Obviously, each jurisdiction will be different, and architects should take the time to become aware of the requirements and/or guidelines in the jurisdictions encompassing the projects on which they are involved. Architects should keep the following tips in mind to avoid a lawsuit:
- Help owners understand ADA and FHA requirements and their impacts;
- Check to see if your community or state has enacted a “visitability” law and what the requirements are regarding a home and/or public facility to be easily and safely visited by anyone in the community, including those with disabilities;
- Maximize ADA compliance in every project, especially in the “gray areas” discussed above;
- Do not succumb to pressure from the client to minimize measures that address ADA compliance;
- If the client disregards the architect’s recommendations regarding compliance measures, the architect should document his or her file in writing (note, if it is not it writing, the other side can argue it never happened;
- If the architect sees construction team members disregarding or misapplying design intent, he or she should call it to the owner’s attention immediately and document same in writing;
- Meet the 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; and
- Be aware that the government’s interpretation will likely be found to be the correct one; therefore architects should err on the side of caution.
Finally, what can architects do if, despite their best efforts, they are still dragged into a lawsuit? If the matter is venued in a state court (other than Nevada), counsel should seek to have it transferred to federal court. Such a court should follow Niles Bolton and federal law regardless of the circuit in which it is venued, since there is no authority contrary to Niles Bolton. As one federal court has stated, an “informed person” would expect a federal circuit court “to look to the opinions of other circuits for persuasive guidance, always chary to create a circuit split.” Wheeler v. Pilgrim's Pride Corp. Accordingly, counsel for the architect should file early motions seeking dismissal based on new law such as Niles Bolton as persuasive authority. If unsuccessful, counsel should seek to demonstrate that the architect employed all reasonable efforts to secure compliance.
Clearly, the ADA and FHA have had, and will continue to have, a significant impact on architects. It is imperative that architects make themselves aware of the potential legal implications of their involvement in projects governed by the ADA and FHA, and take all reasonable steps to protect themselves.