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Roundtable on ADA.

Therese Fitzgerald for Real Estate Weekly: Our discussion will focus on the responsibilities of buildings owners in complying with the Americans with Disabilities Act (ADA). Title II of the act, for Public Accommodations and Commercial Buildings, went into effect Jan. 26 and there is still a lot of confusion in the property community. This exchange will concentrate on that portion of the law. We will also touch on Title I, Provisions for Employers, which goes into effect next month.

Let us begin by going the table and introducing ourselves.

Charles Rizzo, president Charles Rizzo & Associates: We are building and sidewalk consultants. I'm here representing Building Owners & Managers Association of Greater New York (BOMA). I chair the subcommittee for ADA.

Robert A. Kandel, Esq. of Kay, Scholer, Fierman, Hays & Handler: We're attorneys, and I represent owners and tenants who are working through the issues presented by Title III, and also our firm represent people involved in Title I.

Neal I. Korval, Esq. of the law firm of Vedder, Price, Kaufman, Kammholz & Day: my specialty is in labor law, representing companies, both large and small, and we're trying to gear these companies up for implementation of Title I.

Architect Arthur Lasky, partner in Vandeberg & Lasky Architects: We've been trying to help owners and tenants as they try and figure out what the issues are involved with Title III.

Architect Raymond Ivy of Ted Moudis Associates: We've been involved with owners and tenants for Title III implementation.

Marolyn Davenport, vice president/ Regulatory Affairs, Real Estate Board of New York: We represent owners and building managers and have taken a very good look at the law and are trying to identify areas where we hope the Department of Justice will clarify things, and we're trying to assist our members with compliance.

Jim Weisman, Esq. attorney for the Eastern Paralyzed Veterans Association: We helped draft ADA and lobbied for it, and have been in the forefront of the accessibility movement for the last 15 years in our area.

Al Hagedorn, publisher of Real Estate Weekly.

Architect Steven Zirinsky: I have a small practice in New York.

REW: I thought we could start with a brief overview of the provisions of Title III.

Weisman: As of January 26 Title III requires existing buildings to remove barriers that impede access to the disabled. In one of the congressional committee reports on the bill, Congress estimated that 85 percent of existing barriers would not be removed, because, that which is removable has to be "readily achievable." Readily achievable means without great difficulty and expense, and that terminology is, unfortunately, vague. But, as applies to building owners, managers and tenants, I think it's less vague.

In addition to that, all new construction for places of public accommodation, has to be accessible. Basically, that's Title III. If the barrier can't be overcome alternative service must be provided in a place of public accommodation.

REW: And places of public accommodation are defined as?

Weisman: As just about anyplace the public can go, even if it's behind a controlled area. In other words, if you have to get past a receptionist to get to it, but you can get to it, it's still a place of public accommodation. In the private sector, employee-only areas are not places of public accommodation, but everyplace else would be. If you see customers or clients there, that would be a place of public accommodation.

Kandel: I'd add two components to this introduction. One, to focus on alterations of existing properties, where a slightly different standard applies, and that is you have to comply with ADA standards unless it would create undue hardship. In addition, there's the requirement that if you are altering a primary function area where there is a main activity of that particular space going on, for example - bank floor - you'd be obligated to spend up to 20 percent of the cost of the alteration to alter the path of travel to certain support services such as water fountains, bathrooms, telephones, and the like.

Weisman: As well as from the streets to the primary function area.

Kandel: And then the third area of Title II, of course, is new construction, in which you have some sort of structural impracticality before you are given an exemption.

Weisman: There's almost no exemption.

Long-Term Process

Kandel: Otherwise you're obligated to go out and build in accordance with the ADA standards. I think it's important to view the law, as Marolyn suggested earlier, as the statement of a long-term process, really a continuation of long-term process which I think started to get under way in the early 1970's. The government started to set forth standards for government projects, for housing, for other areas, for providing greater access to the general community to those people with disabilities. It's now reached its culmination, perhaps, in the ADA, in its application to private real estate, private holdings. In reaching it, it sets forth a vision for the next 20 or 25 years for the way in which buildings are to be redeveloped and brought up to whatever the then current design standards.

REW: How can owners function in an atmosphere of compliance and confidence, rather then the fear and confusion that seems to pervade the property industry today? How does he or she know when they have made a good-faith effort to do what is "readily achievable"?

Davenport: I can comment a title bit on that. For one thing, I think that the confusion is lessening a little bit because people are beginning to understand that this is a multi-step process, and that "readily achievable" does define it as easy and inexpensive, but there are steps to be taken beyond that. You look to see if something is readily achievable, and if it is not, you then look to see how the goods or the services can still be provided and people are realizing there are alternative ways. As they look at their buildings as a whole, they realize that they have an alteration plan and they will have certain plan and they will have certain turnovers that will result in renovations, and that these things, over time, will fall into place.

Rizzo: One of the things that the board recommends strongly is a survey audit of the space, and in a lot of small spaces that could be done via the owner or the tenant themselves. Maybe on a more complex high-rise building, it may require a professional to provide that kind of service for survey audit. The problem that we see is that people think that that's the solution, and that's really a first step. The implementation plan is the key to the process. When you get to a more complex building, there are so many ingredients that need to be considered, such as the economic factors. We are involved with a building that's in receivership. Obviously there are some critical problems in compliance with a building that's in receivership versus a building that's owned by an institution or a bank.

So these many components need to be digested and then an implementation plan could be derived, and that's not hard to fix. I think that one of the other concerns that we have at BOMA is that people are not aware that the alternatives at the moment, if you do have a genuine hardship, is what we call a semi-permanent solution. Local Law 58 of '87, in a lot of aspects, is an alternative. They allowed unisex bathrooms in Local Law 58. That's not permitted under ADA, but nevertheless, since it was permitted under Local Law 58, we consider that as a real solid alternative. When you have the opportunity to make both of your bathrooms come into compliance, then that's fine, and that would all be part of the implementation plan.

Lasky: I think the answer to your question is that you can't be sure that you're in compliance. There isn't anybody who will certify that you have complied, and there aren't any rulings to tell someone how far they have to go.

Weisman: Right. But the certification, or lack of certification, is merely, "How do I deal with anxiety?" more than, "How do I deal with the law?" There's no ADA police running around knocking on doors, doing building inspections. The way you know if you acted in good faith is it you say to yourself, "Did I act in good faith? Did I says I'd rather put new hedges on the lawn to the entrance way to my building rather than ramp it?" One was discretionary and one was mandatory. You said, "Well, I decided to put the hedges. Now I don't have the money." Well. you know where you're coming from when you make such a decision. In regards to good faith, I think, especially with the employment section of the law and entire ADA, the defense to people who violate it essentially is good faith. If you refuse to deal with disability issues, you're acting in bad faith. If you consider it and make a bad choice, an informed, intelligent bad choice, right-thinking people do wrong things all the time.

I think that is the anxiety-reducing element, Did you approach it in good faith? And you know that as principal in a building.

Ivey: I think part of the anxiety comes from a lack of knowledge in the general public on the Age Act guidelines. They're pretty specific, because they have the scoping requirements and the technical requirements. The scoping requirements help you develop that barrier removal plan and the implementation. The technical requirements it's all there for any professional architect, so it's an easy thing to do. But I don't think the general public knows that portion of the legislation is included as enforceable.

Davenport: I think that's a good point because the design guidelines address some of the issues that even you just raised in terms of alternatives. The unisex bathroom, for instance, they say, if you can't do one of each sex, you can do a unisex, at least in this technical assistance manual that came with it. But I don't think that's been a help, knowing when to apply it.

Rizzo: But, nevertheless, I'm looking maybe for more elaborate alternatives than maybe this unisex bathroom. Instead of strobe lights, there may be some other alternative coming down the road, some high-tech device. Maybe not so high tech, like a beeper device for a person who is hearing impaired or visually impaired, so this way the beeper would go off when there was an emergency. And that's the other thing, and emergency is a key word here. It could be a fire, it could be a bomb threat, it could be some other type of an emergency.

So I'd really like to see a little time lapse so this way we have some breathing room to assess the whole potpourri of alternatives. This way these alternatives, these semi-permanent or weak alternatives could be utilized. If it's a weak alternative, you have a short time frame. If it's a better alternative, maybe you'd have a little longer time frame.

Weisman: You raise the problem that I think is here. We've spoken with banks. At the Eastern Paralyzed Veterans Association, people have consulted with us who are multi-facility owners, and they always break their staff into facilities, customer services, administration. So if facilities can't overcome a barrier - it's not readily achievable, customer services is supposed to pick up the ball to overcome that barrier to the delivery of alternative service. But people in the building operation business don't think about providing the service that the business within the building provides; they think about making the building run effectively. This requires a community of interests between the two facilities and the alternative service providers to overcome the barrier. This is kind of rethinking the traditional breakdown of responsibility. That, I think, is phased in. It's going to take some time to focus on that.

Tenants and Lenders

Rizzo: The real estate industry's point of view is that Title I, which is a long-term title, is going to be the driving force for compliance for Title III. Because if there is a fear or anxiety factor, I think that's the anxiety factor. An employer is concerned that they are not going to be used in the future. This is a similar condition that prevailed for asbestos. There was concern that they'd rent a space that had asbestos in it. They wanted to be certain that it was free of asbestos so that in the long term there wouldn't be an asbestosis lawsuits. A lot of institutions wouldn't rent the space unless it was asbestos-free.

Zirinsky: If you take it a step further, a lot of banks wouldn't give loans on spaces that weren't asbestos free ... That could be actually where this is leading.

Rizzo: And this is where it is leading. People will not rent space today, in my opinion, unless there is a level of comfort that a space has ADA compliance. There needs to be a level of comfort, and probably a level of comfort that here in New York we're familiar with, which is Local Law 58 of '87. People have been complying with this law for five years. At least legally, we've been doing this for five years. Now we have a different spin on it, so we have to look at that different spin.

Kandel: I don't quite agree with the notion that ADA is going to adversely affect the real estate market. I think it's another factor in the discussion between the landlord and the tenant. The well-informed tenants knows what his responsibilities are as the operator of a commercial facility or the public accommodation. The landlord will make a similar determination as to what the tenant is, and there will be a business discussion which will break down to dollars and cents, relating to how a particular tenant work and improvements are to be done, to make sure that the space is brought up to standards. Then the tenant has the comfort.

If the tenant is prudent, he's going to have a survey done of, "How do I get from the street to my floor? Is there a problem?" If he identifies a problem that he's concerned about, he'll go back to the landlord and he'll say, "I'd like you to do the following." That will relate, again to dollars and cents. If the landlord doesn't meet the issue, the tenant will go over to another building which can and will meet that offer.

So I don't think it's going to have necessarily an adverse effect on the market. It becomes another business term to be negotiated and evaluated by the parties.

Zirinsky: Assuming both parties are fully aware of what's going on. You're making the assumption that everybody's aware of it.

Kandel: Well, I think when we're talking about the real estate industry in New York City ...

Zirinsky: But you're talking about the banks. The banks have facility managers who keep up with these things.

Kandel: I'm talking about anyone who rent 25,000 fee, even 15,000 feet or more. They're going to be generally aware their broker, through the managing agent, through their golfing buddies, through their lawyer friends,through their architect friends, and certainly the owners are going to have some familiarity because they read Real Estate Weekly, because they're generally aware of the lawsuit in New York City against the Empire State Building. I mean, it's now part of the vocabulary. As Charlie said, owners have had to deal with Local Law 58 five years now. The issue is now on people's front load.

Davenport: Certainly the building owners and managers are very aware. In fact, I think, because Local Law 58 was in place for some time before the ADA came in, they are two steps ahead of the rest.

Weisman: With regard to new construction and reconstruction and alteration. There's no question that that's the case. Right down to the general contractors, there's a heightened awareness of accessibility. I think with regard to barrier removal, where do you start? How do you approach this? "It's a morass." "It's big mess." "We've never thought about this in the 60 this building existed." It's intimidating, but the Justice Department regulation is relatively simple to deal with regarding barrier removal, because it's pretty much you decide what you want to do based on a preferential order. Doorway first, primary function areas second, the bathroom third, and everything else fourth, I guess. It's relatively subjective to the building. More familiarity will breed more comfort.

Ivey: In reference to what we call a negotiating point, when you assemble a team now for your deal, you have to include an architect. Naturally, you have your lawyer there, your broker, and the owner rep. The owner rep is going to help you find the space where there is public accommodation or commercial facility. The architect will be able to walk you through the proposed sites and things of that nature.

But I think if you assemble the team correctly from the beginning, everyone that's involved should be very much aware of what's going on. I don't think it will be an issue of ignorance after the fact.

Zirinksy: We're talking about new space now. Where professionals have to come in. Say, for example, I had a building for 10 to 15 years. Transitional space is easier. More than likely someone is going to have to bring in a professional or architect or lawyer or someone who knows about it, but if you aren't changing things, you know you're running your restaurant like you've been running it for the last 20 years, and what do you care? I'm not disagreeing with you.

Ivey: They'll find the provisions in there, because they're looking for reasonable accommodation, once again, which a professional will be able to find for you. I think that the scoping of requirements, mercantile, retail, the different types of organizations, I think at least points in the direction so that you can inform about any type of alteration, then they're looking at either an architect or a lawyer or something.

Lasky: And they're also looking at conforming, whether they know it or not. Once they're involved in doing an alteration, Local Law 58 is going to kick in and make them do a lot of what they have to. I don't think that's going to be a problem. Obviously new buildings will not be a problem. The problem is going to be barrier removal. What I've found in dealing with clients and tenants is that there is some resistance. What I meant before, saying there can't be any technician that tells them it's okay, everybody picked up as being an anxiety issue. Once you relieve the anxiety, it's awful hard to feel that just relying on good faith is going to get the kind of compliance that I think we'd all like to see occur.

The reality is that when many people in this climate hear that it's a good faith issue, they may feel that they've done their good faith by just examining a little bit and saying. "Well, I can't do this. I need to spend money on the shrubbery because, otherwise, the salesman aren't going to come to see me and I'm not going to be able to sell my product which is going to keep me in business."

So I think that part of what we need to do is to explain to people - as kind of as ambassadors of this law - that it's nor so scary, that it can be accomplished without very great efforts, that it can be accomplished over time, and that it will accrue some benefits to people, whether they are benefits that come in tax dollars, public relations, or that can get them to operate more efficiently with new clients or new workers in their workplace. I really think that this is good propaganda that we have to be doing.

Rizzo: It's certainly a marketing tool for real estate brokers to say, "The building across the street is not in compliance, and you're not going to have problem with the building that I'm going to show you."

One of the concerns as far as tenants and landlords I see is that a tenant, before he will sign a lease, is certainly concerned that the building is in a level of compliance satisfactorily for his potential employees, but, more importantly, we're coming to find that the tenant is also concerned that whether monies the landlord may have to spend over a period of several years is not going to be redistributed to all the tenants in the building as a pass-along cost. So we're finding that clause in the lease.

Maybe the attorneys can address that question - how a tenant is looking at the impact of all the monies for compliance that may be disturbed over a period of many years, but may be a few million dollars and their concern that they not be pro-rated back to them.

Who Pays for Compliance

Kandel: I think that's a very fair observation. I think that it depends on what particular work there is to be done. For example, you can have the situation with Local Law 5 - hook-up with the Class E system - where you'll have a full-tenant floor, and the tenants may put in the wiring for that floor, but finds out when he wants to hook up to the main system downstairs that there's inadequate power. Should that be the tenant's responsibility to upgrade the Class E system or the landlord's responsibility? I think something of that order is in the nature of a landlord requirement, and the tenant would argue that he was not the one who triggered the requirement to upgrade the system. He's only obligated to make his system function, and he wants to be sure that the landlord can meet it, and put the burden to the landlord. The landlord may or may not say, "I'm going to charge you," but he may make a $60 work letter $58, or the market may require him to keep it at $60 and eat it.

There's a fluid business climate out there which will address these economic issues, I think in a way which will not differentiate property.

Rizzo: Toward Arthur's comment about spreading the word, at BOMA, we are developing several programs that we call the "thrust points" that the law seems to be focused on. Strobe lighting and elevator service and training of building personnel, including tenants, these are some of the areas that we're looking at to develop training for our membership. We're lucky that we have a good corps of professional members to help support this effort.

Zirinsky: I think BOMA's checklist helps a lot to do with getting rid of some scariness and I think makes it a little easier for a professional, even a building owner, even a small-time building owner. I'm not involved in a lot of the large-scale things. I look at a lot of the rental small restaurants, little stores all these little shops, dry cleaners.

Rizzo: What's the reaction of the smaller businesses?

Weisman: It's wild, because small business runs away from this. But when you go to a Kiwanas meeting or Rotary meeting and out tax credits from Section 44 of the Internal Revenue Code on the table, small business and dentists - amazingly, dentists - they really pay attention, because small businesses can spend $10,250 a year and get a tax credit of $5,000, use the balance forward Section 190 deduction instead of amortizing these improvements over the life of the improvement Tax credit are very attractive to small business. It's much better to improve your business with your tax money than just put it in this black hole where everybody feels their tax money goes into now. Business is very interested when they hear it from that point of view. That's marketing tool, obviously, for architectural purposes, to small businesses also.

Rizzo: Right. One of the questions that we seem to get a lot of is that the cost implication is disproportionate to the benefit. In other words, we're talking 43 million people that have disabilities that come under this law. In fact, are we helping 43 million people with this law or are we helping a much smaller amount of people? Is the cost to help these smaller amount of people disproportionate? I have difficulty answering the question because I just don't have the facts.

Weisman: It's kind of an after-the- fact discussion. It's not like the discussion wasn't had in the Congress. Remember President Bush supported this. He's relatively pro-business compared to most politicians, especially the ones that we elect from our area. We think of Republican as being pro-business. They thought of this as pro-business. The extreme right said, "Let's stop paying people to stay home and watch television." The extreme left said, "Everybody has rights. Let's get them out into the labor force." In addition to that, since the mid-70's you have all these disabled kids who've been given an education in public school settings, or in as close to public school settings as they can get, and they're educated and trained and employable, and they're going to live longer than any generation ever lived before. There's a dwindling tax base after the post-war babies were born. When we retire, my generation is not moving to Florida comfortably. We're going to have to work longer than anybody's ever worked.

I think that there's some forward thinking here, In addition to that, the political being what it is, the time was right and it happened. I think between the statute and the regulations , it's pretty well reasoned, but you either accept the premise or you don't.

Kandel: I also think that the time frame that's involved allows the amortization of these expenses. It's not necessarily a one-shoot investment that has to be made. If you have existing conditions, you have the privilege to determine whether it's readily achievable. A million-square-foot building may develop a five-or-seven-year program to implement what the survey tells us it needs to come into conformity with the law. That becomes a fairly reasonable period for the annual capital budget that a building has. "Gee, we're already going to do the fifth floor. We might as well now do it to the standard. That take care of that cost."

What's the extra cost? It's hard to assess. I think the question of cost probably comes in particularly in a place like Manhattan. A small retail operator, if he has consulted someone other than his spouse, to lay out the tables in the store, or the lacks, he has done it so as to put as many racks, as many tables into that space as he can. The act contemplates a suburban environment where land costs are not as dear. You can kind of put that extra half-foot around the table so that anyone coming in can have easy access to services and whatnot. There you get a little bit of confusion and tension.

One of the things that I think the act will draw out is this greater consciousness of the area. People will be more comfortable speaking up. If a person comes into a retail establishment and can't get access, he'll let the proprietor know. If the proprietor has his head where his heart is, he'll say. "Gee, I ought to do something to help this out," and start to make the accommodations, because that's what his customers want.

Rizzo: I think that's the answer I was really looking for to get out of this, because, yes, this is really a longer-term process. Even the law itself says that if you do have only two or three years left on the balance of your lease, that's real key element in making a determination of whether it's readily achievable or not.

Davenport: I don't think they actually specify, though, two or three years. Do they? They talk about the length of time being one of the factors, but I wouldn't want to see in print that it is two or three years.

Employer Requirements

Korval: But the fact that Title III is out ahead a little bit timewise ahead of Title I, I think is going to be very helpful to employers - Whether they be in the property management business or small building owners - because as they bring themselves into compliance with barrier removal, construction obligations on the public accommodation front, they'll already be achieving accessibility accommodations that their employees may otherwise be asking for under ADA [Title I].

Weisman: I think a huge problem with the attitudinal thing, the approach problem, was caused by two things. One is the negative stuff you get in third class mail now, "Come to my seminar." I saw one that said, "Eight ways to legally avoid compliance." This guy we should put the cuffs on. You know, the hidden time bombs, that's one. Also all the preambles, the Wall Street Journal calling in the "Full Employment for Lawyers Act." Before we started, Mr. Kandel said it absolutely is not a lawyers' statute, and it's not. I mean, it's another cause of action if someone comes in to you and has a grievance. The thing the public misses is that these people don't go around looking for lawsuits. If one occurs, if you're aggrieved, you don't think in terms of, "What statute did they just violate?" You know you're upset. If you're upset enough to see a lawyer, a lawyer will do some research and say, "Oh, they violated this law, that law, this law, that law."

Korval: Especially in New York, on the employment, anyway, you had got all these obligations under the state law to begin with.

Weisman: The debunking is important.

Lasky: To get anecdotal on that, I think what you said is very important, but I've found in my encounters with people, including lawyers (other than the one's sitting there), that has not been the reaction. Generally what they've done is to suggest that we avoid confronting this avoid, what I hope is common term, partnering - going out to the people that you're trying to do this with, and rather than seeing them as adversaries, seeing them as people who want to solve the problem with you. I had a meeting, which a nameless law group called about the ADA, that suggested that one way to approach it, if you had questions and were feeling restricted in what you could do because of budget, might be to contact various groups representing people with disabilities and suggest to them, "We have a limited budget. We have limited amount of time. There are some things we think we can do. What do you think about these suggestions?"

Weisman: Maybe that's true. It might have had the opposite effect.

Davenport: We ought to talk a little bit about what is happening on the enforcement and the compliance side because that was, indeed, a very visible symbol. But my understanding is that there is a fair amount of dialogue going on. Certainly between the real estate industry and the groups that represent the disabled, there's been dozens and dozens of seminars. As we came in and sat down before we formally started this discussion, I said, "Jim, I've got to talk to you. We want to do a brochure." I think this kind of thing. is ongoing. BOMA has done training. There have been surprisingly few complaints. I believe six was the total, or something like that.

In discussions I've had with attorneys at the Department of Justice, I think it's pretty clear what their intent was in the law they talk about encouraging alternative means of dispute resolution. Their approach is really one of negotiating and "How can this problem be solved in this building? It has steps, it needs a ramp. It's probably much simpler for the building to provide the access than to get involved in litigation."

Rizzo: To supplement what you're saying, those complaints were very narrow-focused. In other words, they were focused on access. I think all of them were on access. They didn't wander throughout the entire building and determine whether or not the building was in compliance with the whole potpourri of other requirements.

And in all of those cases, none of those cases led to any lawsuits whatsoever by DOJ. In fact. all of those buildings, to my knowledge, are in a high level of compliance insofar as survey implementation planning.

Kandel: An example of Congress, at least in one instance, getting something right, id the structure and enforcement mechanism under Title III, which did not put out some pot of gold for an aggrieved party. The intent of the law is to incur compliance. So someone believes they're aggrieved, a private citizens, has two options. They can initiate civil action, but if they do, the only remedy they have is injunctive relief. Or they could make complaints with the Department of Justice, and if the Department of Justice would believe that these complaints were of such a nature that there was sufficient public interest in the questions being raised, they might take it on, they might initiate an action, which may result in injunctive relief or, in some instances, monetary damages or civil penalties, depending on the nature of the proven wrong.

But before you do that, I think, you're going to call the landlord. You're going to call up the shop owner. You're going to talk to them. A shop owner or a landlord would then call me. I'd say, "What's the story here? What's the issue? How can you address the problem? The person is address the problem? The person is complaining about inability to open up your massive front door. Well, can we redesign one of the front doors, so that it's easier to open? Can you have a concierge? Can you be attracted with a bell? Is there some other way you can work this out?" This is what the intent of the law is.

Ivey: The fact that it was passed as civil rights legislation, no one wants to get dragged into that kind of litigation, especially big business. I think the level of compliance is probably going to be very high. I think that's going to be a driving force there also.

Weisman: It's funny because, when you asked us in the beginning to talk about what the statute required or what Title III required, the first thing we left out, I just realized, the primary thing it prohibits is saying, "You can't come in here. You're disabled." The reason that we left it out is we know no one does that. But clearly that's bad faith. If you say., "We don't allow disabled people in. You make me sick. Go away," or things like this, which people do not do. I've been doing this work for 15 years, and I've heard it maybe five times in my life. But you do have places that say, "I'm sorry. People with wheelchairs can't come here. It's our dinner hour, and you take up too much room between the tables." That has happened over the years. But that's more what people to consider not founded in animus, but in business.

There's a lot of animus associated with disability-related discrimination. I think it's because of that Congress said there should be no windfall for aggrieved parties. People have to learn to rethink this issue, because, first of all, there's green money in the pockets of people with disabilities. When you go to Maid of the Mist up in Niagara Falls, the boat ride, on both sides of the gorge, the Canadian side and the New York side, there's a [disabled person's] lift that gets you to the boat, the longest one I've ever seen. It follows the stairway, and you can either sit on or put your wheelchair on it.

Reducing Fear

Rizzo: We are all concerned about the amount of proliferation in this nation that's out there that seems very unprofessional. I think that the consumer is concerned, because that seems to be the propaganda that goes out first, and that's what kind of hits the street. That's the time bomb; it's the fear factor. How do we, as an industry, provide the correct approach?

Zirinsky: The idea, of course, is to reduce fear and come up with easy systems like the BOMA checklist. It starts to codify all the different things you have to worry about.

Korval: On the employment side, what we're doing is encouraging our clients to undergo a program which I've termed ESP, Education, Sensitization, and Protection. The education starts right at the top because it starts at the top managerial levels and works all the way down to the supervisors and to the co-workers to get them to lose the negative stereotypes that they hold or have held for many years regarding disabled individuals. Sensitization means you've got to learn how to make disabled individuals feel comfortable in the workplace. That's part of the education process, too. Protection starts right now, before Title I even goes into effect.

We're telling our clients, "You'd better review your job descriptions very closely to make sure they only contain the essential elements of the job. You'd better negotiate your collective bargaining agreements and your leases. Make sure you have the right to comply with the ADA and whatever is required of you." We're telling them what they have to omit from pre-job interviews. During the application process, for instance, you can't ask any questions about what disabilities do they have. You clearly can ask whether or not there's anything that would prevent an individual from doing essential functions of their job. That kind of process we're talking to our clients about will get rid of the alarm factor that's out there in the streets.

Lasky: Another thing that I think works very well, to go along with education, would be more publicity. Something like this is very good. When we started to focus on trying to learn about these issues, at our office meetings I'd discuss it with architects in our office, try and bring them up t date on it. I assigned a couple of people to have it as their specialty for projects, so they would collect information. Then asked that person, for instance, to start to collect newspaper clippings on it from various locations, magazine clippings. Then other people started bringing in clippings. So I got some from their relatives, as well. We got one the other day that came from a Fort Worth [Texas] paper about first the ADA-complaint playground which was planned before the ADA went into effect.

I think things like that would work very well, because it would start to make it less scary for the public at large, and then it would include this perception that everybody is beginning to do it. It's right thing to do, it's not a problem to do it, and there are people you can talk about doing it. There are more names of people you can talk about, and they aren't just necessarily lawyers or architects.

Weisman: I think, unfortunately, there are media, especially our New York media, that just don't want to know nice things. The horror story is the only story they'll go with, and if it's not horror story, they'll make it one.
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Title Annotation:Review and Forecast, Section III; legal requirements of Americans with Disabilities Act for building owners
Author:Fitzgerald, Therese
Publication:Real Estate Weekly
Article Type:Interview
Date:Jun 24, 1992
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