What is it?
By now everyone has at least become aware that the "ADA," or Americans with Disabilities Act must be considered in any new or remodeling project. Many are not as familiar with the Texas Accessibility Standards, or "TAS." The TAS has been certified by the Federal Accessibility Board as being essentially equivalent to the ADA for purposes of compliance with the physical elements of a space. What that effectively means is that demonstrating compliance with the TAS can be used as a defense in litigation based upon the ADA. For the Building Owner, compliance with TAS is normally all they will need to deal with, except within their own private offices. An important difference that the tenant must understand is that certain ADA requirements deal with accommodations for employees in the performance of their duties. The TAS generally does not include requirements related to employee workstations. TAS deals with access to the area of the work, but not the actual task area. Such items as laboratory sinks, equipment, furniture, etc. are not part of the TAS.
In the State of Texas, both the tenant and landlord need to be aware of the different ways in which the ADA and the TAS are applied. ADA, as a civil rights law, requires a suit be brought against the offending party in order for application of the law. The TAS, like any building code, deals with specific requirements to be followed in the built environment. Consequently, legal action can be initiated against a non-complying party by the filing of a complaint, even an anonymous one, with the Texas Department of Licensing and Regulation (TDLR). Because of this significant difference, we often advise clients that their exposure under TAS, although not as broad, can be more of a risk because of the ease with which action can be initiated by any offended party.
Every new project, remodeling, or addition in commercial construction, (including a tenant finish-out) must comply with the TAS. Those with a total cost of $50,000.00 or more must be submitted for review either to the Elimination of Architectural Barriers Department of TDLR, or to an Independent Contract Provider (ICP) under contract with the state. These must also be inspected on-site following completion. Penalties for non compliance can be as high as $1,000 per day per violation.
Under the TAS, when a new or altered tenant finish-out is undertaken, certain items must be brought into compliance. First, all areas within the space must comply. Second, areas outside of the space, including the parking spaces serving the space, the path of travel to the space, and all restrooms, drinking fountains, and telephones serving the route to the space must comply. Under the state law, the building owner is ultimately held responsible for the entire facility. Tenants and owners should be cautious in constructing their lease agreements to clearly establish what responsibilities each will assume for compliance.
The responsibility for submitting plans for review is placed upon the design professional, or upon the owner if no design professional is retained. The law does not, however require payment of the statutory fees by the professional. It remains the owner's responsibility to pay the fees for both review of the plans prior to construction and for inspection of the site upon completion. Some unscrupulous and unregistered designers have been known to pander to the fears of clients and promote themselves at the expense of registered professionals by misleading clients into believing that projects do not need to be reported for review or inspection. This is currently a serious problem with state law that still allows some work to be performed by unlicenced "designers". While neither TDLR nor the Registration Boards may have any legal control over such activity, they ultimately have the power to penalize the owners of the property both for not registering the plans for review and for any non-compliance.
We are often called to assist owners who have assumed that if they received a building permit and certificate of occupancy from the city that they have complied with all regulations. As it turns out, only a few cities in the state have elected to incorporate TAS reviews into their plan check programs. The application and interpretation of the TAS, like any other code, requires special training and experience. The time and additional financial burden is one most cities have chosen not to undertake. San Antonio does not participate in the program and does not routinely inform anyone of the regulation when granting construction permits.
Compliance is not overly burdensome to the owner or tenant as long as their responsibilities are clearly defined and a competent, registered design professional is engaged to assist in a creative approach to providing access for guests, clients, and employees. The very nature of the law is to ensure that over time the built environment in Texas becomes one that accommodates all, including the young, the elderly, and the physically challenged. It is a reasonable goal that we should all seek for our own benefit in later years as well as a legacy for future generations.
What do we do?
The review of documents and field inspections by this contract provider for the Texas Department of Licensing and Regulation is based upon utilizing our best efforts following instruction and certification by both TDLR and ICBO. Plan review and inspection in no way warrants complete compliance to the Texas Accessibility Standards. In accepting service from AE Support Group, the Business, Professional, Owner, Engineers, and all employees thereof for whom the review or inspection is made agree to hold harmless and identify AE Support Group, its owners, employees, and subcontractors, and the Texas Department of Licensing and Regulation from and against any liability arising from performance of their work either for plan reviews or inspections.
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