Q. Why should I have a Compliance Survey & Report conducted at my property?
A. The ADA requires that owners of existing places of public accommodation assess their property to determine accessibility barriers. Both property owners and tenants have a legal obligation to remove existing access barriers. If the solutions are extensive, a scheduled plan for compliance is required. The cost of a Compliance Survey & Report is a fraction of the cost of a lawsuit and/or fines for failure to comply. In addition, an accessible property is a more marketable property.
Q. Are there any programs that benefit the business owner when a property is sued?
A. Yes. In California, SB 1608 has established the Certified Access Specialist Program (CASp). The benefits of CASp apply to properties that have been inspected by an individual who is CASp-certified before a construction-related accessibility claim occurs. Compliance Design Consultants is CASp-certified. Among other things, the bill requires the court to grant a 90-stay of the proceedings with respect to the claim and schedule an early-evaluation conference between the plaintiff and defendant. The bill provides that damages may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation of construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.
Q. When are the public accommodations provisions effective?
A. In general, they became effective on January 26, 1992.
Q. How will the public accommodations provisions be enforced?
A. Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination. 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.
Q. Does the ADA permit an individual with a disability to sue a business when that individual believes that
discrimination is about to occur, or must the individual wait for the discrimination to occur?
A. The ADA public accommodations provisions permit an individual to allege discrimination based on a reasonable belief that discrimination is about to occur. This provision, for example, allows a person who uses a wheelchair to challenge the planned construction of a new place of public accommodation, such as a shopping mall, that would not be accessible to individuals who use wheelchairs. The resolution of such challenges prior to the construction of an inaccessible facility would enable any necessary remedial measures to be incorporated in the building at the planning stage, when such changes would be relatively
inexpensive.
Q. Are there any limitations on the ADA's barrier removal requirements for existing facilities?
A. Yes. Barrier removal needs be accomplished only when it is "readily achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be carried out without much difficulty or expense."
Q. What are examples of the types of modifications that would be readily achievable in most cases?
A. Examples include the simple ramping of a few steps, the installation of grab bars where only routine reinforcement of the wall is required, the lowering of telephones, and similar modest adjustments.
Q. How is "readily achievable" determined in a multisite business?
A. In determining whether an action to make a public accommodation accessible would be "readily achievable," the overall size of the parent corporation or entity is only one factor to be considered. The ADA also permits consideration of the financial resources of the particular facility or facilities involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.
Q. Who has responsibility for ADA compliance in leased places of public accommodation, the landlord or the tenant?
A. 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 who will actually make the changes and provide the aids and services, but both remain legally responsible.
Q. What does the ADA require in new construction?
A. 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.
Q. Is it expensive to make all newly constructed places of public accommodation and commercial facilities
accessible?
A. The cost of incorporating accessibility features in new construction is less than one percent of construction costs. This is a small price in relation to the economic benefits to be derived from full accessibility in the future, such as increased employment and consumer spending and decreased welfare dependency.
Q. How much will an ADA survey cost?
A. Survey costs are based on the size, complexity, location and scope of the project. Please contact Compliance Design Consultants to discuss your needs and to request a proposal.
Q. Must every feature of a new facility be accessible?
A. No, only a specified number of elements such as parking spaces and drinking fountains must be made accessible in order for a facility to be "readily accessible." Certain nonoccupiable spaces such as elevator pits, elevator penthouses, and piping or equipment catwalks need not be accessible.
Q. What are the ADA requirements for altering facilities?
A. All alterations that could affect the usability of a facility must be made in an accessible manner to the maximum extent feasible. 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 primary function area, such as the lobby of a bank or the dining area of a cafeteria, an accessible path of travel to the altered area must also 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 original 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.
Q. How does the ADA affect existing State and local building codes?
A. Existing codes remain in effect. The ADA allows the Attorney General to certify that a State law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any State or local government may apply for certification of its code or ordinance. The Attorney General can certify a code or ordinance only after prior notice and a public hearing at which interested people, including individuals with disabilities, are provided an opportunity to testify against the certification.
Q. What is the effect of certification of a State or local code or ordinance?
A. Certification can be advantageous if an entity has constructed or altered a facility according to a certified code or ordinance. If someone later brings an enforcement proceeding against the entity, the certification is considered "rebuttable evidence" that the State law or local ordinance meets or exceeds the minimum requirements of the ADA. In other words, the entity can argue that the construction or alteration met the requirements of the ADA because it was done in compliance with the State or local code that had been certified.
Q. Are there any tax incentives afforded to individuals and / or companies making ADA improvements?
A. Yes. Two tax incentives are available to businesses to help cover the cost of making access improvements. The first is a tax credit that can be used for architectural adaptations, equipment acquisitions, and services such as sign language interpreters. The second is a tax deduction that can be used for architectural or transportation adaptations.
(NOTE: A tax credit is subtracted from your tax liability after you calculate your taxes, while a tax deduction is subtracted from your total income before taxes, to establish your taxable income.)
Request IRS Publications 535 and 334 for further information on tax incentives, or Form 8826 to claim your tax credit.
Please note: This information is not intended as tax advice. Please consult with your accountant and/or tax advisor regarding the specifics of potential tax credits and deductions.
