News from Northwest ADA Center Idaho
Readily Achievable Barrier Removal for Businesses
The NW ADA Center Idaho receives a number of questions from small business owners. A recent call focused on the owner of a facial salon wanting to rent space in an existing building that predates the ADA. The owner is looking at rental space on the first floor of a 2 story building that was built in 1980.
The first floor has two steps and currently there is not a ramp to access the businesses located on the first level. There are no plans for remodeling except to paint the walls and add new carpet. The questions the owner wanted addressed are as follows:
1) Does the owner of a small facial salon have to comply with the ADA?
2) Who is responsible to pay for the alterations to the building to make it accessible?
3) Does the ADA require the installation of a ramp?
Answer to the question: Does the owner of a small facial salon have obligations to comply with the ADA?
The answer to this question is yes. A facial salon provides goods and services and is defined as a place of public accommodation under Title III of the ADA. A place of public accommodation is defined as a private entity (including not-for-profits) that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theater, doctors’ offices, pharmacies, retail stores, nail salons, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA’s title III requirements for public accommodations.
Title III of the ADA, covers places of public accommodation, requires that entities make their goods and services available to individuals with disabilities in the most integrated setting possible. In addition, the ADA requires that places of public accommodation remove barriers that are “readily achievable” in existing architectural barriers and communication barriers that are structural in nature to persons with disabilities. The U.S. Department of Justice Title III regulation defines readily achievable as “easily accomplishable and able to be carried out without much difficulty or expense.”
Answer to the question: Who pays to remove barriers, the landlord or the tenant?
Under Title III regulation 36.201 (b) Landlord and tenant responsibilities. Both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of this part. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract. Go to the following link for Title III regulations: https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#asubpartb
Answer to the question: Does the ADA require the installation of a ramp?
The answer to this question is “it depends.” If the public accommodation is not planning any alterations to the business the ADA still requires small businesses to remove architectural barriers in existing facilities when it is “readily achievable” to do so. Readily achievable means “easily accomplished without much difficulty or expense.” In other words “cheap and easy”.
The “readily achievable” requirement is based on the size and resources of a business. So, businesses with more resources are expected to remove more barriers than businesses with fewer resources. Readily achievable barrier removal may include providing an accessible route from a parking lot to the business’s entrance, installing a ramp to the entrance, widening a doorway, installing accessible door hardware, repositioning shelves, or moving tables, chairs, display racks, vending machines, or other furniture.
When removing barriers, businesses are required to comply with the 2010 ADA Standards for Accessible Design to the extent possible. For example, in existing facilities that predate the ADA where there is not enough space to install a ramp with a slope that complies with the standards, a business may install a ramp with a slightly steeper slope. However, any deviation from the standards must not pose a significant safety risk.
Determining what is readily achievable will vary from business to business and sometimes from one year to the next. Changing economic conditions can be taken into consideration in determining what is readily achievable. Economic downturns may force many public accommodations to postpone removing some barriers. The barrier removal obligation is a continuing one and it is expected that a business will move forward with its barrier removal efforts when it rebounds from such downturns.
Examples of barrier removal include but are not limited to:
>Creating designated accessible parking spaces
>Making curb cuts in sidewalks and entrances
>Installing offset hinges to widen doorways
>Eliminating a turnstile or providing an alternative accessible path
>Installing accessible door hardware
>Rearranging tables, chairs, vending machines, display racks, and other furniture.
In summary, the requirement to do what is readily achievable in removing existing barriers is an on-going obligation for places of public accommodation. If something is not readily achievable at the moment then the Title III entity should examine how it will address removing that barrier in the future. It is important to make a plan and talk to the landlord and other business entities in the building about pooling resources to increase access to the first level of the building.
If barrier removal is not readily achievable because it would result in a fundamental alteration in the goods or services offered by a public accommodation or in an undue burden, the public accommodation shall make its goods, services, facilities, privileges, advantages, or accommodations available through alternative methods, if those methods are readily achievable. When determining if something is an undue financial burden a place of public accommodation should consider any tax deductions that are available under IRS Tax Code 190. Businesses can take a $15,000 deduction for the removal of barriers. A tax credit is available for small businesses, less then $1,000,000 in gross revenue or 30 or fewer employees, of up to $10,000 for expenses in removing barriers.
Please contact Northwest ADA Center – Idaho for more information on small business
Dana Gover, MPA, and ACTCP Certification, ADA Training and Technical Assistance Coordinator
For more information about ADA Technical Assistance visit the NW ADA Center Idaho website: nwadacenter.org/idaho
Phone: Voice and Text 208-841-9422
Idaho Relay Service: 711