ADA Compliance

Are You ADA Compliant or Are You a Law Suit Waiting To Happen?

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Top 10 ADA Compliant Violations

CASp Certification

ADA Compliance and Businesses

SEC. 12. Section 1938 is added to the Civil Code

This rather innocuous little paragraph is something we have been talking about for some time now. “SEC. 12. Section 1938 is added to the Civil Code, to read: 1938. A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards pursuant to Section 55.53”.

SCHRAIBMAN’S COMMENT: The way I see it the almost immediate implications are as follows:

1) All commercial lease are about to undergo a change in that this aspect needs to be reflected at 7/1/13

2) The inspection has to be carried out by a CASp- not just any other party

3) And if inspected by a CASp, the property has to be brought up to compliance with all applicable accessibility standards, which means costs.

One could also read all sorts of other potential issues, such as responsibility falling back to the owner for non-compliance issues and the cost of defending against litigation. In addition to this, if two properties are the same a prospective tenant who is savvy would likely go with the property that affords them the least exposure. The long term implications seem to be leaning to everything being CASp certified eventually and hence everything being compliant with all applicable accessibility standards.

The complex area of disabled access compliance is unique in California in that not only are there state codes and regulations that must be met, but there are also federal code requirements and the two do not always compliment one another. Add to this that both federal and state codes are continually evolving and you have an environment that can be very confusing for building owners and operators.

ADA Accessibility Guidelines for Buildings and Facilities (ADAAG)

 

 

The Americans with Disabilities Act In 1990 when the Americans with Disabilities Act (ADA) was enacted and became law, it made equal access a constitutional right.

Prior to this there were other requirements regarding disabled access barrier removal, but with the enactment of the ADA, this was formalized. ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It has been many years since the ADA became law, and Courts look dimly on public entities which have not met the law’s basic requirements. The ADA is a federal mandate that carries heavy fines and penalties for noncompliance, not to mention the potential for expensive lawsuits.

In 1990 when the Americans with Disabilities Act (ADA) was enacted and became law, it made equal access a constitutional right. Prior to this there were other requirements regarding disabled access barrier removal, but with the enactment of the ADA, this was formalized. ADA prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It has been many years since the ADA became law, and Courts look dimly on public entities which have not met the law’s basic requirements. The ADA is a federal mandate that carries heavy fines and penalties for noncompliance, not to mention the potential for expensive lawsuits.

The Department of Justice published revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 (ADA) in the Federal Register on September 15, 2010. These regulations adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design “2010 Standards”. On March 15, 2012, compliance with the 2010 Standards will be required for new construction and alterations. In the period between September 15, 2010 and March 15, 2012, covered entities may choose between the 1991 Standards (without the elevator exemption for Title II facilities), the Uniform Federal Accessibility Standards (Title II facilities only), and the 2010 Standards.

 

 

Businesses Cannot Afford to be out of ADA Compliance.

Any business that interfaces with the public is responsible for complying with ADA accessibility guidelines. Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination and file for damages. Individuals may also file complaints with the Attorney General, who is authorized to bring lawsuits in cases of general public importance or where a pattern or practice of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation.

 

State and Federal Accessibility Regulations?

The State adopts and mandates compliance with State Building Codes which incorporate the accessibility requirements. Unfortunately, State accessibility codes are not always the same or more stringent then the ADA federal regulations. In new construction, local jurisdictions only enforce State accessibility codes, as they are not vested with the authority to enforce federal ADA regulations, however federal laws mandates you comply with ADA. The responsibility for compliance lies ultimately with the owner and the architect overseeing the project. This is why the State created CASp professionals, to assist people in complying fully with all of the confusing and sometimes conflicting accessibility laws, regulations and standards.

The Landlord or the Tenant: Leased Properties that Interface With the Public

 The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on both the landlord and the tenant. The landlord and the tenant may decide by lease whbo will actually make the changes and provide the aids and services, but both remain legally responsible.

ADA Requirements and New Construction

The ADA requires that all new construction of places of public accommodation, as well as of “commercial facilities” such as office buildings, be accessible. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.

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ADA Requirements and Renovating or Altering Facilities

All alterations that can affect the usability and accessibility of a facility must be made in an accessible manner to the maximum extent feasibly possible. For example, if during renovations a doorway is being relocated, the new doorway must be wide enough to meet the new construction standard for accessibility. When alterations are made to a specific tenant space, an accessible path of travel to the altered area must be provided. The bathrooms, telephones, and drinking fountains serving that area must also be made accessible. These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the total alteration. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.

 

Top 10 ADA Compliant Violations

CASp Certification

ADA Compliance and Businesses