What is the American's with Disabilities Act (ADA)?
The Americans with Disabilities Act grew out of the civil rights movement during the 1960’s. During this period, Congress passed sweeping legislation making it illegal to discriminate on the basis of race, religion, sex, national origin, etc., but at that time they did not include Americans with Disabilities. That was corrected in 1990 when President George H. Bush signed into law the Americans with Disabilities Act which then made it illegal to discriminate against persons with disabilities.
Does my business need to comply with ADA?
The short answer is YES. If you own or operate a business that serves the public you must remove physical “barriers” that are “readily achievable” which means easily accomplishable without much difficulty or expense. The “readily achievable” requirement is based on the size and resources of the business. Larger businesses with more resources are expected to take a more active role in removing barriers than small businesses. The ADA also recognizes that economic conditions vary. When a business has the resources to remove barriers, it is expected to do so; but when profits are down, barrier removal may be reduced or delayed. Barrier removal is an ongoing obligation……a business is expected remove barriers in the future as resources become available.
How is ADA enforced?
Because the ADA is a civil rights law, compliance with and enforcement of its implementing regulations is not necessarily overseen by the local building officials but is exercised through private lawsuits or by specified Federal agencies when discrimination or the probability of discrimination on the basis of disability is alleged. In general, enforcement is as follows:
a. New Construction – All new construction must be fully accessible. Since new construction requires permits by the governing authorities, plans are usually reviewed and inspections made for compliance before the project is complete. It is important to note that while inspections are made for compliance, not everything is checked and in some cases, violations will “slip through the cracks”.
b. Alterations – When changes are made to the facility more than a certain dollar amount, they must comply with ADA where technically feasible. Less stringent technical specifications may be applied where technically infeasibility is encountered. Like new construction, reviews and inspections are usually made by the governing authorities.
c. Existing Buildings – In general, existing buildings must achieve a level of usability that balances user needs, the constraints of existing conditions and the resources available at any particular time. In existing buildings, unlike new construction or alterations, there really is no governing authority that will be reviewing and approving your facility except possibly the United State Department of Justice. Generally because ADA is a civil matter, if existing facilities has not made readily achievable accommodations, then the facility is subject to a lawsuit at which time damages are sought by the plaintiff who was denied access and the facility will need to make ADA corrections at that time.
Do I need to worry about ADA since I am only a tenant in the building?
Currently a plaintiff can file a lawsuit against either the building owner or a tenant within the building. If you are a tenant, you should make an inquiry to you building owner to determine if a CASp Inspection has been preformed on the entire building already.
Can I afford this now in these economic conditions?
You simply can not afford not to get a CASp Survey. If you are the victim of an ADA lawsuit, you can not take advantage of the additional legal rights unless you have a CASp report. The cost of the report is so small when compared to the cost that could be incurred in a lawsuit that it really makes no sense to wait. In addition to the potential money savings afforded by a CASp report, it is also good publicity to be able to assure that persons with disabilities can fully take advantage of the goods and services that your business has to offer.
What if an architect has previously done an ADA survey of my business?
Over the last several years many architects have completed ADA surveys of various businesses, however, while these surveys may be very reliable they will not give you the new legal rights that you get with a CASp survey. While many architects are also experts in ADA, today they must have taken that extra step to be tested by the state to become a Certified Access Specialist (CASp). Only a CASp can provide you with a written report, window certificate and additional legal rights.
What Financial Help Is Available For Businesses??
To help property and business owners meet the requirements of the ADA, the federal government has tax credits and tax deductions available for both small and large businesses:
- Tax Credit - For businesses with 30 or fewer employees or revenues of 1 million dollars or less, eligible businesses can claim a tax credit of up to $5,000.00
- Tax Deductions - Businesses of all sizes can take advantage of a tax deduction up to $15,000.00 per year.
Owners are advised to contact their tax professional to determine their eligibility and exactly what credits/deductions are available to their individual businesses.
What if I can not afford to make ADA improvements now?
Quite often, business owners will find there are may be several no or low cost improvements that can be made immediately. For example, in a restaurant, dining tables may need to be re-spaced to allow for wheel chair passage. In toilet rooms, a full length mirror could be added to allow for use by someone in a wheel chair. If other more costly improvements need to be made, the CASp Report allows them to be scheduled for a later date when additional revenues become available to the business owner. In general, improvements cost between $2,000.00 and $10,000.00, however, this number can vary widely based on a number of factors including the size of the business.
What is the process to obtain a CASp Report and Window Certificate?
Start by contacting Ed Stavneak Architecture and I can discuss the process with you in detail. In general, after an agreement is signed, I will schedule time for a field survey of your business or property. During the survey the I will take lots of notes, check dimensions and take photographs. Also during the field survey, I will briefly discuss my findings with you and alter you to any corrective work that needs to be made. If no corrections are needed which is very rare, I will finalize the report and issue you a window certificate. If on the other hand corrections are needed, I will prepare a draft of the final report including approximate cost estimates for corrective work for your review. Your obligation will be to provide me a projected schedule for corrective work that will be included in the final report. Once I have a schedule from an owner, I will then issue a final report and a window certificate.
For more information on the Certified Access Specialist Program (CASp), please do not hesitate to download the following document that describes the program in further detail:
Certified Access Specialist Program (CASp)
Do I Need To Be Present During The CASp Survey
In general, the answer is no, however, I often encourage my clients to at least be at the survey for the first few minutes because I can often spot and point out obvious non-conforming conditions even before I take any measurements. Many owners find this one-on-one interaction to be of benefit in understanding issues related to the ADA. On the other hand, I have many clients with offices outside of the area and request that I visit the site and perform my survey without them being present. In the long run, it really does not matter either way, however, I often warn clients the survey will take 2 plus hours and they will probably not want to be present for the full survey as it tends to become very boring.
What should I do with my CASp Report and Window Certificate?
Once you receive the final CASp report, it is your responsibility to make any necessary improvements on schedule and to keep the CASp report in a safe place. In the unlikely event that you are involved in a lawsuit, you will be asked to provide the court with a copy of the CASp report. With regards to the window certificate, it should be posted boldly in the front of your window, preferably in the front window so as to alert serial plaintiff’s to go away and those with disabilities that you are welcome into my business.
Will The State Get A Copy Of My CASp Report?
No………The State of California does not get a copy of the CASp Report. Only the client and whom ever the client shares the CASp Report with and Ed Stavneak Architecture will have copies of the report.
Are there any alternatives to a CASp Survey?
While I highly recommend that my clients get a CASp Report, I understand that some clients would like an alternative to the CASp Survey. As a result, in addition to the CASp Survey, I also offer ADA Surveys. While both are good reports, there are substantial differences between the two. Owners and tenants who are considering an ADA Survey instead of an CASp Survey should download and review CASp Surveys vs. ADA Surveys before they make a final decision as to which report would best satisfy their needs.
Finally, some of my clients do not necessarily want a written report so I also offer on-site consultations where I can review accessibility issues directly with the building owner or tenant during a face to face meeting.
Do I Need Architectural Drawings?
Again, you should contact your Authority having Jurisdiction (AHJ) to be sure, but in many cases the answer is YES. Be careful of contractors who offer to do the work without architectural drawings. It's not uncommon for a contractor to offer to bring the parking lot into compliance with the ADA, however, it's important to remember that contractors have no formal training in the ADA. I have often seen owners have a contractor do the ADA corrections without architectural plans only to find out weeks later the corrections were made incorrectly when they get another lawsuit. In addition, the AHJ's have a strong dislike of owners who make corrections without their approval and may seek some type of penalties from the owner. It just does not make sense to make corrections on you own without a CASp Report and architectural drawings if they are required.
Who Can Make The Corrections
It depends on the corrections. In many cases, the corrections are simple such as lowering a toilet room mirror or adding signage on the toilet room doors. Where corrections are simple, the owner can simply make the corrections as noted in the CASp Report. In other cases, the corrections are beyond the owners ability to make the corrections. In these cases, the owner is advised to have architectural drawings prepared by Ed Stavneak Architect, and submitted to the Authority having Jurisdiction (AHJ). In addition, the owner should enlist the services of a General Contractor to do the construction. This is especially important for many of the larger corrections and failure to do so may cause the owner significant issues the next time they make a request with the AHJ's. If an owner is in doubt as to the necessity of having architectural drawings prepared, they should contact their local AHJ for advise. Owners should also be aware that if they are adding a van accessible space to their parking lot, it will more than likely require the elimination of one parking space. This needs to be coordinated with the AHJ before the work is preformed.
What happens if I can not make corrections as scheduled?
For starters, I would contact the Certified Access Specialist (CASp) who did your report and request that they modify the report to include your new schedule. It’s important to remember that corrections are made as a “good faith” effort and therefore if improvements are not made as scheduled due to economic reasons, this may not necessarily be an issue as long as corrections are schedule and they are made, however, remember that if a lawsuit is filed, the court may ask for evidence of your revenues. If you are making a substantial profit and have not made corrections then the court may take a dim view of your delay in making the corrections.