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After deadline, questions remain about disabilities law.

After deadline, questions remain about Disabilities law

While last week was the deadline for compliance with the first phase of the American with Disabilities Act, most owners are still coming to grips with what this elusive law means for them.

By Sunday, Jan. 26, according to Title III of the law, all architectural barriers must have been overcome in all buildings housing one or more privately owned "places of public accommodation" - restaurants, hotels, doctors' offices, retail stores, banks, etc. Renovation work commenced after Jan. 26. in any commercial building also must comply.

On Monday, the day after the deadline, the Disability Law Center filed a complaint with the Department of Justice against the Empire State Building because, they said, disabled people were not able to access the observatory. Other complaints were filed against the Intercontinental Hotel, and the Municipal Credit Union at 2 Layfayette Street.

"It is playing out as expected," said Frederick Kaplan, Esq. of Seyfarth, Shaw, Fairweather & Geraldson in Chicago who has been lecturing around the country on the topic. "That lawsuit demonstrates that the disabled rights advocates are intent upon seeing this law enforced to the fullest."

It is no surprise, Kaplan said, that the groups selected the Empire State Building and we can expect to see suits involving other high-profile buildings.

Peter Malkin, senior partner, Wien Malkin Bettex, counsel to the Empire State Building, said an architect has been enlisted to study what needs to be done to comply in this and all their buildings. "The law is not perfectly clear," he said.

Malkin said some news reports of the Empire State incident were inaccurate in they gave the impression that the protestors were not able to gain access to the observatory. "That's just not accurate," said Malkin. Disabled visitors, he said, had "no trouble" getting to the observatory - they were able to enter the building, purchase tickets, and use the elevators. Granted, Malkin said, people in wheelchairs were not able to see over the protective parapet wall, which is there for their safety. Compliance must be achieved without compromising the public's safety, he said.

What Does it Mean?

Jack Fierman, of Kronish Lieb Weiner & Hellman, agreed that there is still some confusion as to what owners' obligations are. Fierman's firm held a seminar last month to discuss key aspects of the law.

Similarly, many of the construction, engineering and design industry groups have sponsored seminars to educate their members on this obscure statute.

A lot of people, said Architect Stephen Zirinsky, think that the law is made to "stick it" to the owners. "It's something that the disabled groups have fought for 20 years," he said. "It's not really intended as a major encumbrance."

The misunderstanding surrounding the law is attributed mainly to the statute's language. The law says owners must do what is "readily achievable," to remove architectural or structural barriers. Readily achievable has been broadly defined as without much difficulty and expense.

"We don't precisely know what that term means," said Kaplan." ... what is readily achievable by one building may not be readily achievable by another building."

The ambiguity in the law, says Richard Romm, principal of SCR Design, Inc. has led his firm to form a collaboration with the law firm of Morrison Cohen Singer & Weinstein to help businesses, building owners and tenants comply. This is really a civil rights law, he said, and there are a lot of legal and labor issues.

"These are pretty wishy-washy words," he said. "This is a lawyer's dream. The worst that can happen is an architect tries to step over and be an attorney."

Romm said owners need to work with their lawyer and architect and prepare a brief. Documentation is very important, he said, and owners may need to use the services of their accountant to demonstrate the impact on their business.

"There are many things that can be done to comply with the act that don't necessarily involve a great deal of cost," Romm said. "It's not intended that major renovations of buildings be undertaken."

Zirinsky agreed. If you can't make the bathroom accessible on every floor, you can post signs directing people where an accessible bathroom is, he said. Or you can post signs directing people to the manager's office for assistance. The important thing, he believes, is not to make the disabled person feel excluded.

"The law wants everybody to get behind it in a moral sense," he said.

Assess Your Property

According to Romm, a principal in SCR Design, Inc. "Some people have looked into it and done a little, Some people have looked into it and done a lot. Many people have done nothing yet."

The greatest compliance right now, Romm said, is with the large owners and tenants - like McDonald's and Burger King - that are worried about bad press. They have already begun establishing and implementing programs. "These people are very sensitive to people," he said. "The last thing they need is CNN or the news filming people in wheel chairs rolling around the restaurant saying they can't get in."

Zirinsky agrees that the smaller owners are finding out about the law slowly.

Architects and attorneys agreed that affected owners should currently be in the midst of or be completing an audit of their facilities to see what the structural barriers are and how they can be mitigated. The evaluation should then entail assigning realistic costs to the overcoming of these barriers. Owners can then determine what is feasible. All of this should be documented.

"At least, they should be completing the |self evaluation'," said Kaplan. "If not, they should commence immediately."

Kaplan stressed documentation. If they elect not to remove something, they should document what and why, he said.

"Prudent owners," said Robert A. Kandel, Kaye, Scholer, Fierman, Hays & Handler, "understand they have to do something and are working with their architects and engineers in house and out ... They are then speaking to their financial people and developing a plan for bringing non-compliance into compliance.

"I fear that too many landlords are ignoring the law until someone knocks on their door and tells them they have to do something, which is not really what the true spirit of the law is or what people should be doing for eachother."

Kandel said he does not expect any immediate fines, but, he said people should get underway toward complying.

"It is a long-term program of upgrading property," he said. "It is not one that contemplates an overnight million-dollar transformation of property."

C. Jaye Berger, Esq. of the Law Office of C, Jaye Berger, said many owners have been consulting with their architects and attorneys who seem to be more educated on the law then themselves. A number of owners, she said, are asking their lawyers to draw up warranties or certifications that their architects can sign verifying compliance. Berger, however, said she is not really encouraging her design clients to sign these documents because of the vague language of the law. "You won't know if you're in compliance until someone comes to you and says you're not," she said.

Attorneys agreed there would be other suits and that the true meaning of the law would be played out in the courts.

Future Construction and Renovations

Fierman said owners who begin work on all commercial facilities, regardless if they include places of public accommodation, who receive their latest building permit after Jan. 25, 1992, will have to comply with the new law. Any alteration work commenced after Jan. 25, 1992, must make sure there is a "path of travel" for the disabled. Provision of this, however, does have to exceed an additional 20 percent of the cost of the alteration.

New York City owners, he said, will now have to comply with ADA and Local Law 58.

"If they're beginning an alteration, they have to comply with the ADA statute and the city laws," he said. "City law tends to be more stringent, but he city does not have any equivalent provision regarding the architectural barriers for public accommodation."

For new construction, the law goes into effect for facilities designed for first occupancy after Jan. 26, 1993.

Title I of the ADA law will come into effect on July 26 of this year. After that date, companies will have to make reasonable accomodations for employees with disabilities within the workplace.

Owners and professionals should check with their trade associations for dates of meetings and seminars on the law. Many group's have already held seminars and may have printed instructions.
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Article Details
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Title Annotation:Americans with Disabilities Act
Author:Fitzgerald, Therese
Publication:Real Estate Weekly
Date:Feb 5, 1992
Previous Article:Dec. construction gains bring up 1991 average.
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