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Disability compliance: Jan. 26.

Disability compliance: Jan. 26

Close year eyes and think of yourself being in a wheelchair, or walking blind with a cane, and go in and through your building. Or roll yourself around the building in your office chair. Is a ramp necessary or must the door be widened? Can the elevator buttons and public telephones be reached? Is there access to public rest rooms? Once inside, are stalls wide enough; are there grab bars; and are toilets the right height? Is there a full length mirror? Do existing high water fountains have cup dispensers? Is your luxurious carpet pile too high? Are there steps up, or revolving doors? Can your office doorknob be turned easily?

Every day, millions of Americans are confronted with "barriers" that prevent access to buildings, bathrooms and services. The Americans with Disabilities Act (ADA) was enacted with a view toward removing those barriers. By, Jan. 26, 1992, owners and tenants of spaces where the public is served must have some barriers removed and detailed plans for action on others.

People who are currently disabled are not the only ones who will benefit from these changes. In a recent address to the New York Building Congress, Mayor David N. Dinkins reminded the audience that everyone in the room was only "temporarily abled."

"It's going to be a |lollapalooza' law," predicts Charles Rizzo, a partner in Charles Rizzo & Associates, building and zoning law consultants.

The ADA, unlike the New York City's Local Law 58, is retroactive to Jan. 26, 1992. Experts say the laws vary in certain areas and in some instances one is more stringent than the other. The ADAAG, the Act's Accessibility Guidelines, includes provisions for ramps and places of refuge for people who are disabled. There are few alternatives with Local Law 58, Rizzo said. "It is clear and precise," he said. "The ADAAG is flexible but requires a lot more to be done now. If you touch it, you change it."

What Complies & What Must be


Barriers must be removed and auxiliary aids and services provided or a plan put into effect for any place of public accommodation that could serve people with handicaps, such as retail establishments, restaurants, libraries and offices including attorneys, architects, and doctors.

Although businesses that do not qualify as Public Accommodations are not obligated to take steps with regard to existing barriers, it is critical of them, one attorney said, to start planning for when the commercial facilities provisions kick in under the alterations and construction provision, and for when the employment provisions of Title I become effective on July 26, 1992.

Prepare Yourself for a Lawsuit

The Justice Department recommends the preparation of barrier removal reports to determine what has to be done, how much it will cost and when it can be accomplished. The Building Managers and Owners Association (BOMA) has prepared an extensive checklist that may be obtained for a free from their Washington office at (202) 408-2662.

Rizzo is preparing his own checklist and is training people how to do a walk-through of a building and prepare a report. Rizzo explained, "It doesn't take a genius, it's just time consuming."

Such a plan, the BOMA booklet explains, if appropriately designed and diligently executed, could serve as evidence of a good faith effort to comply with the law.

BOMA suggests that the entire self-evaluation process and the determinations of what is readily achievable be fully documented. A list should be kept of existing barriers that are not removed, along with the specific reasons why their removal was not readily achievable. The organization also suggests obtaining the input of local organizations representing people with disabilities to help diminish future complaints.

BOMA of Greater New York's President, Carl T. Miller, noted the law does not identify classes of disabled. "You don't know who might have a complaint," he said. "That's why the test of |good faith' is important to the owner. If he can demonstrate that a lot has been accomplished and he can stand in conformity, and he gets picked on some small item, then we hope it will be in his favor."

Places of Public Accommodation

Thomas P. Piekara, an attorney with Jackson, Lewis, Schnitzler & Krupman, which specializes in labor and employment law, said Title III affects Public Accommodations and Commercial Facilities.

Public Accommodations include service and retail establishments, hotels, restaurants, grocery stores, schools, health clubs, golf courses, museums, and banks. Piekara said the law is geared toward how you provide your services.

A Commercial Facility is intended for non-resident use by a private entity and whose operations affect commerce. Examples of these are office buildings, warehouses, and factories. The BOMA booklet states: "The responsibilities for providing auxiliary aids and for removal of barriers do not apply to commercial facilities."

The Justice Department has also interpreted, however, that it is possible for part of a building to be a Commercial Facility while other portions are Public Accommodations. Piekara said an office building with a gallery or exhibit open to the public in the lobby would be an example. Part of a store or restaurant, for instance, might be for employees only, such as the kitchen or storerooms.

When Title I comes into effect on July 26, 1992, then reasonable Accommodations must be made for employees with a disability to enter and use those areas, and that will also include all offices and commercial spaces with more than 25 employees. Those with 15 or more employees will be affected on July 26, 1994.

Under Title III, disabled persons must receive the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of Public Accommodations. "Whatever service your provide, you have to make sure a disabled person can enjoy it too," Piekara said. This might be accomplished with the use of auxiliary aids, such as qualified interpreters, telephone amplifiers or TDD"s, braille or large print material, etc.

A building lobby might have a concierge or a "talking" directory or elevators which tell you what floor is coming up. A business might provide someone to assist the person who is disabled or you could put price tags or the building directory in braille or provide a personal shopper, Piekara said. "The Act gives you flexibility," he said.

For Places of Public Accommodation, any architectural barriers, i.e. anything structural in nature, must be removed by Jan. 26, 1992, Piekara said, noting that the work must be easily accomplishable. "You only have to do it if it is readily achievable," he added.

According to Real Estate Board of New York (REBNY) Vice President Marolyn Davenport, "readily achievable" means able to be carried out without much difficulty or expense. The nature and cost of the action, the overall financial resources of the site and its relationship to a parent corporations, as well as the type of operation of the parent company, are considered when assessing these changes.

For instance, Piekara said, a McDonalds might have more of a burden than the local mom and pop hamburger place.

Public Accommodations must take whatever steps are necessary to ensure than no one with a disability is excluded, unless it can be demonstrated that the provision of auxiliary aids would become an undue burden, defined by the Act as a "significant difficulty or expense."

Alterations & New Construction

Must Comply

If you renovate or alter your facilities or build a new facility, whether it is a public accommodation or commercial facility, then you have to comply with the ADAAG, Piekara said. An alteration is defined as a change in the use or that which could affect the usability of the building or facility or any part thereof. Alterations include remodeling, renovation, rehabilitation, reconstruction, etc. These would include door replacement, relocation of electrical outlets, new faucet controls and door handles and hinges.

Normal maintenance such as re--roofing, painting or wall papering, asbestos removal or changes to mechanical or electrical systems are not considered alterations unless they affect the usability of the facility, Piekara said.

For new construction, Piekara said, the law goes into effect for facilities designed for first occupancy Jan. 26, 1993. Check the regulations carefully because as REBNY documents note, if a building permit approval is received prior to Jan. 26, 1992, it may not come under the law.

Alterations Can Cost 20 Percent

Any new alteration work made after Jan. 25, 1992, must take this new law into accounts as well as its provisions that a cost of up to 20 percent of the entire project can be spent on barrier removal.

Architect Edward Rory Mc Ginnis claims this means the cost of any alteration work will now go up. "If one has to conform to the "Path of Travel" requirements (which include walking to and from restrooms, etc), those additional requirements of changing toilets, elevators, etc. are limited to 20 percent of the costs," he explained. "But it may be possible that all alterations could cost 20 percent more."

Compliance Issues

Although a commercial facility would not be required to change existing structures right now, Piekara said, "if you decide to do something, then you have to comply." For instance, Piekara said, if you have plans to renovate your lobby and the renovations begin and continue after Jan. 26, 1992 they would have to be in compliance.

With fines up to $50,000 for the first non-compliance, Mc Ginnis feels it is important to begin to make plans. Davenport said there are also legal and financial decisions that are part of the compliance issue, which is compounded in that it is a continuous requirement which must be met as changes are made and resources increase. "The architect can tell them how," she said, "but an attorney has to tell them what and when."

Rizzo said the actual compliance will come as a second phases team effort of architects, accountants, engineers and lawyers. "Architects may make recommendations," he said, "but then, if you don't fulfill those, you may expose yourself to some liability."

Enforcement, explained Miller, is not going to be like a building code; it will be tested by courts. In the meantime, he said, building owners and managers are scrambling to determine what is required. "The language is vague and that has people concerned," he said. "You might think you've complied in the spirit of the law and missed some of the letter. It's difficult to be in court with a disabled persons because the sympathies are never with the building owner in court and this will be compounded."

The law says the aggrieved party can file a lawsuit if there are reasonable grounds for believing that discrimination is about to occur, where new construction or alterations are concerned.

Tax Credits

Mc Ginnis noted that there are tax credits available for small businesses and the IRS allows a deduction of $15,000 per year for expenses associated with removal of the barriers. Check with your accountant, he said.

Review Leases

As the law allows responsibility for compliance by lease, REBNY recommends a review of leases, particularly with respect to clauses relating to new government requirements. The law also allows the allocation of responsibility for common areas to the landlord and for leased areas to the tenant. Since the bill does affect tenancy. Since the bill does affect tenancy, the owners must look at their tenancies and the accessibility requirements.

Rizzo says the driving force behind the law will be the tenant which will also make the building worth more because tenants will want to rent in a building which complies with the ADA. The lenders and insurance companies will insist on it. They cannot afford not to do something here."

"This is going to be a |feel me/touch me' kind of law," Rizzo said, "and through experience you will come up with solutions."

More Information

REBNY will hold a seminar on the ADA at 399 Park Avenue on Tuesday Nov. 12 from 8 a.m. to 10:30 a.m. Members are charged $25, non-members $40. The speakers will all be attorneys. The following Tuesday, Nov. 19, the New York University Real Estate Institute will offer a day-long conference with 11 industry speakers on Access for the Disabled: Complying with The ADA, at the City Bar Building at a cost of $185.
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Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Title Annotation:Americans with Disabilities Act
Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Nov 6, 1991
Previous Article:Hill Int. selects CM in NJ.
Next Article:Dinkins: ok, but with conditions.

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