Up to Code and Out of Compliance: The Local Building Code Trap

When I meet a new client facing an ADA public accommodations lawsuit, one of the first questions they often ask is: “How could this come up, the city inspector told us our property was in compliance?” The answer is, unfortunately, simple. The requirements of local and state building and construction codes do not always satisfy all the mandates of the ADA and can often become a trap for business owners. The fact that your property may satisfy applicable local, state, and building codes, including codes modeled after the IBC (International Building Code) and UCC (Uniform Construction Code) are no guarantee that your business is in compliance with the ADA (which is a federal civil rights law and not strictly a “building code”). This includes both specific requirements for access, as well when a business needs to make modifications.

Although the Department of Justice has a program by which local and state governments can have buildings codes “ADA certified,” not every building code is certified as compliant, particularly with the many recent changes to the ADA’s Standards for Accessible Design. This includes compliance issues concerning many common areas of ADA litigation such as parking lot access routes, restroom accessibility, and required signage to name just a few.

One important way that many building codes differ from the ADA is in their approach to existing structures. City ordinances and codes often will allow older structures to be “grandfathered” with respect to many building requirements. Conversely, every public accommodation (including shopping centers, restaurants, stores, and hotels) is subject to the ADA’s public accommodation requirements. New facilities (or older facilities undergoing renovation) must remain in full ADA compliance. Public accommodations built prior to 1993 have an obligation to eliminate barriers in their facilities (and comply with the ADA) where “readily achievable.” In other words, a non-complying element must be fixed when it would be “easily accomplishable” and not require “much difficulty or expense.” The ADA also does not provide a “grace period” for compliance as is often found in local codes. As you can imagine, what is, or is not, “readily achievable” is a frequent area of dispute in ADA lawsuits.

In order to avoid ADA compliance violations and lawsuits, I recommend that business owners and managers keep five simple tips in mind:

  1. Be proactive. Even if your building is approved by a building inspector, arrange for a professional ADA evaluation and implement necessary changes before a plaintiff comes knocking on your nonconforming door.
  2. Be thorough. Even if your architect, engineer, or construction manager has a contractual obligation to ensure that their work meets state and local regulations, ask whether they will satisfy the ADA’s Standards for Accessible Design as well.
  3. Know what is required of you from the get-go. Just because your design or renovation plan is approved by the local building inspector does not mean that it is also ADA compliant — particularly if the applicable building code has not been certified as ADA compliant by the Department of Justice.
  4. Remember, it’s not just what’s inside that counts. The ADA’s requirements apply to both the internal and external spaces of your facility. Pay attention to parking, walkways, and entry doors as well as the interior elements.  These areas are frequent sources of litigation.
  5. Stay alert to changes in your facility. Implement a system for monitoring and maintaining your facility’s accessible features, such as elevators, automatic doors, and wheelchair lifts.
**Special thanks to rising third year William & Mary Law School student Emilie Whitehurst for her invaluable research and assistant on this post.  
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