Wellington Wimpy was a character in the long running comic strip Popeye. For those of us old enough to remember the Popeye cartoons, you will recall that Wimpy, as he was known, was famous for the line “I will gladly pay you Tuesday for a hamburger today.” For some commercial building owners, this phrase may apply to them relating to ADA (Americans with Disabilities Act) compliance in their buildings.
For the uninitiated or new building owners who may not fully understand what the ADA is, here is some background. President George H. W. Bush signed the legislation in 1990 designating it “the world’s first comprehensive declaration of equality for people with disabilities.” The 1991 ADA Accessibility Guidelines (ADAAG) set the standard for what makes a facility accessible and the law became effective in 1992. The ADAAG requires businesses to remove architectural barriers in existing buildings and to ensure that new construction and alterations are built to be accessible to individuals with disabilities.
What does that mean to you as a business owner? Immediately upon implementation of the ADA in 1992, all business facilities (common areas and tenant spaces) were required to remove architectural barriers as soon as it became “readily achievable” to do so. Readily achievable is defined as “easily accomplishable without much difficulty or expense.” Unfortunately, what is considered “easily accomplishable” is not specifically defined, but parameters have been set over time by federal court rulings. Because of the ambiguity in the law initially, many business owners decided to wait. They thought it was enough to provide an alternate solution (such as providing curbside assistance or directing people to a secondary entrance) or they waited until a major renovation was necessary. Unfortunately, neither approach could stop someone from filing a lawsuit which could become much more expensive than fixing the problem in the first place. Taking a proactive approach and addressing what you can as soon as you can, will save you money in the long run rather than gambling on a lawsuit.
The courts have provided guidance by setting priorities for readily achievable barrier removal – starting with the path of travel from parking lots & public sidewalks to building entrances, then moving on to restroom & water fountain accessibility, and so on as you make your way through the facility.
The ADAAG, which is the basis the courts use to determine compliance with the law, provides text with diagrams showing its intent. Many people familiar with the ADAAG consider it to be similar to a building code. It is very important to note that the ADAAG is NOT a code. Building codes are constantly evolving with revisions that are published on three year cycles. Unlike building codes, the ADAAG remained unchanged from 1992 until 2010 when the U.S. Department of Justice adopted new standards. Since the adoption of the ADA, many of the building code organizations, recognizing the challenges of enforcing standards that they had no control over, incorporated accessibility criteria into their documents that could be enforced. Consequently, the 2010 ADAAG sought to harmonize the standards with the building codes and other industry guidelines. However, the 2010 ADAAG is still NOT a code and can only be enforced through the federal court system by federal judges.
It is also important to note that “grandfather provisions” typically found in building codes do not apply to ADA compliance for businesses or building owners. All buildings are required to be ADA compliant; however, a “safe harbor” does exist for buildings that currently comply with the 1991 ADAAG. All elements that are currently in compliance with the 1991 standards are still considered compliant even if they do not meet the 2010 standards.
However, there are circumstances where this may not be true. If you plan on making modifications to primary function areas within the building, you must also consider the path of travel to those areas. If the path of travel was compliant with the 1991 ADAAG, but is not in compliance with the 2010 version, you must upgrade those areas as well.
These days it is easy to comply with the ADA if you are building a new facility. It becomes more complicated when the building predates the issuance of the ADAAG. For buildings that predate 2010, it is a good idea to have a full evaluation of ADA compliance. The evaluation should identify compliance with each version of ADAAG and contain a plan to remedy non-compliance issues.
The bottom line is that ADA compliance can be very complicated in a single use facility. But it gets even more complicated when you introduce multiple tenants or mixed uses into a facility. Well intentioned modifications made by businesses or building owners without the guidance of professionals who work with the guidelines regularly can come back to bite you. Just like the bite that Wimpy takes from the burger he promised to pay for next Tuesday. Hoping to put off expenses for alterations to business facilities in the hope that you will never be sued can make that hamburger very expensive and hard to swallow!
Don Kemp Jr. is a Senior Architect at Heath Design Group, Inc. and serves on the Board of Directors at Mount Saint Joseph. Don is also a LEED Accredited Professional.