Small Project Design

This message has been cross posted to the following Discussion Forums: Committee of Corporate Architects and Facility Management and Small Project Practitioners .
-------------------------------------------
We are experiencing attorneys initiating discrimination suits for non compliant Toilet Facilities at existing restaurants and other public buildings in South Florida although the buildings are in full compliance for the code standards in effect when they were built. Typically they settle out of court for a few thosand dollars and move on to the next case.
My question is , if a building is in compliance with the code at the time it was built and is not being renovated, is it necessary to reconstruct Toilets for current ADA compliance ?

-------------------------------------------
Manuel Perez-Vichot AIA
Perez-Vichot & Associates, Inc.
Miami Springs FL
-------------------------------------------

My understanding is that the Americans with Disabilities Act (ADA) is not a building code per se, but rather a law that requires businesses to provide access and equivalent services to all regardless of disability.  So businesses (especially in older buildings in which wheelchair access is difficult, expensive or even impossible) all around the country risk lawsuits if they do not provide equal access to services, even if their buildings are in full compliance with applicable codes.  In some states, such as New York, the ADA actually has been incorporated into the building code.

-------------------------------------------
Bruce Ward AIA
Proprietor
Hamilton NY
-------------------------------------------

New Jersey has a Barrier Free Subcode that is a part of the Uniform Construction Code, along with edited versions of IRC, IBC, etc. The Barrier Free Code references the same standard that ADA does, ANSI A-117.1.The requirements are triggered by an application for a permit for construction. So if you do no work, you have no need to comply with ANSI A-117.1. However, ADA is civil rights legislation that is triggered by a complaint to the Department of Justice that one's rights have been violated. So a building owner could be in compliance with the Barrier Free Subcode and still liable under the ADA, both which reference the same standard.

So a tenant who makes no changes to a toilet room that complied with an older version of the code does not need to change the room, but if a complaint is filed, the first thing the DOJ will do will be to try to compel the tenant to make necessary changes or prove that they have a plan in place to make their space more accessible over time. An architect should have no liabillty since they complied with the code, but the owner still has an obligation to comply with ADA. But move a door, wall or fixture location in the slightest and it is a completely different story. We even had a situation involving the height of counters in kitchens, where the state code is in conflict with the ADA requirements, so it was a no win situation. It has since been resolved...sort of.

In short, the Barrier Free Subcode is not retroactive, ADA is.

Compliance with the State Building Code is the architect's responsibility (as delegated by the Owner), ADA is the Owner's. At least here in NJ. I don't think an architect should be held liable for areas of a building outside the project area.  I've seen plenty of tenant spaces that are perfectly accessible, yet the landlord's common areas, including building entrances, are not.

My question for NY and other states that have incorporated ADA / ANSI standards into the state building code is, do they incorporate the ADA as building code or do they just reference the same standard? Because the ADA is not building code. The ANSI A-117.1 standard is not either, for that matter. One is civil rights legislation, the other is a standard that may be adopted in part or in whole, and modified as the State sees fit.

-------------------------------------------
David Del Vecchio AIA
Architect
David Del Vecchio, Architect, LLC
Cranford NJ
-------------------------------------------







Original Message:
Sent: 10-04-2012 06:59
From: Bruce Ward
Subject: ADA compliance

My understanding is that the Americans with Disabilities Act (ADA) is not a building code per se, but rather a law that requires businesses to provide access and equivalent services to all regardless of disability.  So businesses (especially in older buildings in which wheelchair access is difficult, expensive or even impossible) all around the country risk lawsuits if they do not provide equal access to services, even if their buildings are in full compliance with applicable codes.  In some states, such as New York, the ADA actually has been incorporated into the building code.

-------------------------------------------
Bruce Ward AIA
Proprietor
Hamilton NY
-------------------------------------------

I say no. You cannot hold someone accountable for something that didn't exist when they did something. On the other hand, if they changed the usage group of the building or renovated it then yes, they could be held liable. Here in Virginia at least 20% of the renovation budget must go towards accessibilty compliance.
-------------------------------------------
Thad Broom AIA
Architect
Thad A. Broom AIA, P.C.
Virginia Beach VA
-------------------------------------------

In my experience, a state (or localities) can mandate compliance (usually within a certain length of time from the date of the effective code), but if that mandate is not in place (adopted), then the condition would be "grandfathered." Also, most states are requiring compliance because of Federal laws that require that they require it.

If in the cases that have been considered there has been renovation to compliance as a result of the case, then I would guess that mandate is in effect in your locality.

-------------------------------------------
George Jennings AIA
G Booker 3
Tappahannock VA
-------------------------------------------

The building code and the ADA are two different animals.  The ADA is a law, the code is a standard guideline adopted by state and local authorities.

With ADA, the responsibility for compliance lies with the Owner.  If it is felt by someone that their right to equal access has been denied or compromised, they have, by law, the right to seek justice.  This is regardless of whether the building met code when it was built or remodeled.  With the passage of the ADA, all buildings are required, at a minimum, to provide an accessible entrance.  After that, if financially and technically feasible, is an accessible route through the building with accessible toilets, drinking fountains, etc.  Any saavy building Owner should know that they need to provide this if their building is publically accessible.  If not, they are in violation of the law and are at peril of being sued.
 
With the code, if the standard (which, by the way, is a minimum standard, aka the least you can do) is met, then a permit is issued.  Most codes now incorporate some version of ICC/ANSI A117 by reference, which means, in order to obtain a permit, that standard must be met.  If your state has adopted the Rehab Code, it assumes that existing buildings met the codes enforced at the time they were permitted and, if left as is, don't have to be brought up to current standards.  Any new work, however, must meet the current building codes.  But, as stated previously, even meeting code does not exonerate buildings from being made ADA compliant.        
-------------------------------------------
Michael G. Huslage, AIA
Architect
Michael G. Huslage, PLLC
Raleigh, North Carolina
USA
-------------------------------------------

This is one of those questions whose answer must start with "be sure to consult an attorney." The final answer will be affected by case law and by Justice Department practices.

Federal ADA requirements are civil rights requirements independent of local building codes. It is very common to find construction in some regions that was completed long after the passing of the ADA and establishment of the ADA Architectural Guidelines (ADAAG) that apparently passed local code requirements but did not meet the accessibility requirements of the ADAAG that were in force at that time. This was especially true in more rural areas of the country. This is less common now that the building code accessibility requirements and the ADA/ABA have been normalized, and a generation of code officials and architects have digested the requirements. But Justice Department complaints and lawsuits related to the design of facilities that should have met but did not meet ADAAG when they were built will continue to have standing, and owner's obligations to meet those requirements of the ADA continue.

The ADA as originally passed and as amended also contains certain provisions regarding the extent of modifications to existing buildings that owners are required to undertake based upon the occupancy type, whether or not other construction is planned. Additional provisions apply once renovation is undertaken, based upon the extent of the renovation and whether or not the renovation constitutes a change of use. New portions of existing non-complying buildings likely are required to contain accessible facilities. For example, renovated toilet rooms in a non-accessible area will likely be required to be accessible with the understanding that future modifications to the building would then bring that area into compliance.

The Access Board  www.access-board.gov/ maintains a considerable body of knowledge that addresses these sometimes thorny topics. As architects, we should defer to the Justice Department and the opinion of the owner's attorney when it comes to these matters, as we are not conversant in civil rights law and don't want to provide opinions that are outside of our professional responsibilities.

That said, as a citizen, the efforts of some attorneys to make a living in this area of the law by bringing suits and collecting settlements may seem unseemly, but if you've ever dragged a wheelchair-using relative up a set of steps in order for them to enter a restaurant, or dragged stored tables out of the handicapped stall so they could use it, you may form the opinion that such entrepreneurial threats of monetary damages have been a cost effective means of bringing about a transformation of the accessible built environment that no amount of big government enforcement could have caused.


-------------------------------------------
Philip Kabza AIA
Partner and Dir Technical Services
SpecGuy
Charlotte NC
-------------------------------------------

Dear Manuel

The Department of Justice iniciated a rule called "Safe Harbor".  Although it is not a true grand father clause, it is close.  The safe harbor says that if any facilty, space, element meets the 1991 ADAAG then it can remain as it is and not require upgrading to the 2010 ADA as long as it is not renovated or altered.
See the definition:

C) Safe harbor. If a public entity has constructed or altered required elements of a path of travel in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standards before March 15, 2012, the public entity is not required to retrofit such elements to reflect incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel.

-------------------------------------------
Marcela Rhoads AIA
Abadi Accessibility
Dallas TX
-------------------------------------------

Manuel,

Likely they are doing this under provisions of the federal laws of the ADA. While a visit with an attorney specializing in this subject might be warranted, how we understand the law is normally interpreted is that all public facilities must comply with the ADA law. However, there are many exclusions and provisions allowing existing facilities to remain as is. For example, churches generally are given a "free card" but you may still have to define the "church" clearly because a public service or event where non-members are invited, might bump it out of the exclusions. Historical buildings are also given many exclusions, but generally they have to have some kind of official historical designation. Buildings on sloping sites get exclusions due to the infeasibility of getting ramps to doors. In fact, related directly to the restroom issue, buildings owners who can claim with justification that it is economically infeasible to make the require renovations can also get exclusions.

Unfortunately, the potential cost of a legal fight to demonstrate a legitimate justification of infeasibility may cost more than either settling out of court or actually doing the renovations. So it's an economic question. Even if the restaurant is existing, even old, if there it is feasible to make the renovations, the law pretty much requires that they comply. Most facilities put it off until they are forced to--like by attorneys acting "on behalf" of the disabled, whether or not the actually have a client making the charge. Usually, it is organizations serving the disabled who hire the attorneys to make the charges, but I wouldn't put it past some ambulance chasers to do this on their own.

-------------------------------------------
David Clarke AIA
President, AIA Southern New Mexico Chapter
Senior Architect, Williams Design Group, Inc.
Las Cruces NM

-------------------------------------------
Scott Simmons AIA
Principal
Craig Gaulden & Davis Inc
Greenville SC
-------------------------------------------
Disclaimer alert. A lawyer should comment on this one...this is not legal advice, nor...

Remember that ADA is civil rights legislation, not a building code. The standard is a law and interpreted by the Department of Justice in light of ongoing operations rather than a static building Code or permit. A building designed to meet Code (and referenced ADA standards) may not meet the new ADA guidelines.  See ADA.gov

If the state or your jurisdiction has adopted the International Existing Building Code you can check it out in there.  If you are not doing remodeling in the restaurants you dont have to bring it up to code.  The only thing that may force the changes is the ADA law, but usually, the locals dont enforce ADA.  It is a Federal law.  

-------------------------------------------
Nelson B. Nave AIA
Owner
Nelson Breech Nave, AIA Architect
Kalamazoo MI
-------------------------------------------

As you are probably aware of, Accessibility has two portions - local state/city and Federal ADA. The local codes are typically enforced at the time of permit or construction and is not required to be updated to new codes when no construction is being done. The ADA is a civil rights law and is an ongoing obligation.

So, in answer to your question - it depends. If the facility is a place of public accommodation, as you stated, and was constructed pre-ADA, then the owner/tenant is obligated to remove barriers which are Readily Achievable (RA) on an ongoing basis even if there is no construction or alterations and even if it met all local building codes. The Department of Justice (DOJ) has a list of what they consider Readily Achievable, although it is not finite, and also a 5-point criteria of what makes something RA which is mostly financial concerns. Because of this, we as architects, unless we are also CPAs or Attys, do not determine what is RA for a owner/tenant, although you certainly can provide the list that DOJ created.

If a building was constructed post-ADA then it is required to meet all ADAAG requirements. If it does not, even if it met local codes, and even if there is no construction, it should be altered to meet ADA. And right now it should then be altered to meet the 2010 ADAS.

There is now Safe Harbor which basically states that if an element met ADAAG then it does not need to be altered to meet the 2010 ADAS unless that specific area is being altered. This does not apply to certain types of elements that were not covered in the original ADA (ie pools, spas, exercise area, etc)

There is also an element that many times confuses people. If you are doing an alteration, there is the 20% rule which requires you to spend additional money on making Path of Travel items accessible. Above the 20% it is considered disproportionate and is not mandatory. Of course, here in CA where I live, the 20% disproportionate rule disappears when we hit the Valuation Threshold (it is now $136,060) and in that case all supporting Path of Travel items are required to be altered to comply.

All of the above are just brief overviews and there are a number of exceptions and qualifications.

-------------------------------------------
Janis Kent, AIA, CASp
Stepping Thru Accessibility
Long Beach, CA

-------------------------------------------

My understanding when the ADA was passed was that the only people allowed to bring a suit for non compliance were the US attorneys, not individuals.  Perhaps that has changed.

That said the IBC and our building code only cover new construction.  In Minnesota existing toilet rooms can remain if they are not touched by the project.  There is a provision in Minnesota code that an amount equal to 20% of the construction cost of the project must be spent to correct deficiencies to the accessible path which of course includes the toilet rooms.  Building officials often don't focus on all provisions of the code.

You might also check the provision of in your code for existing buildings.  Ours is based on the Guidelines for the Rehabilitation of Existing Buildings, more simply known as the GREB code.  

-------------------------------------------
Peter Carlsen AIA
Carlsen & Frank Architects
Saint Paul MN
-------------------------------------------

Please do not forget about Readily Achievable Barrier Removal. This is an ongoing obligation per the ADA and most likely is not in the majority of building codes unless a state is certified by the DOJ. It doesn't matter what a state code is - it is over-ridden by the ADAS in this case. (see my previous posting with more info)

Also, some state (ie CA) have their own civil rights laws which allow people who have been denied full and equal access to sue in state courts as well.

-------------------------------------------
Janis Kent, AIA, CASp
Stepping Thru Accessibility
Long Beach, CA

-------------------------------------------







Original Message:
Sent: 10-04-2012 12:37
From: Peter Carlsen
Subject: ADA compliance

My understanding when the ADA was passed was that the only people allowed to bring a suit for non compliance were the US attorneys, not individuals.  Perhaps that has changed.

That said the IBC and our building code only cover new construction.  In Minnesota existing toilet rooms can remain if they are not touched by the project.  There is a provision in Minnesota code that an amount equal to 20% of the construction cost of the project must be spent to correct deficiencies to the accessible path which of course includes the toilet rooms.  Building officials often don't focus on all provisions of the code.

You might also check the provision of in your code for existing buildings.  Ours is based on the Guidelines for the Rehabilitation of Existing Buildings, more simply known as the GREB code.  

-------------------------------------------
Peter Carlsen AIA
Carlsen & Frank Architects
Saint Paul MN
-------------------------------------------

A point of clarification, ADA is not just a portion of the building code, it is Federal Law and thus fully punishable to the extent of Fedeal prosecution. This is why every municipality is required to have a seperare ADA plan check in addition to local building codes. The ADA plan checker can be the same building official that performs the building plan check, but must be trained and certified to do an ADA plan check. ADA is the only design criteria that the general public can actually sue a building owner (and their design & construction team/consultants) for and that carries criminal liability should anyone be injuryed from failure to comply with the Federal Statute. If the building leaks, insurance will cover you and the building owner, but if a disabled person cannot gain access into a public facility and/or is injured because of non ADA compliance, someone may end up with jail time in a Federal facility. This is no joke, I have seen it happen with former clients that were obstinant building owners that chose to do it their way and ended up doing time, paying some very large medical bills for the damages to the disabled person injured at their facility and still had to remodel their facility to make it ADA complient or face closure of the business. Since it is a Federal regulation, it must be adhered to regardless of the age of the building. Think of it as Labor law, it doesn't matter how long an employee has been on the payroll, one must still adhere to the regulations passed by Congress for that year for that employee. Both ADA and Labor Law have not changed much in recent years, but as changes do arrive, no one is exempt from having to adhere to them. ------------------------------------------- Ricardo Ramos Assoc. AIA, LEED® AP, CSI Arcadia CA -------------------------------------------
Original Message: Sent: 10-03-2012 09:26 From: Manuel Perez-Vichot Subject: ADA compliance This message has been cross posted to the following Discussion Forums: Committee of Corporate Architects and Facility Management and Small Project Practitioners . ------------------------------------------- We are experiencing attorneys initiating discrimination suits for non compliant Toilet Facilities at existing restaurants and other public buildings in South Florida although the buildings are in full compliance for the code standards in effect when they were built. Typically they settle out of court for a few thosand dollars and move on to the next case. My question is , if a building is in compliance with the code at the time it was built and is not being renovated, is it necessary to reconstruct Toilets for current ADA compliance ? ------------------------------------------- Manuel Perez-Vichot AIA Perez-Vichot & Associates, Inc. Miami Springs FL -------------------------------------------

A point of clarification to the clarification - Building officials in CA (and elsewhere for that matter) can not check for ADA - it is not their jurisdiction and many times this is a cause of confusion to architects and building owners alike. A Building Dept is required to have a CASp (certified access specialist) on staff or out-source. The BO can alert submitters that they need to comply with ADAS but they have no jurisdiction over federal laws and can not enforce ADAS unless their local jurisdiction has made a written alteration to the CA Building Code. This has been to the State Atty General's office as well as the Access Board for clarifications numerous times.

-------------------------------------------
Janis Kent, AIA, CASp
Stepping Thru Accessibility
Long Beach, CA

-------------------------------------------







Original Message:
Sent: 10-04-2012 12:43
From: Ricardo Ramos
Subject: ADA compliance

A point of clarification, ADA is not just a portion of the building code, it is Federal Law and thus fully punishable to the extent of Fedeal prosecution.

This is why every municipality is required to have a seperare ADA plan check in addition to local building codes. The ADA plan checker can be the same building official that performs the building plan check, but must be trained and certified to do an ADA plan check. ADA is the only design criteria that the general public can actually sue a building owner (and their design & construction team/consultants) for and that carries criminal liability should anyone be injuryed from failure to comply with the Federal Statute.

If the building leaks, insurance will cover you and the building owner, but if a disabled person cannot gain access into a public facility and/or is injured because of non ADA compliance, someone may end up with jail time in a Federal facility. This is no joke, I have seen it happen with former clients that were obstinant building owners that chose to do it their way and ended up doing time, paying some very large medical bills for the damages to the disabled person injured at their facility and still had to remodel their facility to make it ADA complient or face closure of the business.

Since it is a Federal regulation, it must be adhered to regardless of the age of the building. Think of it as Labor law, it doesn't matter how long an employee has been on the payroll, one must still adhere to the regulations passed by Congress for that year for that employee. Both ADA and Labor Law have not changed much in recent years, but as changes do arrive, no one is exempt from having to adhere to them.

-------------------------------------------
Ricardo Ramos Assoc. AIA, LEED® AP, CSI
Arcadia CA
-------------------------------------------

My understanding of ADA compliance is in its relationship to civil rights law.  As it happens, building codes have adopted accessibility design guidelines to establish a standard of care for the governing authority having jurisdiction over health, safety and welfare in buildings.  A facility open to the public, like a restaurant, might be in compliance with an earlier version of the building code, before ADA standards were implemented.  That does not mean it is addressing the civil rights of disabled persons who desire to make use of the services the business occupying the building has offered to the public.

-------------------------------------------
Roger Retzlaff AIA
Green Bay WI
-------------------------------------------

Manuel,

As per the previous post, check out the United States Access Board, and "Bulletin 5: Using ADAAG" - they give a comprehensive overview of ADA, but also the Barrier Free act which I believe is more applicable to your case.

We are typically engaged by hotel owners to resolve similar cases as ADA specialists, so we run across this issue in restaurants, meeting facilities, and other similar accessory occupancies.  It is sometimes difficult to prove to a client why they must undertake this type of work as they are frequently misled in thinking that they are "grandfathered" and I have found this bulletin helpful in explaining the issues they face.

Good luck!

-------------------------------------------
Michael Maturo AIA
President
Dyami Architecture, PC
Chestnut Rdg NY
www.dyami.com
-------------------------------------------

I would like to tag onto David Del Vecchio's comments.

The ADA, like the Fair Housing Act (FHAct), is a Federal Civil Rights law - not a building code. The ADA and FHAct are generally enforced via 3rd party complaints to and through the US Justice Department. The Justice Department recognizes certain (but not all) building codes as meeting the requirements of the Act.

I suggest that the practitioner should verify whether the Justice Dept has recognized the applicable building code as meeting the requirements of the Act.  Then use the appropriate design standard, whether it is the code, the Federal standard, or both.

As both an architect and construction defect consultant, I recognize the challenge in helping the client understand the difference between building codes and Civil Rights accessibility requirements.  However, failing to do so exposes both the practitioner and the client to potential risks.

-------------------------------------------
Arthur Davis AIA
Architect
Portland OR
-------------------------------------------







Original Message:
Sent: 10-05-2012 08:26
From: Michael Maturo
Subject: ADA compliance

Manuel,

As per the previous post, check out the United States Access Board, and "Bulletin 5: Using ADAAG" - they give a comprehensive overview of ADA, but also the Barrier Free act which I believe is more applicable to your case.

We are typically engaged by hotel owners to resolve similar cases as ADA specialists, so we run across this issue in restaurants, meeting facilities, and other similar accessory occupancies.  It is sometimes difficult to prove to a client why they must undertake this type of work as they are frequently misled in thinking that they are "grandfathered" and I have found this bulletin helpful in explaining the issues they face.

Good luck!

-------------------------------------------
Michael Maturo AIA
President
Dyami Architecture, PC
Chestnut Rdg NY
www.dyami.com
-------------------------------------------