# Responsibility for enforcing ADA standards at local level.



## Msradell (Aug 18, 2012)

I live in Kentucky and find many locations where ADA requirements are not met.  While not correct as far as the regulations go I understand that this condition in older buildings, especially those that has not been renovated since the ADA legislation was passed.

I discussed this with local code officials and they tell me they only have to enforce the KY building code way she is quite antiquated in many ways.  It is based on ICC/ANSI A117.1 2003 addition which obviously this is a lot of these requirements.

If to receiving this information I send a letter of inquiry to the state director of building code enforcement.  His reply just included the information regarding what the Kentucky building code was based on, which I already knew and the fact that the local says those were correct in this actually didn't have to enforce anything else.

While I know many of you work in states where there are comprehensive local requirements for accessibility so this is not a problem to you is very frustrating here.  One of the biggest frustrations is when a significant renovation is done to a building and they do not make it accessible.  According to the Kentucky code unless it changes use they don't have to make it accessible!  There's one local business they used to be a bakery and as the becoming a grilled cheese sandwich restaurant, according to officials that is the same use some changes don't have to be made.  It only has two steps at the entrance so the cost of the changes will be minimal compared everything else they're doing.

We all know that the DOJ doesn't pursue small issues like this, they only go after government facilities or major companies with their enforcement efforts.

How should I work to enlighten local and state officials so that they began enforcing the regulations?  Outside of this I'm already working on trying to get legislative changes made but that will be an extremely long drawn out process even if it is successful.


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## Durant (Aug 18, 2012)

Msradel,

State and local governments are only authorized to enforce the codes they adopt; and, as I am sure you have already been informed of this, your determination to continue to insist that your opinion should be enforced is irrational and without legal merit.

Good luck on your legislative changes attempt.


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## ICE (Aug 18, 2012)

Grilled cheese sandwiches aren't good for you.


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## pyrguy (Aug 18, 2012)

But they're tasty.


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## ICE (Aug 18, 2012)

It's kinda cheesy to build a restaurant around a grilled cheese sandwich.


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## Msradell (Aug 18, 2012)

ICE said:
			
		

> It's kinda cheesy to build a restaurant around a grilled cheese sandwich.


:surr Very true they are very good, the owner is presently serving from a food truck!


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## Frank (Aug 19, 2012)

Sooner or later the land sharks will get there and make a federal case of it.


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## Msradell (Aug 19, 2012)

Frank said:
			
		

> Sooner or later the land sharks will get there and make a federal case of it.


Unfortunately under Kentucky statutes there's no provisions for local lawsuits for violation of ADA standards.  Since these are mainly smaller operations DOJ involvement isn't likely.


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## brudgers (Aug 19, 2012)

Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.


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## fatboy (Aug 19, 2012)

"In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints."

I would disagree.......I am charged with enforcing the adopted code...........period. If you want to throw all the fed laws, lead based paint removal, OSHA, asbestos.....where does it stop?


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## brudgers (Aug 20, 2012)

fatboy said:
			
		

> "In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints."  I would disagree.......I am charged with enforcing the adopted code...........period. If you want to throw all the fed laws, lead based paint removal, OSHA, asbestos.....where does it stop?


  There's a difference between OSHA and ADA. One is civil rights, the other is OSHA. The situation is analogous to election law.


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## fatboy (Aug 20, 2012)

All I'm saying is I will enforce accessibility to the extent our adopted codes require.


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## Papio Bldg Dept (Aug 20, 2012)

ICE said:
			
		

> It's kinda cheesy to build a restaurant around a grilled cheese sandwich.


if you think about it though, a lot of foods could qualify, technically as a grilled cheese.  Pizza could be one example, especially if you fold it in half like an east coaster.


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## Papio Bldg Dept (Aug 20, 2012)

I enforce what we have adopted locally.  2006 IBC/ANSI A117.1-2003 & 2010 ADA SAD (most restrictive).  Before we adopted the 2010 ADA SAD (state actually adopted it - locals can't be less restrictive), we would inform business owners to either visit the access-boards website and contact the regional offices, or contact their attorney if they were unfamiliar with the ADA.  We have adopted general language that says adopted codes and regulations shall not be used to prohibit compliance with the ADA.


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## Durant (Aug 20, 2012)

Brudgers,

You stated:

"Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints. "

I do believe that ICC/ANSI 117.1 (which is what jurisdictions I have worked for, adopted and enforced) is considered a safe harbor by the ADA.  I haven't read here where anyone stated that they did not have accessiblility requirements adopted or that they did not enforce them.

Do you have even one example of a building official being held accountable for not enforcing ADA requirements that were not adopted by the jurisdiction?


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## brudgers (Aug 20, 2012)

Durant said:
			
		

> I do believe that ICC/ANSI 117.1 (which is what jurisdictions I have worked for, adopted and enforced) is considered a safe harbor by the ADA.  I haven't read here where anyone stated that they did not have accessiblility requirements adopted or that they did not enforce them.


  It's a safe harbor for Fair Housing Accessibility requirements.


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## Frank (Aug 21, 2012)

brudgers said:
			
		

> Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.


I disagree as well--states and localities cannot enforce Federal Laws--reference the Arizona immigration law case


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## Codegeek (Aug 21, 2012)

brudgers said:
			
		

> Regardless of what the local jurisdiction is charged with enforcing, the local jurisdiction is still responsible for acting in a way that does not violate people's civil rights...e.g. a building official who permits inaccessible construction may still be held accountable. In other words, "I only enforce the building code," is not necessarily a safe harbor for ADA complaints.


I have to agree with brudgers on this.  How much time is spent in "Legal Aspects of Code Administration" and other books for those studying for the Legal/Management aspect of their CBO certification?  There are multiple discussions in the referenced materials about civil rights and the impact that legislation has on the building officials responsibility.  Yes, OSHA is federal law, but it's not civil rights therefore it does not have to be enforced by the AHJ.

Some states, like Kansas, have adopted ADA at the state level so local officials are charged with not only enforcing the A117.1 provisions, but also ADA.  When the two conflict, which they do, I tell folks to comply with the more restrictive of the two.


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## Papio Bldg Dept (Aug 21, 2012)

Durant said:
			
		

> Do you have even one example of a building official being held accountable for not enforcing ADA requirements that were not adopted by the jurisdiction?


Interesting question.  I have been spending some time on the DOJ's website, reviewing mostly public right of way and multi-family cases of inaccessibility, and outside of the PROW cases, I have only seen contractors, developers and RDP's (Architects & Engineers) listed in settlements.  All of my numerous discussions with the access-board have covered the responsible parties regarding the ADA.  I have only been told that the AHJ is ultimately responsible for inaccessibility in Public Right of Way projects and that private property development compliance is the responsibility of the owners, designers and builders.  We are currently updating our transition plan, and will be discussing these issues in depth with our attorney.

In my opinion, which doesn't mean much in regards to the ADA, I for one wouldn't want to adopt codes/regulations and sets enforcement policies that impede the ADA or create inaccessibility.


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## mtlogcabin (Aug 21, 2012)

We tell them up front we do not ensure their project will comply with ADA

*24.301.902*    DISCLAIMER

(1) A building permit or certificate of occupancy issued by the state or a municipality or county must contain a statement that reads: "Compliance with the requirements of the state building code for physical accessibility to persons with disabilities does not necessarily guarantee compliance with the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, Title 49, chapter 2, commonly known as the Montana Human Rights Act or other similar federal, state or local laws that mandate accessibility to commercial construction or multifamily housing."


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## Mark K (Aug 21, 2012)

Codegeek

I believe that in "Legal Aspects of Code Administration" the emphasis is on the building official not exceeding his legal authority.  It is not the job of the building department to enforce civil rights.  There are other parties to the legal system that have that authority.

There are limits on what the building official can do.  Building code enforcement is not something that the building official can use to promote his idea as to what is appropriate because when he does so he is likely violating somebody’s civil rights.


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## Francis Vineyard (Aug 21, 2012)

A suggestion; I've added "Plans were checked for state building code compliance" . . .

*"Plans have not been reviewed for ADA accessibility *

*It ts the Owner's and designer's responsibility to comply with the *

*Americans with Disabilities Act"* 

http://www.inspectpa.com/forum/showthread.php?7334-The-Americans-with-Disabilities-Act-and-your-inground-pool&highlight=stamp

Francis


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## brudgers (Aug 21, 2012)

Mark K said:
			
		

> Codegeek  I believe that in "Legal Aspects of Code Administration" the emphasis is on the building official not exceeding his legal authority.  It is not the job of the building department to enforce civil rights.


  The question is can a code official knowingly allow civil rights violations without liability?


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## Mark K (Aug 22, 2012)

If the code official has no formal authority to act the only thing that he can do regarding perceived civil rights violations is to report the perceived violation to an entity that has the authority to take action.

The code official can and probably should inform the applicant of the limitations of the building code process and the potential implications this may have for the applicant.  The code official could point out that he believes that the ADA requires something but probably should qualify that by stating that he is not in a position to formally interpret the ADA requirements.

If a code official were to give advice on the ADA requirements that the applicant relied on, the code official could potentially have liability for resulting problems if that advice were in error.

Liability relates to a legal duty.  If the building official has no legal duty to enforce the ADA it is not clear how he/she could have liability for it's enforcement.  I think what is being confused here is the distinction between legal duty and what some may see as a moral obligation.


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## brudgers (Aug 22, 2012)

Mark K said:
			
		

> If the code official has no formal authority to act the only thing that he can do regarding perceived civil rights violations is to report the perceived violation to an entity that has the authority to take action.  The code official can and probably should inform the applicant of the limitations of the building code process and the potential implications this may have for the applicant.  The code official could point out that he believes that the ADA requires something but probably should qualify that by stating that he is not in a position to formally interpret the ADA requirements.  If a code official were to give advice on the ADA requirements that the applicant relied on, the code official could potentially have liability for resulting problems if that advice were in error.  Liability relates to a legal duty.  If the building official has no legal duty to enforce the ADA it is not clear how he/she could have liability for it's enforcement.  I think what is being confused here is the distinction between legal duty and what some may see as a moral obligation.


  Governments have a legal obligation not to act in a way which violates Civil Rights (as does each person individually).


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## Frank (Aug 22, 2012)

brudgers said:
			
		

> The question is can a code official knowingly allow civil rights violations without liability?


Could you make them take down a "No Coloreds allowed" sign?

This is prohibited in the same sentence of federal civil rights law that requires accessibility.

Can you stop the cop from beating on some one who is not resisting?--this too is a civil rights violation.

Our authority is limited to the assigned and adopted buidling codes.


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## mark handler (Aug 22, 2012)

Most, if not all states, have statues that require adherence with the ADA


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## brudgers (Aug 22, 2012)

Frank said:
			
		

> Could you make them take down a "No Coloreds allowed" sign?  This is prohibited in the same sentence of federal civil rights law that requires accessibility.  Can you stop the cop from beating on some one who is not resisting?--this too is a civil rights violation.  Our authority is limited to the assigned and adopted buidling codes.


  So you issue permits to contractors who don't meet state licensing laws, and your planning department doesn't require compliance with Federal environmental regulations?


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## mark handler (Aug 22, 2012)

ADA standards can be enforced both on a federal and local level.

Federal: Complaints are filed through the U.S. Department of Justice. Entities are sued for a federal civil rights violation.

Local/State: When Local agencies or local/county/state governments adopt the ADA standards into their building code.

These bodies can then withhold grants, funds, licenses, certificates of occupancy, building permits and occupancy certifications.


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## Francis Vineyard (Aug 22, 2012)

At least Local/State should enforce themselves first; The ADA and City Governments: Common Problems



Francis


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## Mark K (Aug 22, 2012)

On the subject of verification of contractors license the authority of the building department may vary from state to state.  If in doubt check with the agency's attorney.  If the building department does not have authority to deny the permit I would suggest that when there is a doubt as to licensing of the contractor that the agency issue a comment stating that it appears that the the contractor does not appear to be licensed and that if the question is not resolved the department will refer the issue to the contractors licensing board and the district attorney.

We must work within the legal structure.  If the laws and regulations appear to be broken, work to have them changed.  What we do not need is for every building official to go off and trying to correct all of the wrongs of socienty.  The laws and regulations reflect a delicat balance of what are conflicting rights of the citizens.  It is the job of our elected representatives to determine that balance not the building official's.  It is well established that building officials job is to interpret and enforce building codes and not to adopt additional requirements.

In California a building permit will not be issued unless the Contractor provides evidence of workmans compensation insurance.

The IBC has provisions where it requires an action by a registered design professional.  Thus the building official could verify if the license is current before accepting an application.


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## fatboy (Aug 22, 2012)

Or, as in my case there is no state licensing, and we have nothing on a local level.


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## mtlogcabin (Aug 22, 2012)

Ditto here


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## ICE (Aug 22, 2012)

Mark K said:
			
		

> In California a building permit will not be issued unless the Contractor provides evidence of workmans compensation insurance.


The contractor can claim to be exempt from workman's comp because he has no employees.  Unless of course it is a roofing contractor (C-39), in which case she must have workman's comp. insurance even if she has no employees.  That's because roofing work is more dangerous than other trades.

The big hole in that requirement is that any "B" licensed contractor can take a permit to do a re-roof.

In any event, we are told to not bother with workman's comp. issues.


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## Mark K (Aug 22, 2012)

ICE

Suggest your attorney review the facts of "Morris v. Marin County".  Unless there is something unique about Marin County, building departmentss in California appear to be liable for people who get hurt when the contractor has no workman's compensation insurance.


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## ICE (Aug 22, 2012)

Mark,

When a permit is issued we get one of two things, proof of workman's compensation or a declaration that the contractor is exempt.  There's nothing more to do after that and our collective *** is covered.  I used to write a correction when I found employees and the contractor claimed to be exempt.  I was told to stop doing that because that created a liability issue because not all inspectors do that.

Apparently it is better if we don't know any details and claim that our due diligence stops at the permit counter.

We have enough attorneys to fill a bus driving off a cliff.


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## globe trekker (Aug 23, 2012)

Not to hijack this thread about "enforcement of the ADA", but

all we require here is a minimum amount Contractors Bond

and no proof of any insurance. Some other municipalities in

this state DO require proof of insurance and Workman's Comp.,

but I am told that as soon as the permit is issued, the contractor

will drop the insurance policy, so any potential homeowner has

no recourse. Also, I know of a few builders that will open up

a "new" checking account for every house they build, and close

it immediately upon completion.

Does anyone else see that most homeowners are not getting what

they are paying for (i.e - a "built to code" structure)? This type

of dubious activity once ruled the automotive industry as well.

In places such as ' Alias ' & ' Sifu ', the elected officials don't want

to know and apparently, ..aren't going to do anything about it

either. :banghd

In conjunction with ICE' last statement,  ..look in your local

Yellow Pages book.   What is the largest amount of pages /

listings in there?

.


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## brudgers (Aug 23, 2012)

globe trekker said:
			
		

> Not to hijack this thread about "enforcement of the ADA", but all we require here is a minimum amount Contractors Bond and no proof of any insurance. Some other municipalities in this state DO require proof of insurance and Workman's Comp., but I am told that as soon as the permit is issued, the contractor will drop the insurance policy, so any potential homeowner has no recourse. Also, I know of a few builders that will open up a "new" checking account for every house they build, and close it immediately upon completion.  Does anyone else see that most homeowners are not getting what they are paying for (i.e - a "built to code" structure)? This type of dubious activity once ruled the automotive industry as well.   In places such as ' Alias ' & ' Sifu ', the elected officials don't want to know and apparently, ..aren't going to do anything about it either. :banghd   In conjunction with ICE' last statement,  ..look in your local Yellow Pages book.   What is the largest amount of pages / listings in there?    .


  Why are you enforcing bond requirements? They're not in the building code - just like ADA.


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## globe trekker (Aug 24, 2012)

> Why are you enforcing bond requirements? They're not in the building code - just like ADA.


Our state requires it!.


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## Papio Bldg Dept (Aug 24, 2012)

Mark K said:
			
		

> If the code official has no formal authority to act the only thing that he can do regarding perceived civil rights violations is to report the perceived violation to an entity that has the authority to take action.  The code official can and probably should inform the applicant of the limitations of the building code process and the potential implications this may have for the applicant.  The code official could point out that he believes that the ADA requires something but probably should qualify that by stating that he is not in a position to formally interpret the ADA requirements. If a code official were to give advice on the ADA requirements that the applicant relied on, the code official could potentially have liability for resulting problems if that advice were in error.  Liability relates to a legal duty.  If the building official has no legal duty to enforce the ADA it is not clear how he/she could have liability for it's enforcement.  I think what is being confused here is the distinction between legal duty and what some may see as a moral obligation.


Mark K, while I agree with what you have said here, I do take issue with the parts you left out.  As a code official, and an employee of a local authority having jurisdiction, I do have a legal obligation under the ADA to ensure that I do not adopt policies, regulations or ordinances that would prevent or prohibit compliance with the ADA, and enforce them as such.  We have adopted policies, resolutions and devolped transition plans which include self-evaluation of our programs and services, Building Department included.  We submit these plans to both state and federal agencies for review.

In my conversations with the DOJ, The ADA is a civil rights statute prohibiting discrimination (whether intentional or unintentional) against people with disabilities in all aspects of life, including transportation, public services, employment, housing, public accommodations, education, communication, worship, recreation and health services. In essence, the ADA places responsibility for the inability of people with disabilities in becoming part of the mainstream society due to, or as a result of barriers in the physical, societal, and information infrastructure, and not a person’s disability.

There is no grandfather clause, or safe haven in the ADA.

While we are liable for the standards we adopt and enforce, we do not ensure compliance through plan review or inspection, but make guidelines and standards available such that compliance is acheivable.  If your design, details or construction do not conform to those standards adopted, then we enforce them.  As an example, many AHJ's have adopted non-compliant standard curb ramp details for PROW, which are subsequently used by RDP's such as yourself on private property construction.  In these cases, both parties are liable.  It has happened here in our backyard of Omaha, and Chicago is another very good example of the shared liability by all parties involved.  Both of these AHJ's are currently either under active review or have reached a settlement with the DOJ.

I can't think of one jurisdiction that is so bold as to not have accessibility standards and non-discrimination policies of some kind adopted.

I think what has been lost in the semantics of this discussion is that the ADA, as a civil rights act, does not descriminate in it's liability, and holds all parties liable to prevent descrimination.  In that regard, yes we are all responsible to enforce the ADA, and not all enforcement requires having to go to court.  But then again, that might be a moral decision made by the parties involved when they get tired of finger pointing.

Every time I see one of those little boiler plate notes for "all construction shall comply with the ADA" that RDP's and AHJ's like to put on their drawings and standard plates (which don't mean squat when it comes to ADA enforcement these days), 9 times out of 10 they are a precursor to non-compliant design, details and construction.


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## Jim B (Aug 27, 2012)

It happens monthly in Pennsylvania.

The Pennsylvania Department of Labor and Industries Accessibility Advisory Board (AAB) is the only entity within Pennsylvania that can rule on accessibility issues. If a variance is granted for accessibility, it is clearly stated  in their response that the variance was in reference only to the PA Uniform Construction Code and its referenced codes (2009 I-Codes) and that  other state and federal laws such as the ADA may affect this project.


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