Revised American Disabilities Act Regulations – Effecting Public Outdoor Recreational Areas
By William Henry PhD
Past ‘Safe Harbored Area’ No Longer Exempt
Having served for many years as a forensic ‘court certified’ expert concerning design and construction litigation I am continually surprised by the on-going case law as it evolves– sometimes daily. Being in a so called ‘creative profession’ I am continually struck by the unusual issues surrounding much construction litigation. I often tell clients that I am not creative enough to have made up some of the drama surrounding these cases—whether it includes wrongful death in non-code compliant hospitals, tragic slip and fall incidents, owner/contractor disputes, landlord/ tenant evictions or land use regulatory changes threatening neighborhood cohesion.
Plaintiff in Slip and Fall Incident at Well known Pool Side Resort received no Reward from Jury Several Years ago
Several years ago I was called by attorneys representing a very well known Tampa Bay area restaurant. The restaurant was well known for its pool side happy hour parties along a Tampa Bay/Gulf of Mexico sea wall. While the band played one Saturday evening a woman propped a poolside plastic lawn chair up next to a flag pole. The leg of the chair wedged between the flag pole and the pool deck pavers. When the woman tilted her chair back one leg of the chair sunk into the sand pit around the flag pole and the chair tipped over throwing her into a roped guard rail above the sea wall. The lady fell through the ropes. To break her fall she apparently severely sprained one or her wrists. Soon thereafter she retained local counsel and alleged career threatening Carpel Tunnel Syndrome emanating from an ADA violation. The suit when on to describe how this was perpetrated by the restaurant and land lord. Her attorney pointed to code issues governing handicap compliant rails. The defense I prepared was based on outdoor elements ‘safe harbored’ under the 1991 Standards. Outdoor recreational pool decks were not part of the built environment, I reasoned to the jury. Therefore as poorly fabricated as the rope cordoning off the pool deck from the rocky sea edge below at the resort may have been, it was NOT subject to ADA code compliance. I opined that since the pool deck was not required to have an accessible route, then the rope barrier wasn’t required to be handicap compliant— (a certain height (42’’) with grab rails and such). Over the objections of plaintiff’s counsel, I deflected his demand to speculate as to the safety of the design if the pool deck had been on an accessible route. “Would it (the guard rail) then need to be ADA compliant?” he asked. I countered that it didn’t have to be– period. The jury found no basis for an award and ruled in favor of the defendant. Bottom line—she got nothing.
Under Today’s Regulatory Changes in the ADA Code the Plaintiff May Have Prevailed in a Multi-Million Dollar Award Against the Pool Side Owners
What has many savvy Legal Counselors alarmed is a looming deadline that will expose many public entities to the type of litigation described above. In fact if subjected to the new 2010 standards, which will go into effect on March 15, 2012, I may not have prevailed. The insurance company may have been subjected to an enormous award and the landlords charged for a flagrant ADA violation for jeopardizing the health, safety and welfare of the public. Investigations from the Justice Department, penalties, costly repairs, and a large liability for damages would have possibly ensued.
Code Changes
This code change has caused public entities around the State of Florida to begin the arduous task of updating their accessibility plans and creating capital improvement budgets that fund outdoor recreational area upgrades to comply by the March 2012 deadline. Areas affected that were previously exempted under the safe harbor provisions, element by element, include but are not limited to the following;
1) Amusement rides
2) Recreational boating facilities
3) Swimming pools, wading pools, and spas
4) Shooting facilities with firing
5) Exercise machines and equipment
6) Fishing piers and platforms
7) Golf facilities
8) Miniature golf facilities
9) Play areas
10) Saunas and steam rooms
11) Miscellaneous
-Team or player seating
-Accessible route to bowling lanes
-Accessible route in court sports facilities
Many advocates in the physically challenged community are monitoring public meeting notes to assess compliance measures by public entities, or a lack thereof, in anticipation of a new round of accessibility violations and litigation. RGA is currently working with many Community Development Districts, which in fact are public bodies, across the State of Florida to help them prepare plans and successfully address these code changes. At RGA, we have the capabilities and experience to:
1) Assess the various improvements and/or alterations constructed since 1991
2) Prescribe design cures to all noncompliant occurrences
3) Implement compliance strategies utilizing design and construction techniques
[1]Reliable Group, LLC Architects AA# 0003523 is a well-known architectural and construction management firm based in Tampa, Florida. RGA is headed by Dr. William Henry, both an architect and certified expert witness who issues opinions and testimony concerning design and construction related matters. Having designed over 250 landmark buildings in the state of Florida, he has represented and testified for both plaintiffs and defendants in cases involving code violations such as associated with design and construction defects as well as American Disabilities Act – ‘ADA’ violations. William Henry, PhD (Bill) may be reached at (813) 226.2220 or bhenry@rga-design.com [2].
Copyright © 2011 REAL Magazine
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