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Revisiting the Americans with Disabilities Act.

The Americans with Disabilities Act ("ADA"), which became effective Jan. 26, 1992, prohibits discrimination against individuals with physical, mental or other disabilities in the areas of employment, public services, public accommodations and telecommunications. The section of this act which is of most interest to those in the real estate and construction industries is Title III relating to Public Accommodations and Commercial Buildings.

Title III requires, among other things, that by Jan. 26, 1992 "readily achievable" measures be taken to remove all architectural or structural barriers to disabled persons from existing places of public accommodations. The term "readily achievable" is defined as "easily accomplished and able to be carried out without much difficulty or expense." Several factors will be considered in determining whether a modification is readily achievable, including the nature and cost of the modification, the financial resources of the party involved, the financial resources of the business, the impact of the modification on the operation of the facility and the effect of the modification on the profitability of the business. To be sure, the outcome of this test will hinge upon subjective determinations by a court of law.

The term "public accommodation" is defined broadly in the statute and includes not only those places traditionally thought to be public, such as hotels, restaurants, theaters, shopping centers, retail stores, hospitals, recreational facilities and a variety of public buildings and spaces such as museums, libraries, galleries and convention centers, but also some places that might otherwise be thought to be private. For example, the offices of professionals like lawyers and accountants, insurance companies, investment advisors, real estate agents and financial and management consultants all appear to fall within the ADA's definition of "public accommodation."

Examples of the types of changes designed to remove architectural or physical barriers from public accommodations include the installation of handicapped access ramps, the repositioning of public telephones, the addition of braille or raised markings on elevator control buttons, the installation of offset hinges to widen doorways, the installation of accessible door hardware, the removal of high-pile-low-density carpeting, and the installation of handicapped toilet facilities.

In addition to public accommodations, "commercial facilities" are also subject to the operation of the statute. A commercial facility is one whose operations affect commerce and are intended for non-residential use by a private entity. Such facilities are subject to both the new construction and alteration requirements, although not to the other requirements applicable only to places of public accommodation.

Any alterations made to a place of public accommodation or a commercial facility after the effective date of the statute, January 26, 1992, must comply "to the maximum extent feasible" with accessibility and useability requirements. This means that such alterations must be designed and constructed in such a way that they are readily accessible to and useable by individuals with disabilities.

Full compliance with the new construction and alteration requirements is not necessary where it can be demonstrated that it is structurally impracticable to meet the requirements. Structural impracticability applies only in those instances in which the character of the terrain prevents the incorporation of accessibility features.

The term "alterations" as used in this portion of the ADA includes remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls an full-height partitions. Normal maintenance, re-roofing, painting or wall papering, asbestos removal, or changes to mechanical and electrical systems are not generally considered "alterations" unless they affect the useability of the building or facility. However, tenant space alterations in commercial office buildings require such compliance. The question becomes, of course, who is responsible for such work.

The ADA states that the failure to remove physical barriers by the date required by the statute can subject the operator, tenant, or owner of the place of public accommodation to civil liability up to a first time maximum penalty of $50 million and up to $100 million for subsequent violations. Thus, the statute holds responsible both the landlord who owns the building which houses a place of public accommodation and the tenant who owns or operates such accommodation. However, the statute's implementing rules permit landlords and tenants to allocate compliance responsibility in their lease or by separate contract.

Pursuant to the ADA Rules, it would appear that any alteration that affects or could affect the useability of or access to an area of a facility that contains a "primary function" (i.e., the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out) must be made to ensure that the path of travel to the altered area as well as to the restrooms, telephones and drinking fountains serving the altered area, are readily accessible to and useable by disabled individuals, unless the cost and scope of such work is disproportionate to the cost of the overall alteration. The owner of a building appears to have the responsibility to pay for "path of travel" alterations, absent an agreement to the contrary. The ADA rules also provide that if a tenant is making "alterations" in areas that only he or she occupies, it will not trigger a "path of travel" obligation upon the landlord with respect to areas of the facility under the landlord's authority that are not otherwise being altered.

While the ADA is a strong signal by the federal government which has brought the issues of discrimination and accessibility to the forefront, the ADA simply reflects a growing social concern for the disabled which has been evident in New York legislation for quite some time.

New York State has many statutes which concern the disabled. Protective statutes are found in the Education Law, Civil Rights Law, Transportation Law, CPLR, Public Buildings Law, Executive Law and a host of others. In addition, New York City has its own Local Law 58 which requires that all new buildings be accessible to people using wheelchairs, and that buildings being substantially rehabilitated be made accessible to them. The requirements of Local Law 58 probably meet or exceed ADA standards for new building construction. However, with respect to most renovations, the ADA may require more than the City, since Local Law 58 only requires incorporation of accessibility features into areas being renovated, while the ADA goes further, requiring the "path of travel" to primary use areas being altered, as well as the routes to public facilities serving those areas, such as bathrooms, telephones and water fountains, to be made accessible "to the maximum extent feasible" -- even if no renovations are planned for those pathways and facilities.

In conclusion, owners and tenants best be aware of the many requirements that must be complied with in New York City, where Local Law 58 and ADA have a major impact on construction and design considerations, as well as far reaching legal implications.

Peter Goetz is a senior member of the New York- and New Jersey-based law firm of Goetz, Fitzpatrick & Flyn, which concentrates its practice in construction and real estate law and related fields.
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Title Annotation:Construction Corner
Publication:Real Estate Weekly
Article Type:Column
Date:Aug 18, 1993
Previous Article:Total control via design/build.
Next Article:Report: keep lease terms simple.

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