The 20 percent rule for IEBC/ANSI A117.1

[jar546]

Apparently whenever you renovate a primary function area that has out of date, unaccessible restrooms, the 20% is optional.

I just got a note from an architect stating that he spoke to the ICC in Chicago and the code only says you don't have to spend more than 20% but it does not say you have to spend anything if you don't want to.

News to me!

 

[mtlogcabin]

2012 IBC

PRIMARY FUNCTION. A primary function is a major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the customer service lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors and restrooms are not areas containing a primary function.

3411.7 Alterations affecting an area containing a primary function.

Where an alteration affects the accessibility to, or contains an area of primary function, the route to the primary function area shall be accessible. The accessible route to the primary function area shall include toilet facilities or drinking fountains serving the area of primary function.

Exceptions:

1. The costs of providing the accessible route are not required to exceed 20 percent of the costs of the alterations affecting the area of primary function.

The 20% is only required to be spent on the route to access the primary function area. It is not a requirement to bring a primary function area into compliance.

 

[conarb]

Apparently whenever you renovate a primary function area that has out of date, unaccessible restrooms, the 20% is optional.I just got a note from an architect stating that he spoke to the ICC in Chicago and the code only says you don't have to spend more than 20% but it does not say you have to spend anything if you don't want to.

News to me!

That's the kind of language that is being considered by the Supreme Court right now in King vs. Burwell, if somebody has enough money to take it there.

Of course the Supreme Court has already ruled that Title I and probably Title II of the ADA is unconstitutional, but this administration continues to defend it:

The 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 Con-gress may remove States' immunity only when acting pursuant to its powers under the Four-teenth 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.The Garrett opinion, however, does not bar all ADA actions challenging state and local government policies or practices. The Court made clear that the federal government may continue to sue States for injunctive relief and money damages under Title I, and that private individuals may sue state officials in their official capacities as long as the plaintiffs do not seek money damages. Also, the Garrett decision only prohibited Title I suits against state governments, not cities or counties, because sovereign immunity as embodied in the Eleventh Amendment does not apply to local governments. Moreover, the Court left open the question whether private individuals may sue States under Title II, as opposed to Title I.¹

¹ http://www.ada.gov/5yearadarpt/iii_constitionality.html

 

[jdfruit]

To add to mtlogcabin on alteration and primary function.

The alteration area is to comply with current code; the 20% is for accessible route compliance including restrooms and drinking fountains.

Main issue that comes up continually is whether the "accessible route" for alterations is compliant or not. Have had many discussions and debates on whether the restrooms constructed to a prior code are "grandfathered" as compliant. Fortunately the CBC now has added language that the accessible route elements and features are compliant if constructed in compliance with the immediate preceding code edition. Makes the issue more direct for compliance or not and how much has to be corrected for existing conditions.

 

[ADAguy]

At yesterdays webinar the Access Board indicated that cost is not a defenseable argument for failure to comply with the minimum requirements!

I will confirm this while in Atlanta this week as all the DOJ wheels will be there for the Symposium.

 

[steveray]

To add to mtlogcabin on alteration and primary function. The alteration area is to comply with current code; the 20% is for accessible route compliance including restrooms and drinking fountains.

Main issue that comes up continually is whether the "accessible route" for alterations is compliant or not. Have had many discussions and debates on whether the restrooms constructed to a prior code are "grandfathered" as compliant. Fortunately the CBC now has added language that the accessible route elements and features are compliant if constructed in compliance with the immediate preceding code edition. Makes the issue more direct for compliance or not and how much has to be corrected for existing conditions.

That's a good change, especially with the 67" turning space coming up...

 

[mtlogcabin]

At yesterdays webinar the Access Board indicated that cost is not a defenseable argument for failure to comply with the minimum requirements!I will confirm this while in Atlanta this week as all the DOJ wheels will be there for the Symposium.

Thanks

There is barrier removal requirements under ADA and the 20% rule for accessible route.

Please make sure you are asking about the 20% as applied to an accessible route during a construction project. I know I have applied the 20% rule to barrier removals in the past that where not on an accessible route and I wonder if I overstepped my authority.

Example: replace round door knobs with levers on a private office

 

[Francis Vineyard]

From the 2009 Commentary;

"It is not the intent to exempt all requirements for accessibility when the total cost for providing the accessible route exceeds the 20-percent threshold. Improvements to the accessible route are required to the extent that costs do not exceed 20 percent of the cost to the planned alteration or addition. It is not required that the full 20 percent be spent. If the accessible route (including accessible bathrooms and drinking fountains) is already provided, no additional expenditure is required.Note that there is not a priority list given for where money should be spent on improving the accessible route."

 

[jar546]

And then there's Florida. Here is their take:

202.3Alterations.​

Where existing elements or spaces or common areas are altered, each altered element, space or area shall comply with the applicable requirements of Chapter 2 and section 201.1.1. See Section 208.1 for existing parking.

EXCEPTIONS:

1. 1.Unless required by 202.4, where elements or spaces are altered and the circulation path to the altered element or space is not altered, an accessible route shall not be required.
2. 2.In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible.
3. 3.Residential dwelling units not required to be accessible in compliance with a standard issued pursuant to the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973, as amended, shall not be required to comply with 202.3.

Advisory 202.3 Alterations. Although covered entities are permitted to limit the scope of an alteration to individual elements, the alteration of multiple elements within a room or space may provide a cost-effective opportunity to make the entire room or space accessible. Any elements or spaces of the building or facility that are required to comply with these requirements must be made accessible within the scope of the alteration, to the maximum extent feasible. If providing accessibility in compliance with these requirements for people with one type of disability (e.g., people who use wheelchairs) is not feasible, accessibility must still be provided in compliance with the requirements for people with other types of disabilities (e.g., people who have hearing impairments or who have vision impairments) to the extent that such accessibility is feasible.

Florida requirements for existing parking s.553.5041(g), F.S., and vertical accessibility s.553.509, F.S., are incorporated into this general section applicable to alterations. Florida requirements may be waived down to the ADA Standards requirements.

202.3.1Prohibited Reduction in Access.​

An alteration that decreases or has the effect of decreasing the accessibility of a building or facility below the requirements for new construction at the time of the alteration is prohibited.
Advisory 202.3.1 Prohibited Reduction in Access. Department of Justice regulations 28 CFR 35.133 for public entities (Title II) and 28 CFR 36.211 for private entities (Title III) clarify that reduction of accessibility is benchmarked to the 2010 ADA Standards for Accessible Design as adopted by this code. Those regulations state: “If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.”

202.3.2Extent of Application.​

An alteration of an existing element, space, or area of a building or facility shall not impose a requirement for accessibility greater than required for new construction.

202.3.3Barriers at Common or Emergency Entrances and Exits.​

Barriers at common or emergency entrances and exits of business establishments conducting business with the general public that are existing, under construction, or under contract for construction which would prevent a person from using such entrances or exits shall be removed.

202.4Alterations Affecting Primary Function Areas.​

In addition to the requirements of 202.3, an alteration that affects or could affect the usability of or access to an area containing a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area, including the rest rooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost pursuant to 202.4.1. Alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.
EXCEPTIONS:

1. 1.Residential dwelling units shall not be required to comply with 202.4.
2. 2.If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1994 or 1997 Florida Accessibility Code, the private entity is not required to retrofit such elements to reflect incremental changes in the proposed standards solely because of an alteration to a primary function area served by that path of travel.
3. 3.The path of travel requirements shall not apply to measures taken solely to comply with barrier removal requirements.
4. 4.If a public entity has constructed or altered required elements of a path of travel in accordance with the specifications in either the 1994 or 1997 Florida Accessibility Code or the Uniform Federal Accessibility Standards, as an equivalent facilitation, before March 15, 2012, the public entity is not required to retrofit such elements to reflect incremental changes in this code solely because of an alteration to a primary function area served by that path of travel.
5. 5.The path of travel requirement shall not apply to alterations undertaken solely for purposes of meeting the public entity program accessibility requirements of § 35.150, 28 CFR 35.
6. 6.If a tenant is making alterations that would trigger the requirements of this section, those alterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon the landlord with respect to areas of the facility under the landlord’s authority, if those areas are not otherwise being altered.

In existing transportation facilities, an area of primary function shall be as defined under regulations published by the Secretary of the Department of Transportation or the Attorney General (see definition of primary function).
Notwithstanding the requirements of this section, section 201.1.1 shall apply.
Advisory 202.4 Alterations Affecting Primary Function Areas. An area of a building or facility containing a major activity for which the building or facility is intended is a primary function area. Department of Justice ADA regulations state, “Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.” (28 CFR 36.403 (f)(1)). See also Department of Transportation ADA regulations, which use similar concepts in the context of public sector transportation facilities (49 CFR 37.43 (e)(1)).
There can be multiple areas containing a primary function in a single building. Primary function areas are not limited to public use areas. For example, both a bank lobby and the bank’s employee areas such as the teller areas and walk-in safe are primary function areas.
Also, mixed use facilities may include numerous primary function areas for each use. Areas containing a primary function do not include: mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms.
DOJ regulation 28 CFR 36.403(c) gives the following examples of alterations that effect the usability of or access to an area containing a primary function. Such areas include but are not limited to: remodeling merchandise display areas or employee work areas in a department store; replacing an inaccessible floor surface in the customer service or employee work areas of a bank; redesigning the assembly line area of a factory; or, installing a computer center in an accounting firm.
Florida vertical accessibility requirements of s.553.509, F.S., as incorporated in section 201.1.1 of the code, apply to the path of travel upgrades required by 202.4. Florida requirements may be waived down to the ADA Standards requirements.

​

 

[jar546]

202.4.1Disproportionate Cost.​

Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area. Costs that may be counted as expenditures required to provide an accessible path of travel may include: (i) costs associated with providing an accessible entrance and an accessible route to the altered area; (ii) costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet controls; (iii) costs associated with providing accessible telephones, such as relocating the telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY); (iv) costs associated with relocating an inaccessible drinking fountain.

202.4.2Accessible Features in the Event of Disproportionality.​

When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs. In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order: (i) an accessible entrance; (ii) an accessible route to the altered area; (iii) at least one accessible restroom for each sex or a single unisex restroom; (iv) accessible telephones; (v) accessible drinking fountains; and (vi) when possible, additional accessible elements such as parking, storage, and alarms.