Public buildings must meet ADA requirements

[mark handler]

Public buildings must meet ADA requirements

By Christopher B. Dolan

http://www.sfexaminer.com/sanfrancisco/even-public-buildings-must-meet-ada-requirements/Content?oid=2921380

This week’s question comes from Marylyn T., who asks:

Q: “I am working in a state-owned building that I believe is not ADA-compliant. I have had two major foot surgeries over the last 18 months, and the facility has no elevator. I have had to walk up and down 19 concrete steps to access restrooms and break rooms, extending my healing time. I believe a state agency should be in compliance with the ADA law for both customers and employees.”

A: Dear Marylyn, you are 100 percent correct that state and local government entities have an obligation, pursuant to titles II and III of the Americans with Disabilities Act, to provide accessible workplace facilities.

In some limited instances, usually in private buildings, there may be exceptions or exemptions due to historical significance or because the age of the building. Some buildings, built before 1992 when the ADA went into effect, are granted exemptions because bringing the building into compliance may involve issues which may not be either “readily achievable” or “technically feasible.”

The ADA was passed in 1992 and codified in 42 United States Code Section 12101 et. seq. Sections 12131 et. seq. contain Title II and Title III of the ADA, which states that no qualified individual with a disability shall, by reason of such 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 such entity. The requirements for accessibility compliance are determined by the type of facility, the ownership entity and the date of construction. Most state-owned and operated facilities and private commercial properties need to comply with the ADA guidelines and the requirements of the 2010 California Building Code.

Any building that has been constructed since 1992 has had to comply with the then current ADA regulations. These regulations have been incorporated in the California Building Code. The Department of Justice published revised regulations for titles II and III of the ADA in the Federal Register on Sept. 15, 2010. These regulations adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design.

The 2010 standards set minimum requirements — scoping and technical — for newly designed and constructed or altered state and local government facilities, public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities. This includes the removal of any physical barriers to entering and using existing facilities when “readily achievable.”

Readily achievable means “easily accomplishable and able to be carried out without much difficulty or expense.” What is readily achievable will be determined on a case-by-case basis in light of the resources available.

Examples of barrier removal measures include: installing ramps, making curb cuts at sidewalks and entrances, rearranging tables, chairs, vending machines, display racks, and other furniture, widening doorways, installing grab bars in toilet stalls, and adding raised letters or Braille to elevator control buttons. If the stairs prevent you from accessing vital areas such as meeting rooms, bathrooms, then barriers to you accessing these areas should be removed where feasible. Barrier removal measures must comply, when readily achievable, with the alterations requirements of the ADA Accessibility Guidelines. If compliance with the guidelines is not readily achievable, other safe, readily achievable measures must be taken.

As this is a state building, I would suggest that you go to the equal opportunity compliance officer within the state agency that you work for. Hopefully they will facilitate improvement of the facility. If they will not, contact the Division of the State Architect, which has jurisdiction over access compliance requirements for all buildings in California that are publicly funded in whole or in part by the use of state funds. You also have the right to file a discrimination lawsuit, but I first recommend trying to resolve the problem without litigation.

 

[conarb]

As I posted before the Supreme Court has held Title I and II of the ADA unconstitutional under Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), this was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution. It decided that Title I of the Americans with Disabilities Act was unconstitutional insofar as it allowed states to be sued by private citizens for money damages.¹

The way the DOJ is attempting to get around this decision is to defend any jurisdictions sued for enforcing the ADA in contravention of Garrett:

III. PROTECTING THE CONSTITUTIONALITY OF THE ADAThe Department has been actively engaged in defending the constitutionality of the ADA. The Department intervenes in private suits across the country to defend the constitutionality of the statute against challenges by state defendants. In early 2001, the Supreme Court limited the reach of the ADA by holding in Board of Trustees of the University of Alabama v. Garrett141 that a private individual may not, consistent with the Constitution, sue a State or state agency to enforce the employment discrimination protections in Title I of the ADA. The Court held that States are protected from such suits by sovereign immunity under the Eleventh Amendment. Following earlier decisions holding that Congress may remove States' immunity only when acting pursuant to its powers under the Fourteenth Amendment, the Court in Garrett held that Title I's prohibition of discrimination on the basis of disability went beyond Congress's authority under the Fourteenth Amendment. Thus plaintiffs may not sue a State directly to enforce Title I.

Following the decision in Garrett, numerous lawsuits were brought against state and local governments under Title II of the ADA. The Department has intervened in scores of cases at all levels of the federal court system throughout the country to defend the constitutionality of Title II in these private suits. The cases involve a wide range of claims regarding courts, prisons, public transit, voting, public education, parking placards, licensing, and institutionalization. In defending the constitutionality of Title II of the ADA, the Department has argued that Congress had the authority to remove States' immunity because the ADA is an appropriate and constitutional means of remedying the history of pervasive discrimination against people with disabilities.

As a result of the decision in United States v. Georgia, many Title II cases pending in appellate courts are being sent back to district courts to determine whether they can be upheld because they seek to enforce Title II rights that do not go further than those protected by the Constitution. The Department of Justice is continuing its nationwide effort to intervene in such cases and others to defend the constitutionality of Title II of the ADA.²

By reading the DOJ's own paper one can see that the way they are getting around the constitutional requirements is to intervene and drastically increase the litigation costs of any litigant challenging the constitutionally of the ADA, in the process they are breaking down the sovereign immunity of government agencies, if they succeed that should establish a precedent to sue any AHJ for the enforcement of any codes or provisions that damage people or their property. For instance, an AHJ enforces a code requiring a building to be sealed up while allowing building materials to be used that contain toxic substances like formaldehyde, an occupant gets sick, gets cancer, or has a child with a birth defect, who occupied the building and sues the builder, the builder cross-complains against the AHJ for forcing him to seal the building up to meet energy code requirements, the AHJ defends on the basis of sovereign immunity, the builder counters citing the ADA cases stating that sovereign immunity is no-longer applicable, guess who has the deep pockets? In comparative negligence states (like California) the court assigns liability on a percentage basis until the builder's funds are exhausted then the entire remainder of the judgment is assigned to the party with the most assets, in almost every case the AHJ.

¹ http://en.wikipedia.org/wiki/Board_of_Trustees_of_the_University_of_Alabama_v._Garrett

² http://www.ada.gov/5yearadarpt/iii_constitionality.html

 

[ADAguy]

Wow, and Wow! again. Unintended results rear their ugly head.