GT Alert

Hurricane (and other Natural Disaster) Rebuilding Brings Higher ADA Standards for Businesses and State and Local Governments

June 2004
By Robert S. Fine, Greenberg Traurig, Miami Office

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Business owners in hurricane-ravaged areas (other areas damaged by natural disasters) who start rebuilding have a number of hurdles to overcome in restoring their businesses and properties to their pre-storm condition. Initially, there is the wait for restored electricity and potable water. Next comes the mitigation steps taken to prevent further damage to the affected properties: boarding broken windows, removing merchandise, furniture and equipment from wet areas, temporary roof repairs, etc. Then comes the assessment of damage, dealing with insurance adjusters and planning the permanent repairs and associated construction. Many business owners, however, may not realize that they generally will not be able to merely restore their properties to the condition they were in prior to the storm. In fact, they will usually be required to rebuild to a condition that is better, but more expensive, than before the storm – by having to comply with the most current building and other codes and laws, including compliance with the Federal Americans with Disabilities Act (“ADA”) and the state and local accessibility codes for the disabled. Buildings owned or operated by state and local governments must likewise comply with the ADA and current editions of applicable codes.

Complying with Newer Codes

"Most building codes do not require buildings and facilities to be upgraded when the code changes unless, and until, the building or facility undergoes an alteration, whether by choice or necessitated by an act of God."

Most building codes do not require buildings and facilities to be upgraded when the code changes unless, and until, the building or facility undergoes an alteration, whether by choice or necessitated by an act of God. At that time, either the area being altered, or the entire building, depending on the extent of the alteration, must be brought up to the codes in effect at the time. This can have a significant effect on the cost of re-building. Typical code changes may involve higher minimum ground floor elevation in flood zones or coastal areas, windload resistance, life safety/fire prevention assemblies, and accessibility for the disabled. This means that those buildings that need rebuilding must comply with the accessibility standards of the Federal ADA and state accessibility standards, either in whole or in part.

Accessibility Codes and the Americans with Disabilities Act

Many states and localities have accessibility codes that provide standards for making buildings and facilities accessible to persons with disabilities. For example, Florida has a statewide uniform accessibility code. When rebuilding a building or facility after a hurricane or natural disaster in Florida, the reconstruction must comply with the current edition of the Florida Accessibility Code, now incorporated into the Florida Building Code. The Florida Accessibility Code requires that any element of a building being rebuilt or altered that has a corresponding requirement in the code, must meet the requirements for that element in the code. The requirements of the Florida Accessibility Code essentially mirror those of the Federal ADA. A notable exception is that the ADA’s exemption from providing elevators in small buildings does not apply in Florida. Therefore, small multi-level buildings in Florida that were originally constructed without an elevator might be required to provide one unless the requirement is waived by the state. State and local government buildings are subject to these requirements as well. Federal facilities do not need to meet these requirements because they are subject to a different group of accessibility laws.

The ADA is a federal civil rights statute that requires, in part, private sector businesses to make themselves accessible to persons with disabilities. There are no grandfathering provisions under the ADA although the law provides different standards for new construction, alterations, and existing buildings built prior to enactment of the ADA and which have not been altered since that time. For an existing building or business, the ADA requires that the owner remove architectural barriers where it is readily achievable to do so, which means easily accomplishable and able to be carried out without much difficulty or expense. This standard has been in effect since January 1992 and virtually all businesses that do business with the public are covered by this requirement.

The requirements for a building or facility undergoing an alteration are much more stringent and essentially require that the parts of the building being altered comply with the ADA’s new construction standards, with a few minor exceptions. In addition, the alterations standards require the building owner to modify the path of travel through the building to the affected area to be accessible, even if that area did not require rebuilding. The fact that local buildings officials may err and not require the rebuilding to comply with the ADA standards, known as the ADA Accessibility Guidelines or ADAAG, does not eliminate the requirement to comply with the alteration standards or the potential liability for failure to so comply. The Department of Justice and the courts have stated that there is no financial hardship or time defense for non-compliance with the alterations’ requirements of the ADAAG when they are applicable to a project. In addition to complying with the ADA’s alterations standards when rebuilding, a business owner must additionally remove architectural barriers, where it is readily achievable to do so, in the other parts of the building that are not being rebuilt.

State and local governments are required to provide program access under the ADA. This means that in existing buildings accessibility may be provided by policies and practices, or by relocating a program from an inaccessible part of a building to an accessible area. Government buildings that are newly constructed, or which have undergone alterations (including rebuilding or restoration after a natural disaster), are subject to the accessible construction standards set forth in the ADA and state codes.

Enforcement of these ADA requirements is by civil action in Federal Court brought by the Department of Justice or a private plaintiff. Remedies in court (for a plaintiff) range from compensatory damages (if the Department of Justice brings the case) to an injunction for compliance with the business owner paying both sides’ attorneys’ fees. Under recent Supreme Court case law, under certain circumstances, governmental entities may be sued for damages for failure to comply with the ADA. Building, life safety code, and state accessibility requirements are enforced by the local building official and/or fire marshal.

The additional costs of rebuilding to current building code and ADA requirements may or may not be covered by insurance policies. It is important to read your policies, and then consult with both your local building officials, and insurance companies, before getting too far along in a rebuilding project to ascertain what your code and ADA requirements are, and whether your insurance company will help cover these additional costs.

© 2004 Greenberg Traurig

Additional Information:

For more information, please review our Americans with Disabilities Act Practice description, or feel free to contact one of our attorneys.

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