the expense of major renovations. A consultation exclusively with an architect may not yield this conclusion.

The ADA is an anti-discrimination statute, and not a building code. Accordingly, its application is best analyzed by an attorney, while its technical requirements may be best implemented by an architect. In fact, in counselling a client on compliance, our firm reviews "Compliance Reports" from architectural firms. We have found that recommendations of architects as to required. barrier removal were inconsistent with, and not required by, the ADA.

Furthermore, as the ADA is an antidiscrimination good faith efforts at compliance are important. Thus, owners must always document their attempts at compliance to avoid potential imposition of the penalties proscribed by the statute. Compliance may be attained without exorbitant cost and expense, through use of alternative method to barrier removal.

In fact, the ADA requires that if barrier removal is not readily achievable to a public accommodation, an alternative method must be undertaken to, make its good and services available to the disabled. Moreover, a commercial facility when renovating a primary function area, need only expend up to 20 percent of the overall cost of the alteration, in providing a path of access to the altered area. Thus, the statute does not contemplate that all barriers be immediately removed. It does require ongoing compliance.

Through our representation of owners of commercial facilities, we have developed some practical solutions to otherwise costly compliance measures. As a compliance industry develops, compliance technology and methodology which are cost prohibitive today, may become readily achievable in the future. Thus an owner should devise an interim plan for compliance with a future goal of full compliance.

Where Work Must

Be Done And Who

Is Responsible?

Other than cost, the most obvious effects on the real estate industry are two-fold:

First, as of Jan. 26, 1992, architectural and communication barriers that are structural in nature, in places of public accommodation must be removed, if such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.

The regulations promulgated by the U.S. Justice Department give examples of the types of measures which are likely to be deemed readily achievable. Examples include installing ramps; making curb cuts in sidewalks and entrances; repositioning shelves; repositioning telephones; adding raised marking on elevator control buttons; installing flashing alarm lights; widening doors; installing grab bars in toilet stalls; insulating lavatory pipes under sinks to prevent burns; repositioning the paper towel dispenser in the bathroom; creating designated accessible parking spaces; and installing an accessible paper cup dispenser at an existing inaccessible water fountain.

Second, every new and altered commercial facility must now conform with standards outlined in the ADA Accessibility Guidelines ("ADAAG"). Commercial facilities are non-residential facilities, including office buildings, factories and warehouses, whose operations effect commerce.

Places of Public Accommodation

Places of public accommodation include over 5 million establishments such as restaurants, hotels, theaters, convention centers, retail stores, shopping center, doctors' offices, lawyers' offices, banks, day care centers, any place that people go to buy goods and services.

A public accommodation is an entity which owns, leases or leases to a place of public accommodation. Liability under the ADA is on the public accommodation, not the place of public accommodation.

A building owner, as a lessor to a place of public accommodation, is a public accommodation pursuant to the ADA. Thus, the building owner - as well as the tenant - could potentially be liable for conducting readily achievable barrier removal within the space of a tenant which is a place of public accommodation. The ADA, however, allows for parties to allocate responsibility for complying with the statute's obligations by lease.