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Proposed Revisions to the ADA's Physical Accessibility Guidelines Released
On July 23, 2004, the long-awaited proposed revisions to the Americans With Disabilities Act's (ADA) physical accessibility guidelines, the “ADAAG,” were published in the Federal Register. Though the changes will take effect on Sept. 21, 2004, they will not be enforceable until adopted in their final form by the U.S. Department of Justice (DOJ). Since the proposed ADAAG have been completely reformatted to conform more closely to existing uniform accessibility standards and certain uniform building codes, it will be necessary to compare the current and proposed ADAAG specifications to understand the full scope of the changes. The proposed guidelines involve more than 230 pages of text and commentary, and it is not yet known what impact these changes will have on construction activities or how these guidelines will force landlords to modify existing leases to shift some of the responsibility of these new guidelines to tenants.
Title III of the ADA requires that “public accommodations” and “commercial enterprises” must be accessible to disabled persons. The current ADAAG sets forth physical specifications to ensure that new construction and alterations to public accommodations and commercial enterprises provide access to the disabled public. For properties constructed prior to the enactment of the ADA that are not being altered, architectural barriers to accessibility must be removed to the extent it is “readily achievable,” ie, easily accomplishable and able to be carried out without much difficulty or expense. When it is not “readily achievable,” Title III of the ADA does not require the barriers to be removed even though the disabled public may not be able to access public spaces. However, when barriers to accessibility are removed, the alterations must conform to the ADAAG's specifications. It is not anticipated that the new guidelines will alter the ADA's regulations or its requirements regarding the removal of architectural barriers, although the revised ADAAG could impose new requirements on exactly what constitutes the suitable removal of a barrier.
Under the current ADAAG, public accommodations include retail stores, hotels, bars and restaurants, movie theaters, public transportation terminals, museums, parks and zoos, public schools, etc. These buildings are required to be accessible to the disabled public to the same extent they are accessible to the non-disabled public. To the extent that they are not accessible to disabled persons, they are vulnerable to federal discrimination claims. Retail stores and fast food restaurants across the country, especially in Florida, have been hit particularly hard by ADA activist organizations and plaintiffs' attorneys who have filed hundreds of lawsuits under the ADA, known in the legal community as “drive-by” lawsuits. The ADA's regulations do not currently require advance notice be given to a potential defendant before filing a lawsuit. In resolving many cases, defendants must pay the plaintiffs' attorneys' fees in addition to bearing the cost of the alterations. The extent to which the proposed ADAAG, when finally adopted, will impose additional burdens in resolving such litigation is unknown.
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