Hurricane (and other Natural Disaster) Rebuilding Brings Higher ADA
Standards for Businesses and State and Local Governments
By Robert S. Fine, Greenberg
Traurig, Miami Office
View or download the PDF version of this Alert.
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
For more information, please review our Americans with Disabilities Act
Practice description, or feel free to contact one of our attorneys.
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our clients’
individual legal needs.