ADA compliance: beware of the unknown.

Many real estate professionals are aware of the effective dates for the Americans with Disabilities Act (ADA). What most do not know is what to expect. It is this unknown that has evoked caution among business concerns regarding the extent of their efforts toward compliance withe the act.

Responses to the ADA are as varied as the affected properties: * Some businesses have taken a pro-active approach realizing the improved marketability of facilities which are accessible, in addition to the reduced exposure to litigation. * Others are awaiting precedents like the much heralded claim against the Empire State Building. * Meanwhile, others have chosen to disregard the law with little concern about the ability of federal agencies to enforce the law

Like many laws, the ADA is a collection of prohibitions with interpretation left between the lines. An example of particular interest is section 302 paragraph (b)(2)(A)(iv) of the act, which provides the basis for the removal of barriers in existing facilities. Unlike New York City's Local Law 58 and New Jersey's Barrier-Free Subcode, the ADA requires modification to existing facilities which fall into one of the 12 categories of places of public accommodation. The law states:

"Specific prohibitions. Discrimination. For purposes of subsection (a), discrimination includes ... a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities ... where such removal is readily achievable ..."

Since the enactment of the law in 1990, the Department of Justice has issued additional clarification in the final rules (28 CFR Part 36) which implement title 111 of the Act. The final rules expound upon the regulations of the Act, supplementing the text with examples of readily achievable barrier removal, suggested priorities and limitations on barrier removal obligations. There is no definitive guidance available that states what is considered to be readily achievable under specific circumstances outside of the federal courts. However, there is direction.

The final rules state: "The requirements for barrier removal ... shall not be interpreted to exceed the standards for alterations ..." New construction and alteration requirements are delineated in the Architectural and Transportation Barriers Compliance Board's ADA Accessibility Guidelines for Buildings and Facilities (ADAAG), a set of standards based on ANSI A117.1, with modifications.

The minimum extent to which existing facilities must be modified is less precise. The ADA defines readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense" and provides a list of factors to be considered, however, no quantitative guidance is offered. Readily achievable is a standard which is dissimilar for any two businesses.

The enforcement section of the final rules provides some guidance which is noteworthy: "The court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this part by the entity."

Determining what constitutes good faith effort to meet or exceed the readily achievable minimum standard is a consideration that involves more than your legal counsel. Compliance has a global impact on facilities, sales, public relations, risk management, personnel and finance. There are many bottom line benefits derived from removing barriers at a readily achievable level:

* Improved marketability of property

* Favorable public relations

* New sales potential

* Reduced exposure to litigation

* Tax credits and/or deductions for barrier removal expenses

State and local codes typically do not have jurisdiction over alterations unless a permit is required. Therefore, a large percentage of the modifications made to remove barriers never fall under the local jurisdiction. As can be expected, there are conflicts between the existing building codes and the new ADAAG standards. New York and New Jersey are taking action to alleviate these discrepancies as they make revisions to their codes.

The ADA has made provisions to certify state and local building codes for compliance with the ADA. This process may be used to clarify what meets or exceeds the standards set forth in the ADA. However, certification is a lengthy process or questionable significance. The ADA does not limit other federal, state of local laws. Compliance shall be to the greater standard.

The minimum level of compliance with the barrier removal requirement is unclear for good reason. The law is the result of extensive discussion among federal agencies, businesses and people with disabilities, each with their own interests and goals. Businesses are expected to make a good faith effort to comply with the Act by surveying their facilities, establishing plans and completing barrier removal that is "easily accomplishable and able to be carried out without much difficulty or expense."