REAL Exclusive Magazine

Is Your Commercial Property “Grandfathered” To Offer Relief From Some ADA Requirements?

By William Henry PhD

How Does the Term “Readily Achievable” Apply to this “Grandfathering” Provision?

When addressing the challenges posed by American Disability Act legislation, business and commercial property owners often ask, “Is my property ‘grandfathered’ so as to alleviate the need for compliance?”

Compliance hinges on the date of occupancy of the inhabitable space. The operative date is January 1, 1991. Was the property inhabited prior to 1991? If so, then compliance may not be required if the cures to the design and construction are deemed to be not “readily achievable”.

Both owners and their legal counsels often ask what constitutes the criteria for determining whether required cures are necessary under the law. Does the designation of prescribed ADA cures deemed to be not “readily achievable” offer any relief? On first blush, many property owners’ legal counsels and/or their forensic experts opine that making significant expensive changes to the property improvements creates an “undue burden.” What constitutes an undue burden? An undue burden on the property owner may be created if codes mandate technically implausible solutions that may be cost prohibitive.

Business owners are often allowed to factor in the impacts to their operations. The U.S. Department of Justice suggests the following factors to be considered:

1) The nature and cost of the curative improvements needed.
2) The overall financial resources of the property owner; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements; and/or the impact otherwise of the action on the operation of the site.
3) The geographic separateness from and the administrative or fiscal relationship of the site to, any parent corporation or entity.
4) If applicable, the overall size and financial resources of any parent corporation or entity, including the number of employees and the number, type, and location of its facilities.
5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Is this an extensive and costly remodel or a low-cost maintenance issue? Is it affordable and are there any risks in barrier removal? While there is often no clear answer to these questions posed, business owners are afforded a degree of flexibility in achieving code compliance. When it comes to prioritizing the recommended cures, the following is the priority ranking.

1) The first priority is access to the facility. This includes physical access paths from public sidewalks, public transportation, and accessible parking through the front door.
2) The second priority is accessible routes to the goods and services made available to the public. In the case of a retail store, this includes the front desk and display areas.
3) The third priority is access to restrooms. If restrooms are provided for use by customers or clients, then an accessible restroom must be provided
4) The fourth priority is removing any remaining barriers.

In conclusion, ADA regulations require perfection in a non-perfect world. Sometimes, relatively flat accessible routes for wheelchair bound individuals must traverse undulating terrain. In other cases, toilet stalls must be widened between two immovable structural supports. Chair lifts, elevators, and other costly devices must be installed in older non-adaptable structures.

If you are a business or commercial property owner responsible for ADA compliance and the improvements are constructed and inhabited prior to 1991, it is important to retain an expert to collaborate with legal counsel to determine whether the mandated measures are in fact “readily achievable.”

Why not enlist your civil engineer for the job? In the event that a complaint is filed by a disabled person, a business owner may decide to defer receiving a detailed deficiency report. A civil engineer often times confirms the plaintiff’s findings, which then pose the threat of becoming discoverable by the plaintiff’s attorney. Choosing an expert with experience in construction methods and cost control is key in identifying a cost-effective cure and mitigating the need for changes to your facility.

William Henry PhD is the Principal in Charge of RGA-Design, LLC a full service architectural and interior design firm that has served as the architect of record for over 1,000 projects across the State of Florida (Registration number AA0003523). He has lectured and written widely on the above topic. His most recent publication is ‘Return of the Master Builder’ available on Amazon Kindle e Books. Henry’s contact information is whenry@rga-design.com; (813-226-2220 Ext204) or visit the company web site at www.rga-design .com or www.buildingdoctorfl.com.

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