If the inspector continues to assert a condition of code compliance to relocate controls and operating mechanisms such that their operation is inaccessible to a person with disabilities he / she is violating ADA Title II. The 2010 ADAS 308 ADAS 309 and the CBC 11B-308, 11B-309 provide guidance pertaining to reach ranges. The inspector, presumably an authorized employee of the municipal entity, in the course of his/her official duties, could be violating ADA Title II, 28 C.F.R. § 35.130 General prohibitions against discrimination. The ADA Title II requires, in part,
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. 28 C.F.R. § 35.130 (b)(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: [CASP commentary: Such as conditioning a permit or issuing a notice of correction] (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of
disability;
28 C.F.R. § 35.130 (b)(7) goes further: It establishes that the municipality shall supervise its inspectors to make reasonable modifications which are necessary to avoid discrimination on the basis of discrimination. If the inspector / municipality refuses to allow the location of operating controls and mechanisms it will be violating ADA Title II and liable for the violation. Keep in mind, the law protects access by persons with disabilities to operating mechanisms and controls including those necessary to de-energize an electrical circuit during an electrocution or ground fault (each being a life and fire safety concern) or re-energize such as when a breaker has been switched off for maintenance and that circuit is necessary for medically necessitated equipment, refrigeration of medication, maintaining temperature levels within the dwelling, etc. The municipality, by and through its inspector, is setting itself up for correspondence for the US Department of Justice, correspondence with a hefty price tag.
Every government entity is required under
28 C.F.R. § 35.130 (b)(7) (i) to make
reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of
disability, unless the
public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
In the example Yikes presents, the conduct of the code administration / enforcement agent and the municipal entity is unlawful. A courtesy notice to the CBO and legal counsel for the municipality citing 28 C.F.R. § 35.130 (b)(7)(i) and entering in the administrative record correspondence a request for the reasonable modification. It would likely be most effective for the individual with the disability to be included in the request. There are also disability advocacy groups and their legal counsel which might consider preparing such a letter at no cost.
Such requests, in my professional experience, are quite effective, particularly when the requests are made amicably, with the intent of furthering a public interest, and supporting the government agency in the effective and efficient administration of building standards.
