ada pacific update conference...program access •county b has 45 playgrounds; 3 are accessible, and...

Existing Facilities

ADA Pacific Update Conference

555 12th Street, Suite 1030 Oakland, CA 94607

Toll Free: 1-800-949-4232 (V/TTY) Web: www.adapacific.org

Email: [email protected]

Pacific ADA Center © 2016 2

Pacific ADA Center

What we will cover

• Accessibility of existing buildings and facilities (e.g. parking lots)

• Basic concepts ADA Title II and Title III accessibility

• California Building Code sections that differ from ADA


Definition of Existing Facilities

• The ADA – Existing facilities are not specifically defined

• CBC - EXISTING BUILDING OR FACILITY - A facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this code (CBC)


Important ADA / CBC Distinction

• ADA is a civil rights law

• CBC is a building code

• Local enforcing agency cannot sign away a civil right


An existing facility can be either

• A Title II entity (state and local government building/facility)

• Or a Title III entity (privately owned public or commercial building/facility)


Title II

State / Local Government

28 CFR Part 35


A public entity shall operate each service, program, or activity so when viewed in its

entirety, it is readily accessible to and usable by individuals with disabilities (§35.150)

Title II: Program Accessibility

When you have one program with multiple sites

To determine if program is accessible in its

entirety, consider:

• Size of the public entity

• Specific program features at each site

• Distance between sites

• Travel times to sites

• Number of sites

• Availability of public transportation to sites


Effectiveness

“A public entity is not required to make

structural changes in existing facilities where

other methods are effective …”

§35.150(b)(1)


Methods to Achieve Program Access

• Construction of new facilities

• Alteration of existing facilities

• Redesign or acquisition of equipment

• Reassignment of services to accessible buildings

• Home visits or delivery of services at alternate accessible sites

• Use of accessible rolling stock (e.g., trailers) or other conveyances


When Is Accessibility Required?

• Program access does not require every facility to be accessible when a program is viewed in its entirety

• If no facility is accessible, structural modifications may be necessary



Question: County A has 45 public playgrounds. 25 of them are fully accessible – accessible parking, routes, and play equipment comparable to the types of equipment available at the inaccessible locations. The accessible playgrounds are scattered conveniently throughout the county and all playgrounds are open the same hours and days. Is this sufficient for program access?

Likely

• Over half of the playgrounds are accessible

• There are comparable offerings at each location

• The playgrounds are dispersed throughout the county


Program Access • County B has 45 playgrounds; 3 are accessible,

and are comparable to the inaccessible ones (equipment, days/hours, etc.).

• However, some county residents would have to travel up to 35 miles to get to an accessible playground. The average distance from any home in the county to the nearest playground is 5 miles.

• Would this meet the program access requirement?


Not Likely • Despite the fact that some of the accessible

playgrounds offer similar features and elements, few of them are accessible, potentially requiring a person to travel significantly further than the others without mobility impairments


Title III

Places of Public Accommodation

28 CFR Part 36

Title III: Barrier Removal

• The obligation to remove barriers in existing facilities applies to places of public accommodation (private facilities open to the public)

• Barriers must be removed when it is “readily achievable” to do so


What is Readily Achievable?

• “ … easily accomplishable and able to be carried out without much difficulty or expense” (§ 36.104)

• Unlike program access, when a public accommodation is located on multiple sites all are subject to have barriers removed

• Ongoing obligation


Factors to Consider When Removing Barriers

• Nature and cost of the action

• Overall financial resources of site or sites; number of employees; effect on expenses and resources; legitimate safety requirements/safe operation; other impacts on operations

• Characteristics of parent entity (if there is one)


Cheap and Easy • Means something different for a large fast food chain than

for a corner convenience store

• A corner convenience store determines that it would be inexpensive to remove shelves to provide access to wheelchair users throughout the store. However, this change would result in a significant loss of selling space that would have an adverse effect on its business. In this case, the removal of the shelves is not readily achievable and, thus, is not required by the ADA. (DOJ TIII TAM, III-4.4200)

• Alternative ways of offering the goods and services may be

necessary if readily achievable


Priorities for Barrier Removal

• Getting into the building/ facility

– Parking, exterior routes, entrance, etc.

• Areas where primary goods and services are available

• Restrooms open to the public

• Other elements


Alternatives to Barrier Removal

When barrier removal is not readily achievable, consider readily achievable alternatives:

–Rotating/relocating activities to accessible facilities (e.g., movies)

–Retrieving merchandise from shelves

–Curb service

–Home delivery


Continuing Obligation

• Barrier removal is an ongoing obligation

• Factors affecting what is readily achievable may change over time

• Businesses eligible for tax incentives may use them every year (see later slide)


Program Accessibility vs Readily Achievable Barrier Removal

• Title II: programs are viewed in their entirety

–Where alternative methods are effective, existing facilities may not need to be made accessible

• Title III: barrier removal must be undertaken in each and every existing facility, limited by what is readily achievable


Alterations

Alterations • An alteration is any change to a building that

affects the usability of any component of the facility. This would include things like: – Remounting of light switches – Resurfacing circulation paths – Changes to restrooms – Doors – Stairs – Restriping a parking lot – Reconstruction from fire damage

• Applies to any element that a person would use


Alterations

• Apply to both Title II and Title III buildings and facilities

• Apply to any part of the building or facility, not just areas open to the public

• This is a different concept than program access or barrier removal requirements


Maximum Extent Technically Feasible

• Alterations must be accessible to the maximum extent technically feasible. – “Technically infeasible” means “something that has little likelihood of being accomplished because:

• existing structural conditions would require removing or altering a load‐bearing member that is an essential part of the structural frame; or

• other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements” (2010 ADA Standards §106.5) Pacific ADA Center © 2016 29

Technically Infeasible: CBC

• “In alterations, where the enforcing authority determines compliance with applicable requirements is technically infeasible, the alteration shall provide equivalent facilitation or comply with the requirements to the maximum extent feasible. The details of the finding that full compliance with the requirements is technically infeasible shall be recorded and entered into the files of the enforcing agency” (11B-202.3)


Technical Infeasibility Definition

An alteration that would require removing or altering a load-bearing member or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum specified requirements


Alterations: California Building Code • California requirements broaden the ADAs

definition of what is considered an alteration

• California adds: – Alteration of enough elements in one room or

space in a building may amount to an alteration of the entire room or space

– Changes from original plans in the course of construction

– A change in building occupancy or use – Structural repairs (11B-202.3, DSA Advisories)


Alterations: Scoping Requirements

• Both the ADA and CBC design requirements are broken into technical and scoping requirements

• The scoping section = material on the previous slide - what needs to be accessible, how many of something need to be accessible, etc.

• The technical sections = how to make something accessible (e.g., its dimensions)


ADA on Alterations

• Alterations to a “primary function area” need to devote resources to improve access to the path of travel serving that primary function area including:

– Site arrival points (sidewalks, transit stops, and / or parking lots)

– The entrance and path into the building/facility

– Bathrooms and drinking fountains serving the area of primary function


ADA on Alterations –Alterations to windows, hardware, controls,

electrical outlets, and signage are not considered to affect the usability of the primary function area

(§ 35.151, § 36.403)


What Are Primary Function Areas? • Spaces where main activities take place - includes

public areas and/or employee work areas (e.g., both the dining room and the kitchen of a restaurant would be considered primary function areas)

•

• Spaces generally not considered primary function areas include entrances, corridors, restrooms (except in a facility such as a highway rest stop), and employee common areas (e.g. employee break rooms or locker rooms)


CBC on Path of Travel in Alterations

• “When alterations are made, an accessible path of travel to the specific area of alteration shall be provided” (not limited to areas of primary function) (11B-202.4)

• CBC lists various exceptions, including:

– If elements complied with previous CBC edition

– Additions / alterations of one entrance, restroom, etc.

– Alterations undertaken because of barrier removal

– Parking resurface or restriping


ADA on Path of Travel in Alterations

• Structural modifications made for the sole purpose of providing program accessibility (Title II) or removing barriers (Title III) in existing facilities do not trigger the “path of travel” obligation, even if such modifications affect primary function areas

(§ 35.151, § 36.304)


ADA / CBC Path of Travel

• The ADA requires an additional 20% of construction funds to be devoted to the path of travel

• The CBC says if you exceed a valuation threshold ($150,244 for 2016), then full path of travel compliance is required

• If the project is less than or equal to the valuation threshold, the 20% rule still applies


Disproportionality • If cost of making path of travel accessible exceeds

20% of overall cost of the alteration to the primary function area, priorities should be:

– Entrance

–Route to primary function area

–Restrooms

– Telephones

–Drinking fountains

–Other elements (e.g., parking, alarms, storage)


Series of Alterations • Path of travel obligation cannot be evaded by

performing a series of small alterations if they could have been performed together

• If a primary function area is altered without making the path of travel accessible, and subsequent alterations to that area, or other areas served by the same path are undertaken within three years, cost of all alterations in preceding three years will be considered in terms of disproportionality


Vertical Access

• Elevator exception – Applies in new as well as existing facilities

• It is not allowed – for Title II buildings

– for Title III – if building has more than 2 stories or greater than 3,000 square feet per story, except:

• Office of a health care provider

• Shopping center

• Transportation depot


Safe Harbor in ADA

• Elements complying with 1991 ADA Standards are not required to be reconfigured to meet the 2010 Standards

• Safe harbor applies on an element by element basis


Safe Harbor in ADA

• Safe harbor does not apply to new construction, alterations, or elements that were not previously scoped

• In 2010, the ADA required certain recreational facilities to be accessible:

– Swimming pools and spas

– Fishing and boating facilities

– Golf and mini golf courses, etc.


Safe Harbor in CBC • Elements that complied with the immediately

preceding edition of the CBC receive a safe harbor

(11B-202.4, exception 2)

• Remember, there is no “readily achievable” or “program access” requirement in CBC


Historic Buildings and Facilities

Definition of Historic Property

• A historic property is “A building or facility that is listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate State or local law”

(ADA Standards, with similar language in both Title II and Title III regulations)


Historic Significance: ADA

• Threatening or destroying the historic significance is not required

• This would apply in:

– Alterations

– Program accessibility

– Barrier removal


Historic Significance: ADA Exceptions

• Site arrival exception: No more than one accessible route from a site arrival point to an accessible entrance is required (2010 ADA Standards, 206.2.1, exception 1).

• Vertical access exception: An accessible route is not required to stories above or below the accessible story (206.2.3, exception 7)


Historic Significance: ADA Exceptions

• Entrance exception: No more than one entrance is required to be accessible (2010 ADA Standards 206.4, exception 2).

• Toilet room exception: Where toilet facilities are provided, no fewer than one accessible toilet room for each sex or one accessible unisex toilet room must be provided (213.2, exception 2).


Historic Significance: CHBC

• The California Historic Building Code says to use CBC Chapter 11B unless historic significance is threatened

• The California Historic Building Code establishes alternative provisions for access that apply to:

– Entry

– Doors

– Toilet rooms

– Ramps and lifts


Historic Significance: CHBC

• Departures from Chapter 11B need to be documented and filed with the local enforcing agency

• Documentation needs to be included stating the reasons for not complying with Chapter 11B


Tax Incentives

Tax Incentives • Tax Credit

– Section 44 of the Internal Revenue Code – Applies to small businesses* – Can be used to cover many expenditures, including:

• removal of barriers in facilities or vehicles • purchase of adaptive equipment • provision of readers for customers or employees with

visual disabilities • provision of sign language interpreters • production of accessible formats of printed materials

– 50% of the eligible expenses up to $10,250

*Revenues of $1,000,000 or less or 30 or fewer full-time workers


Tax Incentives

• Tax Deduction

– Section 190 of the Internal Revenue Code

–Applies to any business

–Applies to the removal of architectural barriers

–Maximum of $15,000 per year


Pacific ADA Center

• Toll free hotline: 1 (800) 949-4232

• Email: [email protected]

• Website: www.adapacific.org

• We offer:

•Technical Assistance

•Materials

•Listserv

•Training


Questions and Answers

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ada pacific update conference...program access •county b has 45 playgrounds; 3 are accessible, and...

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