Board-Certified In Construction Law By The Florida Bar

Accessibility Standards – Abc

You are Going to Sue Me for Violation of the ADA or Fair Housing Act? I am Just the Contractor Who Built What the Architect Designed!

By: Larry R. Leiby, Esq.

Most of us are aware of the Americans with Disabilities Act (ADA). The Act requires certain accessibility standards for both public and private facilities intended to serve the public, such as ramps, vertical transportation in certain instances, minimum size toilet facilities, etc. Florida has adopted the requirements of the federal ADA into a state act found in Fla. Stat. 553.501-553.513, which preempts any local government attempt to regulate handicapped accessibility standards.

In addition, the Federal Fair Housing Amendments Act of 1988 (FHAA) has similar accessibility standards that apply to construction of multi-family housing. These accessibility issues are generally addressed by the design professionals in design of projects. However, similar to building codes, if the contractor constructs in violation of the Acts/codes, the Contractor may face injunctive relief under the ADA or fines and penalties and/or injunctive relief under the FHAA, even if the contractor builds pursuant to the design. Owners and operators of the facilities are also subject to being cited for violating the Acts. The government, as well as groups representing the physically disadvantaged, is serious about these standards. Being forced to defend such claims can be an expensive undertaking, even if the contractor prevails. If the contractor prevails on a claim by the U.S. Attorneys General for a pattern of violating the FHAA, there is authority for the defendant contractor to recover fees against the government for successful defense.

The language of the ADA is not a model of clarity to communicate that a contractor may be exposed to legal action for accessibility issues. The operative section of the ADA that applies to new construction says:

(1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter; and

(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorneys General). (emphasis added)

In an early case where an action for violation of the ADA was brought against an architect, the court strictly interpreted the statute and dismissed the claim against the architect because the architect did not “design and construct.” Another court interpreted the word “and” in a disjunctive fashion the following year, coincidentally involving the same design firm; as did the Federal Southern District Court of Florida in a case involving the ice hockey arena built for the Florida Panthers in Sunrise. Architects were definitely liable for design (only) done not in accordance with the ADA or FHAA.

So by 1997, once the courts decided that “design and construct” was disjunctive rather than conjunctive, the architects clearly became exposed. This is not too hard to accept when you consider that the design function includes a standard of care to design in accordance with applicable codes. It is a bigger stretch to nail contractors who do not design, but simply build. Courts have said with regard to the accessibility laws: “‘Design and construct’ is a broad sweep of liability, [encompassing] architects, builders, and planners.” “when a group of entities enters into the design and construction of a covered dwelling, all participants in the process as a whole are bound to follow the FHAA.”

In a more recent unreported case the United States District Court for Maryland held that the ADA did not apply to architects who design a building. That court felt that section 303 of the ADA (the design and construction of new buildings section) was not intended to make more people responsible under the ADA, but was intended to make more buildings covered by the ADA (commercial, not just public buildings).

Not surprisingly, where a design complies with accessibility standards, but the contractor’s implementation in building the project varies so that the end result does not comply, the contractor can be subject to civil penalties.

In order for a contractor to be liable for civil penalties under the FHAA the government must show either a discriminatory intent by the contractor or a significant discriminatory effect in the result. Intent is not always required. In one case the contractor argued that it had no knowledge of the FHAA and thus could not be liable. Noting that ignorance of the law is rarely a defense, the contractor was found responsible for the violation because of the discriminatory effect. The federal government publishes guidelines for accessibility standards.

There is the right granted to the U.S. Attorneys General to bring a civil action seeking injunction and/or a civil penalty of up to $50,000 for a first violation and up to $100,000 for any subsequent violations, where any party is “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights” under the Fair Housing Act.”

Prudent advice to contractors is that contractors, while not designers, should become aware that there can be actionable accessibility issues if they build a) a multi-family housing project, b) a public project, or c) a commercial project for public use, in a fashion that discriminates against those physically handicapped. Contractors should familiarize themselves with HUD Guidelines on accessibility so that they don’t build with “a discriminatory effect.”