US Department of Justice Standards - Effective March 2012

We are receiving questions about the U.S. Department of Justice (DOJ) standard that is becoming effective in March of 2012.  Here are some facts that may help answer some questions:

1. The DOJ is the enforcement agency for the Americans with Disabilities Amendments Act (ADA) of 2008, with an effective date of January 1, 2009.
2. The DOJ enforcement of the ADA comes from an executive order.
3. The executive order requires the DOJ to use its standard in their enforcement of the ADA.

So the question now is where does this DOJ The ADA Amendments Act of 2008 in Chapter 126, Section 1201 and (b) is Purpose where the purposes of this Act are (4) standard comes from?

1. There is a U.S. Government agency call the Architectural and Transportation Barriers Compliance Board (Access Board).
2. The Access Board is the agency that writes the safe harbor for the design and construction of buildings to be in compliance with the ADA.
3. The Access Board published a document in the Federal Register called the ADA and ABA Accessibility Guidelines; Final Rule on July 23, 2004 with an effective date of September 21, 2004.
4. The DOJ now is required to take this Access Board document and make that document its standard.

I know, we have an Access Board document of 2004 and now we have a DOJ document that say the very same thing with a 2012 date, and if my math is correct, that is EIGHT (8) years later!

1. DOJ must jump through the same “hoops” that the Access Board already did, such as having has having hearings, get input form the community, sending their document to the office of Management and Budget (OMB).
2. The DOJ then publishes its document and call it a standard; and tell everyone that it will start enforcing their standard a year and half later, and that is March 2012.
3. The Access Board, the DOJ, we at ACCESS know the system is broken, and by now maybe the whole country; but, this is our U.S. Government in “action!”  Or, “in action”.

The work product of ACCESS has always been based upon the Guidelines of the Access Board.  Current standards being use since 2004 is the Access Board document of July 23, 2004 with an effective date of September 21, 2004; which is the very same DOJ standard of March 2012.

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.

Building Compliance With the ADA is Just Black and White.

There is no mystery.  The ADA has been here for 20 years and the ADA Amendments Act since 2008.  Building owners are either in ADA compliance or not in ADA compliance.  Let me step back a minute.

When I use or refer to ADA it is the Americans with Disabilities Amendments Act of 2008 with an effective date of January 1, 2009.  There is a strange situation with the ADA.  Nowhere have I seen where it says the ADA of 1990 has been replaced by the ADA of 2008.  But, really, that is what has happened.  The big change is the numbering system and a more definitive explanation of who is disabled.  The result is more people fall under the umbrella of being disabled.  Age is not mentioned and it is obvious that as our population ages we will have more people that will fall under the umbrella of being disabled. 

So, what does all this mean to building owners?

Get your act together and get your building ADA compliant.  Yes, it will cost money.  The cost of a lawsuit will also cost money.  That cost could be a quarter of a million dollars and not a penny going into getting your building ADA compliant.  Most architects and contractors solutions are the same.  They have been using the same formula for years and were not, and still not as of today, in ADA compliant.

As an architect, what upsets me the most is when I see building owners spend money for ADA compliance and do not get it.  The U.S. Department of Justice (DOJ) says that they are seeing more litigation each year.  We now have law firms that specialize in ADA building non-compliance.  If your building is not compliant, you may be next in line for that ADA building non-compliance complaint. 

For more than a year now we have been offering our professional accessibility architectural service to the wheelchair users to file ADA non-compliant building complaints free of charge.  ACCESS enjoys our work with the wheelchair user community.  We are at you service and welcome all inquiries.

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.

More Findings on Private and Public Areas (Condominiums)

36 CFR Parts 1190 and 1191; Federal Register / Vol. 69, No. 141 / Friday, July 23, 2004 / Rules and Regulations page 44084 have the following sentence:

“The ADA applies to places of public accommodation, commercial facilities, and State and local government facilities.”

In the ADA of 1990 commercial facilities are Title II and State and local government facilities are Title III.  So what are places of public accommodations?

In the opinion of ACCESS, these public accommodations are public amenities within a building, in a separate building or on the site that are not in the private areas of the building.  The private area of a building is the space inside ones front door.  In the case of a condominium, it would be all the common areas on the other side of ones front door.

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.

Wheelchair Users in Condominiums Are Being Stiffed Regarding Common Area Accessibility

The purpose of the Americans with Disabilities Act (ADA) is to prevent discrimination especially in Civil Rights Law.  These building accessibility requirements are addressed in the Civil Right Laws of the Fair Housing Act (FHA) of 1968 and 1988 plus the ADA of 1990 and 2008. 

In the early 1990's, the Ingersoll case is especially interesting.  Marriott was concerned about its time shares.  Was the jurisdiction FHA, ADA or both?

The ruling by the Federal Judge was ADA.  The reasoning was they operated and functioned more like hotels than residences.  Condominiums are a little more of a challenge.  It's obvious that inside the unit (ACCESS calls this "private space"), the jurisdiction is FHA.  But, what about the accessible route to and around the building, the common areas within the building, and outside the building?  These areas (ACCESS calls "public areas") are available to all owners or renters.  The common areas really operate and function more like public areas of buildings, therefore, in the opinion of ACCESS, are public areas.

There is jurisdiction in the ADA Amendment Act of 2008 that addresses housing in Title 42, Chapter 126, Section 12101 (a) (3); and it is here, in the opinion of ACCESS, where the jurisdiction for the condominiums accessible routes and common areas requirements are those of the ADA.  Those building requirements of the ADA are called guidelines.  These guidelines and ANSI are 95% the same; so, they are both on the same track.

The difference is that ANSI is enforced by building officials.  ANSI has been around since the early 1960's.  Forty years later, we get the ADA, a Civil Right Law addressing building accessibility for the disabled with enforcement by Federal Judges.  This resulted in uniform building accessibility with real enforcement.  In the opinion of ACCESS, this is what is really needed today in housing as it pertains to condominiums and apartments.

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.

ADA & FHA: Apartments and Condominium Units

Last month, we have been talking about the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA), as those requirements pertain to apartments and condominiums.

Both the ADA and FHA requirements, and, to simply those requirements, think of those requirements inside the apartment unit or condominium unit as being FHA, and outside of the unit as ADA.  The March 1991 Grandfathering found in FHA only applies to the inside of the units and the reason why is that of retrofit cost or the fact that in some cases impossible to do.

Keep in mind that the developer is no longer in the picture and now we are dealing with individual owners.  Now, we can go one step further and say that if we have apartment units with Federal government funding, that we see in government housing, then those units have the highest degree of accessibility requirement as found in the ADA.

This is all in the opinion of ACCESS and over the course of the next few years, I expect we will see Federal case law in support of the ACCESS opinion, as we are moving forward with the filing of ADA non-compliant building complaints.

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.

From the Fair Housing Act to the Americans with Disabilities Act

We start with Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act (FHA).  In 1988, Congress passed the Fair Housing Amendments Act.  The Amendments Act expanded coverage of Title VIII to prohibit discriminatory housing practices based on disability and family status.  In 1990, Congress passed the Americans with Disabilities Act (ADA) and followed in 2008 with the Americans with Disabilities Amendments Act.

The FHA and the ADA both address disabilities issues as it pertains to housing.  FHA disabilities issues are addressed by government officials of Housing and Urban Development (HUD) and all litigation is by the U.S. Department of Justice (DOJ).  The ADA has no comparable government officials to (HUD) and all litigation of the ADA is by the U.S. Department of Justice (DOJ), almost.

The reason why ACCESS says almost is because the ADA really has a double track.  ACCESS even goes so far as to say the system is broken.  Sandra Day O'Connor, the former Supreme Court judge said she does not understand how anyone can understand the ADA.  In 1993, the professional accessibilities architects of ACCESS limited their practices to accessibility issues in buildings.  So today, 18 years later, we feel we have a good understanding of building accessibility issues.

For the last year we have been offering our services to wheelchair users free in a program we call "Watchdogs in Wheelchairs".  This program uses the free Federal Courts to enforce the ADA building requirements.  The ACCESS "Watchdogs in Wheelchairs" for ADA building enforcement is the same as the government HUD program for FHA.  Therefore, all advocates of ADA building compliance, we are your HUD and we at ACCESS guarantee that with our program we will certify buildings to be ADA compliant.

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.

Broken System

I know, I said the system is broken and I really mean it, so let me explain.


It is broken two places.  We have FHA and ADA both address building accessibility.  No where in this government program is there anything that will tell you that this requirement replaces a former requirement.  Because this is all Civil Rights Law which requires a Federal Judge's decision, maybe the reason for this dilemma.


In the opinion of ACCESS, where there are FHA requirement that are different from ADA requirements, the ADA requirements trump the FHA requirements.  The second place it is broken is really laughable.  The ADA requirements for the "Safe Harbor" for design and construction are written by a government agency call the Access Board.  That document is called the ADA and ABA Accessibility Guidelines; Final Rule with a federal Register date of July 23, 2004 and an effective date of September 21, 2004.  ACCESS uses this document in all its Federal Court litigation.  The U.S. Department of Justice (DOJ) is required to use its standard in all its Federal Court litigation. 


So what is the big!?


Well, the DOJ needs to take that Access Board Guidelines with an effective date of September 2004 and make it their standard.  This they have done and they will start using this standard in March of 2012.  So what will they be using until 2012?  They are required to use their old standard review as of July 1, 1994.  I know, from 2004 to 2012 is 8 years.  Now do you agree this government program is broken? 


And, with ADA there is no Grandfathering.

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.