# ADA and offices



## Yikes (Jun 21, 2019)

ADA title III says that commercial facilities must be accessible.  Is an office that is not the office of a professional service provider, that does only local business subject to ADA?


Per 36.104, "definitions"

*Commerce* means travel, trade, traffic, commerce, transportation, or communication --
(1) Among the several States;
(2) Between any foreign country or any territory or possession and any State; or
(3) Between points in the same State but through another State or foreign country.

*Commercial facilities* means facilities --
(1) Whose operations will affect commerce [_see definition of "commerce" above_];
(2) That are intended for nonresidential use by a private entity; and
(3) That are not --
(i) Facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601 - 3631);
(ii) Aircraft; or
(iii) Railroad locomotives, railroad freight cars, railroad cabooses, commuter or intercity passenger rail cars (including coaches, dining cars, sleeping cars, lounge cars, and food service cars), any other railroad cars described in section 242 of the Act or covered under title II of the Act, or railroad rights-of-way. For purposes of this definition, "rail'' and "railroad'' have the meaning given the term "railroad'' in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)).​


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## mark handler (Jun 22, 2019)

What is *"...an office that is not the office..."?*
trick question…..


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## e hilton (Jun 23, 2019)

mark handler said:


> What is *"...an office that is not the office..."?*
> trick question…..



Not really.  He didnt explain it clearly, but it could be a small insurance salesman with no walk-in customers.  Rather than working from home he has a small office.


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## conarb (Jun 23, 2019)

Yikes said:


> ADA title III says that commercial facilities must be accessible.  Is an office that is not the office of a professional service provider, that does only local business subject to ADA?



Theoretically I'd say that it isn't subject to ADA; however, from a practical aspect, wouldn't a phone call to another state involve it in interstate commerce?  Don't phone calls bounce off satellites out of state now?  On the other hand, California is totally ignoring federal law when it sees fit, so maybe ADA isn't enforced statewide.


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## mark handler (Jun 24, 2019)

e hilton said:


> Not really.  He didnt explain it clearly, but it could be a small insurance salesman with no walk-in customers.  Rather than working from home he has a small office.


So, it is an office. So he tells, *some of his clients,* they cannot meet there, because they are disabled....?


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## ADAguy (Jun 24, 2019)

Ok "Yikes", in what type of a building is the "not an office" located? Is he a tenant or does he own it?


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## Yikes (Jun 24, 2019)

Let me clarify.  You are focusing on "an office that is not an office".  What I said was, "an office that is not <an office of a professional service provider>".

I'm trying to say that the owner of the property claims that their proposed tenant won't fall under the 12 categories in ADA found in the ADA Technical Assistance Manual at https://www.ada.gov/taman3.html
I guess my question is, who defines when an office use becomes a service establishment?  What is a "service"?
And related question that conarb picked up, is making an out-of-state phone call triggering interstate "commerce"?  (I assume this means the Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution was invoked to establish ADA.)

***

Here's the excerpt I'm looking at:

*III-1.2000 Public accommodations. *The broad range of title III obligations relating to "places of public accommodation" must be met by entities that the Department of Justice regulation labels as "public accommodations. " In order to be considered a public accommodation with title III obligations, an entity must be private and it must --
Own;
Lease;
Lease to; or
Operate​a place of public accommodation.

*What is a place of public accommodation?* A place of public accommodation is a facility whose operations --
Affect commerce; *and*
Fall within at least one of the following 12 categories:
1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
2) Establishments serving food or drink (e.g. , restaurants and bars);
3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);
4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
*6) Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);*
7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
8) Places of public display or collection (e.g. , museums, libraries, galleries);
9) Places of recreation (e.g. , parks, zoos, amusement parks);
10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).​
*Can a facility be considered a place of public accommodation if it does not fall under one of these 12 categories? No, the 12 categories are an exhaustive list*. However, within each category the *examples given are just illustrations*. For example, the category "sales or rental establishments" would include many facilities other than those specifically listed, such as video stores, carpet showrooms, and athletic equipment stores.

What if a private entity operates, or leases space to, many different types of facilities, of which only relatively few are places of public accommodation? Is the whole private entity still a public accommodation? The entire private entity is, legally speaking, a public accommodation, but it only has ADA title III obligations with respect to the operations of the places of public accommodation.


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## ADAguy (Jun 24, 2019)

In what way does the landlord not comply with his ADA obligation?


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## conarb (Jun 24, 2019)

ADAguy said:


> In what way does the landlord not comply with his ADA obligation?


The ADA is unconstitutional on it's face, congress pushed it through as part of the Interstate Commerce Clause, recently we had a similar situation with the ACA, it went to the Supreme Court as an Interstate Commerce Clause case, surprisingly Chief Justice Roberts found it constitutional as a tax within Congress' taxing authority, finding no exemption under the Interstate Commerce Clause, now Trump's tax reform knocked the tax out, so why does it still sit there? I think somebody has to take it back up as a Commerce Clause Case. 

Yikes has a client who, for some reason, wants to exempt one office space from the ADA, very strange, if the rest of the building complies why the exemption for one space?  There is lots of case law on ICC cases, prior to Lincoln's 14th Amendment the majority of cases heard by the Supreme Court were ICC cases. There is lots of expensive legal research that could go on in this issue.


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## Yikes (Jun 24, 2019)

This project is an adaptive re-use of a former single family residence (mansion) that has been house-moved to a different neighborhood that is normally not zoned for residential, but is zoned for "mixed use".  The "office" is the token non-residential space that makes it qualify as mixed use.  The office is simply  the sitting parlor of the historic home, and it is difficult to make all elements (such as historically narrow doors/hallways that lead to the bathroom) comply with current ADA standards.  I found a way to do it, but it chews up a lot of the historic elements we were trying to preserve.  The owner was wondering if it would be exempt from ADA on the basis described above in my original post.


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## conarb (Jun 24, 2019)

Yikes said:


> This project is an adaptive re-use of a former single family residence (mansion) that has been house-moved to a different neighborhood that is normally not zoned for residential, but is zoned for "mixed use".  The "office" is the token non-residential space that makes it qualify as mixed use.  The office is simply  the sitting parlor of the historic home, and it is difficult to make all elements (such as historically narrow doors/hallways that lead to the bathroom) comply with current ADA standards.  I found a way to do it, but it chews up a lot of the historic elements we were trying to preserve.  The owner was wondering if it would be exempt from ADA on the basis described above in my original post.



Yikes:

I'd say yes, true somebody might claim that a telephone was used to make an interstate call but who's going to do that?  Submit your plans and hope they go through, if you get called make your argument as above to the CBO, if later a serial litigator hits the owner he'll just have to make the argument again in court,  by then hopefully Johnson and the rest of these creeps will be in jail by the IRS.


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## mtlogcabin (Jun 25, 2019)

You mentioned the building is "historic" and not just "old". Does it qualify as an "historic building"?

*§36.405 Alterations: Historic preservation.*

(a) Alterations to buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470 _et seq._) or are designated as historic under State or local law, shall comply to the maximum extent feasible with this part.
(b) If it is determined that it is not feasible to provide physical access to an historic property that is a place of public accommodation in a manner that will not threaten or destroy the historic significance of the building or the facility, alternative methods of access shall be provided pursuant to the requirements of subpart C of this part.

*(c) To the maximum extent feasible*. The phrase "to the maximum extent feasible," as used in this section, applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. In these circumstances, the alteration shall provide the maximum physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible. If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilities (e.g., those who use crutches, those who have impaired vision or hearing, or those who have other impairments).


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## Yikes (Jun 25, 2019)

Yes, it is a locally designated historic structure.


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## mark handler (Jun 25, 2019)

ADA focuses on private and public entities that it considers to be “public accommodations,” (those that provide goods or services to the public) and requires that businesses not discriminate against customers based on disability
*NO!  *Not every office need be accessible. When it is not readily achievable to provide an accessible entrance, or access, the goods and services must be provided in some other way, if doing so is readily achievable.
And there are other options in "Historical Buildings".


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## conarb (Jun 25, 2019)

Yikes said:


> Yes, it is a locally designated historic structure.


Yikes:

So what if you win the constitutional argument, what about Chapter 11 of the statutes?


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## ADAguy (Jun 25, 2019)

"Locally" as in not State or Federally recognized?
Moving any interior walls or only "using" the parlor?


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## Yikes (Jun 25, 2019)

conarb, I'm not sure what you mean by Ch 11 of the statues, but the advice I'm receiving - to pursue alternatives based on historic designation - seems at this point to be the quicker route to resolution.

Thanks to all for your responses.


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## mtlogcabin (Jun 25, 2019)

conarb said:


> what about Chapter 11 of the statutes?


No Problem similar language to the ADA

2012 IBC
1103.2.2 Existing buildings.
Existing buildings shall comply with *Section 3411*.

3411.9 Historic buildings.
These provisions shall apply to facilities designated as historic structures that undergo alterations or a change of occupancy, unless technically infeasible. Where compliance with the requirements for accessible routes,* entrances or toilet rooms would threaten or destroy the historic significance of the facility, as determined by the applicable governing authority,* the alternative requirements of Sections 3411.9.1 through 3411.9.4 for that element shall be permitted.

HISTORIC BUILDINGS. Buildings that are *listed in or eligible for *listing in the National Register of Historic Places, or designated as historic under an appropriate state or local law (see Sections 3409 and 3411.9).


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## Paul Sweet (Jun 25, 2019)

Would providing an accessible room for common use where the professional(s) could meet with clients be a reasonable accommodation?


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## ADAguy (Jun 26, 2019)

Building have an accessible restroom, entrance, POT to public way?


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## Yikes (Jun 26, 2019)

The sitting parlor room is accessible.  The pathway to the restroom that serves that room is the problem.


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## ADAguy (Jun 26, 2019)

The pathway issue being?


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## Yikes (Jun 27, 2019)

ADAguy said:


> The pathway issue being?


Hall way width vs. door clearances


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## ADAguy (Jun 27, 2019)

Latchside/pull side or clear width? <36" hallway?


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## Yikes (Jun 27, 2019)

48" approach from push side, in a hallway that is 36" wide.  No room for a sliding door.


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## mark handler (Jun 28, 2019)

Auto Door Opener.....


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## ADAguy (Jun 28, 2019)

mark handler said:


> View attachment 5533
> 
> Auto Door Opener.....



Beat me to it MH, an obvious solution.


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## Yikes (Jun 28, 2019)

Thanks a great idea!  funny, I always assumed that powered doors only mitigated the need for strike side clearance, but not depth in front of the door.  I was wrong.

Thanks!


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