III−5.1000 General. All newly constructed places of public accommodation and commercial facilities must be readily accessible to and usable by individuals with disabilities to the extent that it is not structurally impracticable. This requirement, along with the requirement for accessible alterations, are the only requirements that apply to commercial facilities.
What is "readily accessible and usable"? This means that facilities must be built in strict compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG). There is no cost defense to the new construction requirements.
What buildings are covered? The new construction requirements apply to any facility first occupied after January 26, 1993, for which the last application for a building permit or permit extension is certified as complete after January 26, 1992; or in those jurisdictions where the government does not certify completion of applications, the date that the last application for a building permit or permit extension is received by the government.
What if a building is occupied before January 26, 1993? It is not covered by the title III new construction requirements.
What does "structurally impracticable" mean? The phrase "structurally impracticable" means that unique characteristics of the land prevent the incorporation of accessibility features in a facility. In such a case, the new construction requirements apply, except where the private entity can demonstrate that it is structurally impracticable to meet those requirements. This exception is very narrow and should not be used in cases of merely hilly terrain. The Department expects that it will be used in only rare and unusual circumstances.
Even in those circumstances where the exception applies, portions of a facility that can be made accessible must still be made accessible. In addition, access should be provided for individuals with other types of disabilities, even if it may be structurally impracticable to provide access to individuals who use wheelchairs.
ILLUSTRATION: M owns a large piece of land on which he plans to build many facilities, including office buildings, warehouses, and stores. The eastern section of the land is fairly level, the central section of the land is extremely steep, and the western section of the land is marshland. M assumes that he only need comply with the new construction requirements in the eastern section. He notifies his architect and construction contractor to be sure that all buildings in the eastern section are built in full compliance with ADAAG. He further advises that no ADAAG requirements apply in the central and western sections.
M's advice as to two of the sections is incorrect. The central section may be extremely steep, but that is not sufficient to qualify for the "structural impracticability" exemption under the ADA. M should have advised his contractor to grade the land to provide an accessible slope at the entrance and apply all new construction requirements in the central section.
M's advice as to the western section is also incorrect. Because the land is marshy, provision of an accessible grade-level entrance may be structurally impracticable. This is one of the rare situations in which the exception applies, and full compliance with ADAAG is not required. However, M should have advised his contractor to nevertheless construct the facilities in compliance with other ADAAG requirements, including provision of features that serve individuals who use crutches or who have vision or hearing impairments. For instance, the facility needs to have stairs and railings that comply with ADAAG, and it should comply with the ADAAG signage and alarm requirements, as well.
Who is liable for violation of the ADA in the above example? Any of the entities involved in the design and construction of the central and western sections might be liable. Thus, in any lawsuit, M, the architect, and the construction contractor may all be held liable in an ADA lawsuit.
III-5.2000 Commercial facilities in a home.
III−5.2000 Commercial facilities in a home. When a commercial facility, such as a home sales office or production workshop, is located in a home, the portion used exclusively as a commercial facility, as well as the portion used both as a commercial facility and for residential purposes, are covered by the new construction and alterations requirements. The covered areas include not only the rooms used as a commercial facility but also an accessible route to the commercial facility from the sidewalk, through the doorway, through the hallway, and other portions of the home, such as restrooms, used by employees and visitors.
III−5.3000 Application of ADAAG. The Department of Justice has adopted the ADA Accessibility Guidelines (ADAAG), issued by the Architectural and Transportation Barriers Compliance Board, as the standard to be applied in new construction. The major provisions of ADAAG are summarized in III−7.0000.
What if ADAAG has no standards for a particular type of facility -- such as bowling alleys, golf courses, exercise equipment, pool lifts, amusement park rides, and cruise ships? In such cases, the ADAAG standards should be applied to the extent possible. Where appropriate technical standards exist, they should be applied. If there are no applicable scoping requirements (i.e. , how many features must be accessible), then a reasonable number, but at least one, must be accessible.
ILLUSTRATION 1: A swimming pool complex must comply fully with ADAAG in the parking facilities, route to the facility door, entrance to the facility, locker rooms, showers, common areas, and route to the pool. However, ADAAG does not contain technical standards for access to the pool itself. Thus, the owner cannot be found in violation of ADAAG for failure to install a lift or other means of access into the pool.
ILLUSTRATION 2: Most bowling alleys are inaccessible because they have a few steps down to the bowling area and a step up to the lanes. ADAAG requirements for ramping steps can be applied to the design of new bowling alleys, resulting in an accessible bowling alley. Unlike in the case of pool lifts above, appropriate technical standards for ramps are applicable. However, ADAAG contains no "scoping" for bowling alleys. In other words, it does not specify how many alleys need to be accessible. As a result, if a reasonable number, but at least one, of the alleys is designed to be accessible, no ADA violation will be found. ILLUSTRATION 3: Because of the unique structure of ships, none of the ADAAG technical or scoping standards are appropriate. Until such time as the Architectural and Transportation Barriers Compliance Board issues specific standards applicable to ships, there is no requirement that ships be constructed accessibly. (Cruise ships would still be subject to other title III requirements.)
ILLUSTRATION 4 [sic]: Although mobile health care screening vans are "facilities" subject to the requirements of title III, there are no specific ADAAG standards for newly constructed or altered vans. The vehicles are, however, subject to the other title III requirements including the obligation to provide equal opportunity and the duty to remove architectural, communication, and transportation barriers to the extent that it is readily achievable to do so, and if it is not readily achievable to do so, to provide alternative methods of access to the services offered through the mobile vans.
Does ADAAG apply to equipment that is not built in to the facility? No. Only equipment that is fixed or built in to the facility, is covered by the accessibility standards (e.g. , public pay telephones or built-in ATMs). Free-standing equipment is not covered by ADAAG, but public accommodations may be required to purchase accessible free-standing equipment in certain circumstances in order to provide equal opportunity. They may also be required to make existing free-standing equipment accessible to individuals with disabilities, if it is readily achievable to do so (see III-4.4200).
III−5.4000 Elevator exemption. Elevators are the most common way to provide access in multistory buildings. Title III of the ADA, however, contains an exception to the general rule requiring elevators. Elevators are not required in facilities under three stories or with fewer than 3000 square feet per floor, unless the building is a shopping center or mall; professional office of a health care provider; public transit station; or airport passenger terminal.
ILLUSTRATION 1: A two-story office building has 40,000 square feet on each floor. Because the building is less than three stories, an elevator is not required. (To qualify for the exemption, a building must either be under three stories or have fewer than 3000 square feet per floor; it need not meet both criteria.)
BUT: A two-story shopping center with 40,000 square feet on each floor is required to have an elevator, because shopping centers are not entitled to the exemption.
ILLUSTRATION 2: A four-story building has 2900 square feet per floor. An elevator is not required because each floor has less than 3000 square feet.
ILLUSTRATION 3: A four-story office building has 3500 square feet on the first floor and 2500 square feet on each of the other floors. An elevator is required. (All of the stories must be under 3000 square feet to qualify for the exemption.)
What is a "story"? A story is "occupiable" space, which means space designed for human occupancy and equipped with one or more means of egress, light, and ventilation. Basements designed or intended for occupancy are considered "stories. " Mezzanines are not counted as stories, but are just levels within stories.
If a two-story building is not required to have an elevator to the second floor, must it provide a lift? No. The elevator exemption is a "vertical access" exemption. This means that no access by any means need be provided to the second floor. However, if an entity wishes to provide access by ramp or a lift, it is, of course, free to do so.
What if a building is not required to have an elevator, but the owner decides to install an elevator anyway? Must the elevator comply with ADAAG elevator requirements? Yes. And that elevator must serve every level of the building, unless it only provides service from a garage to one level of the building.
If a building is subject to the elevator exemption, do any other ADAAG requirements apply in the building? Yes. Even in buildings that are exempt from the elevator requirement, all other ADAAG requirements (apart from the requirement for an elevator) must still be met.
ILLUSTRATION: A two-story building will be used as real estate offices. There will be bathrooms on both the ground floor and the second floor. No elevator will be installed because it is not required in a building with less than three stories. However, the second floor bathrooms must still be accessible. In other words, both the ground floor and the second floor bathrooms must be accessible.
But why are accessible bathrooms and fountains required on the second floor when there is no way that an individual using a wheelchair can get to the second floor? There are many individuals who can walk up stairs by using crutches, but then use wheelchairs to get around once they reach the upper floor. Also, since the ground floor is being designed to be accessible, there is little additional cost involved in designing the second floor to be accessible as well. In addition, ADAAG contains accessibility features for individuals with disabilities other than those who use wheelchairs, and those features should be incorporated in building design. Finally, an elevator may be installed at a future date, or an addition with an elevator may be added later on. In addition, accessible design of bathroom facilities will foster ease of use by all persons.
III−5.4100 Shopping center or mall. A "shopping center or mall" is either --
(1) A building with five or more "sales or retail establishments," or
(2) A series of buildings on a common site, either under common ownership or common control or developed together, with five or more "sales or retail establishments. "
Included within the phrase "sales or retail establishments" are those types of stores listed in the fifth category of places of public accommodations, i.e. , bakery, grocery store, clothing store, hardware store, etc. (see III−1.2000). The term includes floor levels containing at least one such establishment, or any floor that was designed or intended for use by at least one such establishment. The definition of "shopping center or mall" is slightly different for purposes of alterations (see III−6.3000).
ILLUSTRATION 1: A strip of stores includes a grocery store, a clothing store, a restaurant, a dry-cleaner, a bank, and a pharmacy. This is not a shopping center or mall because only two stores are in the fifth category of "sales or retail establishments" (the grocery store and the clothing store). The restaurant is an establishment serving food or drink (the second category of place of public accommodation). The remaining establishments are "service establishments" included under the sixth category in the definition of place of public accommodation.
ILLUSTRATION 2: A building has a card store, office supply store, video store, and a bakery on the first floor; and a hobby shop, accountant's office, and lawyer's office on the second floor. In this case, both the first and second floors qualify as a "shopping center or mall," because each of those floors has at least one sales establishment. Although no floor alone has five sales establishments, the first and second floor each have at least one such establishment and, together, the total is five. (The accountant's and lawyer's offices are "service establishments" and are not included in the number of "sales or retail establishments. ")
When a building is being constructed, the owner or developer does not always know exactly what types of stores will be located in the facility. In such a situation, how will the Department of Justice determine whether a facility was intended as a shopping center? There are a number of factors that can be considered in determining whether a particular floor was designed or intended for use by at least one sales or rental establishment (which would mean that floor is a shopping center). Relevant questions include --
1) What type of businesses did the developer target in his advertising and marketing of the property? Was the developer trying to encourage sales establishments to join the property?
2) Was the facility designed with any special features for sales or rental establishments? For example, are there counters and large windows and check-out aisles?
3) What type of establishment actually first occupied the floor? Was it retail stores or was it offices, for example?
If a shopping mall has 25 stores on each level, how many elevators are needed? Generally, one is enough, as long as an individual could use the elevator and then be able to reach any of the stores on the second level during the hours that the mall is open.
III−5.4200 Professional office of a health care provider.
A "professional office of a health care provider" is a location where a State-regulated professional provides physical or mental health services to the public. The ADA's elevator exemption does not apply to buildings housing the offices of a health care provider.
ILLUSTRATION: A physician has offices on the first floor of a multistory building. The second floor has other types of offices. An elevator is not required.
BUT: If the second floor was designed or intended for use by a health care provider, an elevator would be required.
ILLUSTRATION 2: A newly constructed two-story building houses a business that provides home health care services. No health care services are actually provided at the company's offices. While the building must meet all other requirements for new construction, no elevator is required.
How will the Department of Justice determine whether a facility was designed or intended for occupancy by a health care provider? Factors that the Department of Justice will look at in making that determination include --
1) Whether the facility has special plumbing, electrical, or other features needed by health care providers;
2) Whether the facility was marketed as a medical office center; and
3) Whether any of the establishments that actually first occupied the floor were, in fact, health care providers.
ILLUSTRATION 3: A newly constructed building intended for physical therapy offices will have two floors. The first floor will include patient treatment areas and the second floor will be reserved exclusively for private physician offices and storage space. Regardless of whether patients will receive treatment on each floor, both floors of the building together constitute the professional office of a health care provider, and an elevator must be installed to ensure that each floor is readily accessible to and usable by individuals with disabilities.
III−5.4300 Transportation terminals. The ADA's elevator exemption also does not apply to bus or train terminals or depots, or to airport passenger terminals. If, however, all passenger services in a two-story facility - including boarding, debarking, loading and unloading, baggage claim, dining facilities, and other common areas open to the public - are located on the same floor level and on an accessible route from an accessible entrance, an elevator is not required.
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