BUSTING ADA MYTHS - Part 1

The Americans with Disabilities Act ("ADA") was implemented nearly 30 years ago, yet myths regarding compliance remain. This is a myth busting blog.

MYTH #1 "My property is grandfathered.”

FACT: Every property has an affirmative obligation to comply, regardless of when it was built or whether alterations have been made.

There are very few exceptions, namely for a facility that has sought and obtained a specific historical/hardship exemption for a specific barrier from state or local government agency. In truth, almost no one gets these.

FACT: Even buildings constructed long before the ADA was signed into law (July 26, 1990) have ADA obligations. Under the Americans with Disabilities Act (federal law) and applicable sections of Title 24 of the California Building Code enforceable under California’s Unruh Act or Disabled Persons Act, evaluation of accessibility and barrier-removal obligations is applied depending on when the facility was constructed, whether alterations have been made, and whether accessibility is "readily achievable", as follows:

1. New Construction. Any building built after 1992 must be built in accordance with the Americans With Disabilities Act Architectural Guidelines (“ADAAG.”) or the 2010 ADA Standards. The controlling guidelines depend upon the building codes in effect the year the building was constructed.

2. Renovations. Any renovations to existing buildings must be done in accordance with the ADAAG or 2010 Standards) and the path of travel to the renovations must be such so as to allow persons with disabilities to get to the renovations. Compliance with state building codes is also required. Where the two conflict, the code providing the greater level of accessibility controls.

3. Existing Facilities Without Renovations. For existing facilities, an affirmative duty exists to make whatever changes are readily achievable.

DEFINING READILY ACHIEVABLE

• Readily achievable means without much difficulty or expense. Determining that means looking at several factors including: 1) the nature and cost of the action needed; 2) the overall financial resources of the site or sites involved in the action; 3) the number of persons employed at the site; 4) the effect on expenses and resources; 5) legitimate safety requirements necessary for safe operation, including crime prevention measures; 6) if applicable: A) the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent Corporation or entity; B) the overall financial resources of any parent Corporation or entity; C) the overall size of the parent Corporation or entity with respect to the number of employees; D) the number, type, and location of its facilities; and E) the type of operation or operations of any parent Corporation or entity, including the composition, structure, and functions of the work force of the parent Corporation or entity.

• Examples of what may be deemed readily achievable can be found in 28 C.F.R. § 36.304(b) and include:

1. Installing ramps;

2. Making curb cuts in sidewalks and entrances;

3. Repositioning shelves;

4. Rearranging tables, chairs, vending machines, racks, and other furniture;

5. Repositioning telephones;

6. Adding raised markings on elevator control buttons;

7. Installing flashing alarm lights;

8. Widening doors;

9. Installing offset hinges to widen doorways;

10. Eliminating a turnstile or providing an alternative accessible path;

11. Installing accessible door hardware;

12. Installing grab bars in toilet stalls;

13. Rearranging toilet partitions to increase maneuvering space;

14. Insulating lavatory pipes under sinks to prevent burns;

15. Installing a raised toilet seat;

16. Installing a full-length bathroom mirror;Repositioning the paper towel dispenser in a bathroom;

17. Creating designated accessible parking spaces;

18. Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

19. Removing high pile, low density carpeting; or

20. Installing vehicle hand controls.

PRIORITIZING ACCESSIBILITY

• The ADA [28 CFR § 36.304(c)] also list the priorities that a place of public accommodation should use in deciding how to go about making changes that are readily achievable. Those priorities are as follows:

• (1) First, a public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.

• (2) Second, a public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailed and raised character signage, widening doors, providing visual alarms, and installing ramps.

• (3) Third, a public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removing obstructing furniture or vending machines, widening doors, installing ramps, providing accessible signage, widening toilet stalls, and installing grab bars.

• (4) Fourth, a public accommodation should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

• If you have any questions or comments regarding any of the information provided in this memo, please do not hesitate to contact me. Thank you for having us assist you.

• This memorandum is not to be reproduced or relied upon by anyone other than the client to whom it is addressed without specific permission from the author.