Today, 27 years after the Americans with Disabilities Act (ADA) passed, a surprising number of commercial properties remain non-accessible for the 50 million Americans — 18% of our population — with physical disabilities. In 2016 alone, more than 6,500 ADA lawsuits were filed in federal court relating to commercial properties which were deemed “disability unfriendly”. These lawsuits can cause headaches... and plenty of money, such as attorney fees and civil penalties as well as lost business due to negative publicity. In this article, I review how to ensure renovating your commercial building leaves it not only more stylish, better performing and cost-efficient, but also in compliance with ADA regulations so you can avoid legal problems.
New commercial construction is typically built to comply with the ADA and therefore is rarely the target of ADA lawsuits. However, when it comes to applying ADA to existing buildings, things get more complicated. Some commercial building owners and managers have the misconception that their buildings that predate the ADA’s passing in 1992 are grandfathered in so they can simply ignore the issue of ADA compliance. In reality, companies are required to make appropriate efforts to meet ADA compliance standards whenever they choose to alter a primary function area, no matter the age. An “alteration” is defined by the ADA as: remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural parts or elements, changing or rearranging plan configuration of walls and full-height partitions, or making other changes that affect (or could affect) the usability of the facility.
It is important to note that unlike Building Codes which are prescriptive and considered minimum standards, the ADA is written vaguely and the prescriptive means of meeting the requirements are established in Court by the Judges as each situation is adjudicated. There is a great deal of room for judicial interpretation. As with all legal issues, the building owner or manager should consult with their attorney regarding specific ADA issues.
Renovating Existing Buildings
In existing buildings, whether they were built before or after 1992, any move to alter a primary function area can trigger demand for ADA compliance upgrades, specifically within “Title III” that mandates commercial properties meet minimum standards for accessibility. For example, renovating a hotel lobby may mean that the building owner will need to adjust water fountains throughout the hotel to better accommodate people of disabilities, or that a new accessible route must be built that leads to the altered lobby.
So what exactly is providing “accessibility”? For interior remodels, accessibility elements consist of doors, door hardware, thresholds, pounds of pressure to operate the door, signage, drinking fountains, and the closest restroom along the route from the altered area. For exterior remodels, accessibility elements consist of an “off site” path of travel connection to the public sidewalk, accessible path of travel at the affected area, the nearest disabled parking, curb ramps, striping and signage along the route of the altered area. Property owners may need to remove “architectural and communication barriers” that are structural in nature when it is achievable. Other required steps can include the widening of doorways to ensure they are wheelchair accessible, retrofitting restrooms, or adding access ramps. These changes are necessary when they can be accomplished without being unduly difficult or expensive. As a general rule of thumb up to 20 percent of the construction costs must be dedicated to removing barriers, if any. If the cost exceeds 20% of construction costs then a “disproportionate cost” may be determined.
As an example, let’s say an existing elevator in an apartment building does not meet the ADA’s minimum clearance requirements. However, the elevator is big enough so that another person is able to fit into it along with a person in the wheelchair. Estimates to replace the elevator range from $90,000 to $120,000 owing to the structural load bearing walls around the elevator not being easily altered to accommodate a larger elevator. Due to the high cost for replacing the elevator, this would not be a readily achievable solution. And, since the elevator can still be accessed by a person in a wheelchair, the elevator would probably not have to be replaced at this time.
We should also mention there are alterations that do not trigger the ADA upgrade clause unless they affect the usability of a building. These are maintenance repair projects that consist of:
Heating, ventilation and air conditioning
Electrical work not involving placement of switches and receptacles
Cosmetic work that does not affect items regulated by this code, such as painting
Equipment not considered to be a part of the architecture of the building or area, such as computer terminals or office equipment.
ADA and Hotel Renovations
Hotels in particular have increasingly been the targets of ADA Title III lawsuits. A handicapped guest who feels that they have been discriminated against by a hotel’s lack of effort to remove barriers can hire an attorney and file suit in Federal Court. It is strongly recommended that all hotels maintain an ADA checklist and conduct regular ADA accessibility training for its staff. Even if a hotel facility does not meet the technical requirements of the ADA, lawsuits can be avoided if hotel staff receive proper accessibility training.
In a hotel renovation, the minimum required number of accessible guest rooms required is a key factor. It is based on the total number of guest rooms being renovated or added, instead of the total number of guest rooms in a hotel. Accessible guest rooms must be dispersed among the various classes of guest rooms, and provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. You should also be aware that there are two types of accessible guest rooms, one type having “mobility features” and the other “communication features.”
Below is a list of steps that a hotel owner may need to take to meet ADA compliance requirements and make rooms and public spaces more accessible.
Upgrading public and company restrooms so that they comply with ADA standards
Widening door frames and installing accessible hardware on doors
Adjusting water fountains
Replacing problematic flooring
Adding railings or grab bars in appropriate locations
Creating or improving accessible parking
Installing ramps or creating curb cuts at entrances
Rearranging furniture and other features to reduce barriers to service.
People with disabilities are living independently and participating actively in their communities. They want to patronize businesses that welcome customers with disabilities. In addition, by the year 2030, approximately 71 million baby boomers will be over age 65 and demand products, services, and environments that meet their age-related physical needs. Studies show that once people with disabilities find a business where they can shop or get services in an accessible manner, they become repeat customers. Therefore, failure to comply with Title III standards during renovations can do more than leave a commercial building owner vulnerable to liability issues; it can turn away thousands of customers.