Legal Issues for New York Architects; Part 3 of 6 – Understanding and Complying with Barrier-Free Requirements

This is a continuing article series regarding Legal Issues for New York Architects. Originally presented by John Caravella, of the Law Offices of John Caravella, and Kimberly A. Steele of The Steele Law Firm and produced by HalfMoon Education Seminars, this presentation touches on the following topics, Complying with the Rules and Regulations on the Practice of Architecture (Part 1), Complying with New York Rules on Unprofessional Conduct (Part 2), Understanding and Complying with Barrier-Free Requirements (Part 3), Design and Construction Contract Law and Administration (Part 4), Understanding and Complying with the law on Design Professional Service Corporations (Part 5) and Building Code Updates (Part 6). Each series of topics discuss informative summaries of Legal Issues for New York Architects.

WHAT ARE BARRIER-FREE REQUIREMENTS?

Barrier-Free Requirements originate in the Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101-12213) and the Fair Housing Act (FHA) and the Fair Housing Amendments Act of 1988 (45 U.S.C. §§ 3601-3931).

They address “architectural barriers, and communication barriers that are structural in nature” (45 U.S.C. §12182(b)(2)(A)(iv))

They are intended to ensure that disabled persons have equal access to public accommodations and residential dwellings, respectively.

WHEN DO BARRIER-FREE STANDARDS APPLY? – UNDER THE ADA

TYPES OF STRUCTURES TO WHICH THE STANDARDS APPLY:

“Public accommodations,” which include any of the following if their activities affect commerce:

  • Hotels and other lodging places;
  • Restaurants and other food service establishments;
  • Movie theaters and other places of exhibition or entertainment;
  • Auditoriums and places of public gathering;
  • Stores, shopping centers, and other sales or rental establishments;
  • Banks, gas stations, health care providers’ officers, and other service establishments;
  • Bus stations and other places of public transportation;
  • Museums, libraries, and other places of public display or collection;
  • Parks, zoos, and other places of recreation;
  • Schools and other places of education;
  • Day care centers and other social services establishments; and
  • Health clubs and other places of exercise or recreation.

42 U.S.C. § 12181(7)

WHEN DOES A PUBLIC ACCOMMODATION AFFECT COMMERCE?

Public accommodations affect commerce if they affect “travel, trade, commerce, transportation, or communication” among the states, between any country, territory, or possession and any state; or “between points in the same State but through another State or foreign country.”

42 U.S.C. § 12181(1)

Public accommodations affect commerce if they serve out-of-state persons or use products that have come from out of state. Daniel v. Paul, 395 U.S. 298 (1969).

Essentially, any place of business will probably be a public accommodation under the ADA.

The ADA’s Barrier-Free Standards apply to:

  • New construction
  • Renovation of existing structures
  • Existing structures, unless the removal of barriers is not readily achievable
  • Even if the removal of barriers is not readily achievable, alternative readily achievable methods must be sought and carried out, if available

TYPES OF STRUCTURES TO WHICH THE STANDARDS APPLY: – UNDER THE FHA

“Covered multifamily dwellings” are “buildings consisting of four or more dwelling units if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of four or more dwelling units.”

TYPES OF WORK TO WHICH THE STANDARDS APPLY:

The FHA’s Barrier-Free Standards apply to the design and construction of covered dwellings.

42 U.S.C. § 3604(f)(3)(c)

WHICH BARRIER-FREE LAWS/STANDARDS APPLY?- UNDER THE ADA

Under 28 C.F.R. §356.406, the determination of which standards apply depends on the date on which the last application for a building permit or permit extension is certified by a State, county, or local government (or, where permits are not certified, the date when the building permit or permit extension is received by a State, county, or local government).

The 2010 Standards, which will apply to current construction and alterations, include the 2004 ADA Accessibility Guidelines (AGAAG) for Buildings and Facilities.

The 2010 Standards are available at http://www.gpo.gov/fdsys/pkg/CFR-2012-title28-vol1/pdf/CFR-2012-title28-vol1-part36-appD.pdf

ADA ACCESSIBILITY GUIDELINES FOR BUILDINGS AND FACILITIES – Some General Requirements for New Construction:

Accessible Routes:

  • From a parking/loading zone or public street/sidewalk to an accessible building entrance and connecting accessible buildings, facilities, elements, and spaces within the same site
  • Must be at least 36” wide and offer passing spaces at intervals of no more than 200’ if less than 60” wide
  • Slope must not exceed 1:50

Protruding Objects:

  • Objects protecting from walls with a leading edge between 27” and 80” from the finished floor must not project more than 4”
  • Cannot reduce width of accessible route or maneuvering space
  • Must have at least 80” of clear head room

Ground Surfaces:

  • Must be stable, firm, and slip-resistant
  • Changes in level greater than ½” require a ramp
  • Carpet must be firmly attached

Ramps:

  • Maximum slope of 1:12 and maximum rise of 30”
  • Must be at least 36” wide
  • Must have level landings at top and bottom

Parking Areas (if Provided):

  • At least one accessible parking space for every 25 total parking spaces (parking lots up to 400 spaces)
  • 60” access aisles for accessible spaces, with a 96” access aisle for wheelchair van accessibility in one out of every 8 parking spaces
  • Accessible spaces must be at least 96” wide and provide minimum clearance of 114”
  • Must be designated reserved by a sign showing the accessibility symbol
  • Must be located on shortest route of travel to accessible entrance
  • Stricter standards for the number of accessible spaces apply for medical care providers

Doors:

  • Revolving doors/turnstiles cannot be the only means of ingress/egress along an accessible route
  • Must have a clear width of 32” with door opened 90
  • Must have at least 18” clearance on the strike side for a person in a wheelchair to open the door
  • Spaces between two doors must be 48” (plus the width of any door that will open into those spaces)
  • Handles, pulls, etc. must be of a shape that can be manipulated with one hand and that does not require tight grasping, pinching or twisting of the wrist to operate
  • Must not require an opening force greater than 5 lbf

This is not meant to be an exhaustive list. The Guidelines also provide standards for toileting and bathing facilities and signage, as well as regulations for specific types of facilities (restaurants, medical care providers, etc.).

WHICH BARRIER-FREE LAWS/STANDARDS APPLY?- UNDER THE FHA

FAIR HOUSING ACCESSIBILITY GUIDELINES

  • At least one building entrance on an accessible route
  • Doors wide enough to accommodate wheelchairs (at least 32”)
  • Environmental controls (light switches, thermostats) in accessible locations (no higher than 48” and no lower than 15”)
  • Reinforced bathroom walls to accommodate later installation of grab bars for disabled persons
  • Kitchens and bathrooms large enough to accommodate wheelchairs

Compliance with ICC/ANSI A-117.1 Standards on Accessible and Usable Facilities and with state and local codes will satisfy the above requirements.

Exceptions are available where the site makes compliance impractical.

The Fair Housing Accessibility Guidelines are available at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities/fhefhag

STATE GUIDELINES – UNDER THE BUILDING CODE OF NEW YORK STATE

Chapter 11 of the Building Code of New York State is devoted to accessibility and addresses ACCESSIBLE ROUTES, ACCESSIBLE ENTRANCES, PARKING AND PASSENGER LOADING FACILITIES, DWELLING UNITS AND SLEEPING UNITS, and SIGNAGE.

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Applies to all buildings, with exceptions including:

  • Certain employee work areas
  • Detached 1- and 2-family dwellings
  • Utility buildings (but public areas of agricultural buildings and garages and carports associated with accessible parking must comply)
  • Structures, sites, and equipment on construction sites
  • Raised areas used for security, life safety, and fire safety
  • Nonoccupiable spaces accessed ladders, catwalks, crawl spaces, freight elevators, or very narrow passageways
  • Spaces used by personnel for maintenance, repair, and monitoring of equipment
  • Single-occupant structures (e.g. toll booths)

Provisions are similar to the ADA with some additional requirements, for example:

  • Security barriers cannot obstruct an accessible route or entrance
  • Where a building has restrictive entrances, at least one must be accessible
  • Access aisles between accessible spaces must be signed “No Parking Anytime”
  • Incorporates and references many elements of the ICC/ANSI A-117.1 Standards on Accessible and Usable Facilities

Full text of Chapter 11 available at: http://publicecodes.cyberregs.com/st/ny/st/b200v10/st_ny_st_b200v10_11_section.htm

LOCAL GUIDELINES- UNDER THE NEW YORK CITY BUILDING CODE

Chapter 11 of the New York City Building Code is devoted to accessibility and addresses ACCESSIBLE ROUTES, ACCESSIBLE ENTRANCES, PARKING AND PASSENGER LOADING FACILITIES, DWELLING UNITS AND SLEEPING UNITS, and SIGNAGE.

Provisions are similar to those of the ADA and FHA, with some more restrictive requirements.

  • Detached 1- and 2-family dwellings
  • Agricultural buildings (except sections thereof which are open to the public)
  • Structures/sites/equipment on construction sites
  • Raised areas used for security, life safety, and fire safety purposes
  • Limited access spaces, equipment spaces, and toll booths (not frequented by the public)
  • Small bed and breakfasts in which the proprietor lives
  • Areas of correctional and detention facilities that are not required to be accessible
  • Fuel-dispensing systems at gas/service stations (but stations must provide clear floor spaces at operable parts)

Full text of Chapter 11 available at: http://www2.iccsafe.org/states/newyorkcity/Building/Building-Frameset.html

CURRENT ISSUES IN ACCESSIBILITY

  • A hotel was sued on the grounds that (1) its wheelchair ramps were excessively steep; (2) one of its wheelchair ramps projected into vehicular traffic; (3) there was insufficient clearance between the foot of the hotel room’s bed and its restroom; and (4) the toilet seat in the bathroom was too low. The hotel remedied all barriers prior to litigation. Wiele v. Zenith Arizona, Inc.
  • A restaurant was sued on the grounds that its bathroom door lacked sufficient clearance on the strike side for a person in a wheelchair to open the door; the standard is 18” with 24” preferred, and the clearance was only 11”. Rush v. Denco Enterprises, Inc.
  • A liquor store was sued on the grounds that it lacked disabled parking spaces, an accessible route to the premises, and accessibility signage. Johnson v. Parmar.
  • A restaurant was not required to lower its bar counter to an accessible height where the counter was not the only seating and wait service was provided at accessible tables. Kallen v. J.R. Eight, Inc.
John Caravella, Esq

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: [email protected] or (631) 608-1346.

This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer who has experience with Long Island construction law for advice on a particular circumstance.