ADA - Americans With Disabilities Act
A Summary of Titles I, II and III

TITLE III

Title III does not apply to residential buildings or construction, religious buildings, or private clubs.

Whereas, Title II did not require that government facilities or buildings be accessible except where it is necessary to make their programs, services, and activities accessible; Title III requires the private sector that engages in commerce and deals with the public to make their existing buildings accessible and requires all new construction and alterations to be accessible.

In order to understand Title III we need to break it down into two major categories of buildings; existing and new.

Existing privately owned businesses are broken down into two categories in the ADA; commercial facilities and public accommodations.

Commercial facilities are engaged in commerce but are not open to the public. Commercial facilities are warehouses, factories, and businesses engaged in commerce that do not admit or directly deal with the public.

Existing commercial facilities "are required to comply with ADA concerning employment practices (Title I) but are not required to comply with ADA on any of the general or specific requirements of Title III except for their public areas."

"All new construction and alterations to commercial facilities commenced after January 26, 1992 must comply with the ADA guidelines for new construction."

Public Accommodations are defined by 12 categories of facilities in the final rules of Title III. They are places of lodging, establishments serving food or drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, stations used for specified public transportation, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation. In other words, public accommodations are engaged in commerce and parts or all of which are open to the public.

Existing public accommodations must comply with Title III by January 26, 1992 in two key areas, providing auxiliary aids and removing architectural and communication barriers where it is readily achievable and able to be carried out without much difficulty or expense. When it is not immediately feasible it is recommended that priorities are set and a plan to comply is established.

Since public accommodations are required to provide auxiliary aids and remove barriers it is important to understand these terms and what is required.

Public accommodations must be able to communicate, through auxiliary aids if necessary, with its customers, clients, patients, and participants who have disabilities affecting hearing, vision, or speech. The only exceptions are if it will fundamentally alter the product or service or if providing the auxiliary aids would cause an undue burden on the entity.

The list of examples of auxiliary aids is extensive and the same as in Title II. Again, some of them are: interpreters, notetakers, TDD phone devices for the deaf, reader boards, brailled materials, large print materials, etc.

Since the need to communicate with the disabled will vary from one public accommodation to the next, the need for auxiliary aids will also vary.

When it is not feasible to comply due to one of the two exceptions allowed, an alternative aid or service must be provided, if one exists.

The auxiliary aid requirement is a flexible one. A public accommodation can choose among various alternatives as long as the result is effective communication. For example, a restaurant would not be required to provide menus in Braille for patrons who are blind, if the waiters in the restaurant are made available to read the menu.

"Public accommodations must remove architectural barriers and communication barriers that are structural in nature in existing buildings where such removal is readily achievable."

Because the purpose of Title III of the ADA is to ensure that public accommodations are accessible to their customers, clients, or patrons (as opposed to their employees, who are the focus of Title I), the obligation to remove barriers does not extend to areas of a facility that are used exclusively as employee work areas.

The list of examples of barrier removal is extensive. Some of them are installing ramps, making curb cuts, rearranging furniture, installing flashing alarm lights, installing accessible door hardware, installing grab bars, etc.

The Justice Department recognized that it might not be possible or affordable to remove all barriers by January 26, 1992. The term readily achievable accounts for this. They define readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense." In other words, the readily achievable standard does not require barrier removal that requires extensive restructuring or burdensome expense. Whether or not any of these measures is readily achievable is to be determined on a case by case basis.

In determining whether an action is readily achievable factors to be considered include:

1. The nature and cost of the action needed under this part.
   
   
2. The overall financial resources of the site or sites involved in the action. The number of persons employed at the site. The effect on expenses and resources. Legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site.
   
   
3. The geographic separateness, and the administration of fiscal relationship of the site or sites in question to any parent corporation or entity;
   
   
4. If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities.
   
   
5. If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
   
   

If a public accommodation can demonstrate that removal of a barrier is not readily achievable, the public accommodation must make its goods, services, or facilities available through other means.

Since barrier removal could take place over a period of time, The Justice Department suggests that each public accommodation develop a barrier removal plan. In devising this plan they suggest using the following list of priorities:

1. A public accommodation should take measures to provide access to a place of public accommodation from public sidewalks, parking, or public transportation. These measures include, for example, installing an entrance ramp, widening entrances, and providing accessible parking spaces.
   
   
2. A public accommodation should take measures to provide access to those areas of a place of public accommodation where goods and services are made available to the public. These measures include, for example, adjusting the layout of display racks, rearranging tables, providing Brailled and raised character signage, widening doors, providing visual alarms, and installing ramps.
   
   
3. A public accommodation should take measures to provide access to restroom facilities. These measures include, for example, removal of obstructing furniture or vending machines, widening doors, installing ramps, providing accessible signage, widening of toilet stalls, and installation of grab bars.
   
   
4. A public accommodation should take any other measures necessary to provide access to goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. These priorities should be used in devising a barrier removal plan. In the event of a lawsuit this plan could serve as a good faith effort to comply.
   
   

New construction and alterations are treated basically the same under ADA; which requires that newly constructed or altered places of public accommodation or commercial facilities be readily accessible to and usable by individuals with disabilities. It is intended to ensure that patrons and employees of places of public accommodation and employees of commercial facilities are able to get to, enter, and use the facility.

The technical requirements for new construction and alterations in the private as well as public sectors are found in the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) in Appendix A of the Final Rules of Title III. The ADAAG was published by the Architectural and Transportation Barriers Compliance Board (ATBCB). These standards are drawn from several sources; the 1984 Uniform Accessibility Standards (UFAS), the American National Standard Institute (ANSI), and the Minimum Guidelines and Requirements for Accessible Design (MGRAD).

New buildings and facilities that are designed and constructed for first occupancy after January 26, 1993 must comply with the technical requirements for new construction.

Additions to existing buildings will be regarded as alterations. An alteration to a public accommodation or commercial facility that is begun after January 26, 1992 shall comply with the technical requirements for new construction.

In new construction, a person or entity is not required to meet fully the requirements of the ADAAG where that person or entity can demonstrate that it is structurally impractical to do so. Full compliance will be considered structurally impracticable only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessible features.

Areas that are used only as work areas by employees shall be designed and constructed so those individuals with disabilities can approach, enter, and exit the areas. These guidelines do not require that any areas used only as work areas be constructed to permit maneuvering within the work area or be constructed or equipped to be accessible. However, all employee "common use areas" must be accessible i.e. employee lounges, cafeterias, and health and exercise areas.

There are many requirements for new construction and alterations in the ADAAG. Included in the part concerning accessible buildings is a section on doors. In general it states that not all doors need to comply with ADA accessibility requirements in new construction. A summary of the requirements is as follows:

• At least 50% of all public entrances must be accessible.
• At least one must be on the ground floor.
• Accessible entrances must be provided in a number at least equivalent to the number of exits required by the applicable building and fire code.
• An accessible entrance must be provided to each tenancy in a facility (for example, individual stores in a shopping center).

Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic reconstruction, changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of Appendix A (ADAAG).

The Law does not require alterations, it provides that when alterations are undertaken they must be made in a manner that provides access. Also, the Law applies only to alterations after January 26, 1992. No retrofitting is required for projects begun before this date. However, nothing alters the obligation of public accommodations to remove architectural barriers in existing facilities to the extent that such barrier removal is readily achievable.

Any alteration that affects or could affect the usability or access to an area of a facility that contains a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area, and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities ... unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. A primary function is defined as a major activity for which the facility is intended.

The Department of Justice believes that alterations made to provide an accessible path of travel to an altered area should be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area. Priority should be given to those elements that provide the greatest access; an accessible entrance, an accessible route, an accessible restroom, drinking fountains, parking, storage, and alarms.

In Oregon, under the revised UBC section on accessibility, it says "every project for renovation, alteration or modification of buildings, including apartment buildings and their related facilities required to be accessible by this chapter shall eliminate architectural barriers up to an expenditure of 25% of the total project cost, inclusive of the total cost of eliminating architectural barriers.

If any disabled person has a dispute with a private entity their recourse is to file a legal suit against the private entity. The court system will resolve disputes and therefore begin to interpret the intent of ADA. Over time this will, in all likelihood, clarify and modify the ADA.

Before we discuss the hardware guidelines in the ADA, it is important to know about the tax incentives that the IRS offers to businesses when they provide auxiliary aids, remove barriers and hire a disabled person who is referred by designated agencies.

Small businesses with $1 million or less in gross receipts for the preceding tax year; or 30 or fewer employees during the preceding tax year are eligible for a tax credit; 50% of "eligible access expenditures" that exceed $250 but do not exceed $10,250 for a taxable year. A business may take the credit each year that it makes eligible access expenditure. Any work that is done on existing small commercial facilities or public accommodations to provide auxiliary aids or remove barriers in public areas is eligible for up to $5,000 a year deducted directly from their tax liability.

The IRS also allows all commercial facilities and public accommodations, regardless of size, a tax deduction (not credit) of up to $15,000 per year for "qualified architectural and transportation barrier removal expenses." In other words all businesses may reduce their income by $15,000 a year, thus reducing their tax burden. Small businesses may use both.

There is also a 40% tax credit up to $6,000 for the first year for employers that hire a disabled person who is referred by state and local rehabilitation agencies, a State Commission on the blind, or the U.S. Department of Veterans Affairs, and certified by a State Employment Service.

That is a brief summary of the ADA, the law and regulations. In order to carry this out the Architectural and Transportation Barriers Compliance Board issued minimum guidelines called the ADAAG. As I said before they are taken from the UFAS, ANSI, and MGRAD. In fact the ADAAG is taken directly from ANSI A117.1 except for a few additions.