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The ADA and your industrial space.

As the commercial real estate community becomes more familiar with the requirements of the Americans with Disabilities Act (ADA), owners and managers are beginning to ask for definitive answers to their ADA questions and dilemmas.

The act often results in confusion for anyone trying to comply because it leaves much to interpretation. As the fog surrounding office buildings, retail stores, and other commercial properties gradually clears, one question often remains clouded for many property managers: Does my flex space need to comply with the ADA?

What We Know

The ADA Title III requirements stipulate that owners of existing structures (those occupied on or before January 26, 1993) that serve as places of public accommodation have an on-going obligation to remove barriers and to make their properties more accessible to persons with disabilities. (For a list of places of public accommodation, see Figure 1.)

According to the Department of Justice, "readily achievable" barrier removal is determined on a case-by-case basis. The department lists several examples of barrier removal including: installing ramps, making curb cuts, rearranging furniture, installing flashing alarm lights, installing a raised toilet seat, creating accessible parking spaces, etc.

If a commercial structure does not fall into one of these public accommodation categories, then it is regarded as a "commercial facility." These facilities include most factories and warehouses. Owners and managers of commercial facilities that were occupied on or before January 26, 1993, have no obligation to alter their facility under ADA Title III requirements unless they undertake renovations.

Commercial facilities do have requirements concerning Title I, alterations, and new construction, but the owners are not required to remove barriers or make their properties more accessible to the disabled in existing facilities.

Interpreting the Law

Up to this point, the law seems pretty dear. Property managers with flat space, however, face a more challenging task as each tenant must be evaluated individually.

The wide variety of tenants that occupy the space can result in a mix of public accommodations and commercial facilities at the same or property. One recent ADA survey posed this very problem.

A major property management firm in the Washington metropolitan area was required to complete ADA surveys on several flex space sites for a refinancing package. One building housed a hardware store, two computer firms, a fabric distributor, and a delicatessen.

Each of these tenants needed to be analyzed to determine if it was a public accommodation. The hardware store and delicatessen were obviously places of public accommodation. But the computer firms and fabric distributor needed to be examined more closely.

The determining questions asked included: Do the computer firms have items on display? Is there a cash register! Are the hours of operation posted? Can retail customers purchase materials from the fabric distributor! Are all of the products delivered?

Questions such as these, which establish whether or not the tenant fits under one of the areas of "public accommodation," should always be considered. Any lawyer or consultant versed on ADA-compliance issues could help clarify the issue and help you ask the right questions.

In the example described, the two computer firms and the fabric distributor were all determined to be commercial facilities because customers never visited the site. The property manager was required to make alterations to remove barriers and provide access for the hardware store and the deli (curb cuts and accessible parking), but the other tenants did not trigger any other ADA requirements.

Under ADA Title III provisions, barriers must be removed at public accommodations unless the barrier removal would cause an "undue burden." There are a number of criteria to examine when determining if an alteration would be an undue burden.

The two most significant are the cost of the alteration, and the financial resources of the entity responsible for the work. However, the claim of undue burden by a business for one alteration does not mean it can dismiss other ADA requirements.

In fact, Kathleen Desmond, an ADA expert for Arlington County in Virginia, stresses the variety of options available when a facility cannot be made 100-percent accessible.

"Alternative attempts to offer accommodations are always available. Through signage or information contained in a business' advertising, certain public accommodations can better serve the disabled community."

The examples of alternative compliance available to inaccessible public accommodations are extensive. Even if a public accommodation has determined that making its facility accessible to the disabled is an undue burden, there are many means available to allow service to the disabled community.

Clerks can assist in reaching inaccessible shelves, a gas station with inaccessible pumps can offer to pump gas for individuals with disabilities at the self-serve price, and an inaccessible pharmacy can offer a complimentary delivery service for its disabled patrons.

Lease Agreements

Some property owners and managers of flex spaces are still trying to protect their ADA liability through lease requirements. Managers should be leery of relying on these requirements, however.

While managers might believe they are not required to remove barriers at flex space because they have protected their property through a lease stipulation, this is simply not the case.

Even if the lease states that the tenant is responsible for all ADA-required barrier removal, the property owner must ensure that the tenant is complying. The ADA Title III requirements allow for the tenant and landlord to allocate responsibility, in the lease, for compliance. However, this allocation is only effective between the parties, and both the tenant and the landlord remain fully liable for compliance with the ADA Title III provisions.

Similarly, property managers need to be aware that even if a tenant is operating a public accommodation unbeknownst to the manager or owner (i.e., operating a sales establishment in an area zoned industrial), the ADA requirements still apply. Again, it is both the property owner's and the tenant's responsibility to comply with the ADA.

Getting Started

In many instances, bringing flex space up to code with ADA Title III requirements can be done rather inexpensively. Typically, flex space properties will have few of the major expenses that existing office buildings incur when trying to comply (i.e., elevator and restroom modifications).

In most situations, flex space will only need exterior modifications to comply. These modifications would include the addition of ADA compliant parking spaces (including an access aisle and signage), the cutting of a curb ramp, and the addition of a ramp if stairs are present. Frequently, one set of alterations will provide access to several tenants.

The ADA is a complex law that can cause property owners and managers a great deal of stress in trying to comply. But with this federal law becoming more established, and many lenders now requiring an ADA survey for financing, it cannot be ignored. Managers of non-compliant properties are running the risk of incurring Department of Justice fines or losing refinancing packages for that property. And the amount of stress that fines or financing problems could cause would make compliance problems seem trivial.

Thomas P. Kane is field services manager with ADA Consulting Services, Arlington, Va., a division of Real Estate Service, Inc.

RELATED ARTICLE: PLACES OF PUBLIC ACCOMMODATION(*)

* Places of lodging (e.g., inns, hotels, motels-except for owner-occupied establishments renting fewer than six rooms).

* Establishments serving food or drink.

* Places of exhibition or entertainment (e.g., movie theaters, concert halls, theaters, stadiums).

* Places of public gathering (e.g., auditoriums, convention centers, lecture halls).

* Sales or rental establishments (e.g., grocery stores, shopping centers, hardware stores).

* Service establishments (e.g., laundromats, dry cleaners, banks, travel services, funeral parlors, gas stations, accounting offices, attorneys' offices, pharmacies, hospitals).

* Public transportation terminals, depots, or stations (e.g., not including facilities relating to air transportation).

* Places of public display or collection (e.g., museums, libraries).

* Places of recreation (e.g., parks, zoos)

* Places of education (e.g., nursery schools, elementary, secondary, under graduate, or post-graduate private schools).

* Social service center establishments (e.g., day-care center, senior citizen centers, homeless shelters, food banks).

* Places of exercise or recreation (e.g. gyms, health spas, bowling alleys, golf courses).

(*) Note: Examples are illustrations, not an exhaustive list. Source: "The Americans with Disabilities Act Title III Technical Assistance Manual," U.S. Department of Justice Civil Rights Division.
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Title Annotation:Americans with Disabilities Act
Author:Kane, Thomas P.
Publication:Journal of Property Management
Date:Sep 1, 1995
Words:1365
Previous Article:Calculation of occupancy (gross-up) adjustments.
Next Article:The big picture.
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