Business Owners and Managers

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Services

  • Evaluate your business with a CASp inspection to be sure all ADA requirements are being met

  • Provide construction drawings for building permits

  • Act as your liaison with the Building Department to help expedite the permit process

  • Provide contractor recommendations

A Word to Business Owners and Managers …

ADA lawsuits apply not only to property owners, but also to business owners.

The Americans with Disabilities Act of 1990 (ADA) is a federal civil rights law that prohibits discrimination against individuals with disabilities and requires facilities used by the public — places of public accommodation — to be accessible. Since January 26, 1992, alterations to places of public accommodation and commercial facilities have been required to comply with ADA standards, and facilities designed and constructed for first occupancy after January 26, 1993 have been required to be readily accessible. The ADA contains no grandfathering provision..

If your building was constructed or altered, which standard applies depends on when the work was permitted — not on when it was built. Under 28 CFR 36.406(a):

Permit application completed before September 15, 2010 — the 1991 ADA Standards apply.

Permit application completed on or after September 15, 2010 and before March 15, 2012 — either the 1991 Standards or the 2010 Standards may be used.

Permit application completed on or after March 15, 2012 — the 2010 ADA Standards apply.

Where no building permit was required, the trigger is the start of physical construction or alterations. Ceremonial groundbreaking, or demolition before site preparation, does not count as a start.

If your building has not been altered, a different obligation applies — and it never expires. Under 28 CFR 36.304, a place of public accommodation must remove architectural barriers in existing facilities where removal is readily achievable, which the regulation defines as easily accomplishable and able to be carried out without much difficulty or expense. This duty is ongoing and is not tied to any construction date.

  • The regulation sets an order of priorities, and your parking is at the top of it:

    First — access to the facility from public sidewalks, parking, or public transportation.

    Second — access to the areas where goods and services are provided.

    Third — access to restrooms.

    Fourth — access to everything else.

    Among the examples the regulation gives of barrier removal are creating designated accessible parking spaces, and making curb cuts in sidewalks and entrances.

Safe harbor. Elements that have not been altered on or after March 15, 2012, and that comply with the 1991 ADA Standards, are not required to be modified to meet the 2010 Standards. An element that does not comply with the 1991 Standards must be brought into compliance with the 2010 Standards to the extent readily achievable.

The safe harbor does not cover elements that had no requirement at all under the 1991 Standards. These must be addressed under the 2010 Standards to the extent readily achievable, no matter when they were built: swimming pools, wading pools and spas; play areas; exercise machines and equipment; golf and miniature golf facilities; recreational boating facilities; fishing piers and platforms; saunas and steam rooms; shooting facilities with firing positions; and residential dwelling units.

Voluntary barrier removal does not drag the rest of your site with it.

This distinction is worth money, and most owners never hear it.

If you alter an area of your facility that contains a primary function — remodeling a sales floor, replacing the floor surface in a customer service area, redesigning a work area — then under 28 CFR 36.403 you must also make the path of travel to that area accessible, along with the restrooms, telephones and drinking fountains serving it. The regulation defines that path of travel to include walks and sidewalks, curb ramps and other pedestrian ramps, parking access aisles, elevators and lifts, and the route through the building.

That obligation is capped. Path of travel work is deemed disproportionate to the overall alteration when its cost exceeds 20 percent of the cost of the alteration to the primary function area.

If instead you simply remove a barrier because it is readily achievable — restriping accessible parking, cutting a curb ramp, widening a door — 28 CFR 36.304(d)(1) provides that the path of travel requirements of 36.403 do not apply to measures taken solely to comply with barrier removal. The element you fix must meet the alteration standards for that element. It does not trigger an obligation on the rest of the site.

 Two more points that save owners money:

Entrances, corridors, restrooms, mechanical rooms, storage rooms, employee lounges and janitorial closets are not primary function areas. Altering them does not trigger the path of travel obligation.

Alterations to windows, hardware, controls, electrical outlets and signage are not treated as alterations affecting access to a primary function area.

And if you already built path of travel elements to the 1991 Standards, you are not required to retrofit them to the 2010 Standards solely because you later alter a primary function area they serve.

The practical result: fixing your parking on its own is a contained project. Fixing your parking as part of a remodel of the space it serves is a different conversation — and a CASp should be in it before the drawings are done, not after.

NOTE: In California, when a place of public accommodation is newly constructed, added to, or altered, the current edition of the California Building Code contains accessibility regulations that are required, and can be more restrictive than the ADA.

A CASp can determine which standard governs your facility, what is readily achievable, and whether the safe harbor applies to you.

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