FAQ: Building Design/Renovations

Question:

I own a private country club. Do I have to make my facility ADA accessible?

Answer:

Private clubs' facilities are exempt from Title III of the ADA and the ADA Standards as long as they are not open to the general public. An entity is a private club for purposes of the ADA if it is a private club under Title II of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin by public accommodations.

Courts have been most inclined to find private club status in cases where --

1) Members exercise a high degree of control over club operations.

2) The membership selection process is highly selective.

3) Substantial membership fees are charged.

4) The entity is operated on a nonprofit basis.

5) The club was not founded specifically to avoid compliance with Federal civil rights laws.

Private clubs lose their exemption if they are made available for use by nonmembers as places of public accommodation. So for example, if a private club hosted a golf tournament open for the public to attend, then all of the facilities for the event would become public accommodations during the tournament and subject to ADA Title III compliance.

Question:

I own a business located in a building that would need a lot of alterations to be in compliance with the ADA Standards. Which areas should I focus on first?

Answer:

Architectural barriers and communication barriers that are structural in nature must be removed where it is readily achievable to do- meaning the removal would be easily accomplishable and able to be carried out without much difficulty or expense.A good approach would be to work from the outside of your facility in to where the action happens. Barrier removal priorities begin with getting to the door. Access from public sidewalks, parking lots or facilities, or public transportation stops is the first thing to address. Then, businesses should remove barriers to accessing areas where goods and services are made available to the public. After this, focus on the accessibility of restroom facilities. Finally, review all other elements or measures that have not yet been examined.

Question:

Does the ADA Require Barrier Removal in Historic Buildings?

Answer:

Yes, if it is readily achievable to do so, meaning it’s easily accomplishable and able to be carried out without much difficulty or expense. However, the ADA takes into account the national interest in preserving significant historic structures. Barrier removal would not be considered “readily achievable” if it would threaten or destroy the historic significance of a building or facility that is designated as historic at the national, state, or local level. In such cases however, there may still be an obligation to provide program access through providing auxiliary aids or modifying policies. For example, a private business that owns a historic building and operates it as a museum open to the public has a second floor that is physically inaccessible to visitors with mobility impairments. If there is no way to make that second floor accessible without destroying the historical significance of the structure, then the museum could make a video of the second floor and its features and show this on the first floor to visitors. This would be considered program access as the video becomes an auxiliary aid to provide access.

Question:

I rent my store space from a landlord. Who is responsible for making alterations to provide access?

Answer:

The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on both the landlord and the tenant. The landlord and the tenant may decide by lease who will actually make the changes and provide the aids and services, but both remain legally responsible.

Question:

Is my building "grandfathered in" under the older ADA Standards or do I need to comply with the new 2010 ADA Standards for Accessible Design?

Answer:

The ADA does not have a provision to "grandfather" a facility but it does have a provision called "safe harbor" in the revised ADA regulations for businesses and state and local governments.  A safe harbor means that you do not have to make modifications to elements in an existing building that comply with the 1991 ADA Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies and the altered elements must comply with the 2010 ADA Standards for Design.

It’s important to note that safe harbor does not apply to elements in existing facilities that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys.

Public accommodations must remove architectural barriers to elements, including those not addressed in the 1991 Standards but now covered in the 2010 Standards, to be in compliance with the new requirements in the 2010 Standards when it is readily achievable to do so.  In those occasions where the nature of an existing facility makes it virtually impossible to comply fully with the accessibility standards, the alteration mustprovide the maximum level of accessibility feasible.

Question:

How does the ADA affect existing State and local building codes?

Answer:

Existing codes remain in effect. The ADA allows the Attorney General to certify that a State law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any State or local government may apply for certification of its code or ordinance. The Attorney General can certify a code or ordinance only after prior notice and a public hearing at which interested people, including individuals with disabilities, are provided an opportunity to testify against the certification

Question:

What does the term "readily achievable" mean?

Answer:

It means "easily accomplishable and able to be carried out without much difficulty or expense."