ADAAG vs. ANSI A117.1 for multi-family...

[brudgers]

Well said.. the building department has no authority to enforce federal civil rights legislation.. that's why there is a chapter 11 and ANSI A117 .. they are written to "deem to comply" with ADAAG..

They are not deemed to comply with ADAAG. The list of DOJ certified codes is short, and all of them look a whole lot like a copy of ADAAG.

Any jurisdiction that adopts Chapter 11 and ANSI A117.1 is explicitly adopting and enforcing a code that does not comply with ADAAG.

One day, there is likely to be a really nasty series of lawsuits filed. It's a gold mine.

 

[Uncle Bob]

xcdptmgrdl

 

[Paul Sweet]

A few random thoughts.

ADAAG can be enforced if it's adopted as part of the building code, just like any other reference standard.

ADAAG and ANSI A117.1 aren't really that far apart.

ADAAG contains several requirements that aren't properly a building code issue, such as bus stops, movable equipment, etc. These are in IBC Appendix E. This is one reason that DOJ doesn't recognize the IBC as providing equivalent protection.

Unless Kansas is using the original ADAAG or amended out the ABA (Architectural Barriers Act) scoping you can still get to most of the accessibility requirements of the IBC. The main ones that would be lacking are Type B dwelling units, churches, & private clubs.

 

[brudgers]

The main ones that would be lacking are Type B dwelling units, churches, & private clubs.

Exactly how the people's elected representatives intended it to be.

 

[Gene Boecker]

They are not deemed to comply with ADAAG. The list of DOJ certified codes is short, and all of them look a whole lot like a copy of ADAAG.Any jurisdiction that adopts Chapter 11 and ANSI A117.1 is explicitly adopting and enforcing a code that does not comply with ADAAG.

One day, there is likely to be a really nasty series of lawsuits filed. It's a gold mine.

Any jurisdiction that strips Chapter 11 and the ASNI is weakening the requirements placed therein. The ADAAG does not go away. It is the Owner's responsibility for compliance not the building official's responsibility. As noted above the use of the IBC places additional requirements for accessibility not found in the ADAAG alone (especially the 1991 version).



FYI: The ICC has a task force that will begin an extensive study for "harmonization of the IBC/A117.1 with the proposed 2004 ADAAG as soon as the 2010 A117.1 is published. Although we still don't know what the final version of the new ADAAG will look like (since the feds are only 2 decades behind - and don't even start talking about UFAS) the analysis will look at the text as it was proposed during the ending days of the prior administration.



BTW: the elected representatives don't write the ADAAG anyway. It's federal rulemaking by a sitting executive branch. The elected officials voted for the ADA which is unenforceable except through federal lawsuit. Now which is less expensive and burdensome?

 

[brudgers]

Any jurisdiction that strips Chapter 11 and the ASNI is weakening the requirements placed therein. The ADAAG does not go away. It is the Owner's responsibility for compliance not the building official's responsibility. As noted above the use of the IBC places additional requirements for accessibility not found in the ADAAG alone (especially the 1991 version).

FYI: The ICC has a task force that will begin an extensive study for "harmonization of the IBC/A117.1 with the proposed 2004 ADAAG as soon as the 2010 A117.1 is published. Although we still don't know what the final version of the new ADAAG will look like (since the feds are only 2 decades behind - and don't even start talking about UFAS) the analysis will look at the text as it was proposed during the ending days of the prior administration.



BTW: the elected representatives don't write the ADAAG anyway. It's federal rulemaking by a sitting executive branch. The elected officials voted for the ADA which is unenforceable except through federal lawsuit. Now which is less expensive and burdensome?

The 2004 rules are unworkable because their based on the building code which has since changed (never mind the fact that they lessen several accessibility provisions).

A belief that a jurisdiction has immunity after adopting a code that is known not to comply with Federal civil rights law is naive at best. It's somewhat analogous to adopting and enforcing a plumbing code that specifies the number of "colored" fixtures.

When you find the part of ADA that exempts Building Officials from lawsuits, let me know.

 

[Gene Boecker]

The 2004 rules are unworkable because their based on the building code which has since changed (never mind the fact that they lessen several accessibility provisions).A belief that a jurisdiction has immunity after adopting a code that is known not to comply with Federal civil rights law is naive at best. It's somewhat analogous to adopting and enforcing a plumbing code that specifies the number of "colored" fixtures.

When you find the part of ADA that exempts Building Officials from lawsuits, let me know.

The analogy is incorrect. The example used is specific in that fact that it requires a civil rights violation in the very wording used. The building codes specify requirements that may be more or less than the federal requirement. The same happens all the time with EPA provisions. You're being paranoid.



And, the 2004 ADAAG are far superior to the 1991 since they address issues that weren't even covered in the prior edition (i.e. recreational facilities). In fact the 2004 ADAAG defers to the IBC for the design of the accessible means of egress. If you don't like the fact that you perceive something in the 2004 ADAAG to be less restrictive, then call up the DoJ and make your voice heard. That’s the route we all have.



Regarding the immunity of the building official; it’s in the following text:

Sec. 12182. Prohibition of discrimination by public accommodations

(a) General rule

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.



The building official is not the person who “owns, leases’ or operates” a place of public accommodation. This is borne out by case law. In USA –v- ELLERBE BECKET, INC. (Civil Action No. 4-96-995), the court dismissed the charges filed against the building department which was a part of the original filing. I’m paraphrasing now but the point was that the federal law holds the owner and tenant responsible – the architect can be held responsible as a proxy because the architect is acting on the owner’s behalf and supposedly has the knowledge to understand and interp the law in this area while the building official’s responsibilities do not include the requirement for knowledge of the federal law but only the law affecting local construction; nor is the building official acting in the owner’s behalf.



But enough of this banter, brudgers. I think we had this discussion before. It’s obvious I won’t be changing your mind.

 

[brudgers]

Gene, I've was in a building department when an ADA complaint was filed.

I'll point out that Title III specifically references the issuing of building permits as relevant to the scope of the law.

 

[Gene Boecker]

Gene, I've was in a building department when an ADA complaint was filed.I'll point out that Title III specifically references the issuing of building permits as relevant to the scope of the law.

Yes, the two words "building" and "permit" are used together twice in the Title III text. But only as the threshold for when the requriements begin. It has nothing to do with the building official's role.

Sec.36.401 New construction.

(a) General.

(1) Except as provided in paragraphs (b) and © of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

(2) For purposes of this section, a facility is designed and constructed for first occupancy after January 26, 1993, only --



(i) If the last application for a building permit or permit extension for the facility is certified to be complete, by a State, County, or local government after January 26, 1992 (or, in those jurisdictions where the government does not certify completion of applications, if the last application for a building permit or permit extension for the facility is received by the State, County, or local government after January 26, 1992); and



(ii) If the first certificate of occupancy for the facility is issued after January 26, 1993.

 

[brudgers]

So if a person doesn't apply for a building permit they don't have to comply with ADA?

 

[brudgers]

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Adoption of Chapter 11 and ANSI A117.1 despite their non-compliance is both willful and done "under the color of law."

 

[Gene Boecker]

TITLE 18, U.S.C., SECTION 242 Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Adoption of Chapter 11 and ANSI A117.1 despite their non-compliance is both willful and done "under the color of law."

THAT case has yet to be tried.

I'll leave it to the attorneys for ICC to slug that one out. Only you seem to be under the impression that to use the ICC is a "willful" disregard for civil rights. I'm not an attorney but I'd argue that if the law disregards access altogether or specifically states, “there shall be not required alternate design considerations for those with special needs” - THAT would be willful and done under the color of law. Adopting any measure that affords accessibility is consistent with the ADA whether it is identical, less than, or in excess of the ADA's Design Guidelines (ADAAG) is another matter. The law adopting the IBC is still intent on providing access not disregarding it.

Like I said, I'll let the ICC folks worry about that. Any adoption of the IBC is a good faith effort - not a willful disregard.

 

[brudgers]

The DOJ process for certifying codes as ADA compliant has been in place for nearly 20 years.

As posts on this board and the old ICC board point out, many jurisdictions have purposely avoided enforcing ADA and explicitly adopted codes that don't comply with it with full knowledge.

It's not the ICC which has the liability. It's all those local jurisdictions which have knowingly issued permits to build in violation of ADA.

Essentially, they have granted waivers.

 

[Gene Boecker]

And, the DoJ has had in place for nearly 20 years the ability to litigate against any who are in violatino of the ADA. To date, I'm not aware of any jurisdictaion that is cited for what you're describing.

To quote a famous little old lady, "Where's the beef?"

 

[JBI]

@ Paul Sweet - "The main ones that would be lacking are Type B dwelling units, churches, & private clubs."

They're not covered by ADA(AG). Housing requirements are found in HUD regs.

Churches and Private Clubs are covered by Building Codes only (that I'm aware of). Although a strong case could be made for private clubs as providing 'public accomodation'.

 

[jar546]

Gene Boecker 1

Brudgers 0

Citing case law is always a plus, the rest is speculation

Yeah, Im reading this. Very interesting and informative

 

[Uncle Bob]

Local "Authorities Having Jurisdiction" are responsible for enforcing the jurisdiction's adopted codes.

They are not responsible for enforcing Federal Civil laws and/or regulations.

The idea that a jurisdiction's Building Safety Department can be successfully sued for not enforcing civil laws is absured.

It's the same as calling an attorney and telling him you want to sue the city because your neighbor's fence was built on his property. It's a civil matter.

Jurisdictions that adopt the Federal ADAAG as code requirements should and often do add amendments that cover buildings that are not covered by the Federal ADAAG.

In the case stated in the Original Post; the city of Witchita, Kansas has amended their code to include accessibilty requirements for multi-family dwellings and other requirements; that the Federal ADAAG did not cover.

Example: Witchita, Kansas Municipal Building Codes; Section 18.50.940 (a) Multi-unit dwellings.

States may request that DOJ "Certify their Accessiblity Codes"

http://www.ada.gov/5yearadarpt/vi_certifying.html

Please read;

"The enforcement of state codes is the responsibility of state or local officials – usually through plan reviews and building inspections. The ADA relies on the traditional method of civil rights enforcement through litigation in federal courts. Local officials do not have the authority to enforce the ADA on behalf of the federal government."

Uncle Bob

 

[Yikes]

As an aside to Vegas Paul's original comment, even in multifamily housing, there are often small portions of the project that are subject to ADAAG.

For example, if there is an apartment rental office on the site, then the path of travel from the public right of way and from any visitor parking up to and inside this office would be subject to ADAAG, as this is a "place of business".

If there is a public sidewalk encroachment on the private property, this would also be subject to ADAAG.

If there are amenities such as a mini-shared business office for the resident's use to present a "public face" to their home-based business, or for a neighborhood day-care business on-site, these too would be subject to ADAAG.

Beyond that, areas that are normally intended for use only by residents or their invited guests (or by the owner/managment and their invited guests) are not normally considered "public accomodation". For example, an apartment building with a central swimming pool that is intended for residents and guests would NOT be subject to ADAAG, in my opinion.

 

[Gene Boecker]

Yikes, you're right. There are areas like the leasing office which need to meet ADAAG since they serve the public.

The swimming pool would not be required to meet ADAAG - just FHA. However, if the apartment complex decides to allow the pool to be used by the local school for swim lessons or swim tyeam practice, then the ADA woudl kick in. same concept with tennis courts. As long as the use is only that by tenanst and guests, it's solely FHA.

 

[mark handler]

Yikes, you're right. There are areas like the leasing office which need to meet ADAAG since they serve the public.The swimming pool would not be required to meet ADAAG - just FHA. However, if the apartment complex decides to allow the pool to be used by the local school for swim lessons or swim tyeam practice, then the ADA woudl kick in. same concept with tennis courts. As long as the use is only that by tenanst and guests, it's solely FHA.

Not true at hotels/motels and timeshares

 

[brudgers]

Gene Boecker 1Brudgers 0

Citing case law is always a plus, the rest is speculation

Yeah, Im reading this. Very interesting and informative

ADA claims are often settled out of court. As I've noted elsewhere, I was involved in addressing a claim while I was behind the counter. For what it's worth, the municipal Devils with a Tie didn't seem to think that we had immunity (and it wasn't their first rodeo).

It's also important to note that Gene's immunity claim is based on enforcement not adoption. I suspect that there is as much immunity for adopting a code which allows non-compliance with ADA, as there is immunity for adopting any other law which legalizes civil rights violations (consider the lack of immunity afforded to a city which adopted a law legalizing lynching).

Free speech certainly protects ICC's publication of non-compliant codes. This should not be considered to provide immunity to a jurisdiction which knowingly adopts codes which violate Federal civil rights law.

 

[JayHawkInspector]

The Department of Justice ADA Standards does not contain requirements for multi-family dwellings (private homes). Unless a multifamily unit is a “public accommodation” such as a homeless shelter, group home, or transient lodging it would not be “covered by title III of the ADA. However multifamily facilities that are constructed by, for or on behalf of, or for the use of a state or local government, e.g. public housing would be covered by title II of the ADA. A title II covered entity can use the Uniform Federal Accessibility Standards (which also is the standard for facilities receiving Federal funding) which does contain provisions for residential units. Transient lodging facilities are covered by Section 9 of the ADA Standards. The Federal Fair Housing Act applies to certain multi-family facilities, check out www.fairhousingfirst.org for more information.

 

[Gene Boecker]

Not true at hotels/motels and timeshares

Hotels and motels are not multi-family "dwelings" - unless they are extended stay facilities. In which case they are covered by the FHA regs as well.

In addition to the comment posted by JayhawkInspector, I forgot to mention that if the multi-family facility uses federal monies as part of it's funding, it is subject to Section 508 which also requires compliance with the Uniform Federal Accessibility Standards (UFAS). While the current ADAAG is based on the 1986 ANSI A117.1, the UFAS is based on the 1968 A117.1 - talk about old regs!. Although it contains regs on residential, it's still seriously out of date and conflicts with other federal provisions for accesibilty. It is also possible to use the 2004 ADA-ABA regs if you secure prior approval from the funding federal agency since the regs allow for "comparable" requirements.

And to brudgers continuing comments; you (and the local legal eagles to whom you refer) still seem to be the only one(s) who thinks that the ICC with A117.1 is a violation of the federal law. I don't even hear that from the DoJ. In fact I hear the opposite. It is often less expensive to settle a claim than to adjudicate it. That doesn't mean that the settlement is right - except on a financial basis - since both parties usually include statements that there is no admission of guilt on either part. Slip and fall cases are typical situations where this happens all the time. Simply because money exchanges hands doesn't imply anything except an economic decision.

 

[mark handler]

Hotels, motels, inns, and other places of lodging designed and constructed after January 26,1993 must comply with the

Americans with Disabilities Act (ADA).

Common ADA Problems at Newly Constructed Lodging Facilities

http://www.ada.gov/comhotel.pdf

All other multi-family must comply with the Fair Housing Guidelines

http://www.huduser.org/portal/public...G/fairfull.pdf