Greenberg Traurig Alert

Florida Eliminates Grandfathered Non-Conforming Parking Lots and Requires Full Complaince With Current Disability Standards by October 1, 1997

March 24, 1997

The State of Florida enacted modifications to its Accessibility and Parking statutes which will impact the majority of parking facilities within the state. Previously, similar changes in these codes did not affect existing facilities which were, in effect, grandfathered. The new regulations require compliance at every parking facility in the state, both private and state or local government owned, by October 1, 1997-and none of these facilities are grandfathered. Some of the requirements may cause substantial zoning problems and others appear to have significant cost implications. We urge our clients who own property within the state of Florida to review the new state parking requirements, and to assess, and plan for, the potential impact of these provisions on their properties and businesses.

A. Summary of the Amended Parking Regulations

The new parking regulations are not a sweeping departure from those that have been in effect since 1993. What is new is that under the above described legislation, all parking facilities in the state are required to be modified as necessary to comply with the requirements by October 1, 1997. Since these regulations are generally enforced by local building departments and code compliance departments, non-compliance results in an inability to obtain building permits or attain certificates of occupancy, or even accrual of daily fines.

1. What the Regulations Require
   The amended parking regulations affect existing parking facilities in at least four ways-the minimum number of accessible parking spaces in a particular parking lot may increase; the locations where accessible parking spaces may be located are affected; the slope of accessible parking spaces is now limited; and the minimum size of accessible parking spaces is changed.

   The minimum required number of accessible parking spaces has not changed from the 1993 state accessibility code requirements. Parking lots in existence prior to that date could have a number of accessible spaces which is less than that required under the new regulations.

   There are several requirements for the locations of accessible parking. Depending on the configuration of existing parking facilities, complying with these regulations could lead to a substantial loss in the number of parking spaces.

   The new regulations require that there be a maximum slope (which is very shallow) at accessible spaces and access aisles. Modifying parking lots to comply with these requirements could have significant cost and drainage implications.

   Accessible spaces that are essentially the same size as that required under the 1993 rules are required under the new legislation. This size requirements may be up to twice the size of accessible spaces under some earlier codes. Restriping to provide accessible spaces of legal size may lead to loss of parking spaces in many parking facilities.

2. What If a Property Owner Does Not Comply
   If a property owner does not restripe and appropriately modify his parking facility to comply with this new legislation, then the property could be subject to sanctions and code compliance penalties and fines. If the property owner does restripe his parking facility to provide the required larger spaces and thereby lowering his parking count to below the required local zoning minimum, he is subject to sanctions by the municipality for failure to provide the minimum required parking. Depending on the municipality, these sanctions could range from the imposition of parking impact fees, to code compliance fines, to a limitation of floor area that may be occupiable in a building based on a (number of) parking spaces per square feet of building formula in a municipal code.
3. Time for Compliance
   This legislation requires that "each parking space must conform with the requirements of this section no later than October 1, 1997. Parking lots that are newly constructed since October 1, 1996 are already subject to the above described requirements.

B. Status of this Legislation and Potential Remedies Available to Property Owners.

On October 1, 1996, the legislation described above took effect in Florida. The legislation did not significantly alter the requirements for parking facilities from those requirements that existed since October 1993. The significant impact of these new regulations is that they apply to existing facilities, with no grandfathering. The legislation does not provide for any exemptions or waiver from local zoning requirements for property owners who (inevitably) lose parking spaces when modifying their parking facilities to comply with these laws. To date, we are unaware of any municipality that has amended their zoning or parking ordinances to accommodate the loss of parking spaces that will occur as property owners attempt to comply with these new laws.

1. New state legislation amending the requirements of this legislation.
   Since the regulations described herein have already been adopted, and some parts have already taken effect, only new state legislation (aside from possible court challenges) can modify or repeal them. There are several ways that new legislation might mitigate the effect that the above described regulations may have on property owners. An extension of the effective date of that part of the regulations which apply to existing facilities would give property owners time to plan modifications and also plan for the possibly significant costs that some of the required parking facilities modifications might entail. Legislation could be passed that would forgive local minimum parking requirements to the minimum extent necessary to comply with these regulations. And of course, some of the more difficult requirements such as the 44" wide path of travel not in front of parked cars might be eliminated for existing facilities. (The path of travel not in front of parked cars was a requirement for new parking lots prior to the passage of the legislation described in this Alert).
2. Legislation at municipal level to eliminate the conflicts between the local and state regulations.
   In addition to the possibility of modifying the accessible parking regulations on a state level, local government action may mitigate some of the hardships caused by the conflicts between the two sets of regulations. Accessibility requirements (parking included) are preempted to the state and so local governments may not pass legislation that would either minimize or increase the requirements of the regulations discussed herein. Local governments can, however, amend zoning or parking ordinances in such a manner so that a property owner may modify his property (including the net loss of parking spaces relative to building size) without violating zoning or parking regulations.

C. The Americans With Disabilities Act of 1990

The Americans with Disabilities Act of 1990 ("ADA") makes it illegal to discriminate against a person with a disability on the basis of the disability. Title III of the ADA applies to public accommodations (privately owned) and commercial facilities. Part of Title III, the ADA Accessibility Guidelines ("ADAAG") prescribe accessibility requirements for buildings and facilities. This set of accessibility regulations are federal law and are separate and apart from the state requirements described herein.

Title III and the ADAAG have requirements for parking that are similar to those in the new state legislation that is described herein. Title III however, provides a different standard of compliance than the state regulations. Under Title III, an existing public accommodation must remove architectural barriers when it is readily achievable to do so. (Readily achievable is defined as "easily accomplishable and able to be carried out without much difficulty or expense"). Although the ADAAG's parking requirements are similar (though not as stringent) to Florida's, in existing facilities, the duty to modify the parking facilities under ADA is based on the readily achievable standard. The Florida legislation requires full compliance by October 1, 1997 without regard for difficulty or financial hardship. Property and business owners are required to comply with both sets of regulations concurrently which, in this case, makes the state regulations controlling.

The above list of issues is not comprehensive. Although it does not cover all of the elements of the Florida accessibility statutes or the Americans with Disabilities Act, it provides a starting point for considering the effects that accessibility laws, both state and federal, may have on your businesses and property. The Florida statutes described herein were passed in the immediate past session of the Florida Legislature but the Americans with Disabilities Act was passed in 1990 and took effect on January 26, 1992 (for most provisions). It is important to assess how these laws might relate to your businesses and property. Under the Florida Statutes, enforcement is under the jurisdiction of county and municipal authorities, generally the building, and code compliance departments. Under the ADA, enforcement is by the U.S. Department of Justice or by private action in federal court. There is substantial enforcement activity of accessibility laws in Florida, both by municipal enforcement action and by numerous federal lawsuits brought by persons with disabilities (and advocacy groups representing them) against businesses that fail to remove barriers in accordance with applicable laws. Please contact our office if you would like a copy of the Florida legislation discussed herein or information on the Americans with Disabilities Act and the requirements it imposes on businesses and property owners.