Since July 26,1990, our country has been struggling with the goals and aspirations of the Americans with Disabilities Act (ADA). Every day, architects, interior designers, engineers, and property managers are making decisions intended to improve the overall accessibility of the environment. In 2018, both Florida and Congress are taking steps to enact legislation aimed at re-setting the way that our country settles issues related to ADA non-compliance.
As an architect myself, I have completed hundreds of ADA assessments in 49 states, on all types of commercial and government properties. Over the past year, I have worked with an ASTM committee to create a guide for conducting ADA compliance assessments. Currently, there is no national standard for what constitutes a full compliance audit for ADA. Consultants across the United States use a variety of assessment techniques and scopes of work that can lead to varying interpretations of ADA compliance. The lack of uniformity in addressing ADA compliance has led to some confusion within the enforcement, litigation, and assessment of ADA priorities. In recent years, both California and Texas have created uniform assessment protocols within their states. ADA assessments in both California and Texas are now done with professionals who have completed an ADA certification program. This is positive step for ADA compliance in these states. However, other states are well behind both CA and TX in requiring certification and protocol for ADA assessments. In 2017, I co-authored an article for the ASTM national convention that argued for a national standard for ADA assessments.
In 2018, 28 years after the ADA legislation was passed, the goal of the ADA legislation, to make the entire built-environment accessible for handicapped individuals, is still unrealized. Every year, there are hundreds of lawsuits and government actions against property owners to advance the goals of the ADAAG. Most of these lawsuits are meant to advance the ADA cause. Some of the lawsuits are meant to line the pockets of lawyers and do little to advance the ADA cause. Below is a graph that shows how lawsuits surrounding ADA litigation have increased over the last 5 years.
According to adatitleiii.com, February 2018 the top ten states for ADA lawsuits in 2016 were
- CA: 2751
- FL: 1488
- NY: 1023
- UT: 360
- NV: 276
- CO: 215
- GA: 187
- PA: 182
- TX: 129
- NJ: 108
Florida and Congress are trying to address this increase in lawsuits and to find a way to improve accessibility compliance without encouraging a flood of lawsuits. Florida has recently enacted legislation governing the compliance and litigation requirements surrounding enforcement of the ADA. The new Florida Law, HB 727, went into effect on July 1, 2018. In addition, Congress is actively considering legislation to modify compliance and enforcement of the ADA on a national level. In February 2018, the House of Representatives passed HR 620 which is now awaiting a vote in the Senate. Both laws are friendly to business who have struggled to comply with the ADAAG and give some latitude to addressing compliance of ADA on a property level.
Florida HB 727
“Florida HB 727 went into effect July 1, 2018.
“Under this new Florida statute, an owner of a place of public accommodation can pay a “qualified expert” to inspect its premises. If the expert concludes that the facility complies with the ADA, the business can submit a “certificate of conformity” to the DBPR stating that the premises conforms to Title III. Certificates of conformity are valid for three years and must include: the date that the premises was inspected, the name of the “qualified expert,” proof of the expert’s qualifications, and a statement from the qualified expert attesting that the information contained in the certificate is complete and accurate.
Businesses whose facilities do not fully comply with the ADA can submit a remediation plan to the DBPR indicating that the facility intends to conform with ADA requirements within a reasonable amount of time that does not exceed 10 years. In addition to the requirements applicable to the certificate of conformity, the remediation plan must include the specific remedial measures that the place of public accommodation will undertake, and the anticipated date of completion.
To be a “qualified expert,” one must be a building code inspector, architect, engineer, contractor, or “person who has prepared a remediation plan related to a claim under Title III … that has been accepted by a federal court in a settlement agreement or court proceeding, or who has been qualified as an expert in Title III … by a federal court.” This means that an experienced defense attorney who has prepared a remediation plan for a court approved settlement could be considered a “qualified expert.” “ Florida Lawmakers Take Action To Curb Access Suits, But Will It Work?By Samuel Sverdlov & Minh N. Vu on November 7, 2017
The new federal bill, HR 620 is trying to reset the responsibilities of owners to comply and reset the opportunity of citizens to sue business owner’s for non-compliance. The bill passed the house in February 2018 and is waiting a tough battle in the Senate. Here is the essence of the new federal legislation that has yet to be ratified by the Senate:
- The Department of Justice must train states, local governments, property owners, and ADA assessment professionals.
- This bill requires the Disability Rights Section of the Department of Justice to develop a program to educate state and local governments and property owners on strategies for promoting access to public accommodations for persons with a disability. The program may include training for professionals to provide a guidance of remediation for potential violations of the Americans with Disabilities Act of 1990.
- Civil disputes for ADA requires and written description of the disputed issue from the aggrieved person.
- The bill prohibits civil actions based on the failure to remove an architectural barrier to access into an existing public accommodation unless: (1) the aggrieved person has provided to the owners or operators a written notice specific enough to identify the barrier, and (2) the owners or operators fail to provide the person with a written description outlining improvements that will be made to improve the barrier or they fail to remove the barrier or make substantial progress after providing such a description. The aggrieved person’s notice must specify the circumstances under which public accommodation access was denied.
- The business owner must be afforded 60 days after the notice of non-compliance is received to take action to address the issue and another 60 days to enact the necessary changes to come into compliances with ADAAG.
The goal of the new federal law is to promote accessibility quickly and efficiently without the need for costly litigation. The model program should include an expedited method for determining the relevant facts related to such barriers to access and steps taken before the commencement of litigation to resolve any issues related to access. The goal of the new Florida law is to give property owners a chance to be pro-active in identifying and improving accessibility by conducting compliance assessments. These proactive compliance assessments will help Florida buildings owners understand their ADA issues and to document compliance.
It is important for property owners, both commercial and government, to understand these new laws and their effect on ADA compliance and potential law suits. It is also important for the ASTM ADA committee, on which I have served for one and one-half years to complete a standard by which all ADA assessments can be completed by assessment professionals. It is my personal opinion that accessibility remains a very important goal for our country’s built environment. I have been committed to this goal for over 30 years, I have trained over a hundred architects and engineers in the standards and goals of ADAAG, and have made hundreds of assessments in 49 states for all kinds of commercial and government properties. It is my hope that we can continue to educate and train the next generation of design professionals and building owners to value the goals of the ADA legislation from 1990.