Declaratory and Injunctive Relief

I was asked recently about why our complaint are always asks for a jury trial.  First of all, our complaint is for Declaratory and Injunctive Relief.  They are always filed in Federal Court where the filing fee is free, the attorneys representing the disabled are free and the attorney costs are free.

A current complaint that we are working on is for a building that was not in compliance with the Americans with Disabilities Amendments Act of 2009 with an effective date of January 1, 2009.  The building owner is guilty and the poof is found in the detail ADA building audit for compliance with the ADA and ABA Accessibility Guidelines; Final Rule published int eh Federal Register / Vol. 69, No. 141 / July 23, 2004; with an effective date of September 21, 2004; that's audit by ACCESS.

The above case will go for another 2 to 3 months as we work diligently to aggressively move it forward.  I've been doing this now some past 19 years and I've never lost a case; but I have to tell you, very seldom do these cases go to trial.

Give us your questions or thoughts on the above article.  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.  We look forward to hearing from you.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

What Are Common Areas in Condominiums?

We are getting some questions concerning what are the common areas in condominiums.  I always start by seeing if the Americans with Disabilities Act (ADA) Accessibility Guidelines have defined common areas.  The answer is they have defined common use.  Wait a minute, but who are they?  They are the Architectural and Transportation Barriers Compliance Board, a federal government agency in Washington, D.C. responsible for writing the guidelines for the Safe Harbor for Design and Construction to be in compliance with the ADA.

Common Use: "Interior or exterior circulation paths, rooms, spaces, or elements that ae not for public use and are made available for the shared use of two or more people."r

The interior circulation paths would be all hallways.  The exterior circulation paths would be sidewalks or any walkway starting from the public way and leading to the building entrance, all sidewalks from parking and all walkways through and around all exterior spaces and elements.  Rooms would be like laundry room, game rooms, managers office, exercise room, restrooms, etc. 

Spaces would be lobby, TV watching area, sitting areas both inside and outside, etc.Elements would be all recreational areas such as swimming pool, spa, tennis courts, all courts, vending areas, etc.

So, one can easily see there are many common use areas in a condominium project.

Give us your questions or thoughts on the above article.  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.  We look forward to hearing from you.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Yes, I know the condominium elevators and exit stairways are common areas and need to be ADA compliant.  Let's take the stairway first.

The width of the stairway is now a building code issue, in that the new ADA Guidelines defers to building code, Chapter 10 on Means of Egress.  The width is a gray area in the opinion of ACCESS.  We think it should be a minimum of 48" measured between handrails, found in the original ADA Guidelines.  We see the usual door clearance issues and when there is a vestibule, the clearances found in ICC/ANSI A117.1 are more stringent than those found in the ADA Guidelines.  It is not unusual to find something not compliant with the handrails.

Now, more fun with the elevators.  Here we have more requirements in building code and they seem to be changing as technology changes.  The International Building Code (IBC) is on a three year cycle where a new IBC comes out every three years.  So, every three years we review the IBC for any changes as they may apply to the ADA.  Some of the common ADA issues are the emergency telephone, controls above 48" off the finish floor, the door reopening time, signage, cab size, emergency elevator with stand by power supply, etc.  One of the more interesting is the railing in the elevator cab.  Some think this railing is exempt from ADA compliance, I do not.  Call it whatever you want, but we say it is a handrail and functions like a handrail.  We use Section 505 Handrails for our ADA compliance opinion. 

Give us your questions or thoughts on the above article.  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.  We look forward to hearing from you.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Condominiums: Most Common Non-Compliant Condition?

We are still on condominiums, and the question is what do we see as the most common non-compliant condition? 

Well, it's the cross slope on sidewalks, and this is true on all buildings where there is site work or sidewalks.  We check every side wall panel in our audit process and anytime we find a reading on our smart level over 2.0%, we have a cross slope that is not in compliance.  Seldom do we see a pool or spa that is compliant (or even a steam room). 

Most vending machines are not complaint, because controls are above 48".  It would be very unusual not to find something not compliant in a restroom, but I would have to say they are certainly getting better from what we saw 20 years ago.  Some are just good housekeeping measures, such as being sure the landscape items do not protrude onto the sidewalk.

We use to see a lot of public telephones that were not compliant, but today we are seeing fewer public telephones, as everyone has their own cell phone.  Some condominium will have a social area that has a partial kitchen, and when we see that configuration, seldom is that area compliant.  Such as; sink, counter tops, serving areas, range, refrigerator, microwave, oven, etc.  I can tell you that seldom do we go on a building audit and see something that we have not seen before.

That's really why I enjoy getting out of the office and do building audits.  I always find a challenge or two in a building-audit.  From my experience about 95% of an audit is black and white.  There is 5% that I call the gray area and that is where I find the challenges.  Very seldom will I say "we do not know".  So, what we look for is similar conditions and use that as a basis of opinion regarding compliance with the ADA.

Let us know your thoughts, or if you have any questions about the above article.  You can post your comments here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also contact us at hfalstad@accessts.net or call us at (702) 649-7575.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Condominiums and the FHA and ADA - Part 3 of 3

Condominiums prior to 1990 had design and construction requirements from the Fair Housing Amendments Act of 1988 and building code.  After 1990, the Americans with Disabilities Act of 1990 was added.  It took some time to get this all straightened out, and along the way building code throughout the country was combined into one, called the International Building Code (IBC).

The design and construction requirements of both the ICC/ANSI A117.1 of building code and the ADA Accessibility Guidelines of the Architectural and Transportation Barriers Compliance Board were reworked so the numbering system and the verbiage were the same, or almost the same; say 95% the same.  Today when we look for condominium compliance in the design and construction we use:

1.      ADA & ABA Accessibility Guidelines; Final Rule

36 CFR Parts 1190 and 1191

Federal Register / Vol. 69, No 141 / July 23, 2004

2.      2009 International Building Code

3.      International Code Council and American National Standards Institute – ICC/ANSI A117.1 – 2009

In many areas the requirements are the same.  Where the requirements are different we will always use the most stringent.  I am always asked if this makes our work easier...dreamer!

NO, it's harder, but what does make it easier is that in many areas we find greater definition.  Condominium compliance has always been a challenge in the building design and construction.  I don't see that changing in the future.

Any questions or comments on the above?  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Condominiums and the FHA and ADA - Part 2 of 3

What is Grandfathering? 

I first saw Grandfathering in the Fair Housing Act.  What it means is that a regulation has been put in place, like the Fair Housing Act, and any building before that date need not comply.  The Fair Housing Amendments of Act of 1988 established design and construction requirements for multi-family housing built for first occupancy after March 13, 1991.  So, everything before March 13, 1991 is Grandfathered in, meaning need not comply..."kind of"!

The Fair Housing Act is Civil Rights Law litigated in Federal Court, but we also have building code litigated in Civil Court, and that was not Grandfathered in, in Building Code, and one must not only comply with Civil Rights Law, but also building code regulations.  One has a double track regarding building design and construction requirement. 

What about the Americans with Disabilities Act of 1990.  More complications, but will save for another posting.

Let us know your thoughts and/or questions on the above.  You can leave your comments here or on our FaceBook at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also contact us at hfalstad@accessts.net or call us at (702) 649-7575.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Condominiums and the FHA and ADA - Part I of 3

The word condominium is a funny word when it comes to the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), because the word condominium is not found in either documents.


Webster's New World Dictionary defines condominium as "one of the units in a multi-unit dwelling, each separately owned; also, the dwelling as a whole."  Let's go to the 2009 International Building Code (IBC) for greater definition and direction.  Building classification R-2 says: Residential permanent - apartments, dorms, live / work units, vacation time-share properties. 

IBC section 1107.6.2 Group R-2 say: Accessible units, Type A units and Type B units shall be provided in Group R-2 occupancies in accordance with Section 1107.6.2.1 and 1107.6.2.2.  We are getting closer.

IBC Section 1107.6.2.2 Group R-2 other than apartment houses, monasteries and convents says: In Group R-2 occupancies, other than apartment houses, monasteries and convents, accessible units and Type B units shall be provided in accordance with Sections 1107.6.2.2.1 and 1107.6.2.2.2.  We are almost there. 

IBC Section 1107.6.2.2.2 Type B units says: Where there are four or more dwelling units or sleeping units intended to be occupied as a residence in a single structure, every dwelling unit and every sleeping unit intended to be occupied as a residence shall be Type B unit.

That is the condominiums and where the jurisdiction is found for the private area (living area) of the condominium.  A condominium will have two kinds of spaces, private spaces as we have just discussed and common spaces which will be discussed in a later posting.

Let us know your thoughts and/or questions. You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also contact us at hfalstad@accessts.net or call us at (702) 649-7575.  We look forward to hearing from you.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Now We Get Real Technical...

The Fair Housing Act of 1968 and the Fair Housing Amendments Act of 1988 covers housing built for first occupancy after March 13, 1991.  Housing are apartment and condominium buildings, not single family homes or row homes with three or less units in one building.  Housing will have public spaces and private spaces.  Public space are common use areas such as; rooms, spaces or elements inside or outside of building that are3 made available for the use of residents of a building or the guests thereof.  These areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas, and passageways among and between buildings.

The Americans with Disabilities Act of 1990 and the Americans with Disabilities Amendments Act of 23008 have no grandfathering and also covers public spaces.

TITLE 42 – THE PUBLIC HEALTH AND WELFARE

CHAPTER 126 – EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES

            Sec. 1210.  Findings and purpose

(a)      Findings

The Congress finds that

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs activities, benefits, jobs, or other opportunities;

It is the opinion of ACCESS, the Fair Housing Act "first occupancy after March 13, 1991 covers only the private spaces which are the spaces inside the unit, not the public spaces outside the unit.  The Fair Housing Act has a requirement 2-Accessible and usable public and common use areas.

Accessible.  When used with respect to the public and common use areas of a building containing covered multifamily dwellings, means that the public or common use areas of the building can be approached, entered, and used by individuals with physical handicaps.  The phrase "readily accessible to and usable by" is synonymous with accessible.  A public or common use area that complies with the appropriate requirements of ANSI A117.1 - 1986, a comparable standard or these guidelines is "accessible" within the meaning of this paragraph.

Today, we have the ICC A117.1 - 2009.  ANSI A117.1 is a building code document, very similar to:

Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities; Architectural Barriers Act (ABA) Accessibility Guidelines; Final Rule

36 CFR Parts 1190 and 1191

Federal Register / Vol. 69, No 141 / July 23, 2004

Guidelines effective September 21, 2004

Both documents are the standards for the "safe harbor" for design and construction to be in compliance with the International Building Code (IBC) and the Americans with Disabilities Act (ADA).  Building code does not grandfather the public areas in apartment and condominium buildings.

In conclusion, it is the opinion of ACCESS that public spaces in apartment and condominium buildings are required to comply with the ADA.

Let us know your thoughts, or have any questions.  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.

Private vs. Public Spaces

A frequent question is what needs to be ADA accessible in buildings? 


All public spaces need to be accessible.  Employee work areas are what ACCESS calls private spaces and are an employment issue, covered under subchapter 1.  All employee work areas are required to have an accessible route to the work area, a turnaround space and an accessible route to exit the work area. 


A more challenging situation is in the lodging industry which has both public spaces and private spaces.  The entrance door on the outside of the unit is public space and needs to be accessible; the inside of the entrance door is private space and not required to be accessible unless that room has been designated as an accessible room.  All accessible rooms are either guest rooms with mobility features or guest rooms with communications features, and not more than 10% of guest rooms required to provide mobility features complying with 806.2 shall be used to satisfy the minimum number of guest rooms required to provide communication features complying with 806.3.


Mobility features are wheelchair, walkers, canes, crutches, etc.  Communication features are all hearing and sight related.  The number of guest rooms required to be accessible comes from a table and is based on the number of rooms on that property.  The other guest rooms have only one accessible requirement; entrance, doors and doorways providing user passage into and within guest rooms hat are not required to provide mobility features complying with 806.2 shall comply with 404.2.3;  door openings shall provide a clear width of 32 inches minimum.

Give us your thoughts and questions on the above.  You can post them here or on our FaceBook page at http://www.facebook.com/pages/Access-Technologies-Services-Inc/268659564730.  You can also reach us at hfalstad@accessts.net or call us at (702) 649-7575.

Hank


The above are opinions of Hank Falstad, AIA, Managing Senior Associate of Access Technologies Services, Inc. (ACCESS).  See our web site for additional information:  www.accessts.net.