Re: Accessible pedicure chair?
John Drobysh said:
brudgers - I have no interest in or need to belittle you. I do listen. The problem is you seem to want Code Officials to believe they have some 'liability' with regard to the ADA, and a duty of some kind to ensure it is complied with. These are simply not true unless the jurisdiction has adopted the ADA and/or ADAAG. MOST have not. A Code Officials' duty and responsibility is to enforce the Codes that have been adopted by the jurisdiction.
The only times most COs need to be concerned with ADA/ADAAG are when reviewing projects for buildings owned by their jurisdiction.
We can ADVISE DPs and building owners that they need to comply, but we cannot require it. Attempting to do so would expose us (and our jurisdictions) to serious liability. This is simply a matter of fact, not fiction.
You and I believe something different.
You believe that you are not exposed to liability when you permit a building that is non-compliant with ADA in your jurisdiction.
I believe that you are, and this is the reason for DOJ code certification.
The point is subtle.
Other than negligence, you have sovereign immunity regarding your actions in enforcement of the building code as a building code official. We both get that.
The ADA/ADAAG [let's agree not to wrestle with the proper title] is not a building code; it is civil rights law.
We both understand that as well.
Here's the difference.
When construction that violates ADA/ADAAG is permitted by your office, you are permitting a (potential) violation of someone's civil rights and doing so in an official capacity (often with full knowledge of the violation).
Sovereign immunity does not exist for violations of civil rights (much less local sovereign immunity with regards to any Federal law).
And thus I believe you are exposed. (As far as I can recall, there is no "good faith" exception for local code officials and it would be difficult to make a good faith claim anyway when SOP is to ignore ADAAG.)
Even if my legal theory is mistaken, there is an important aspect of ADA upon which you are misinformed.
DOJ is empowered to enforce ADA, however, a person alleging a civil rights violation under ADA can proceed directly to Federal Court.
All claims of violation under ADA are ripe for litigation from the moment they are alleged to occur.
Unlike issues arising under FHA, there is no required administrative process and the DOJ does not have standing unless the plaintiff chooses.
Duty, obligation to enforce, etc. aside, my belief is that jurisdictions and their code officials have exposure under ADA.
I also believe that A117.1 and its lack of certification heightens their level of exposure.
Essentially, the ICC sells an accessibility standard that does not comply with Federal law.