bathrooms, telephones, and drinking fountains serving that area must also be made accessible. These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20 percent of the cost of the original alteration.
Enforcement of these acts is the province of the Department of Housing and Urban Development (HUD) and/or the Department of Justice (DOJ). Both the FHA and ADA allow for private “aggrieved” individuals to file a complaint with HUD or DOJ seeking enforcement. If discrimination violations are found, the FHA allows claimants to recover attorney fees and costs. In addition, the FHA allows for the imposition of penalties of $10,000 for a first offense and $50,000 for repeated violations. Under the ADA, civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.
The typical FHA and ADA claim generally encompasses a variety of alleged design deficiencies, ranging from the improper sloping of sidewalks, to door handles that are located too high, to inadequate access to bathrooms. There are few defenses that are available legally if a residential complex or public facility covered by these acts does not meet these requirements. Generally these cases represent clear liability, which means that once a building is determined to be noncompliant, the only issue is how much it will cost to remediate the situation.
HUD often invites the parties to conciliation, which is a voluntary dispute resolution process similar to mediation. HUD provides a conciliator described as a “neutral” to facilitate an agreement on how to resolve the complaints. A failure by defendants and the complainant to settle may result in a referral to the DOJ.
Attorneys familiar with such claims say that the DOJ has had a reputation in recent years of insisting upon strict compliance in retrofitting buildings and seeking stiff penalties. For that reason, most attorneys experienced in defending such claims recommend accepting the conciliation process and becoming familiar with recent settlements or consent decrees offering a guide to what the government is looking for in compliance. Often, resolution of such claims is a balancing act between differing compliance interpretations and between the rights of the disabled and the desire to avoid over-burdening building owners with costly compliance.
To avoid FHA and ADA claims, design firms are encouraged to become completely familiar with these two acts and their requirements. In particular, many “safe harbor” design scenarios are described in the Fair Housing Act Design Manual available on the HUD web site, located at: http://www.huduser.org/publications/destech/fairhousing.html, or in the document titled ADA Standards for Accessible Design located at: http://www.ada.gov/. In addition, design professionals who are designing multi-family residential projects may want to consider peer review by FHA/ADA specialists who may be more familiar with local interpretations of the acts and their guidelines.
A CLAIM HANDLERS’ PERSPECTIVE – KEEP GOOD PROJECT FILES SO YOU CAN FIND YOUR DOCUMENTS
By Robert Stanton4
Communicate, communicate, communicate. That has been my mantra ever since I started giving loss prevention seminars and writing risk management articles. Indeed, for years I have been preaching the idea that design quality control programs are ineffective unless you properly communicate with the parties involved in the project, and document those communications.
Alas, however, I have fallen short of my objective and failed to stress one of the most basic of principles. That principle is that when the need arises, i.e. when you are served with a lawsuit, you need to be able to locate your documents to defend it. A case in point involves a situation where an insured performed structural engineering work in connection with the design and construction of an apartment building. Part of the insured’s scope of services involved providing recommendations for the shoring of the excavation of the site, which was quite close to a neighboring lot. The insured had done a large number of these structural engineering jobs for the builder, and had even developed shoring recommendations for others over the years. This, however, was the first time this builder had asked him to provide shoring recommendations.
When this project was added to the insured’s workload, the insured was already working on a number of other projects and was in the process of moving to a larger office. Life was good and the insured thought everything on this project was fine.
4 Robert Stanton is a senior claims specialist with Travelers Architects & Engineers’ Chicago claim office.