Why Comply?
We are often asked why you should comply with accessibility requirements or the submission procedures required by the state of Texas. The most obvious answer because it's the law. Let's take that a bit further and look at possible consequences of not complying. To fully study the consequences, it's important to note that there are two very specific and very different laws that we are dealing with.
Federal Regulations
First, let's look at federal regulations. The federal government has imposed several disability related laws over the last 20 years. The Rehabilitation Act, 504 regulations, IDEA, housing laws and The Air Carrier Access Act each address a different element of our lives from housing and education to transportation and employment. The Americans with Disabilities Act (ADA) is a culmination of many of the laws preceding it.
ADA is basically an employment regulation. It is designed to provide equal opportunity for people with disabilities in the workforce. Obviously, the government can not enforce an employment law if buildings are built in a way that keeps a person with a disability out of the building. That is the basis for the Americans with Disabilities Act Accessibility guidelines (ADAAG); making buildings accessible so anyone can work or obtain services from the companies inside.
On the federal side, a person noting noncompliance of accessibility requirements need only to provide written notice to either the owner of the building or directly to the Department of Justice (DOJ). DOJ will either take the case as a noncompliance case or issue a right to sue letter. This right to sue letter gives the person the right to file a local suit against a business or building owner in a local court, through a local attorney. ADA built attorney's fees right into the law, so a person need not be well off to take such action.
If construction has occurred in a facility and compliance was not achieved during the construction phase, the business, building owner and architect/designer are all at risk. Standards and guidelines require that compliance is sought for each element altered or built. Therefore, if you are just installing or replacing a drinking fountain, that drinking fountain must be accessible. If you are altering an existing inaccessible entrance, it must be made accessible during the alteration if that entrance will become a primary entrance either by design or function. If you are installing a new coffee bar and sink, that new coffee bar and the new sink both must comply.
In addition to bringing each element into compliance, if an alteration is made to the primary function of a building, it also triggers work to be done to ensure a person can get to the altered area. They must be able to park and get into the building and, once inside, the route to the altered area and the telephones, drinking fountains and restrooms that serve the altered area all must be brought into compliance. Failure to do so can result in legal action either through the Department of Justice or the local federal court system, or, in Texas, the Texas Department of Licensing and Regulation.
State Standards
State laws are very similar in the requirements, but the procedures and penalties can be very different. Texas has developed its own version of accessibility guidelines, known as the Texas Accessibility Standards (TAS). These are the design standards that must be followed when designing for construction in Texas, and throughout the construction process. Meeting TAS automatically means you will meet the technical requirements of ADAAG as it applies to facilities covered by Title III of the ADA. The reverse is not true.
Both laws require full compliance for new construction, and both offer some reasonableness for existing building issues. At the state level, however, any deviation from full compliance must be approved by the Texas Department of Licensing and Regulation through a variance process. If a variance has not been approved, each altered element (and the path of travel to/from the altered area and telephones, restrooms and drinking fountains serving the altered area if the primary function area is altered) must be brought into full compliance.
Also in Texas, construction projects estimated to cost $50,000 or more must be registered with the Texas Department of Licensing and Regulation. Related to that registration is a two part process which first requires a full review of the plans and specifications, and, once construction is complete, a final, on-site inspection. This process is to ensure compliance to the Texas Accessibility Standards. Municipalities which require permits for construction are prohibited by law from issuing a building permit without proof the project has been registered with TDLR.
The first of the two part process is the requirement that the construction documents be submitted for review within five days of issuance, to either TDLR or a Registered Accessibility Specialist (RAS) licensed by that agency. If the documents are prepared by a licensed design professional, failure by the designer to submit documents within the prescribed time frame may be reported to his or her respective registration board.
The second part of the process requires each registered project be inspected by TDLR or a RAS within one year of completion of construction. Failure by the owner to correct violations cited on the inspection report puts him or her at risk for administrative sanctions imposed by TDLR.
If a complaint is filed for non compliance at a facility in Texas, the complainant has two avenues (federal and state) he or she may follow. Federal requirements are noted above, but the state merely has to determine if the project was registered and responded to properly in order to determine their course of action.
This has been just an overview of the responsibilities of building
and facility owners and design professionals. Please contact
Accessology if you have questions or whenever we may be of assistance.