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Responsibility for enforcing ADA standards at local level.

Msradell

Msradell

SAWHORSE
Joined
Jul 23, 2011
Messages
1,329
Location
Louisville Kentucky
I live in Kentucky and find many locations where ADA requirements are not met. While not correct as far as the regulations go I understand that this condition in older buildings, especially those that has not been renovated since the ADA legislation was passed.

I discussed this with local code officials and they tell me they only have to enforce the KY building code way she is quite antiquated in many ways. It is based on ICC/ANSI A117.1 2003 addition which obviously this is a lot of these requirements.

If to receiving this information I send a letter of inquiry to the state director of building code enforcement. His reply just included the information regarding what the Kentucky building code was based on, which I already knew and the fact that the local says those were correct in this actually didn't have to enforce anything else.

While I know many of you work in states where there are comprehensive local requirements for accessibility so this is not a problem to you is very frustrating here. One of the biggest frustrations is when a significant renovation is done to a building and they do not make it accessible. According to the Kentucky code unless it changes use they don't have to make it accessible! There's one local business they used to be a bakery and as the becoming a grilled cheese sandwich restaurant, according to officials that is the same use some changes don't have to be made. It only has two steps at the entrance so the cost of the changes will be minimal compared everything else they're doing.

We all know that the DOJ doesn't pursue small issues like this, they only go after government facilities or major companies with their enforcement efforts.

How should I work to enlighten local and state officials so that they began enforcing the regulations? Outside of this I'm already working on trying to get legislative changes made but that will be an extremely long drawn out process even if it is successful.
 
Msradel,

State and local governments are only authorized to enforce the codes they adopt; and, as I am sure you have already been informed of this, your determination to continue to insist that your opinion should be enforced is irrational and without legal merit.

Good luck on your legislative changes attempt.
 
It's kinda cheesy to build a restaurant around a grilled cheese sandwich.
 
Frank said:
Sooner or later the land sharks will get there and make a federal case of it.
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Unfortunately under Kentucky statutes there's no provisions for local lawsuits for violation of ADA standards. Since these are mainly smaller operations DOJ involvement isn't likely.
 
Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.
 
"In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints."

I would disagree.......I am charged with enforcing the adopted code...........period. If you want to throw all the fed laws, lead based paint removal, OSHA, asbestos.....where does it stop?
 
fatboy said:
"In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints." I would disagree.......I am charged with enforcing the adopted code...........period. If you want to throw all the fed laws, lead based paint removal, OSHA, asbestos.....where does it stop?
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There's a difference between OSHA and ADA. One is civil rights, the other is OSHA. The situation is analogous to election law.
 
ICE said:
It's kinda cheesy to build a restaurant around a grilled cheese sandwich.
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if you think about it though, a lot of foods could qualify, technically as a grilled cheese. Pizza could be one example, especially if you fold it in half like an east coaster.
 
I enforce what we have adopted locally. 2006 IBC/ANSI A117.1-2003 & 2010 ADA SAD (most restrictive). Before we adopted the 2010 ADA SAD (state actually adopted it - locals can't be less restrictive), we would inform business owners to either visit the access-boards website and contact the regional offices, or contact their attorney if they were unfamiliar with the ADA. We have adopted general language that says adopted codes and regulations shall not be used to prohibit compliance with the ADA.
 
Brudgers,

You stated:

"Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints. "

I do believe that ICC/ANSI 117.1 (which is what jurisdictions I have worked for, adopted and enforced) is considered a safe harbor by the ADA. I haven't read here where anyone stated that they did not have accessiblility requirements adopted or that they did not enforce them.

Do you have even one example of a building official being held accountable for not enforcing ADA requirements that were not adopted by the jurisdiction?
 
Durant said:
I do believe that ICC/ANSI 117.1 (which is what jurisdictions I have worked for, adopted and enforced) is considered a safe harbor by the ADA. I haven't read here where anyone stated that they did not have accessiblility requirements adopted or that they did not enforce them.
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It's a safe harbor for Fair Housing Accessibility requirements.
 
brudgers said:
Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.
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I disagree as well--states and localities cannot enforce Federal Laws--reference the Arizona immigration law case
 
brudgers said:
Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.
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I have to agree with brudgers on this. How much time is spent in "Legal Aspects of Code Administration" and other books for those studying for the Legal/Management aspect of their CBO certification? There are multiple discussions in the referenced materials about civil rights and the impact that legislation has on the building officials responsibility. Yes, OSHA is federal law, but it's not civil rights therefore it does not have to be enforced by the AHJ.

Some states, like Kansas, have adopted ADA at the state level so local officials are charged with not only enforcing the A117.1 provisions, but also ADA. When the two conflict, which they do, I tell folks to comply with the more restrictive of the two.
 
Durant said:
Do you have even one example of a building official being held accountable for not enforcing ADA requirements that were not adopted by the jurisdiction?
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Interesting question. I have been spending some time on the DOJ's website, reviewing mostly public right of way and multi-family cases of inaccessibility, and outside of the PROW cases, I have only seen contractors, developers and RDP's (Architects & Engineers) listed in settlements. All of my numerous discussions with the access-board have covered the responsible parties regarding the ADA. I have only been told that the AHJ is ultimately responsible for inaccessibility in Public Right of Way projects and that private property development compliance is the responsibility of the owners, designers and builders. We are currently updating our transition plan, and will be discussing these issues in depth with our attorney.

In my opinion, which doesn't mean much in regards to the ADA, I for one wouldn't want to adopt codes/regulations and sets enforcement policies that impede the ADA or create inaccessibility.
 
We tell them up front we do not ensure their project will comply with ADA

24.301.902 DISCLAIMER

(1) A building permit or certificate of occupancy issued by the state or a municipality or county must contain a statement that reads: "Compliance with the requirements of the state building code for physical accessibility to persons with disabilities does not necessarily guarantee compliance with the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, Title 49, chapter 2, commonly known as the Montana Human Rights Act or other similar federal, state or local laws that mandate accessibility to commercial construction or multifamily housing."
 
Codegeek

I believe that in "Legal Aspects of Code Administration" the emphasis is on the building official not exceeding his legal authority. It is not the job of the building department to enforce civil rights. There are other parties to the legal system that have that authority.

There are limits on what the building official can do. Building code enforcement is not something that the building official can use to promote his idea as to what is appropriate because when he does so he is likely violating somebody’s civil rights.
 
Mark K said:
Codegeek I believe that in "Legal Aspects of Code Administration" the emphasis is on the building official not exceeding his legal authority. It is not the job of the building department to enforce civil rights.
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The question is can a code official knowingly allow civil rights violations without liability?
 
If the code official has no formal authority to act the only thing that he can do regarding perceived civil rights violations is to report the perceived violation to an entity that has the authority to take action.

The code official can and probably should inform the applicant of the limitations of the building code process and the potential implications this may have for the applicant. The code official could point out that he believes that the ADA requires something but probably should qualify that by stating that he is not in a position to formally interpret the ADA requirements.

If a code official were to give advice on the ADA requirements that the applicant relied on, the code official could potentially have liability for resulting problems if that advice were in error.

Liability relates to a legal duty. If the building official has no legal duty to enforce the ADA it is not clear how he/she could have liability for it's enforcement. I think what is being confused here is the distinction between legal duty and what some may see as a moral obligation.
 
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