GSO - You Must Be Accessible!

You Must Be Accessible!

by Gray Smith AIA AICP

The Americans With Disabilities Act (ADA), passed in July 1990, prohibits discrimination against people with disabilities, and requires that the construction and design of public accommodations comply with a number of architectural guidelines regarding features such as alarm systems, parking, walkways, restrooms, elevators, lobbies, offices, and other components. By the end of January of 1992, all public accommodations, including hotels and motels, were supposed to be in compliance (“reasonably” accessible).

Justice Department sues Days Inn of America for ADA infractions: The U.S. Justice Department sued the Days Inn of America hotel chain in early February, claiming that at least five of its hotels were not built to provide access for guests with disabilities. The suits are the first to be filed by the department to challenge the construction and design of a building since the ADA law was passed.

An 18-month investigation by the department centered on 28 newly built Days Inns in 17 states. Twenty-three properties negotiated with the department to remedy the problems, yet those in Evansville, Indiana, Wall, South Dakota, Hazard, Kentucky, Champaign, Illinois, and Willows, California, did not. Each of the five suits seek a court order requiring Days Inn of America and its parent, Hospitality Franchise Systems, as well as the individual owner, architect, and general contractor of each building to correct each violation and pay a civil penalty of up to $50,000 for the first offense. According to Assistant Attorney General for Civil Rights, Deval L. Patrick, the citations to the individuals and groups involved are reasonable: “They all shared responsibility for the problem. They should all share in remedying it.”

Among the problems found throughout the chain, yet not necessarily in each property, were insufficient visual alarms to alert the hard-of-hearing to smoke, fire, or other emergencies; inappropriately sloped ramps for wheelchair users; bathrooms in supposedly “accessible guestrooms” lacking adequate floor space to maneuver around the toilet and/or bathtub; improper way finding signage; and clothes rods and shelves mounted too high to be reached by individuals in wheelchairs.

Days Inn issued a statement saying liability under the disability act fell to owners and operators of individual hotel franchises rather than to the parent companies.

Days Inn “has been singled out by Justice as a test case to determine the responsibility of franchisers, not only in the hotel industry, but also more than 2,500 companies who franchise goods and services in the United States,” a Days Inn company release stated.

In February, Days Inn filed suit against the Justice Department in the western district of Texas, asking for a judicial determination as to whether Days Inn or its franchises were responsible for complying with the disabilities act. Justice Department lawyers, meanwhile, maintained that Days Inn and Hospitality Franchise Systems “participated in designing and constructing each hotel...in many cases reviewing and approving hotel plans prior to construction; and inspecting and approving completed facilities.”

This author, who has served as an expert in several disabled accessibility cases, inquired with the Building Officials and Codes Administrators International (BOCA), to see if, following up their own member magazine article on the suit, BOCA has checked the performance of its members in the 28 jurisdictions where the violations occurred. Kenneth M. Schoonover, P.E., Vice President for Codes and Standards responded as follows:

The ADA is a civil rights law not a building code. Subpart E of 28 CAR Part 36 sets forth the enforcement mechanism for Title III of the ADA. It is quite typical of the enforcement concept for civil rights legislation in that any person can institute a civil action for preventive relief from discrimination. The ADA is not and never was intended to be enforced in the manner that building codes are customarily enforced. The fact that the ADAAG contains provisions applicable to the design and construction of buildings has led some to misunderstand the fundamental relationship between the ADA and State or local building codes, which is that State and local code officials are not required or authorized to interpret or enforce the ADA.
And:

...State and local code officials are responsible for determining code compliance, however, the codes for which they are responsible are their duly adopted codes and not the ADAAG. It may be the case that the adopted codes in these jurisdictions in fact address accessibility. For example, accessibility is addressed in Chapter 11 of the BOCA National Building Code/1996. It might be of incidental interest to learn if the buildings in question were in compliance with the locally adopted building code, but that is not the focus of the suit against Days Inn nor is it relevant to whether the buildings comply with the ADAAG. It bears repeating that code officials have no obligation, responsibility or authority to enforce the ADA.

A further inquiry of BOCA revealed that no one at BOCA has reviewed the local and state code compliance issue.

Whereas some backwoods locations might have a local building code that forgets to mention, or never ever mentioned, accessibility as a mandatory requirement, it is unlikely that State law in any of the Days Inn instances was silent on the matter, or that State code officials were blind to it when they reviewed the Days Inn plans. Although apparently none of the cases were in Pennsylvania, it is interesting to note the PA accessibility Law (Physically Handicapped Act, P.L. 459, No. 235) has been around since 1965!, although motels were not specifically included as applicable until 1988.

Regarding local codes, it’s hard to imagine Champaign, Illinois or Evansville, Indiana, (each no Podunk) as being devoid of accessibility requirements in their local building codes by 1990; yet somehow those local Departments of Licenses and Inspections (for Permits and Code Enforcement) must have looked the other way when the Days Inn plans passed through.

By means of comparison, Philadelphia added to its pre-BOCA Building Code a whole series of Regulations for Making Buildings and Facilities Accessible to, and Usable by the Physically Handicapped, in 1973! in which hotels and motels were included as subject to the regulations.

None of the 28 local or 17 State codes officials or their departments, in whose jurisdictions the Days Inn projects were permitted, were brought into the suit by the Justice Department. Presumably they were all protected by immunity statutes.

Such statutes are a double-edged sword. On the one hand, professional employees who are protected from the negligence of their non-professional, political-appointee supervisors, by an immunity statute. On the other hand, it can lead to very sloppy work. This author has been involved in many cases, not just those regarding accessibility, where casual, and mistaken, applications of local codes and permitting procedures has resulted in serious damages to property owners, contractors and others in the building industry. But that’s a subject for another day.

Hopefully, the wide-spread coverage of the Days Inn case, although the penalties were not more than a slap on the wrist, will alert those in the industry (travel and building) to be more compliant. The Sunday New York Times Travel section featured the story in some detail.

On other fronts:
Justice Department files ADA suit against inaccessible condominiums: On March 6, the Justice Department sued the builders and the architects of a condominium complex in Joilet, Illinois alleging it was built without access for people with disabilities. The department sued after finding that a woman using a wheelchair could not find any accessible units there. The suit alleged that the Golfview Estates in Joilet was not designed or built to provide access, thus violating the Fair Housing Act.

Under the Fair Housing Act, multiple family dwellings with four or more units built for first occupancy after March 1991 must include certain features designed to make units accessible to people with disabilities. “This case represents the first allegation of ‘pattern or practice’ discrimination under the accessibility provisions of the Fair Housing Act,” according to James B. Burns, U.S. Attorney in Chicago.

The complaint alleged that the 28 ground floor units in the partially completed 28-building complex had doors that were too narrow for wheelchairs, lighting and heating controls were not reachable and bathrooms without reinforcements so that grab bars could be installed for people using wheelchairs.

The suit seeks a court order requiring the builder to construct the remaining unfinished portions of the complex so that the ground units are accessible, seeking unspecified damages for anyone who may have been injured by the discriminatory conduct, and requiring the defendants to pay civil penalties.

It should be noted that the wheelchair-bound woman, whose April 1995 complaint led to the Justice Department action, is now living in the condo complex. The defendants agreed to make a ground-floor unit accessible for her.

City of Philadelphia sued on accessibility of public housing units: An advocacy group for people with disabilities has sued the city in federal court contending that city officials have failed to comply with a federal disability law requiring them to make at least 7 percent of new public housing accessible to people with disabilities.

The group, Disabled in Action, filed the suit in U.S. District Court against the city on behalf of Joyce Brock, 44, who has cerebral palsy and uses a wheelchair, and four other disabled people. The suit seeks a court order to bring the city into compliance with the federal Rehabilitation Act of 1973.

The suit contends that the city has been required since 1988 to ensure that at least 5 percent of all new publicly funded housing projects of more than five units is accessible to those who use wheelchairs and an additional 2 percent for those with vision or hearing impairments. Since 1988, the suit contends, the city has accepted “hundreds of millions of dollars” in federal money to build or renovate 3,000 units, but has not complied with the Rehabilitation Act.

Proposed rule for curb ramps: The Department of Justice has issued a proposed rule (28 CFR Part 35) to amend implementation of Title II of the Americans with Disabilities Act (ADA). It would extend the deadline for installing curb ramps at state/local government facilities until January 26, 2000 and includes transportation facilities, places of public accommodation and places of disabled residences. The deadline for completing pedestrian walkways would also be extended until January 26, 2005.

The public comments deadline is past, but further information can be obtained from the Disability Rights Section via e-mail: ADA@justice.usdog.gov .

Mayor Ed Rendell of Philadelphia might be kicking himself right now, since he had agreed to a major settlement in the federal case on curb ramps in the city brought by disability rights advocates and Steve Gold, Esquire.

Resources on Accessibility:
Legal and other information: Mid-Atlantic ADA & IT Information Center; (800) 949-4232.

Brochure: How to Comply with the Americans with Disabilities Act: Sources of Federal Guidelines; Superintendent of Documents; (202) 512-2250; lists 9 documents containing laws and guidelines, 5 periodicals, and ordering information.

Book: Child Care and the ADA: A Handbook for Inclusive Programs; Paul H. Brookes Publishing; (800) 638-3775.