1 Webcast September 27, 2006 Just how accessible is your small business? An overview of the ADA for business owners. Presented By: Aaron McCullough >> TAJAUNA: Good afternoon everyone, and welcome to the webcast: Just how accessible is your business, an overview of the ADA for small business owners. My name is Tajauna Arnold with ILRU. I will be moderating today's webcast and voicing your questions to the presenter. You can submit questions any time throughout this webcast, however, I want to encourage you to submit questions you may already have at the beginning of this webcast. You can submit questions by clicking the submit question button at the bottom of your RealOne Player or simply address it to webcast@ilru.org. Questions will be posed to the presenter upon his request. Additionally if anyone has technical difficulties during the webcast, please call us at 713-520-0232 and dial 0 for the operator. This number is both voice and TTY capable. As previously mentioned, today's webcast 2 is: Just how accessible is your business, an overview of the ADA for small business owners. It is being presented by J. Aaron McCullough, legal specialist for the Disability Law Resource Project. He produces materials on disability law issues, provides training on all aspects of ADA and fields technical assistance requests. Aaron earned his law degree from the University of Houston Law Center and became a member of the State Bar of Texas in the spring of 2001. He entered law school after working for Central Plains MHMR in Plainview, Texas, where we worked with people with disabilities. Previously he worked at Burrell Medical Center in Springfield, Missouri. His interests include impact of the no child left behind policy on the treatment of children with disabilities, accessibilities of polling places and processed historical preservation of the ADA and achieving accessibility through state and local legal means. With that, Aaron, I turn the webcast over to you. >> AARON: Thank you, Tajauna. How are you doing? I know you can't respond, but I hope I tricked some of you. I want to do a little bit of direction and the beginning and a little housekeeping. We have an enormous amount of handouts in links on our 3 website where you found the link to the webcast. I want to encourage everyone who's not done so to done loud one version of the slide presentation. The other materials are there for your education and we'll be referring to them during the course of the waste today, but there's really to reason to rush and download all those. We have three versions of the slide presentation for those of you who have power point, you can download that version. For those who do not, we have rendered it into a high quality PDF file that you can read with Adobe reader. If you don't have a copy of power point, you can download that and follow along with the discussion and photos in the presentation. In addition the participants today that have limited vision, we have a text version that's also be hosted where we have the slides numbered -- we have the text revealed by slide number and a description of the images and photos what we'll be discussing throughout the course of the webcast. That being said, you should go to the www.dlrp.org website and look for the training section and webcast section to download one of the three versions of the slide presentation. I hope that many of you have already done that. Otherwise, I'm going to encourage you to do that now. We're going to also entertain questions a couple of times today. Normally 4 for those of you who are listened to webcasts that I have done in the past, we have done intermittent questions in the lecture. Because of my awkwardness to be honest doing this with a power point presentation, I'm going to entertain questions at a couple of points. This was a presentation a long time in the development and I promised it for many, many years, actually for the better part of two years and we're finally bringing that to fruition. This is again just a general overview of basic accessibility concerns that small businesses need to attend to as well as a little bit of guidance and information about some tax incentives that makes that more affordable. So again, people in my office that came up with this idea quite some time ago and I'm glad to bring this to you today. We're going to start with a really quick thumbnail sketch of what the Americans with Disabilities Act is. I'm sure that any number of the participants here are well aware of what the ADA is, but I think it helps to give a little bit of context before we jump into is technical discussions of barrier removal and architectural accessibility which we will be getting into. Now, anybody who's had the fortune to get the slide down, they're numbered in large white numbers in the lower portion of the slide. I will to the extent 5 possible remember to call out the number of the slide that I'm referring to. Moving on to slide 2, again we're going to start with an ADA 101 for small businesses, just a quicky overview of basics of the Americans with Disabilities Act for small businesses. Moving on to slide 3, the Americans with Disabilities Act is a civil rights law that protects people with disabilities from discrimination. It is a civil rights law not unlike any other civil rights protection that you may be more familiar with. I'm sure a big chunk of the audience did go to public school as I did and became familiar with civil rights and discussion of the right for expanded civil rights protections for people despite their color or gender. When I think about it as someone in their 30s, I think about the bus boycotts, the forced integration of schools, I think about the suffrage movement to get women's the right to vote. The Americans with Disabilities Act is a set of civil rights protections similar to those but for that broad class of Americans who are not protected under those civil rights laws. The Americans with Disabilities Act protects people with disabilities from discrimination in employment, from trying to get a job, interviewing for a job, enjoying employment for the 6 benefits that may flow from employment. The Americans with Disabilities Act understood another section protects people with disabilities from discrimination access to state or local governmental programs. Essentially if there's a government program offered by an entity that's not the federal government and not an Indian try ball government, it's going to be considered a Title II entity and is going to be robust requirements to ensure the programs and services are available to and usable by and accessible to people with disabilities. We're going to focus today on the obligation of Title III of these which on slide number 3 I've highlighted access to places of public accommodation. Even including nonprofits that are open to the public. In addition the ADA has other obligations. Perhaps the most successful has been the drive to make telecommunication devices accessible and usable by people with disabilities and that's Title IV. But again we're going to focus on Title III which is the obligation for places of public accommodations to be accessible to people with disabilities. Moving on to slide 4, again, Title III governs public accommodations. Title III is just a chapter or a portion of the Americans with Disabilities Act which dictates those obligations of these private 7 businesses that are open to the public. Essentially a public accommodation as defined under the ADA is any business or any commercial facility that's open to the public. A commercial facility is essentially any nonresidential facility, including office buildings or factories and warehouses whose operations affect commerce and are open to the public. The list of what may be included as a public accommodation is immense. It's almost easier to describe what wouldn't be a public accommodation, but it is small mom and pop shops to large retail shopping centers, professional offices and the individual offices that may be in those larger office complexes so that attorneys and the dentists and the accountants, tax planners, et cetera, that may office in those office Suites. Recreational facilities, services like laundry and shoe repair and any number of other service oriented facilities open to the public like video rental stores would be public. Title III also captures private schools and training centers that again are open to the public. Churches and private clubs are largely exempt from coverage of the Americans with Disabilities Act generally and Title III specifically. Places of worship are not covered under the Americans with Disabilities Act. Many churches have 8 committed themselves to being more accessible and many churches may be vulnerable to state or local building codes or Architectural Barriers Act with regards to new construction or alterations and these may in fact mirror in some ways the Americans with Disabilities Act, but again, those are separate laws. The ADA is largely exempt the places of worship. It's -- is going to exempt places of worship. Private clubs that are truly private, where membership is exclusive is going to be exempt from the Americans with Disabilities Act and provisions of Title III to the extent they remain private. If they lease out facilities for special events then they become more vulnerable to the obligations of Title III. If you think you have an exception under one of those two, I encourage you to call our hot line later in the day or later in the week and we'll discuss those limited exceptions with you. That's a good time to remind you that we do have a hot line to answer questions in the long run with regards to your concern about compliance with the Americans with Disabilities Act, accessibility provisions and in fact other federal laws that impact the rights of people with disabilities. That number is 1-800-949-4232. That's 1-800-949-4232. Just a little 9 plug. We've got to do some of our own advertising here. Moving on to slide number 5, a really quick sketch of what your obligations are for a small business. Most businesses operate out of a facility either a stand alone or a portion of a larger facility. To the extent that that facility is new or altered, those facilities must meet minimum Americans with Disabilities Act accessibility guidelines. Even if you're operating a business in an existing facility, you also have obligations. An unaltered existing facility, for example a mom and pop store operating in the same footprint without anything beyond mere maintenance with regards to construction still have obligations under the Americans with Disabilities Act Title III. Those existing facilities have a ready achievable barrier removal obligation. And we'll talk a little bit more about what that will entail later in the webcast. I've been instructed that I need to speak a little less quickly, but so I will make an effort to be a little more precise and slow down some for everybody here. The other basic premise of Title III is that those goods and services available through those businesses be accessible to people with disabilities. The underlying premise of the Americans with Disabilities Act isn't to provide a special set of 10 rights for protected class. It's actually aimed at merely providing the same set of rights and access that everybody else in broader society has. The ability to choose where you access goods and services is a key component to truly being integrated in society. So that's again one of the key concerns that a small business needs to keep at the forefront of their mind with regards to the ADA obligations. Are my goods and services truly accessible to people with disabilities in much the same way as they are other folks? In addition, if you have altered your facility to make it more accessible or it has been designed and constructed to be more accessible, you have an obligation to maintain those accessible features. For example, if you have a building with an elevator meant to be used by the public, because it's a necessary bit of vertical circulation, it is an accessible feature, then you do have an obligation to maintain that elevator and to do so reasonably. It doesn't mean that it needs to be operable 100 percent of the time, but you do within reason need to get someone there to ensure that people despite any limitations due to disability will be able to access those businesses, those goods and those services available only on the other floors. In addition you have a general obligation 11 to effectively communicate with customers or clients with disabilities. This admittedly is a more different part of what it means. But it means that you need to make every effort you can to communicate well enough to conduct the business that you're in with people despite a disability that may impact their ability to speak or hear or see. Moving on to slide number 6, new facilities and the ADAAG. In the ADAAG. In the disability world, we throw this acronym around quite a bit. The ADAAG or ADAAG stands for ADA Accessibility Guidelines. And these are essential regulations that breathe live into that portion of the ADA that requires minimal physical accessibility. Under the ADAAG, a facility is considered new if it was designed and constructed for first occupancy after January 26, 1993. As I understand it that means there are a lot of fairly old buildings that are under an obligation to meet these minimal requirements under the accessibility guidelines. In fact there's some 13 and more than a half-year-old buildings that should have when designed and constructed met these requirements. Admittedly, architects and contractors are getting better at getting close to meeting these requirements. Regrettably, they weren't as good as it back then. And that creates a set of 12 circumstances where you may have some fairly expensive build-in burdens and no leeway under the law. We'll talk about that a little bit more. In addition the ADA Accessibility Guidelines governs alterations that are made after January 26, 1992, and these must comply with other portions of that accessibility guidelines. Additions similarly to existing buildings, do have special sections of compliance and concern under the Americans with Disabilities Act accessibility guidelines. If you're planning on doing some design work or working with professional architects or builders to add to, alter, or construct new a business facility it would behoove you to become basically familiar with the ADA Accessibility Guidelines and certainly to ensure whatever professional you're working with not only understands them, but is willing to I would say, contract to ensure that they understand and will comply. We don't expect every person who operates a successful shoe store, for example, to be a professional designer. Understandably you have to rely on folks, but you should also cover yourself, paper that up, or ensure through contract that they're going to comply with these aspects of the law. Moving on to slide number 7, remember I 13 said that even an existing building has obligations under the Americans with Disabilities Act. Even unaltered existing building that is a business open to the public has some minimal requirements. These reduced obligations are an obligation to engage in readily achievable barrier removal. And simply put, that is those things that are easy to do in terms of time, affordable considering all the available resources of business and the ability to stage what may be some construction or certainly at least some redesign. Now, the key thing is that this is an ongoing obligation. It's not just a snapshot of my old building and these minimal things that I need to do now to ensure that I don't get sued or complained against. It's an ongoing obligation. When you think about it this way, I think it's kind of clear, you know, what was achievable to do six months after the effective date of the Americans with Disabilities Act is a significantly different thing than what is readily achievable after six years or in this case 16 years with the Americans with Disabilities Act. And I hear this all the time and most people who work in this field hear this all the time. My building is grandfathered. The Americans with Disabilities Act is a civil rights law granted pretty 14 broad protections and access to people with disabilities. There's really no such thing as a grandfather clause under the Americans with Disabilities Act. Undoubtedly the regulations recognize that in many cases if not most cases, there's no way to bring most existing facilities into the level of accessibility compliance of a new building. And the ADA doesn't require that. But it does again at least require that if you are going to operate a building -- a business open to the public, that you have these minimal readily achievable barrier removal obligations. If you're going to do significant alterations, for example behind the facade of a building, let's say changing purposes. Again you have to follow the alterations provisions of the ADA Accessibility Guidelines. And even in designated historical buildings, you will have some obligations. And I say designated. The ADA requires that this be an officially designated historic building, not merely old. So one that has been designated federally by the national park service, locally through your state preservation office or through a local designee. And I'll use for example the Galveston island has a robust local and approved historical organization and preservation organize that can 15 designate local establishments with the approval of the state. It has to be a designated historic building to even get consideration. And these are fairly minimum. If you're going to make alterations to an existing building, let's say turning a historic building rather say turning a historically designated home into a hotel, that alteration must be done respecting those requirements of ADAAG provisions on alterations. There are some slightly reduced criteria where those alterations might affect the historic fabric of the building, what makes it historically significant would be jeopardized, but you still have to make an effort to improve accessibility and comply with the accessibility guidelines. That's a light brush to be honest on a five hour topic, but if you have questions about historical preservation, accessibility and compliance, you can also call our offices and we'll direct you to really good information on our website or more broadly on the Internet. Moving on to slide number 8, when looking at basic accessibility, the Department of Justice has set four essential criteria. So getting this out of a compliance mind set and really just looking at what minimally I need to do to ensure that I'm at least respecting people with disabilities and inviting them 16 into my business are four pretty straightforward concerns. Now, these are drawn directly out of checklist for existing facilities that was authored by one of our sister organizations adapted environments. I provided a link to both texts and the PDF version of this document for your use after the presentation. But again the remainder of the presentation is really drawn out of this incredible tool. It's a 15-page survey and checklist for basic accessibility of existing buildings that may offer a great deal of insight into the ready level of accessibility in your business and make simple suggestions for improve. Now, again, this is just a basic overview of minimal accessibility concerns with some barrier removal suggestions. The remainder of this lecture is not meant to be taken as a road map to perfect compliance with the ADA. Now, the four priorities are at follows: An accessible approach and entrance into the business. Access to the goods or services that are offered within that business. A third concern is access to roost rooms if there are in fact restrooms open to the public. A note is that the Americans with Disabilities Act does not require that you have restrooms that are open to the public. If, however, due to state or local law aimed at use you are required to have restrooms, then the ADA 17 requires that they be accessible. Number 4 is those other measures those other concerns that may be necessary to promote access. We're going to spend the vast majority of the next half hour reviewing some slides on the first two topics, approach and entrance and access to goods and services. Moving on to slide 9, one of my favorite pictures of all time is portrayed on this slide, two supposedly accessible parking spaces and a deep and fairly muddy grass field. They had actually just mowed and this is actually a real designated parking place in a field across from a gambling venue which I won't name. There is paid parking available near the facility, but that is only for valet parking or at least at the time this picture was taken. Your basic concern about accessible approach and entrance is: Can a person with a disability park? Can they approach your facility? Can they enter into your business? And what barriers may prevent that type of access? You need to ensure that if you have parking, that it's accessible. That people despite their disability can navigate across your property and approach your facility and actually enter in through the door. Moving on to slide 10, can a person with a disability park approach and enter your business? Is 18 there a route of travel across your facility from where you would park to where you would enter or where you would leave public transportation and enter the facility or where you would be dropped off and enter the facility? Is there a route of travel that does not require stairs? Is that route of travel stable, firm, slip resistant. In the prior slide we saw a parking space accessible parking space that was placed in a field of -- a muddy field with Texas saw grass, hardly firm and slip resistant. And is that route of travel at least 36 inches wide and free from protruding objects that may block the path? Now, going over these three concerns, is that route of travel does not require stairs? And we mean is it largely flat or where there is a change in elevation, is it appropriately ramped to allow somebody for example using a mobility aid or somebody who couldn't navigate stairs to traverse your property. Is that route stable and slip resistant. The ADA Accessibility Guidelines does not specify the materials that anything be constructed out of or that any route be made from. It doesn't require concrete over asphalt paving or prohibit wood use in ramps. But it requires that the surface of an accessible route be stable and not be a hazard with people mobility I want 19 pact disabilities. If the material along that route is accessible and stable and firm, then you can certainly choose to use that material. Now the concern -- a third concern is the route at least 3 feet wide or 36 inches wide and is it free from protruding objects that block a path? This is to allow navigating space for someone using a prototypical wheelchair. Keeping that in your mind, the average wheelchair may be narrower than that, and may require extra space to manipulate. Protruding objects may present a real barrier to somebody trying to traverse that along a sidewalk. Protruding objects that you often see may be plantings, tree limbs, improperly mounted phone boxes or signs that create not only a real barrier, but maybe an injury hazard for somebody who had limited vision. Or for that matter somebody who isn't paying attention. One of the things that you can say about providing this type of accessible route is not only is it more accessible to people with disabilities, it's safer for all users who are approaching and entering your facility. Moving on to slide 11, again, can a person with a disability approach and enter your business. If there are ramps required as in the picture here, where you have a restaurant with a four-step entrance into a covered entryway and then a follow-up 20 picture where there's a really well executed ramp that matches the architect, is safe and relatively flat slope and had appropriate handrails and is constructed out of grooved concrete so it's stable and firm and slip resistant. General ramp requirements are no steeper than a 1 to 12 slope. For every unit, every inch of rise, you must have at least 12 inches of run. Anything that's steeper than that is difficult or impossible for any number of people with mobility impacting disabilities such as people who use wheelchairs or people with crutches or canes to safely navigate. Is there at least 36 inches clear path between those railings or in case of some ramps curves. Is the surface nonslip? And is there a landing at the top and bottom of the ramp? This is important. There needs to be a flat space, a minimum of 5 by 5 at the top and bottom of a ramp. Ramps that directly approach a door without a landing are not accessible to people with disabilities. Imagine approaching the door removing your hands from the wheel of your wheelchair and open a door, you can see what would happen. You would roll back. So again proper ramps require landings at the top and the bottom of the ramp. Moving on to slide 12, an interesting problem in a lot of existing facilities in both small 21 and large towns are that a number of buildings that are close up to sidewalks are built a step or two above that level of the sidewalk. This is more prevalent in the south and west than I've seen up north, but it certainly exists there. This is a difficult -- it's difficult to conceive of a solution that would work in this circumstance, but the photo above shows a two short step approach into a small local business and then you go less than a block down the road and another small business has solved this problem by integrating a ramp into the flow of traffic. It's an attractive and successful feature to bring an at-grade entrance to that building to provide for safe access to that facility. They've more easily turned that entrance into a service entrance as well and haven't risked anything with regards to impeding drainage. Again it's an attractive easy and in this case highly successful modification to provide access to people who would otherwise be denied. Moving on to slide 13, can a person with a disability park and approach and enter your business? Parking is the number one non employment related complaint about the ADA that we receive at our hot line that the U.S. Department of Justice is receiving. It's one of the number one complaints against both private 22 businesses and public agencies. And you might imagine why. It's the thing that hits you first as you approach a facility. If someone has failed to properly configure the door, you can't leave your vehicle and approach the building, how welcoming do you think the facility is going to be? Now, the key is: Have you designated proper accessible parking? If you provide parking at your place of business or it's provided through a lease agreement for example across the street in an urban area, you still have an obligation to ensure minimal accessible parking spaces. If you only have five spaces in front of your facility, then one of them at least needs to be configured to be accessible. You need to have the proper number of spaces and the checklist had a simple formula for addressing the number of accessible spaces that you need as calculated from the number of total spaces. Again, even in very small lots, you need at least one accessible space. In that space, it needs to be marked. Does the space have a visible sign? Many localities and state governments require that sign to be hung at a particular height. The Americans with Disabilities Act accessibility guidelines requires that it be visible from a parked vehicle. The state of Texas for example in its Architectural Barriers Act requires that the sign be essentially hung at 60 inches to the 23 middle of the sign from the finished floor of the parking. Let's see. Is this space designed to be without steep cross slope? Is it a relatively flat space? And is the access aisle clearly marked? Is the space adjacent to the space designated to allow someone to drop a ramp and exit the vehicle as seen in the diagram here or to exit their vehicle and unfold their walker and have that necessary clear space to approach the route into the building? When you're required to have van accessible spaces, are those spaces clearly marked from regular accessible spaces? And there is a difference. And are these spaces near an accessible entrance? And are they on an accessible path to that entrance? Coming up, you'll see a number of photos I'm going to review about poor parking design and practice. And these are all taken from a fairly small area with the exception of one photo. So moving on to slide number 14, I have four photos here, the top one to the left is parking that's been configured against a building where you have something approaching a 10 degree grade that goes right up to the seal of a door. That's clearly inaccessible to most people using mobility aids and any number of 24 other folks with limited mobility. To the top on the right is a picture that I snapped where you have an immense amount of tropical foliage, but just as importantly the access aisle has been properly cross hatched, but goes right into a curb. If you were somebody using a walker or wheelchair, then that space is hardly an accessible space. In addition you can see some work gear that is about ready to intrude that space. And all too often at this facility and others, that space is used to -- as a sight for deliveries and construction to stage any alterations to a facility. One of my favorite photos of all time is the photo on the bottom to the left. I think it's small enough where you can't discern where it is, but someone's made the effort to paint the international symbol for accessibility to provide for something of a curved ramp. They've taken a piece of steel and attached it to the curb to provide a bevelled approach, however it runs you right into is ice machine less than a foot past the curb and there's no way to traverse to the store. So their accessible space is blocked by a pole, an improper and dangerous curb ramp and an ice machine. The picture on the lower right is a designated space in certain ways. They have painted the international symbol of accessibility. It's hard to 25 see, but they have indicated an access aisle to the left. There isn't a sign at the head of the space which would have been on a pole or mounted on the building. More importantly to the left, you can see where the cars are parked, that's where the entrance is. The only accessible parking space was designated far from the entrance, all in violation of the ADA Accessibility Guidelines. Moving on to slide 15, for four more spaces, just to show you again some common parking space configuration errors. Slide 15 on the upper left is an old foe tote, but something I think captures a common occurrence where the sidewalk's accessible. There's been a properly configured curb cut however it leads into a parking space rather than an access aisle. So someone has parked and blocked access from that sidewalk into the parking lot. On the upper right, you can see an effort to improve accessibility by building up a curb ramp, however, curb ramp is improperly configured. It extends into a space not considered an access aisle, so it doesn't do much to promote accessibility if someone parks there and since this is the only shady spot on the lot, there's generally someone parked there. On the lower part of the slide to the left is a photo that shows an otherwise acceptable space, however if you look 26 at the hedge row at the head of the space, which has been neatly trimmed, you can barely see the top of the sign. Give it another week and a little bit of rain and you will not be able to see is sign at the head of that space. Down and to the right, you can see another space where there isn't any designated parking, but in fact the only one that might be accessible is -- leads you to a sidewalk that is blocked not only by where they keep the carts outside the small market, but also by the cars which approach the curb where the parking blocks and extend into that accessible route. Those are all mostly fairly easily fixed and again I think point out common problems with small businesses. Moving on to slide 16, can a person approach and enter your business, a person with a disability approach and enter your business? Are all entrances accessible? The ADA doesn't require that all entrances be able, particularly in existing buildings. This is a fairly driving medical -- driving medical supply store. A great deal of the customers are people with disabilities. There's a fairly high curb, but they have indicated where the accessible entrance is by a sign on the edge of a building that points over to a side entrance that is accessible on a flat grade and in fact has become the main entrance to this building over 27 time. The preferred entrance by most folks. So again, if every entrance to your facility is not accessible, have you provided a clear indication where the accessible entrance is? A lot of folks when they know they have inaccessible elements in their facilities are hesitant to point those out by putting a sign up indicating that this is not accessible and the accessible entrance is around the corner. I assure you that your worry is wrongly placed. Most people with disabilities would be much happier with you if you clearly indicate where the accessible entrance is, the accessible parking lot is, where the accessible restroom is. Failure to do so is going to lead to frustration and the tendency for people to rightfully file complaints. Moving on to slide 17, again staying with this can a person with a disability park, approach and enters your business? Are your exterior doors free from barriers? When opened to a 90-degree angle to they have sufficient opening? Again we're talking about an actual 32 inches when the door is opened at 90-degrees. Here on this slide is a photo of a small business where not only is the door incapable of opening all the way because of BOLLARD that's directly in front of the door, but the parking blocks in proximity to each other 28 presents anyone who uses a mobility aid from approaching within 3 feet of that building. Yes, they're open, but not again if you're using a wheelchair. Moving on to slide 18, again, with the approach and entrance to a facility, is the door hardware operable with a closed fist? Is it operable without grasping or turning? And I have examples of that on the following slides. But just as important as the threshold no more than a quarter inch high or if it's of necessity more because of example the interior floor is at a higher level than the deck of an entrance, is it when bevelled no more than three quarters of an inch. The photo in the slide, despite the wear and tear on the door, there are new doors and new threshold installed within the last two years. There's not a change in elevation, but the threshold, although bevelled is over 2 inches high and not permitted under the ADA Accessibility Guidelines. Moving on to slide 19, doors obviously an important part of entrance. Is there at least 18 inches of clear wall space on the latch of the pull side of the door next to the handle? This is important because the way that many people who use wheelchairs and other mobility aids approach, open and enter a door is different from the way that many people do who are 29 ambulatory. People who use mobility aids tend to approach the door to the latch side, open the door, reposition themselves and go through as opposed to how ambulatory folks open the door past the direction of their walk and then go through. So there needs to be clear wall space to allow them to again enter that -- approach the door in that way. In addition you can see that the door hardware indicated in both the photos and the drawings are either the lever type of door or U-shaped type of door hardware that allows somebody to operate that door without having to make a tight fist, grasping or turning. Moving on to slide 20 and staying with doors, can the doors be open without too much force. There's not a minimal requirement for external force now is there a requirement to have powered doors at an entrance, however, you do need to make those effects to make it as operable independently by people with disabilities as possible. Interior doors do have a maximum force requirement that does not apply to exterior doors . And to be honest, that's an engineering issue. Anybody who has lived in windier parts of the country, let's say West Texas for example, would recognize if you didn't have -- if you had a significantly reduced door force on any number of 30 external doors they would be ripped open or out of frames with 70 or 80 miles per hour gusts or even much less. Powered doors were probably not required under the Americans with Disabilities Act or power assisted doors because they were much more expensive when they were writing these regulations. They have since become much more reasonable and reliable in the intervening years. More than a decade. They have reduced in price by as much as 75 or 80 percent of the cost -- of the real cast at that time. So when considering true independent entrance, that may be an option. If you do have a door closer installed as shown Ott photo here, does it take at least three seconds to close to allow somebody to pass through the door. If it doesn't, then you do need to adjust it. They are generally fairly easily adjustable and maintained and again part of your ongoing obligation to maintain accessible features. Moving on to slide 21, access to goods and services. Are the circulation routes or aisles free from barriers? Do display racks allow for turning space for people who use wheelchairs or other mobility devices? A typical turning radius is a 60 inch circle or a T-shaped turnaround that allows someone to approach, back up, change direction that's essentially 31 equivalent. As you see here in a fairly typical medium sized community market, sales items and display racks and maintenance items are blocking a great deal of the circulation, blocking the aisles and actually prevents someone from -- someone who uses a typical mobility aid from navigating this store at all. Moving on to slide 22, service and sales counters. It's important that a portion of the sales counter be no more than 36 inches Tal. It's important that the approach that counter be clear so that somebody using a mobility aid typically a wheelchair be able to make a forward or side approach to that operable part of the sales counter so they can conduct their business, take their money and get their merchandise. In this photo, this counter was actually constructed to be very accessible but the accessible portion of the counter has been blocked in an additional register has been added. I pixilated the person's face and removed most identifying information, but again you can see that not only is it blocked by sales items in shopping baskets, but they have eliminated the feature that was constructed in this relatively new store. Moving on to slide 23, do permanent rooms have conforming signs or signs that meet with Americans with Disabilities Act accessibility guideline 32 requirements. Rooms that are permanently assigned to be signs that are mounted essentially 60 inches to the center line of that sign off the finished floor. They should be mounted whenever possible on the latch side of the door or the part of door that opens. That sign needs to be as close as possible to that door and again to comport with the ADA, it needs to have Braille and raised characters. Regrettably proper signage is one of the biggest architectural violations you see. It's typical for signs to be improperly configured and installed which interferes and is a very serious violation of the Americans with Disabilities Act. Moving on to slide 24, now the technical provisions governing restrooms, toilet rooms, lavatories, mirrors et cetera are deep. I encourage you if you know you have problems with the accessibility of your restrooms to review the existing facilities checklist in-depth and/or get more technical information from your ADA and IT center by calling the hot line number. I'm going to go through this with very light touch, because we could spend more than an hour and a half on bathrooms alone and that's certainly not what we're here for today. The essentials are the same as any other feature. If you have restrooms that are open to the public, then the ADA requires that they be made 33 accessible. Accessibility is judged by is the path to the restroom free from barriers? Is there a route that allows you to circulate to the entrance? Are all the restrooms accessible or is there signage to direct people to the accessible restrooms? Again, nothing more frustrating than not being able to find an accessible restroom when there are otherwise available restrooms to people without disabilities. The doors have the same obligation as any other interior door and must provide a 32 inch clear opening with the accessible door hardware. In these two photos you have otherwise well conceived bathroom set up in a small gas station or convenience store with proper signage indicating the location and that it is accessible. However, again there are stock items and maintenance items that may prevent someone from accessing or approaching the doors. The doors are otherwise properly configured with signs by the latch side hung at 60 inches. To the middle of that sign with both pictures and Braille. So they did an otherwise good job if they could keep the stock items in the stock room or cooler, they would have been otherwise in compliance. That's a good point for small business owners to be mindful of particularly third party stockers blocking for extended periods of time the accessibility of your facility. You're letting a potato 34 chip or soda pop representative get you in trouble with ADA. Be mindful when laying out displays that you don't block route within your facility. Temporary barriers are temporary, but they're real barriers to customers trying to access your facility. Moving on to slide 25, the usability of restrooms in single use or large restrooms with smalls is there a large turning radius, the 60 inch turning radius. When approaching lavatories and sinks and hand driers is there clear floor space? That's considered a footprint of 30 inches by 48 inches wide. This floor space is a nod towards again that standard wheelchair side and the kind of footprint that someone using their wheelchair takes on the floor. In addition the usability of restrooms and the compliance is -- looks at the accessibility of those features inside. So faucet controls and soap and towel dispensers within reach? The checklist provides fairly precise diagrams or fairly precise instructions on how to configure all of these features and controls or points you to the proper space in the ADA Accessibility Guidelines to track down additional information. Again, bathrooms are fairly complicated and much complained about feature within a larger facility. If you have concern about yours, you can call your ADA and IT center for more information. 35 Moving on to slide 26, those additional concerns of access are more secondary -- those more secondary accommodations along with way along that path of travel. Here we have a picture of a standard water fountain, a pre-ADA drinking fountain, in a fairly old facility to promote at least minimal accessibility, they have installed a cup dispenser near it. This isn't considered an ideal fix because when that dispenser runs out, is something going to be there to fill it? If not are you truly providing an equivalent experience. In a retrofit, redesign or all the ration, you're seeing the installation of the other type of drinking fountain, down to the left of the slide what we call a high-low drinking fountain which allows approach of clear floor space, a front approach, controls operable and within reach and again is mounted at two different heights to allow somebody to use it who is ambulatory and somebody who uses a mobility aid for ambulation. The photo to the right is an interesting notion. Some additional concerns and amenities would be access to telephone or other information access points. In this case in a new construction, they just can't get it right. They had installed a parking space without properly constructed curb cut. They went in and retrofitted and installed a properly constructed curb cut. When they did that, they 36 blocked access to a telephone, which was otherwise on an accessible route had they properly installed the curb cut in the first place. If you have phones or drinking fountains or other amenities available to the public, they need on the accessible route. They need to be controls within operable reach ranges. There needs to be clear floor space near each of those features. And again they don't need to do some foolhardy things that tends to screw up the accessibility either temporarily or permanently. This is a point where I'm going to entertain questions before briefly touching on the tax information and incentives that may make this easier for the small business person to afford. >> TAJAUNA: The first question asks: Are churches covered by the ADA if they allow other groups like Boy Scouts or AARP to use the facilities? >> AARON: That's an interesting issue. If we're talking about a church and a place of worship, it's going to be kept, but that other entity assuming that it's open to the public has an obligation to promote accessibility. So it would be the AARP, it would be let's say somebody hosting a private concert and selling tickets. You know, whatever entity is responsible for that is responsible for ensuring accessibility. 37 >> TAJAUNA: Okay. The next question ask: We are a center for independent living located in a building built in 1960. The elevator is awfully small. It holds a wheelchair but not a scooter. Is it okay to add advocates who provide services intakes counseling et cetera on the first floor if the person's wheelchair does not fit on the elevator? At the present time we do not have enough funding to build a new elevator or lift. >> AARON: That's an excellent question and I wanted to make sure I make those points. One, the nonprofits which most Centers for Independent Living are nonprofits are not exempt from coverage. They offer services to the public and operate out of facilities open to the public, so they are covered. Here's a circumstance where you've got on existing building with an elevator that doesn't allow for the use of all mobility aids. Now, regrettably the Americans with Disabilities Act accessibility guidelines like any other law have some compromises in it. It is a minimal set of standards. It does not mean that you are promoting accessible for all people with all disabilities of all sizes who use all types of mobility aids or other accommodations for their disability. I'm a fairly tall, big person. If I were the use a wheelchair, it probably 38 wouldn't be one that was the prototypical wheelchair. They mention scooters. Increasingly people with limited mobility are moving to scooters because their affordability and versatility and in this case the elevator isn't configured to allow somebody to use it. Their question was: Should they encourage their advocates to do intake and other work on an accessible floor or find some other way to meet the needs of those people? And I say yes, they absolutely should and in fact they must find some alternative to the barrier removal that's unavailable to them right now. Since they're unable to afford reshafting the elevator, they need to find the means to meet the folks' needs. Whatever solution they use may not be an architectural one. It may be a relocation of services or e-mail or home visits. But again, failing an ability to do something very reasonably, then they need to find on alternative way to provide services. So great questions, people. >> TAJAUNA: Okay. Another listener asks: If an Indian casino is situated outside of an Indian reservation, does Title III cover the casino's facilities? Conversely, if it is inside an Indian reservation, does the ADA cover it? >> AARON: That one is an interesting 39 one. As I understand it, if it's not on tribe ball land, it's going to have to comply with portions of the Americans with Disabilities Act under most circumstances. And if it's on tribal land and operated by the tribal government it's exempt unless they have signed a local or state contract to comply. And that's the case with any number of Native American casinos. That's a much more complicated issue. Indian sovereign immunity is one of the more technically difficult aspects in the civil rights law. So if you have a particular circumstance like that, call us after the webcast and we'll elicit more facts than we got in the e-mail. Fair enough? >> TAJAUNA: The next question asks: I was recently in a bank and asked to use the restroom. I was told the restroom was not available to the public only to employees. I use a wheelchair. Can businesses simply say their restrooms are only available to employees to avoid making them accessible? >> AARON: That's a great question. Having them only available to employees doesn't mean that you can avoid making them accessible. There's a few things you need to look at. Assuming the building was built before the effective date of the ADA Accessibility Guidelines, and it hasn't been altered, 40 then they can get away with that until such time as an employee needs that as an accommodation. But again if they're not required by let's say local law to have a bathroom open to the public, then they can exclude people with disabilities so long as they exclude everybody else. Again the ADA only stands for the proposition that you deserve the same rights as everybody else. And if everybody else is excluded and by everybody else, I mean the public, then they can exclude you. In practice, though, if they're just using that as a defense and they let -- buddy, buddy let someone in, into the restroom, then they're in violation of the ADA. It's relatively hard to assert, but again if they're under no obligation to provide a public restroom, they can certainly say no. I don't know if I'd want to do my business there from a practical perspective were I you and I certainly would raise the concern. But that was a great question. Again if they're not required to have a public restroom by whatever other requirements, let's say an occupancy -- a building code looking at the type of occupancy from a state or local level might require a building of a certain size to have a restroom and would certainly require places like restaurants and bars that serve food and liquor, if they're required to have them, they're 41 required to be minimally accessible. >> TAJAUNA: The next question asks: What are the current requirements for places detectable warnings on-ramps? >> AARON: Where you have a curb ramp, now you're supposed to use detectable warnings of a contrasting color to the base material of the sidewalk and ramp. The warning should be the truncated domes or some equivalent. And that one is kind of awkward because there was a stay on enforcement of detectable warnings at a federal level for a number of years, but that stay of enforcement has lifted almost three years ago and again ramps should be again along the face of a curb ramp or curb cut, there should be detectable warnings of a contrasting color. So if you've got dark asphalt, then you need a lighter color, some sort of brighter color of detectable warnings and they these to be truncated domes or some equipment. The mechanism for installing them, the materials that they're made out of, that's up to you. Whether it's pavers of topical application , concrete form, hard rubber application, it doesn't matter so long as it meets those criteria. >> TAJAUNA: And this is your last question for the this section. An acquaintance in another state, Ohio, was hold he could not meet with his 42 counselor whose office is on the second floor even though there was an elevator that would accommodate the whale. He was told that for safety reasons, for example a fire, the office would have to be moved to a main floor. Generally this is not a problem, except there is instances where an accessible office was not available although his counselor's second floor office was available. The agency holds that accessibility has been achieved through this although the person in question has been required to reschedule appointments when a main floor meeting place was not available on at least one occasion after arriving for his scheduled appointment. In a situation like that, is there redress under ADA? >> AARON: I'm going to ask that person to call. We're talking about a public agency rather than a small business so I'm going to encourage that person to call 1-800-949-4232 and discuss that with the technical assistance staff, probably in great lengths. >> TAJAUNA: Okay. That was our last question for now. >> AARON: All right. We're getting close on time and I appreciate you tuning in to my awkward presentation. I'm much better live. I promise. Getting on to slide number 27, this is a little bit of a misnomer. It should be tax incentives 43 for businesses from providing access to reasonable accommodations. Moving on to slide 28, there are two different types of tax incentives that I'm going to briefly overview. The disabled access tax credit is Section 44 of the Internal Revenue Code. More specific information as well as the application forms are available in the link on our website. Now, this is a special tax code that was -- that's for small businesses only. Now, their definition of small business is a business with revenue of a million dollars or less for the previous tax year or 30 or fewer full-time workers. That captures the vast majority of small businesses. Now, regrettably, the Internal Revenue Service estimates that only 10 percent of small businesses take these credits. That some point in the last several years since this has been an available tax incentive, there's been some work that a business has done on facilities or some -- rather some accommodation that they have provided that they could have taken this tax credit for and didn't do so. Moving on to slide 29, what is the tax credit? It covers all eligible access expenditures where you're removing an architectural barrier on an existing facility or increasing the accessibility on a 44 vehicle that's otherwise inaccessible so let's say adding a lift to a small transportation provider's van. When you do an alteration, it must comply with the relative standard, accessibility guidelines for facilities or transportation vehicles. Now, this is not a tax credit that's available for new construction so construction of a stand alone new facility, but if you're going alterations to enhance accessibility or even if you correctly justify an addition where that's necessary to make an accessible, you may be able to take this tax credit. In addition it's, again it's aimed for when you're making alterations that improve actual physical accessibility by removing barriers of an architectural nature. It's Al a tax credit that's available when you purchase adaptive equipment. This is important for the small business because that can cover a great deal of things that you may not think of, from computer equipment or software that makes Internet access possible for someone with limited vision at a copy shop or an Internet cafe to a portable lift that allows somebody with a mobility impacting disability to use a spa or even to acquire a more accessible examination table or a dental chair. Again, that could be properly conceived of as adaptive equipment and again adaptive equipment is even broader than that. This tax 45 credit can also cover the costs of providing readers for customers or employees with visual impairments, provision of sign language interpreters or other communication assistive service and even in the cost of covering consults to determine what is the appropriate accommodation to meet someone's needs. So PT's, physical therapists, occupational therapists, interior designers, potentially, when again that service is aimed as reducing barriers and increasing accessibility. Moving on to slide 30 -- well, actually let me go back to slide 29. This is a tax credit and by its nature a credit is one -- is an incentive that you use to deduct your tax liability after you calculate your total tax liability. So again this is an available at that point. Moving on to slide 30, the maximum credit is $5,000. You're allowed to credit 50 percent of the eligible expenditures that you use to promote accessibility up to $10,250 there is no initial correct for the first 250 that you use -- correct for the first 250 that you use, so again the max is $5,000 to reduce your tax liability after the calculation of what you owe. Moving on to slide 31, the second tax incentive is architect barrier removal. From a mom and 46 pop shop to a franchisee of a business class hotel, to a massive corporation. And it covers the removal of architectural or transportation barriers and again whatever these renovations or alterations are must comply with the applicable ADA standards and it provides for a maximum deduction of $15,000 per year. Again, this is a tax incentive or benefit that creates a deduction in income before the calculation of tax liability. That's available to a business who spends this money to improve overall accessibility. Moving on to slide 32, you can use this two tax incentives together. A small business may use both the credit and the deduction. But of course you're going to reduce it by the maximum credit, leaving you with an opportunity to have $15,000 in remaining deductions to reduce the taxable income. So it's a significant amount of money that you can use in concordance with whatever changes that you're making or alterations that you're making, it's an opportunity to spend some money to improve accessibility. Slide 33 further shows that the tax credit may be used every year and although you may not carry your expenses in an accommodation to the next year, you may carry forward the credit if you have this. I have a professional acquaintance who considers this an opportunity to 47 redesign his office, his professional office every few years and certainly to promote accessibility for both himself because he is a person who uses a wheelchair for mobile, but to comply with the Americans with Disabilities Act. It doesn't hurt if it keeps his office looking pretty as well. Now, the last slide is just some information about our organization. We are the Disability Law Resource Project, one of the ten disability and business technical assistance centers. We serve Federal Region 6, Texas, Louisiana, Arkansas, Oklahoma and New Mexico. I don't think I forgot one. We operate a hot line at 1-800-949-4232. And again that number is good nationwide. If you call from one of our states, you get us. You call from another state you get the center at your region. I provided ore local number as well as e-mail and website address and mailing address. I encourage you if you have questions to follow up either directly with us or with your local centers. While I've got a couple of minutes, if there's any questions about taxation, I'll entertain those now. If there's not, then you can send those questions to us later. >> TAJAUNA: There are no questions on 48 taxation. I do have one last question that goes back to what you were talking about prior to taxes. >> AARON: Why don't we take the barrier question first and then the tax question. >> TAJAUNA: The barrier question: Can a business located in a building that is on the National Historic Register get away with not having a ramp for access? Is requiring a person with a disability to call 48 hours in advance so they can meet you at their attorney's office a means of accommodating that person? >> AARON: It seems unlikely that just because it's on the national historic registry that they can't provide some sort of an entrance. I've joked with somebody when they have approached me. They said the building was designed by Frank Lloyd Wright. However it's a building I'm familiar with that has been altered that has traffic and regular maintenance and has been modernized and is a place of business that people work there on a daily basis sometimes doing very heavy labor. My answer is I don't care if it was designed by Frank Lloyd Wright and I don't care whether Wilbur and Orville Wright lived upstairs. They have minimal obligations to at least remove some barriers. If and when the building has been altered since the effective date of the Americans with Disabilities Act, they had an obligation 49 to promote some accessibility at that time. The people who operate offices out of there assuming that they don't operate out of the entire facility, have the same obligation that the landlord does or owner does to promote accessibility and if they can't, if they can't alter this building to make it accessible at all because there's no way to do so without threatening the historic fabric of the building, that which makes it significant, then they need to do something to make their services available to this person in a way that is similar to the kind of service that people without disability get. I'm going to argue that it's unlikely that this building is so sack row sank that every elevation of it is so purely significant that cow couldn't provide some sort of entrance. But just as importantly and I think more relevant to this person's needs, does everybody else who does business with this person have to give 48 hours notice? If not, then it would seem that this person is not fulfilling their obligation to provide an alternative to barrier removal. And it sounds hinky to me if the facts are as represented. >> TAJAUNA: The last one the a tax related question and the listener asks: Who gets the tax credit, owner of the building or the business renting or leasing the space? 50 >> AARON: The person who spends the money, which may be either. That's a good point. Again, the landlord and tenant both have obligations in a business that's open to the public. However they switch that obligation in contract behind them can't remove the obligation under the ADA. The landlord may allow the tenant to do massive remodeling at their own expense. If they do so, it's their tax credit. If they do it as a joint project, they could probably split is credit. That brings up a very good point. The time to be looking at accessibility is before you lease a facility. When you've leased and moved in and someone makes a complaint about inaccessibility, you're not in nearly as good of a position to insist upon accessibility as you were before you leased. Always make that a consideration when choosing a site to lease and operate a business. Use it to get concessions granted in build outs. If you need to do improvements before you sign a lease, make sure that they'll make that part of a consideration in your costs. When you lease is expiring, that's a good way to negotiate for a reduction so long as you ensure that you spend some money on improving accessibility. >> TAJAUNA: Okay. >> AARON: So thanks for that question. 51 It brought up a good point. I want to thank everybody. I know I'm over time, so I'm going to leave it to Tajauna to close. And I want to thank particularly Tajauna and Vinh Nguyen and our own staff. >> TAJAUNA: Thank you, Aaron. I hope you have learned from today's webcast and that you have enjoyed it. If you have questions on the Americans with Disabilities Act, as Aaron said, you can call us at 1-800-949-4232 and we'll be happy to answer any of your questions. Also note that this webcast will be archived on ILRU's website, which you can fine by visiting ilru.org. I would like to acknowledge the National Institute on Disability and Rehabilitation Research, NIDRR, who funds your host for today's program, the Disability Law Resource Project. I would also like to thank the in-house staff at ILRU who without their effects this webcast would not be possible. They include: Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Maria del Bosque, as well as the technical expertise provided by Rob Dickehuth and realtime captioner Melodie Thompson. For a list of webcasts, please visit webcast@ilru.org. Thank you for joining us and we hope you will join us next time.