How a Laudable Historic Renovation Led to ADA Violations
College Street Music Hall in New Haven, Connecticut is one of many historic movie theaters which have been preserved. Many have been given new lives as live music performance venues. With more than a century of use as a performance venue, the location first was home to the Rialto movie theater.
When the Rialto burned down, the Robert Sherman Theatre was built on the location in 1926. After a period of inactivity, the theatre reopened at the Palace Theatre in 1984. It hosted performers ranging from Sheryl Crow to Backstreet Boys to B.B. King to Robin Williams before closing in 2002. The New Haven Center for the Arts (NHCA) took over and modernized the College Street Music Hall. It reopened as a multi-capacity performance venue in 2015.
Although many historical theaters no longer remain, others have been restored and continue operation. TCL Chinese Theatre, built in 1927 in Hollywood with a pagoda entrance, continues to show first-run movies. The Ohio Theatre, built in 1928 with Spanish-Baroque architecture, was destined for destruction in 1969 until citizens raised the money to restore it to its former glory.
The seven-story, 3,600-seat Chicago Theater, with its French Baroque style architecture, opened in 1921. It was saved from destruction and reopened after a $9 million renovation in 1986. And in New York City, the 2,600-seat Beacon Theatre, built in 1929 in an art deco style, underwent a major renovation in 2009.
Renovating a Historic Building Can Trigger Extra Legal Requirements
From a legal perspective, renovating a historic building is not for the faint of heart. In addition to obtaining the building permits and inspections required for any construction project, renovation of a historic building may trigger additional legal requirements. This can include compliance with laws adopted after the building was constructed, from which the building previously was exempt or “grandfathered.”
The building will need to comply with current state and local building codes. Since a historic building likely will have an antiquated infrastructure, electric and fire safety, in particular nearly always will need to be brought up to code. And, even parts of the building not being renovated may have to be upgraded.
Also, the owner may need to comply with local historic renovation requirements. If the building has a National Historical Landmark, the owner will need to comply with the National Historic Preservation Act. Plus, the building must be updated to meet Americans with Disabilities Act (ADA) Accessibility Guidelines and similar state or local laws.
College Street Music Hall’s Accessibility Issues
Unfortunately, NHCA’s renovation of College Street Music Hall didn’t comply with the Accessibility Guidelines. Someone filed a complaint, and the US government became involved in an inspection in 2017. On April 17, 2019, NHCA entered into a Settlement Agreement in which it agreed address ADA accessibility concerns at College Street Music Hall.
Changes that NHCA arts agreed to make include:
Reducing the slope of walking surfaces
Increasing the clear floor space in certain areas to improve maneuverability
Installation of handrails along aisles and in locations adjacent to the box office
Installing an exterior door opener for an exterior door
Installing interior doors which require less force to open
Installing tactile signs in raised characters and Braille in exit doors and pathways and at toilet room doors
Providing lower counter surface areas at bars and ticket windows
Installing an assistive listening system
Installing signs informing disabled patrons of available assistance
It appears NHCA attempted to make ADA improvements, because the Settlement Agreement mentions existing wheelchair seating areas. And the Settlement Agreement doesn’t mention concerns about handicapped accessible toilets, sinks, or drinking fountains, which likely indicates those items were installed when the building was renovated.
Some changes which weren’t made aren’t expensive and sound obvious to anyone who has attended events in a modern, ADA-accessible building. The Settlement Agreement doesn’t explain why some areas were brought into ADA compliance but others were not. One possible explanation is that NHCA didn’t hire a separate ADA compliance expert but rather, relied on the contractor and building inspectors for ADA compliance. For the more expensive changes, such as changing the slopes of walkways, maybe budgetary limitations resulted in these shortcuts.
When Does the ADA Apply to a Renovation?
Any alteration of a place of “public accommodation” must comply with the ADA. Alteration is defined broadly under the ADA and includes any change that affects (or could affect) the usability of any part of the building. Most changes to the building configuration or rearrangement of walls will be “alterations” under the ADA. Routine maintenance, such as painting or wallpapering, decorating, roof repairs, and even changes to mechanical, HVAC, and electrical systems aren’t considered alterations unless they affect the usability of a part of the building.
There is a small exception from ADA requirements where it is impossible from a practical standpoint to bring the building into full compliance. Even then, the owner still has to comply with the ADA. Rather, the owner must make altered portions of the building accessible “to the maximum extent feasible.” So, if it’s impossible to widen an aisle to allow for wheelchair access, the owner still might have to make other ADA changes. For instance, the owner may need to change walkway slopes or install handrails to meet Accessibility Guidelines.
What counts as “routine maintenance” or “affects the usability” of part of the building requires careful evaluation. And what changes accomplish accessibility “to the maximum extent feasible” under the ADA isn’t intuitive. Owners embarking on even a small renovation project should enlist an experienced ADA consultant to guide them through the analysis.
What is a Place of Public Accommodation?
The ADA defines public accommodation broadly. Many public accommodations seem obvious: museums, libraries, parks, amusement parks, concert halls, schools, airports, train stations, hospitals, and recreation facilities are all public accommodations. Businesses open to the public, such as shopping centers, banks, gas stations, restaurants, grocery stores, hotels, and pharmacies also are public accommodations.
Less obvious types of public accommodations include public areas of apartment complexes and some health and other clubs which any member of the public can go. Attorney, CPA, and doctor’s offices and even churches may be places of public accommodation. Even a bed and breakfast will be a place of public accommodation unless it has five or fewer rooms for rent and the proprietors use the bed and breakfast as their primary residence.
Because the definition of “public accommodation” is broad, unless the renovation is to a personal residence, the owner should start with the assumption that their property is a public accommodation. Owners who believe their property is exempt should consult with an experienced ADA consultant or attorney before concluding that they aren’t subject to the ADA.
Tips for Owners
The best renovations preserve historic significance but allow the most people possible to enjoy the building. Therefore, when preserving historic buildings, owners should take care not to preserve historic accessibility barriers.
Although significant renovations may trigger a requirement for major ADA upgrades, ADA compliance isn’t always difficult or expensive. Making a facility accessible to disabled individuals is the right thing to do. And it’s also a good business practice.
An ADA consultant familiar with federal, state, and local ADA requirements should be on the team for any renovation project. Although it’s best practice to bring a building into full ADA compliance, sometimes, it isn’t possible. An ADA consultant can assist an owner in bringing the building into compliance to the “maximum extent possible.” And if budget constraints make that impossible, an ADA consultant also can advise the owner how to modify its plans.
Business owners who aren’t planning a renovation still may hire an ADA consultant to evaluate their physical premises and business practices for ADA compliance. Some changes which can increase accessibility without breaking the bank include:
Installing accessible hardware on doors
Adjusting water fountain height
Adding railings and grab bars
Adding handicapped and van accessible parking spots
Adding curb cuts
Modifying landscaping, furniture arrangements, or non-permanent shelving and modular dividers to reduce barriers
Installing raised and Braille plaques
Installing floor coverings and surfaces which are easy for mobility-impaired individuals to navigate.
Posting signs informing disabled individuals of options for accessibility, such as the location of accessible entry and exit routes, accessible bathrooms or alternative meeting locations, and availability of American Sign Language interpreters
Establishing written accessibility policies and training employees about ADA requirements
© 2019 by Elizabeth A. Whitman
Any references clients and their legal situations have been modified to protect client confidentiality
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