Disabled Access Compliance
What is ADA?
ADA is the Americans with Disabilities Act. 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.
Why do you need to Comply with ADA?
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. When it comes to the ADA, businesses cannot afford to be out of compliance.
Can I be fined for not updating my building or business?
Yes. 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.
Why do I need to worry about both the State and the 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.
Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?
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.
What does ADA require in 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.
What are the ADA requirements for 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.
In what locations does ARCOR provide ADA audit services and CASp certification?
ARCOR-Inc. provides ADA audit services throughout the USA and CASp certification throughout California, particularly Los Angeles, San Diego, San Francisco and Palm Desert/Springs.
The following definitions are general in nature and are to be used only in relation to the clarification of certain words or terms that are used
The following questions offer broad information for various topics in construction defects.
What is a construction defect?
Almost any condition that reduces the value of a home, condominium, or common area can be legally recognized as a defect in design or workmanship, or a defect related to land movement. Prior to 2003, Courts recognized two primary categories of defects for which damages are recoverable by the homeowner or homeowner association.
Defects in design, workmanship and materials: These include, water seepage through roofs windows and sliding glass doors; siding and stucco deficiencies; slab leaks or cracks; faulty drainage; improper landscaping and irrigation; termite infestation; improper materials; structural failure or collapse; defective mechanical and plumbing; faulty electrical wiring; inadequate environmental controls; improper security measures and devices; insufficient insulation and poor sound protection; and inadequate firewall protection.
Landslide and earth settlement problems: Examples are expansive soils; underground water or streams; landslides; settlement; earth movement; improper compaction; inadequate grading; and drainage.
Structural failures and earth movement conditions can be catastrophic in nature and present both personal injury and substantial property damage exposure. Landslide and settlement conditions may result in collapse of buildings; cracks in slabs, walls, foundations, and ceilings; disturbance of public or private utilities; and sometimes a complete undermining of the structures.
In California, for any home or condo completed or closed escrow after January 1, 2003, SB 800 (Civil Code Section 895 et seq.) clarified the types of defects that the builders are responsible to fix. This statute takes the guesswork out of defining a defect and clearly identifies by statute all categories of defects for which the developer is responsible.
What does the builder’s warranty really cover?
Try to read the warranty. Every warranty is different in what is covered and what is not, how long the warranty lasts, and what the builder will do to fix construction problems. Most will not address ninety percent of typical construction defects. Many require you to arbitrate and give up your right to sue in court. Read the fine print because it may state that you also may end up paying the developer’s arbitration costs if you lose. Do not be duped into believing they will repair defects to your satisfaction. The warranty is more a marketing tool than any real effort to address serious problems in your home. Most developers’ concept of what constitutes a construction defect falls far short of what most building standards and state statutes, like the California SB 800 (Civil Code Section 895 et seq.), consider to be construction defect.
How do I prove that a defect exists?
In most cases, you will need to hire the services of an independent expert. Experts are those who have the necessary training, education and experience to give testimony in court as to the cause of a defect. For example, if your roof leaks, a waterproofing expert who has designed effective roofs, evaluated other defective roof systems and knows how roofs should be built would be in a good position to testify. And while a general or roofing contractor can repair a damaged roof, he may not be the best person to act as your expert. Your lawyer cannot, in most cases, prove his case against the developer unless he has a qualified expert. Experts are available in nearly every aspect of residential construction. An expert’s services usually run from $150.00 to $300.00 or more per hour. Caution: Do consult with counsel before hiring an expert to protect the information and control the expenses.
What kinds of damages can I recover in a lawsuit, and can I recover attorney’s fees?
All courts are clear in awarding condominium owners’ associations the cost of repairing the defects. You can also recover whatever reasonable fees you have had to pay for your experts to investigate the cause of your defects and their costs in supervising the repairs. The costs of doing temporary repairs during and before the lawsuit to prevent further the damage are also recoverable. If repairs require owners to vacate their homes, these relocation costs are included. Punitive damages, or damages awarded to punish the developer and to deter similar conduct in the future, may be awarded where the developer defendant has defrauded the buyer. With few exceptions, attorney’s fees are generally not recoverable but are negotiated in every settlement by experienced counsel. These damages can now be found in a specific law, SB 800 (Civil Code Section 895 et seq.)
What should I do if the developer has agreed to make the necessary repairs?
It is wise to consult an experienced lawyer who can assist in locating an independent expert (one who has no relationship with the developer) to evaluate the developer’s investigation of the problem and his proposed repair. The same expert should oversee actual repairs. Once repairs are agreed upon, the attorney can draft a proper settlement agreement that does not release the developer of liability except for the limited and defined repairs being made, and then only after the repairs have proved effective. And under SB 800 (CA Civil Code 895 et seq.), repairs made by a development pursuant to this statutory “right to repair” law does not require a release at all. The developer working outside of SB 800 (CA Civil Code 895 et seq.) typically demands a broad form general release of all future liability in exchange for making repairs. Such a release may result in board of director liability and eliminate your right to sue for other defects that appear during the time remaining on your statutes of limitation. For that reason such a release is rarely, if ever, recommended. In other words, insist on a specific limited release.
How long do I have to file a lawsuit?
All construction defect cases are covered by statutes of limitation. In California, for homes completed or escrow closed after January 1, 2003, the rule is now found in SB 800 (Civil Code Section 895 et seq.). It provides for one, two, four, five, and ten-year statutes of limitations. The statute also requires a claim to be submitted with in three years from the date of discovery. Before Jan 1, 2003, your statute of limitation is still ten years maximum from completion but three and four-year statutes also apply.
Under another statute, you are required to file within three years from the time you first discovered each defect. Under the three-year rule, California courts are not too rigid on when “discovery” of a defect occurs. Generally, the owner must have known or observed a condition that a reasonable person should have discovered it. However, letters to the developer, surveys of homeowners’ complaints, boards of directors’ minutes, committee reports, reserve studies, maintenance invoices, and experts’ reports may prove a defect has been discovered. Upon discovery of the defect, take prompt, appropriate action to protect your rights. By all means, before you start your lawsuit, get it in writing from your lawyer that none of these time limits have been blown. Don’t try to analyze statute of limitations legal issues. They are very complex and require expert legal opinion.
How much will a lawsuit cost?
The total cost of prosecuting a lawsuit will depend on a number of factors, including the nature and amount of damages, the number of parties, and the attitude of the parties. Some lawsuits are settled within a relatively short period of time, while others are not resolved until just before trial. Lawsuits can be expensive, and close cooperation between homeowners, the homeowner association, property manager and attorney is necessary to contain the costs as much as possible. One of the major costs is the cost of expert consultants; these costs are usually recoverable in the lawsuit. Experts’ costs will depend upon the nature and extent of defects and the size of the project. Attorneys generally either bill by the hour or take a percentage of any recovery. If the attorney charges by the hour, expect to pay between $250 and $450 or more per hour for one with substantial experience. If the attorney works on a contingency basis, expect the fee to be between 33-1/3% and 40% of the gross recovery. These fees are negotiable. Whatever the agreement, get it in writing. Most owners prefer the attorney to take the risk and ask for a contingency contract. Under a contingency agreement, if you don’t get paid, your lawyer doesn’t get paid.
Where do I get the money to pay for a lawsuit?
If your property has a homeowner association, several ways exist to raise money for pursuing your legal rights. First, your association’s reserves are a good source. California allows associations to borrow for reserves as long as it is paid pack in a limited amount of time. Another source is to increase your monthly assessments by the percentage allowed in your CC&Rs or pass a special assessment. Finally, certain lenders will finance the investigation, securing the loan with the potential recovery. You also can ask your lawyer to advance expenses. Contingency lawyers typically have a line of credit from which the expert fees and costs can be advanced to the client. In a class action, these costs are split among all the participants. The larger the group of homeowners, the less you will be responsible to pay in costs.
How do I recover if the builder/developer is out of business, cannot be located or is bankrupt?
Homeowner associations and homeowners should carefully assess the developer’s ability to pay damages. The most important asset in many states is the developer’s insurance. Even if the developer cannot be located or is bankrupt, the insurance companies must defend and pay claims that are covered under the policy(s). Determine early on how much insurance the developer maintained from completion of construction to the present and how much is left. It is critical to evaluate the insurance assets not only of the builder, but also of the general contractor, subcontractors, architect and engineer, as well.
Will the homeowners or homeowner association’s insurance company cover damages caused by construction defects?
Not usually. The language in most owner and homeowner association insurance (first person) policies excludes coverage for faulty design, workmanship on materials. Disaster coverage (flood, disaster coverage, earthquake, and hurricane) must be separately evaluated.
Am I required to make repairs while the lawsuit is pending, and can I recover those costs in the lawsuit?
Yes and yes. You are required to take all reasonable steps to protect the property from sustaining additional damage. These costs are normally recoverable in the lawsuit. Carefully review any temporary repair program with an expert to guarantee correct documentation of the repairs.
Can I sell or refinance my home during the litigation?
Yes. The HOA board of directors has a fiduciary duty to investigate homeowner complaints of common area construction defects and timely pursue a claim against the developer to recover damages to fix the problems. During this time, a homeowner must disclose to a potential buyer common area defects and litigation. Such disclosure may have an impact on sales, but so will the condition of the home when you fill out a residential disclosure statement and hand it to a prospective buyer. Consult a real estate broker who is experienced in working with homes in litigation. Due to fluctuating interest rates, many owners may want to refinance their homes. While in litigation, lenders are cautious about refinancing. Consult with an experienced mortgage broker.
(Adapted from ASHRAE Guideline 0-2005)
Acceptance: A formal action, taken by a person with appropriate authority (which may or may not be contractually defined) to declare that some aspect of the project meets defined requirements, thus permitting subsequent activities to proceed.
Basis of Design: A document that records the concepts, calculations, decisions, and product selections used to meet the Owner’s Project Requirements and to satisfy applicable regulatory requirements, standards, and guidelines. The document includes both narrative descriptions and lists of individual items that support the design process.
Checklists: Verification checklists that are developed and used during all phases of the commissioning process to verify that the Owner’s Project Requirements are being achieved. This includes checklists for general verification, plus testing, training, and other specific requirements.
Commissioning: See Commissioning Process.
Commissioning Authority: An entity identified by the Owner who leads, plans, schedules, and coordinates the commissioning team to implement the Commissioning Process.
Commissioning Plan: A document that outlines the organization, schedule, allocation of resources, and documentation requirements of the Commissioning Process.
Commissioning Process: A quality focused process for enhancing the delivery of a project. The process focuses upon verifying and documenting that the facility and all of its systems and assemblies are planned, designed, installed, tested, operated, and maintained to meet the Owner’s Project Requirements.
Commissioning Process Activities: Components of the Commissioning Process.
Commissioning Process Progress Report: A written document that details activities completed as part of the Commissioning Process and significant findings from those activities, which is continuously updated during the course of a project. Usually incorporated into the Commissioning Plan as an ongoing appendix.
Commissioning Report: A document that records the activities and results of the Commissioning Process. Usually developed from the final Commissioning Plan with all of its attached appendices.
Commissioning Team: The individuals who through coordinated actions are responsible for implementing the Commissioning Process. Construction Checklist: A form used by the contractor to verify that appropriate components are onsite, ready for installation, correctly installed, and functional. Also see Checklists.
Construction Documents: These include a wide range of documents that will vary from project to project and with the Owner’s needs and with regulations, laws, and countries.
Construction documents usually include the project manual (specifications), plans (drawings), and general terms and conditions of the contract.
Continuous Commissioning Process: A continuation of the Commissioning Process well into the Occupancy and Operations Phase to verify that a project continues to meet current and evolving Owner’s Project Requirements. Continuous Commissioning Process activities are ongoing for the life of the facility. Also see Ongoing Commissioning Process.
Contract Documents: These include a wide range of documents that will vary from project to project and with the Owner’s needs and with regulations, laws, and countries. Contract Documents frequently include price agreements, construction management process, subcontractor agreements or requirements, requirements and procedures for submittals, changes, and other construction requirements, timeline for completion, and the Construction Documents.
Coordination Drawings: Drawings showing the work of all trades to illustrate that equipment can be installed in the space allocated without compromising equipment function or access for maintenance and replacement. These drawings graphically illustrate and dimension manufacturers’ recommended maintenance clearances.
Design Intent Documentation: Design Intent Document (DID) is a term frequently used to define design phase narratives that explain how proposed designs respond to the OPR and how the building is to operate. The DID includes quantifiable systems analysis and design values and should be updated as design modifications are made throughout the project delivery process.
Issues Log: A formal and ongoing record of problems or concerns – and their resolution – that have been raised by members of the Commissioning Team during the course of the Commissioning Process.
Nominal Group Technique: A formal, structured brainstorming process used to obtain the maximum possible ranked input from a variety of viewpoints in a short period of time. The typical approach is a workshop session where a question is presented, the attendees record their responses individually on a piece of paper, the individual responses are recorded on a flip chart without discussion in a round robin fashion, all of the responses are discussed, and then the participants rank their top five responses.
Ongoing Commissioning Process: A continuation of the Commissioning Process well into the Occupancy and Operations Phase to verify that a project continues to meet current and evolving Owner’s Project Requirements. Ongoing Commissioning Process activities occur throughout the life of the facility; some of these will be close to continuous in implementation, and others will be either scheduled or unscheduled (as needed). Also see Continuous Commissioning Process.
Owner’s Project Requirements: A written document that details the functional requirements of a project and the expectations of how it will be used and operated. These include project goals, measurable performance criteria, cost considerations, benchmarks, success criteria, and supporting information. (The term Project Intent is used by some owners for their Commissioning Process Owner’s Project Requirements.)
Quality Based Sampling: A process for evaluating a subset (sample) of the total population. The sample is based upon a known or estimated probability distribution of expected values; an assumed statistical distribution based upon data from a similar product, assembly, or system; or a random sampling that has scientific statistical basis.1, 2, 3
Re-Commissioning: An application of the Commissioning Process requirements to a project that has been delivered using the Commissioning Process. This may be a scheduled recommissioning developed as part of an Ongoing Commissioning Process, or it may be triggered by use change, operations problems, or other needs.
Retro-Commissioning: The Commissioning Process applied to an existing facility that was not previously commissioned. This guideline does not specifically address retrocommissioning. However, the same basic process needs to be followed from Pre-Design through Occupancy and Operations to optimize the benefits of implementing the Commissioning Process philosophy and practice.
Systems Manual: A system focused composite document that includes the operation manual, maintenance manual, and additional information of use to the Owner during the Occupancy and Operations Phase.
Test Procedure: A written protocol that defines methods, personnel, and expectations for tests conducted on components, equipment, assemblies, systems, and interfaces among systems.
Training Plan: A written document that details the expectations, schedule, budget, and deliverables of Commissioning Process activities related to training of project operating and maintenance personnel, users, and occupants.
Verification: The process by which specific documents, components, equipment, assemblies, systems, and interfaces among systems are confirmed to comply with the criteria described in the Owner’s Project Requirements