UNDERSTANDING THE SAFE HARBOR FOR SMALL BUSINESSES

Understanding the Safe Harbor for Small Businesses

The 2010 ADA Standards for Accessible Design (2010 ADAS) became effective March 15, 2012. The 2010 ADAS revised some of the provisions contained in the 1991 Americans with Disabilities Act Accessibility Guidelines (ADAAG) and regulated for the first time a number of new areas including many outdoor activity areas not covered by the ADAAG. The United States Department of Justice (DOJ) issued guidance for business owners to help them understand and comply with new regulations.

The 2010 ADAS includes a “safe harbor” provision. It is important to understand there is no safe harbor available if your property was not in compliance with ADAAG or if the 2010 ADAS regulated a specific subject for the first time. Many outdoor activity areas were regulated for the first time by the 2010 ADAS and there is no safe harbor available for those areas.

In its simplest form, the safe harbor provision means that if your property was in compliance with the ADAAG and the 2010 ADAS change the compliance requirement, no alteration is required. Several examples below illustrate how the safe harbor provision applies.

  • Number of van accessible spaces. The 2010 ADAS requires one van accessible space for every six accessible spaces. ADAAG required only one van accessible space for every eight accessible spaces. If your business met the one van accessible space for every eight accessible spaces under ADAAG, no alteration is required. The one van space for every eight accessible spaces configuration could remain until the parking lot was restriped. Upon restriping, which is considered an alteration, compliance with the one for every six configuration would be required.

  • Dispenser heights. ADAAG permitted product dispensers to be as high as 54 inches above the floor if a parallel approach permits a side reach instead of a forward reach. The 2010 ADAS limits maximum reach range to 48 inches above the finish surface. For businesses with dispensers at 54 inches above the surface, safe harbor permits them to remain as long as a parallel approach is provided.

 

  • ATM keys. A business with ATMs that conform to the ADAAG requirements is not required to modify the ATM to meet the requirements of the 2010 ADAS.

It is important to note that the safe harbor rules apply only if the business has not made modifications to the particular component since March 15, 2012.

If you have questions or concerns about whether your business is in compliance with the ADA and the California Building Code, contact California ADA attorney and certified accessibility specialist (CASp) Cris Vaughan for assistance. To discuss your concerns, please call 310.426.2836 in Los Angeles, 415.492.2854 in San Francisco Bay Area and 916.660.9401 in Sacramento.

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Northern California📞: 916-660-9401 — Bay Area/Central California📞: 415-492-2854 — Southern California📞: 310-426-2836
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