Current Business Owners & ADA

Issues related to codes and accessibility guidelines cause confusion among property managers and building owners in the Jacksonville and Orlando areas.

Building design and construction, including safety and accessibility, is largely regulated and enforced by states and local jurisdictions. The ADA does not intrude upon the authority these governmental entities have traditionally exercised over the built environment. Most states and many local jurisdictions have laws or ordinances that address access to the built environment. Several states have their own accessibility codes, while others have implemented requirements based on those of the ADA or adopted access provisions contained in model building codes. For example, when a code official does a review of plans for permit or site inspection for occupancy permit, they do not inspect for ADA compliance. Also, a plan review or certificate of occupancy approved by a code official carries no weight in an ADA compliance case or lawsuit.

In addition, the changes in the 2010 ADA standards were made so they more closely mirror the International Building Code (IBC) 2003 and the American National Standards Institute (ANSI) A.117 2003. But some differences still exist between the ADA standards and IBC/ANSI in terms of scoping — how many and where — and technical issues — location, mounting, etc.

But ADA standards contain many requirements not found in building codes, and a code has no requirement for readily achievable barrier removal. The ADA Standards apply nationally in addition to any applicable state or local access requirements or codes. An occupancy permit issued by a local jurisdiction (or a building inspection) does not ensure ADA compliance. Although local building departments sometimes can waive building code requirements, a local waiver does not affect the entity’s obligation to comply with the ADA Standards.

Property managers and business owners also should be aware that building codes change more often than ADA standards. The 2010 ADA Standards were developed from the 2003 versions of IBC and ANSI. The 2012 version of IBC now references the 2009 version of the ANSI A117.1. The new version of ANSI A.117 has changed from the 2003 ANSI, which means there will be differences not previously found. So, it is important to stay on top of actions that state and local jurisdictions do in terms of using current building codes for remodeling or additions.

A place of public accommodation must remove barriers when it is readily achievable to do so. Although the facility may be "grandfathered" according to the local building code, the ADA does not have a provision to "grandfather" a facility. While a local building authority may not require any modifications to bring a building "up to code" until a renovation or major alteration is done, the ADA requires that a place of public accommodation remove barriers that are readily achievable even when no alterations or renovations are planned.

The ADA Title III regulations have a safe harbor provision stating that any of a facility’s elements built or altered before March 15, 2012, and that comply with the 1991 Standards do not need to be changed to satisfy the 2010 Standards. However, if an element already existed but didn’t comply with the 1991 Standards prior to March 15, 2012, this element must be modified to meet the 2010 Standards to the extent readily achievable.

Also, the safe harbor provision does not apply to elements in existing facilities that were not included in the 1991 Standards but are now regulated by the 2010 Standards. These elements must satisfy the 2010 Standards to the extent readily achievable. The following are some examples of the elements that do not fall under the safe harbor provision:

• Residential facilities and dwelling units
• Amusement rides
• Recreational boating facilities
• Golf facilities
• Play areas
• Swimming pools

Both the landlord and the tenant have certain rights and responsibilities when it comes to ADA compliance. In most cases, neither the landlord nor the tenant will be able to legally state that they are relieved from their duty to provide access for the disabled. This is due in part because the standard language in most common commercial leases is not enough to transfer obligation for making changes and providing services. Common commercial lease terms such as “Tenant is responsible for complying with all applicable laws,” and “Tenant shall indemnify Landlord for all claims arising out of Tenant’s use of property” have not protected landlords from liability with the ADA laws by some courts.

If the tenant is responsible for the build-out, some leases may include a clause that the tenant is responsible for having an ADA inspection completed to ensure that all the interior space such as counter heights, doors, accessible routes, and restrooms comply with the ADA Standards.

Lease Language: A lease may be written to clearly confirm who will make the changes and provide the aids and services, but both parties will remain legally responsible in the eyes of the ADA. It is important to point out that the landlord never loses the obligation to provide access to the property as public policy requires that some party be continuously responsible for health and safety issues for any given property.

Some landlords have tried to argue that the repair and maintain covenant means that the tenant should be required to improve non-complying areas of the property by bringing them to current accessibility standards. In a sense the inaccessible areas are “broken,” and it is the tenant’s obligation to “fix” them, or to make them accessible. This is ambiguous at best and can be countered by other contractual language such as the tenant having to return the property in the same condition or the limitations on tenant’s rights to make structural modifications.

The party who drafts the commercial lease is responsible for any ambiguous language contained in the lease. There is a legal principle that ambiguities in a document will generally be construed against the party who prepared the lease agreement. One reason is that the drafting party is in a better position to provide clarity. The other reason is that the drafting party will always be able to more meaningfully negotiate terms. In plain language - matters of uncertainty will most often be construed in the tenant’s favor.