Q. I just rented a retail space, and I’m planning changes with my architect. The architect says I have to “upgrade” the restroom to handicapped-accessible, which will cost at least $8,000 and maybe more, depending on whether the old pipes can be reused where they are. I don’t understand why other stores around me have original restrooms but I have to change mine. We were only moving a couple of walls and installing a new ceiling. Can you tell me if the architect is right about the change?
A. You would think the answer is an easy one, that it would be either yes or no. Unfortunately, the answer is that the decision in these matters is discretionary, left to the plans examiner, who either strictly interprets the code and the federal and state laws based on the Americans with Disabilities Act (which was signed into law by President George H.W. Bush in 1990), or determines that the physical upgrade of the restroom isn’t necessary. The law states that businesses with 15 or more employees must comply, but is overridden by the fact that establishments cannot discriminate against people with disabilities, patrons or employees.
I once had a meeting at which the attorney for my client was challenging my advice to our mutual client that an upgrade — a renovation — would be necessary. The attorney appropriately pointed out exactly the same argument that you’re making, that nobody else has had to upgrade, and therefore you shouldn’t have to, either. My guess is that your neighbors may have been in that location for many years, and as long as nobody brings their location up to an official, we leave well enough alone, or that the official interpreted that the upgrade wouldn’t be necessary. I’m willing to bet that your neighbors, for the most part, moved in without anyone filing anything formally, with plans and permits, so the proprietors think they have no issue to deal with. You, on the other hand, operating honestly and legitimately, probably feel that even though you can’t discriminate against a person with a disability, you’re being unfairly discriminated against.
Although I agree that you are being unfairly judged differently than your neighbors, your architect and any licensed professional, including the attorney, swore to uphold the laws of the state they practice in. If officials choose not to investigate every location, that is the governing bodies’ choice. Your architect is only trying to do what is right under the law.
Coincidentally, that very morning, when the attorney was making the case that others were not in compliance, there was an incident in lower Manhattan in which an attorney had his heels slashed by a homeless man on a subway platform, and was instantly debilitated. I pointed out to the attorney that that poor guy was now disabled, and that we humans are all vulnerable, by age or accident, and need to be considered. He answered, “You should have been an attorney.”
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