Jimmy has been working in the field of architecture for over 10 years and has been active in the process of architecture throughout his career and has seen the completion of numerous projects, including projects in New York City. His experience ranges from single family custom residential homes to unique mixed use large scale suburban and urban complexes.

As our Architectural Specialist, Mr. Zuehl brings important expertise and knowledge about the process of architecture including design, architectural documentation and construction administration. He is also proficient in AutoCAD versions 14 to 2009.

His duties at United Spinal Association include accessibility training, technical assistance, plan review, site assessments, accessibility design and code development.

Mr. Zuehl has a Bachelor of Architecture from the San Diego New School of Architecture and Design. He also holds a minor in Urban Studies.

Jimmy can be reached at jzuehl@unitedspinal.org

Examples of such facilities include sports arenas, stadiums, movie theaters, and hotels. The law clearly holds owners and operators of inaccessible facilities liable. This article will discuss whether the liability extends to architects or contractors who design and/or build an inaccessible facility they do not own or operate.

Federal courts, including the Eight and Ninth Circuit Courts of Appeals, have addressed the issue of liability for architects and contractors and have reached different conclusions. The cases have centered around two provisions in the ADA. Section 302 which provides that owners and operators of public accommodations are liable for discrimination against people with disabilities and Section 303 which states the failure to design and construct public accommodations and commercial facilities that are readily accessible to and usable by individuals with disabilities is discriminatory.

The Eight Circuit Court of Appeals in US v. Days Inns of America, Inc., 151 F. 3d 822 (8th Cir. 1998), cert. denied, 119 S. Ct. 1249 (1999), and three district courts Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175 (S.D. Fla. 1997); US v. Days Inns of America, Inc., 997 F. Supp. 1080 (C.D. Ill. 1998); and US V Ellerbe Becket, Inc., 976 F. Supp. 1262 (D. Minn. 1997), have held that architects and contractors are potentially liable under the ADA reasoning that Section 302 which applies to owners and operators does not limit Section 303 which deals with the design and construction of public accommodations and commercial facilities. In other words, these courts believe that parties who do not own, lease or operate a facility built with inaccessible features may be held liable for failure to design and/or construct an accessible facility.

Once the Eight Circuit found that Section 302 does not limit and define who may be liable under Section 303, it reviewed Section 303 and found it was silent on the question of who is liable. The Eight Circuit then looked to the position taken by the United States Department of Justice (DOJ), the executive agency responsible for enforcing the ADA. The Court cited DOJ’s Technical Assistance Manual Section III-5.1000 which provides an example of a newly constructed facility that does not comply with the ADA and states that any of the entities involved in the design and construction, including the architect and the construction contractor, may all be held liable.

The Ninth Circuit Court in Lonberg v. Sanborn Theaters, Inc., 259 F. 3d 1029 (9th Cir. 2001, and two district courts Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, 945 F. Supp. 1 (D. D.C. 1996); US v Days Inns of America, Inc., 22 F. Supp. 2d 612 (E.D. Ky. 1998) have taken the opposite view and have held that parties must own, lease or operate a facility to be subject to the design and construct liability in Section 303. These courts looked at the structure of the language of the entire ADA and found that each title was set up the same way. First are the definitions, next is the rule of liability, and then actions that constitute discrimination. Thus, the Ninth Circuit and the two district courts found that Section 302 sets forth a rule of liability that prohibits discrimination against individuals with disabilities by certain individuals and Section 303 sets forth actions by these individuals that constitute the discrimination. In other words, Under the ADA only owners and operators are liable for the design and construction of a facility that was built in violation of the ADA.

Since courts have decided the liability issue differently, architects and contractors need to keep in mind that they may be liable under the ADA for the design and construction of facilities that violate the ADA. The risk may depend on the project’s location. Is it in the Eight Circuit, Ninth Circuit or a district that has not weighed in on the issue to date? Be careful because sometimes a court may hear a case and the decision is unpublished sand therefore not well know. For example, in 2004 the United States District Court for the Western District of Washington held in Marshall v. Cafaro Co., that the ADA does not provide a statutory basis for claims against design professionals. The court sited Lonberg in its decision.

Finally, architects and contractors must keep in mind that they may have liability for failure to design and/or build compliant facilities based on the terms of the contract with the owner or tort law in the state the project is located. For example, even in a location where the court has determined an architect is not liable under the ADA, the architect may still be liable if the contract mandates the work to comply with the ADA. Also, if an owner is held liable because his new building was designed and built in violation of the ADA, the owner may pursue an action against his architect and/or contractor.

The answer to who is liable is complicated and can be expensive if a party is drawn into a court case. The best course of action an architect or builder can take is to ensure that the design and/or construction complies with the ADA.

In the fall 2009 issue, we will discuss the liability of architects and contractors under the federal Fair Housing Act, 42 USC 3604.

The Fair Housing Accessibility Guidelines required that apartment buildings with four or more units built for first occupancy on or after March 13, 1991 provide features that can be easily adapted to accommodate a person with a disability within the apartment including accessible parking, entrances, interior accessible routes, kitchens and bathrooms. The Guidelines also required accessibility to public and common use areas provided.

United Spinal’s Accessibility Services team works with residential developers across the country that have been targeted for lawsuits for not complying with these federal accessibility guidelines. While the Guidelines do not require compliance in alterations to existing dwelling units, if the Building Code referenced by the majority of jurisdictions in the country required that dwelling units undergoing alterations comply with the Type B (or Fair Housing) requirements of A117.1, accessibility violations that have existed since 1991 could have been corrected and costly litigation could have been avoided.

Compliance would only be triggered when alterations impact 50% or more of the residential building (Level III alterations) or if a change of occupancy takes place. The proposal also includes an exception sparing residential projects that would have qualified for HUD’s site impracticality exception (are located on sites with unyielding slopes).

United Spinal’s Accessibility Services team applies their experience in developing accessibility requirements, like Chapter 10 of the A117.1 standard that HUD has declared as a “safe harbor” for compliance with the Fair Housing Accessibility Guidelines, in working with residential developers throughout the country.

Click here too view the entire code proposal.

The programs were sponsored by the DBTAC-Northeast ADA Center and the Virgin Islands University Center for Excellence in Developmental Disabilities (VIUCEDD) at the University of the Virgin Islands. Trainings were provided on the islands of St. Thomas and St. Croix.

On July 23, 2004 the United States Access Board issued updated accessibility guidelines. The guidelines were updated in order to provide improved accessibility to the built environment, to improve compliance by updating the format and usability of the guidelines, to harmonize the guidelines with model building codes and to provide consistency for facilities covered by the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA). At this time the following federal agencies have adopted the revised guidelines: The General Services Administration, The Department of Defense, The U.S. Postal Service and The U.S. Department of Transportations. The U.S. Department of Justice and The Department of Housing and Urban Development have not adopted the revised guidelines at this time.

The training program on the Revised ADA Accessibility Guidelines provided and overview of the updated requirements and focused on problem application areas in commercial facilities, existing facilities and special occupancies such as assembly areas, employee work areas and press boxes. The Access Board’s Accessibility Guidelines for Outdoor Developed Areas were also discussed. The US Virgin Islands reportedly has recently adopted the International Building Code and will reference ICC/ANSI A117.1-2003 for accessibility specifications. The requirements of the code and the reference standard were compared and contrasted during the training.

The second training program focused on the skills necessary to be an effective self-advocate. The process of self-advocacy was reviewed with an emphasis on applicable federal laws relating to civil rights for people with disabilities, letter writing, meeting with legislators, business owners, apartment managers, etc. in order to effect change that will lead to better access to goods, services and housing.

Accessibility Services staff have provided trainings on federal and state accessibility requirements all over the United States for designers, building code enforcement officials, advocates and other interested parties. Accessibility Services was excited to bring our training expertise and educational efforts to the US territories.

If you would like to learn more about Accessibility Services and our accessibility training programs or consulting opportunities, please contact John Rooney, Compliance Specialist at jrooney@unitedspinal.org or at 716.648.2131.

Specifically, United Spinal’s Accessibility Services program was asked to participate in this event and speak to the attendees about our experience providing consulting services to homebuilders and developers that want to comply with the Fair Housing Act’s design and construction requirements. Our presentation focused on the common design errors of the Act that we work to rectify on our client’s behalf during the planning and design stages, as opposed to once construction has commenced.

Jennifer Perry, Accessibility Services, accepts a Certificate of Appreciation from Donna M. Murphy, Acting Chief, Housing & Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice.

Bringing together developers and building professionals, government officials, and advocates for individuals with disabilities, the purpose of the forum is to raise awareness about the federal Fair Housing Act’s accessibility requirements and to celebrate partnerships that have successfully produced accessible multi-family housing in which everyone profits – developers and consumers alike.

The Civil Rights Division of the US Department of Justice enforces the Fair Housing Act. Since January 2001, those who designed and constructed multi-family housing that did not comply with the Act’s accessibility requirements have had to pay over $12 million to retrofit their properties and to compensate persons with disabilities who were injured by the violations. Since October 2004, the Division has obtained settlements that, when fully implemented, will make well over 14,500 housing units in 26 states – as well as the accompanying public and common use areas – accessible to persons with disabilities. Although such lawsuits are a necessary part of the Division’s job, voluntary compliance at the planning stage is a much more cost-effective means of ensuring that the housing needs of persons with disabilities are met.

It also makes good business sense. More than 50 million Americans, or 18 percent of the American population, live with some type of disability, and together they control $175 billion in discretionary spending. As the population ages and as the “baby boomer” generation retires, the need for accessible housing will only grow. Accordingly, the goal of the Access Forum is to ensure the availability of accessible housing for persons with disabilities while introducing housing professionals to a market that is continually expanding to meet the needs of a large segment of the nation’s population.

For more information on Accessibility Services and our ability to help you comply with the Fair Housing Act’s design and construction requirements, please call Jennifer Perry at 610.757.0044 or via email at jperry@unitedspinal.org. For more information on the Attorney General’s Fair Housing Initiative, please visit the following website: http://www.usdoj.gov/crt/housing/fairhousing/index.html.