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Lessons Learned

Owners and developers across the country routinely sue design professionals during or after settlement of lawsuits brought by HUD, DOJ or other organizations representing the disabled. Owners and developers uniformly have decision-making authority on ADA compliance and may exert pressure on all members of the design team to minimize the scope and cost of compliance, or worse, override their recommendations. Design team members are almost always incentivized to maximize compliance and rarely, if ever, have any financial incentive to do otherwise. By contrast, owners are almost always financially incentivized to minimize compliance, particularly where there is a time or cost impact at stake. Even if the design team has good defenses, it has historically been dragged into these costly and protracted cases.

Ultimately, what can architects do to prevent themselves being dragged into a costly and protracted ADA or FHA case? Several steps can help, including:

  1. Maximize compliance in every project, especially in the “gray areas”;
  2. Do not succumb to pressure from the client;
  3. If the client disregards the architect’s recommendations, the architect should document his or her file in writing (note, if it is not in writing, “it didn’t happen”); and
  4. If the architect sees construction team members disregarding or misapplying design intent, he or she should call it to the owner’s attention and document same in writing.

Braille restroom signWith respect to the “gray areas” alluded to above,[5] there are various provisions in the ADA which do not call for a specific height, width, size, or location of a particular feature such as, for example, a door opening, handle, braille signage, etc. These provisions are often referred to as “prescriptive” standards. Other aspects of the ADA are phrased in terms of broad general parameters. These parameters, in contrast to prescriptive standards, consist of performance requirements set forth as a range or spectrum of acceptable results.

For example, under Title II of the ADA, public facilities must be made accessible to such an extent that compliance does not impose an “undue financial and administrative burden”, and under Title III of the ADA, places of public accommodation must be brought into compliance “to the maximum extent feasible.” In the 1995 case of Vande Zande v. State of Wisconsin Dept. of Administration,[6] the Seventh Circuit Court of Appeals adopted a two-part test for demonstrating compliance with these standards: (1) the accommodation must be shown to be “reasonable in the sense both of efficacious and of proportional to costs”; and (2) the costs must not be excessive in relation either to the benefits of the accommodation or to the provider’s financial health or survival. Doubtless, there will be many instances in which attorneys could make valid arguments on both sides as to these standards. The litigation-averse architect should adopt a broad interpretation of the phrase “to the maximum extent feasible” when seeking to design an accommodation.

As another example of a “gray area”, some provisions of the ADA call for accommodations which provide access to the disabled in a manner which is “functionally equivalent” to the manner in which that accommodation would be utilized by someone who is not disabled. Regarding the “functionally equivalent” standard, in the 2011 case of Sorenson Communications, Inc. v. Federal Communications Commission,[7] the United States Tenth Circuit Court of Appeals dealt with a provision of the ADA which requires people with hearing and speech disabilities to have access to telecommunications relay services (“TRS”) which are “functionally equivalent” to the voice telephone services used by the general population. TRS providers are compensated at rate determined by the FCC and, in Sorenson, one of those providers sued because the FCC cut its rate of compensation. The provider argued, in part, that it could not provide “functionally equivalent” TRS services to the hearing and speech impaired without a higher compensation. (The provider produced evidence that average wait times for TRS services would increase as a result of the rate reduction.) The Court of Appeals noted that the term “functionally equivalent” is not defined by the ADA, and therefore deferred to the finding of the agency in charge (in this instance, the FCC) that the provider could meet the standard even with decreased funding.

To date, the Sorenson case is the only one in which the “functionally equivalent” language in the ADA has resulted in a published appellate opinion. Nevertheless, the Sorenson Court cited to United States Supreme Court authority holding that, in the event of an ambiguous statute, interpretation should be left up to the controlling agency so long as that interpretation is reasonable. Accordingly, Sorenson is likely to be persuasive authority should this issue arise in other jurisdictions. The lesson here is that the government’s interpretation will likely be found to be the correct one; therefore architects should err on the side of caution.

Another potential “gray area” arises from the overlap of the ADA and its purposes with other sources of legislation and/or guidelines concerning accommodation of the disabled. One such area has to do with the concept of “visitability.” Visitability attempts to fill the gap left by ADA, which applies to public buildings, and the FHA, which applies to multi-family residences. Thus, visitability addresses single-family homes, duplexes and triplexes. The general idea behind visitability is that nearly any new home can be constructed to be easily and safely visited by anyone in the community, including those with disabilities. In practical terms, a residence which has been designed utilizing concepts of visitability will include basic access features, prioritizing wide doors, a no-step entrance, and a bathroom on the first level.

Neither the ADA nor the FHA actually utilizes the term “visitability.” However, various communities have enacted visitability statutes or ordinances as components of their building codes. Where that has occurred, the concept of visitability clearly overlaps with the purposes of both federal acts. Communities which have enacted visitability laws include Pima County, Arizona; Atlanta, Georgia; Austin, Texas; Urbana, Naperville and Bolingbrook Illinois; San Antonio, Texas; St. Petersburg, Florida; and Vancouver, British Columbia.

The Pima County ordinance, like the other above-mentioned ordinances, applies to the construction of new single-family homes. The ordinance was challenged by two homeowners and a number of developers in the 2003 case of Washburn v. Pima County.[8] The plaintiffs made a number of arguments, including that the County lacked statutory grounds to adopt the ordinance, and that it violated the right to privacy and equal protection rights of homeowners. The Arizona Court of Appeals rejected each of those contentions, and upheld the ordinance as a proper exercise of the County’s police power.

As can be surmised from the foregoing discussion, although the ADA and FHA are federal standards, there will also be significant local variances as to the manner in which accommodation of the disabled is dealt with in each jurisdiction. In California, the Department of Rehabilitation (“DOR”) was “established by the Office of the Governor to serve as the lead state agency in California’s efforts to implement the Americans with Disabilities Act in state government,” and the DOR has established Disability Access Services (“DAS”) which include information, training, and technical assistance regarding accessibility issues.

Another California State agency, the Division of the State Architect (“DSA”), provides design oversight for K–12 schools, community colleges, and various other state-owned and leased facilities. DSA is also charged with the authority of developing the accessibility language of the California Building Code (“CBC”) Chapters 11A and 11B. The DSA’s publication, the California Accessibility Reference Manual (“CARM”), should be looked to as the State-authorized reference for compliance with the ADA and CBC accessibility requirements.

As part of California’s biannual architectural licensing renewal requirements, each licensee must complete a minimum of 5 hours of Continuing Education Units (“CEU”s) on the subject of access. Additionally, just as many architects seek Leadership in Energy and Environmental Design (“LEED”) certification (which was developed by the U.S. Green Building Council), in California they may also avail themselves of the Certified Access Specialist (“CASp”) certification, or consult with a Certified Access Specialist to verify the compliance of their projects with access requirements prior to the submittal of drawings for permit. California law now requires each jurisdictional authority to have on staff or retain a CASp to verify plan compliance with Chapters 11A and/or B of the CBC, and to verify prior to the issuance of a certificate of occupancy that as-built conditions are in compliance with the as-approved plans and specifications.

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