LawArk

Archive for the ‘Accessibility/Universal Design’ Category

     By Gary L. Cole AIA, ALA, Esq.

     In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADA’s first publication in 1991.  On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009. 

     It was hoped that prior to leaving office President Bush would sign into law the much-awaited revised Americans With Disabilities Act Accessibility Guidelines (ADAAG), first issued for public comment on July 23, 2004, but, unfortunately, it didn’t happen.  The ADAAG includes, among other things, the core physical specifications for accessibility under the ADA and works in concert with many state and local accessibility laws.

     Upon taking office in January 2009, President Obama directed the Department of Justice to withdraw the final draft of the 2004 revised ADAAG from the Office of Management and Budget review process, pending a re-evaluation.

     Now, eighteen months into the new administration, there appears to be movement.

     From the Department of Justice’s website:

    “On Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department’s ADA regulations, including its ADA Standards for Accessible Design. These regulations will be published in the Federal Register. The revised regulations will amend the Department’s Title II regulation, 28 C.F.R. Part 35, and the Title III regulation, 28 C.F.R. Part 36. Appendix A to each regulation includes a section by section analysis of the rule and responses to public comments on the proposed rule. Appendix B to the Title III regulation discusses major changes in the ADA Standards for Accessible Design and responds to public comments received on the proposed rules. The Department’s Final Regulatory Impact Analysis will be posted on this page as soon as it is available.

     In general, these final rules will take effect 6 months after the date on which they are published in the Federal Register. Compliance with the 2010 Standards for Accessible Design is permitted after that date, but not required until 18 months after the date of publication. The Department has prepared fact sheets identifying the major changes in the rules.”

     So, in late January 2011 the new rules are expected to take effect, though compliance will not be required until July 2012 – eight (8) years after first being published for public comment. 

     Over the upcoming months, I’ll be discussing changes to the ADA and the ADAAG here on LawArk – especially as relates to commercial real estate - with the hope of addressing the major changes by the time they’re expected to go online in January 2011. 

     I’ll also be discussing ways architects and other designers, contractors, developers and property managers can minimize their risk and exposure to ADA-related disputes, as well as take advantage of the ADA to generate business by not treating it as a burdensome building code deserving of only minimal compliance – a mistake made by many – but as an opportunity. 

© Copyright Gary L. Cole AIA, ALA, Esq. 2010

     Architect/Attorney Gary L. Cole AIA, Esq. is now listed on the Expert Witness Network at http://www.witness.net/free-expert-witness-directory-search.php?keywords=Gary+Cole

     A summary of Mr. Cole’s expert witness and Dispute Consultancy Services from the Expert Witness Network is provided below, with a fuller description at http://www.lawarkbuilding.com/?page_id=552

     From the Expert Witness Network:

     Gary L. Cole AIA, Esq. is an Illinois and Florida-licensed attorney and an Illinois-licensed architect with over 20 years experience in design and construction, real estate development, historic preservation and accessibility matters. He is one of the few individuals in the U.S. to hold both architecture and law licenses and was a Visiting Associate Professor of Architecture at the University of Illinois for over a decade, teaching hand-on graduate courses in traditional construction methods, building investigation and forensics.

     Mr. Cole provides expert witness services in all aspects of design and construction disputes, commercial and residential real estate transactions, accessibility claims and landmarking and other historic preservation-related disputes. As a practicing attorney and licensed architect, his knowledge of the law and expertise in the construction and real estate development industries permits him greater insights into dispute causes and solutions and allows him to communicate his findings more effectively than experts unfamiliar with the legal process.

     His experience also allows him to provide consultancy services for identifying and vetting other potential experts, thereby saving attorneys and their clients time and money and ensuring that the right expert is match with the right type of dispute. More information on Mr. Cole’s Expert Witness and Dispute Consultancy Services may be found by clicking the title link above.

As predicted in a January 23, 2009 posting on Law/Ark, the Obama administration has directed the Department of Justice to withdraw the final draft of the revised Americans With Disabilities Act Accessibility Guidelines (ADAAG) from the Office of Management and Budget review process. It was hoped that prior to leaving office President George W. Bush would sign into law the much awaited revised ADAAG, first issued for public comment on July 23, 2004. The ADAAG include, among other things, the core physical specifications for accessibility under the ADA and work in concert with many state and local accessibility laws.

On January 28, 2009, the Department of Justice posted the following notice on their ADA website:

“Proposed ADA Regulations Withdrawn from OMB Review

On January 21, 2009, the Department of Justice notified the Office of Management and Budget (OMB) that the Department has withdrawn its draft final rules to amend the Department’s regulations implementing title II and title III from the OMB review process. This action was taken in response to a memorandum from the President’s Chief of Staff directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama. No final action will be taken by the Department with respect to these rules until the incoming officials have had the opportunity to review the rulemaking record. Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act.

Withdrawal of the draft final rules does not affect existing ADA regulations. Title II and title III entities must continue to follow the Department’s existing ADA regulations, including the ADA Standards for Accessible Design.”

It is unknown whether the new ADAAG will be signed into law by President Obama in 2009 or even later.

Updates will follow on Law/Ark. © Copyright Gary L. Cole 2009

The revised Americans with Disabilities Act Accessibility Guidelines (ADAAG), first released by the U.S. Access Board for public comment on July 23, 2004, were not, contrary to expectations, signed into law by President Bush prior to leaving office. In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADAAG’s first publication in 1991. On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009. Among its provisions, the ADA Amendments Act of 2008 reverses certain recent U.S. Supreme Court rulings. More information regarding the ADA Amendments Act of 2008 can be found on the Equal Employment Opportunity Commission’s website.

Though as of the date of this posting no updates regarding the ADAAG’s status appear on the Department of Justice’s ADA website, according to a DOJ representative on the DOJ’s ADA Information Line, the ADAAG will likely be subject to the new Obama administration’s review and a date of final adoption is unknown.

The new ADAAG features a revised format, the first major change since it was adopted and brings it into line with model building codes such as the International Building Code. The revised ADAAG’s new requirements will affect anyone in the real estate development industry including, but not limited to architects, contractors and attorneys.

Updates will follow on this Blog. © Copyright Gary L. Cole 2009