The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act is a civil rights law that prohibits discrimination based on disability in areas including employment, transportation, public accommodations, communications, and access to state and local government programs and services. Title III of the Americans with Disabilities Act focuses on businesses and other public facilities, and requires these entities to make reasonable efforts to accommodate people with disabilities.
The provisions in Title III require removal of barriers to places of public accommodations and compliance with accessibility requirements for any new construction or alterations applied to facilities recognized as a “public accommodation” or “commercial facility.”
Entities that qualify as a public accommodation include:
- places of lodging (e.g., inns, hotels and motels, except for owner-occupied establishments renting fewer than six rooms);
- establishments serving food or drink (e.g., restaurants and bars);
- places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);
- places of public gathering (e.g., auditoriums, convention centers, lecture halls);
- sales and rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers)
- service establishments (e.g., laundromats, dry cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of healthcare providers, hospitals);
- public transportation terminals, depots and stations (not including facilities relating to air transportation);
- places of public display and collection (e.g., museums, libraries, galleries);
- places of recreation (e.g., parks, zoos, amusement parks);
- places of education (e.g., nursery schools, elementary, secondary, undergraduate);
- social service center establishments (e.g., daycare centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
- places of exercise and recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).
While “commercial facilities” encompass non-residential facilities whose operations may affect commerce, these facilities may include office buildings, factories, and warehouses. Private entities, such as private clubs and religious organizations, may be exempt from the ADA’s Title III requirements. In addition to public accommodations, commercial facilities must also comply with the new construction and alteration provisions of the ADA’s Title III. Accordingly, any alteration to a place of a public accommodation or commercial facility should ensure that the altered portion is readily accessible for individuals with disabilities. Alterations include remodeling, renovations, reconstruction, or a change in the structural parts or elements of a property. However, normal maintenance, such as re-roofing, painting, wallpapering, asbestos removal, and changes to mechanical and electrical systems are not considered an alteration unless it affects the usability of a property.
The obligation to make changes for physical access at existing facilities may be exempted if those changes are not “readily achievable.” The ADA does not mandate that every public accommodation remove each barrier that could hinder a person with a disability. Rather, a public accommodation need only remove existing barriers where removal is “readily achievable.” Title III defines the term “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.”
Americans with Disabilities Act Accessibility Guidelines (ADAAG)
The Americans with Disabilities Act Accessibility Guidelines (ADAAG) is the standard used for public accommodations and commercial facilities. It provides the scope and technical requirements to ensure that a building is compliant with Title III of the ADA. The ADAAG standards apply both to newly designed or constructed facilities and altered portions of already existing buildings and facilities.
Some of these areas may include the following:
- accessible routes;
- elevator and platform lifts;
- areas of rescue assistance;
- drinking fountains;
- storage, shelving and display units;
- controls and operating mechanisms;
- fixed seating;
- assembly areas,
- automated teller machines; and
- dressing and fitting rooms.
These standards also provide guidance on space allowance for wheelchairs, floor and ground standards, minimization of floor obstructions, and requirements for parking, passenger pickup, and curb ramps.
In determining whether a facility meets the accessibility standards of the ADA, there should be “ready access” to the facility itself and, in addition, “usability” of the facility features and equipment, as well as the goods, services, and programs available within the facility. Inspectors can locate specific guidelines for a facility in restaurants, medical care facilities, libraries, and recreation facilities.
However, in the case that the ADAAG has no standard for a certain type of facility, the Department of Justice advises that the ADAAG standards “should be applied to the extent possible,” according to the Department of Justice, Title III Technical Assistance Manual § III-5.3000. If the standards don’t provide information about how many features need to be accessible, then the DOJ advises that a reasonable number should be accessible. The ADAAG guidelines apply to both temporary buildings and permanent facilities (ADAAG § 201.3).
It should be noted that the ADA does not apply to private residences or facilities. However, if a doctor, lawyer, or even home inspector has a home office that would be used as a place of public accommodation, that portion of the home would fall under ADA standards.
Generally, the main element of ADA compliance is accessibility. While there are many specific requirements of what that looks like, the main point is that anyone should be able to access any of the same public areas or private commercial areas. This means that at least one passage, aisle, hall, and doorway through a facility needs to be wide enough to accommodate a wheelchair (at least 36 inches wide).
At least one accessible route needs to be provided around every area of a regulated property, including from the parking lot to the building, bus stop or drop-off zone, any other arrival point. This requirement also applies to areas between buildings within a site, with the exception of areas not designed for pedestrian use, such as public roadways, and vehicle-only access between buildings. If an area is built for pedestrian use, wheelchairs should have unrestricted and unencumbered use. Such areas include malls, businesses, parks, playgrounds, apartments, and any similar commercial property open the the public.
While most people believe that the ADA affects only parking spaces and entrances, the ADA also regulates requirements for the interior of commercial properties.
No state or local official can enforce the ADA and, as a result, a local inspector is unable to certify compliance with the ADA. Enforcement is carried out through civil litigation in the federal courts.
However, a state or local accessibility code does have the potential to be certified as meeting or even exceeding the ADA Title III requirements, as authorized by the Attorney General of the United States. (See 42 U.S.C. § 12188(b)(1)(A)(ii) and 28 C.F.R. § 36.602.) Codes that may either meet or exceed the ADA standards would be considered compliant. An entity complying with a certified code will have the advantage to offer rebuttal evidence of compliance with the ADA if litigation were to arise.
The enforcement of these local and state codes is the responsibility of state and local officials. They may review a building during construction to ensure that the construction complies with state and local laws. Again, state and local officials cannot enforce federal regulations on behalf of the federal government.
During the research portion of a commercial property inspection, the inspector may want to request to see any construction documents, such as architectural plans or state plan approvals, for information about the accessibility history of the subject property.
As of March 15, 2012, any alterations made to a building are required to comply with the 2010 ADA Standards. Facilities that were altered or built before that date and which complied with the 1991 ADA Standards for Accessible Design were not required to make modifications specific to the 2010 ADA Standards.
The ADA does not preempt state laws on accessibility in commercial facilities or in places of public accommodation. Given this, it is imperative that the inspector be aware of any other state accessibility law or code that might apply, especially if it may have greater requirements than what the ADA entails.
Although no state or local official enforces the ADA, inspectors should always check their state and local laws. Private inspectors are not typically required to check for ADA compliance, and should not run into any legal problems for failing to do so, provided that he or she has not assured or implied to the client that they would. However, ensuring ADA compliance may be helpful in acquiring work. If one chooses to check for ADA compliance, they should familiarize themselves with the applicable laws. While there are simply too many specifications within the ADA to quickly summarize, a good checklist for these elements can be found online, visit ADA Checklist for Existing Facilities.
In addition to the regulations in the checklist, it should be noted that certain types of facilities have their own often stricter requirements. These include most public buildings, restaurants and cafeterias, medical care facilities, lodging and transportation facilities, and recreation areas. A list of accessibility standards for various building types can be found online on the United States Access Boards webpage for ADA Accessibility Guideline (ADAAG).
Performing an inspection in compliance with ADA regulations and the ADAAG is beyond the International Standards of Practice for Inspecting Commercial Properties (ComSOP), but commercial property inspectors may choose to exceed ComSOP. For instance, during the research portion of the inspection, an inspector could ask the person(s) with the most knowledge about alteration and remodeling history of the subject property to verify that accessibility requirements have been met. CCPIA also has a Standard Accessibility Inspection Report Template for existing commercial buildings. The template can be used for a visual-only inspection and is intended solely as informal guidance.