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Staff Analysis for

Declaratory Statement Request DS-2014-142

11/03/14

Issue: DS-2014-142. The Petitioner Landmark Development Corp. represented by, Robert S. Fine Esq., AIA. seeks a Declaratory Statement on the 2010 Florida Building Code, Accessibility, Chapter 2, Section 201.1.1 and Section 201.1.1 (7) Vertical Accessibility

Petitioner in DS-2014-142 seeks clarification of the following questions:

Question 1: Are multifamily residential buildings/developments covered by the Rehabilitation Act and/or the ADA required by the 2012-FAC to provide elevators when the building/developments would otherwise not be required to provide them by the Rehabilitation Act and/or ADA, as applicable to the particular project?

Situation:

Robert S. Fine Esq., representing Landmark Development Corp of Miami Florida, seeks clarification of code requirements regarding Vertical Accessibility of the 2012 Florida Accessibility Code for Building Construction (“FAC”) to its affordable housing buildings and developments.

Applicable Codes:

2010 Florida Building Code, Accessibility, Chapter 2, Section 201.1.1 and Section 201.1.1 (7) Vertical Accessibility, Section 203.8, General Exceptions – Residential Facilities, Section 206.2.3, Multi-Story Buildings and Facilities, Section 233.2, Residential Dwelling Units Provided by Entities Subject to HUD Section 504 Regulations, Section 233.3, Residential Dwelling Units Provided by Entities Not Subject to HUD Section 504 Regulations, Section 233.3.1.1, Residential Dwelling Units with Mobility Features, Chapter 8, Section 809.2 through 809.4 and Florida Statutes, 553.509(1), Vertical Accessibility

Background:

It has been the experience and belief of Petitioner and other developers of multifamily housing in Florida that building officials in a number of jurisdictions in Florida have been misreading various provisions of the 2012-FAC in regard to their application to multifamily housing. This has already led to a petition to the Commission for, and the granting of, a declaratory statement pertaining to the application of the 2012-FAC to multifamily housing developments covered by the Fair Housing Act.

Relevant Code Sections

Florida Building Code, Accessibility, Chapter 2

201.1 Scope.

This code establishes standards for accessibility to places of public accommodation and commercial facilities by individuals with disabilities. This code shall also apply: to state and local government facilities pursuant to Section 553.503, F.S.; to private clubs pursuant to Section 553.505, F.S.; and to residential buildings pursuant to Section 553.504(2), F.S., and the ADA Standards for Accessible Design. All new or altered public buildings and facilities, private buildings and facilities, places of public accommodation and commercial facilities subject to this code shall comply with this code.

This code applies to: All areas of newly designed and newly constructed buildings and facilities as determined by the ADA Standards for Accessible Design; portions of altered buildings and facilities as determined by the ADA Standards for Accessible Design; a building or facility that is being converted from residential to nonresidential or mixed use as defined by the Florida Building Code where such building or facility must, at a minimum, comply with s. 553.508, F.S., and the requirements for alterations as determined by the ADA Standards for Accessible Design; buildings and facilities where the original construction or any former alteration or renovation was carried out in violation of applicable permitting law.

201.1.1 Vertical accessibility.

Sections 553.501-553.513, F.S., and the ADA Standards for Accessible Design do not relieve the owner of any building, structure or facility governed by those sections from the duty to provide vertical accessibility to all levels above and below the occupiable grade level regardless of whether the Standards require an elevator to be installed in such building, structure or facility, except for:

(1) Elevator pits, elevator penthouses, mechanical rooms, piping or equipment catwalks and automobile lubrication and maintenance pits and platforms.

(2) Unoccupiable spaces, such as rooms, enclosed spaces and storage spaces that are not designed for human occupancy, for public accommodations or for work areas.

(3) Occupiable spaces and rooms that are not open to the public and that house no more than five persons, including, but not limited to equipment control rooms and projection booths.

(4) Theaters, concert halls, and stadiums, or other large assembly areas that have stadium-style seating or tiered seating if sections 221 and 802 are met.

(5) All play and recreation areas if the requirements of chapter 10 are met.

(6) All employee areas as exempted by 203.9.

(7) Facilities, sites and spaces exempted by section 203.

Buildings, structures and facilities must, at a minimum, comply with the requirements of the ADA Standards for Accessible Design.

Advisory 201.1 Scope.

These requirements are to be applied to all areas of a facility unless exempted, or where scoping limits the number of multiple elements required to be accessible. For example, not all medical care patient rooms are required to be accessible; those that are not required to be accessible are not required to comply with these requirements. However, common use and public use spaces such as recovery rooms, examination rooms, and cafeterias are not exempt from these requirements and must be accessible.

Florida vertical accessibility requires all levels in all new buildings, structures and facilities and all altered areas of existing buildings, structures and facilities to be accessible to persons with disabilities. All new and altered areas must comply with the ADA Standards for Accessible Design including requirements for accessible routes. Where the ADA Standards do not require an accessible route to each and every level, the Florida requirement may be waived down to the requirement of the ADA Standards. travel, including but not limited to, walks, hallways, courtyards, elevators, platform lifts, ramps, stairways, and landings.

203 GENERAL EXCEPTIONS

203.8 Residential Facilities.

In residential facilities, common use areas that do not serve residential dwelling units required to provide mobility features complying with 809.2 through 809.4 shall not be required to comply with these requirements or to be on an accessible route.

206 ACCESSIBLE ROUTES

206.2.3 Multi-Story Buildings and Facilities.

At least one accessible route shall connect each story and mezzanine in multi-story buildings and facilities.

Notwithstanding the requirements and exceptions of this section, section 201.1.1 shall apply.

EXCEPTIONS:

1. Reserved.

2. Reserved.

3. Reserved.

4. Reserved.

5. Reserved.

6. Reserved.

7. Reserved.

Advisory 206.2.3 Multi-Story Buildings and Facilities.

Spaces and elements located on a level not required to be served by an accessible route must fully comply with this code. While a mezzanine may be a change in level, it is not a story. If an accessible route is required to connect stories within a building or facility, the accessible route must serve all mezzanines.

Advisory 206.2.3 Multi-Story Buildings and Facilities Exceptions.

Exceptions 1–7 are preempted by Florida vertical accessibility requirements of s.553.509, F.S., as incorporated in section 201.1.1. Florida requirements may be waived down to the ADA Standards requirements.

Note: The following Advisories on the Exceptions to 206.2.3 are provided for consideration when waiving Florida Vertical Accessibility requirements down to ADA Standards for Accessible Design.

Advisory 206.2.3 Multi-Story Buildings and Facilities Exception 1.

Note that Exception 1 as presented in the 2004 ADAAG must also comply with the elevator exemption criteria of 28 CFR 36.401(d). The elevator exemption is authorized by 28 CFR 36.401(d) and applies only to private entities governed by Title III but not to public entities governed by Title II and 28 CFR, Part 35. Note also that 28 CFR 36.401(d)(2) and (3) provide specific criteria expanding on the criteria of Exception 1 that must be considered in a waiver of Florida vertical accessibility.

Advisory 206.2.3 Multi-Story Buildings and Facilities Exception 2.

Note that Exception 2 for a required accessible route applies to public entities, is not modified by 28 CFR, Part 35 and parallels the exception for vertical accessibility in s.553.509(1)(c), F.S., and 201.1.1(3).

Advisory 206.2.3 Multi-Story Buildings and Facilities Exception 4.

Where common use areas are provided for the use of residents, it is presumed that all such common use areas “serve” accessible dwelling units unless use is restricted to residents occupying certain dwelling units. For example, if all residents are permitted to use all laundry rooms, then all laundry rooms “serve” accessible dwelling units. However, if the laundry room on the first floor is restricted to use by residents on the first floor, and the second floor laundry room is for use by occupants of the second floor, then first floor accessible units are “served” only by laundry rooms on the first floor. In this example, an accessible route is not required to the second floor provided that all accessible units and all common use areas serving them are on the first floor.

233 RESIDENTIAL FACILITIES

233.2 Residential Dwelling Units Provided by Entities Subject to HUD Section 504 Regulations.

Where facilities with residential dwelling units are provided by entities subject to regulations issued by the Department of Housing and Urban Development (HUD) under Section 504 of the Rehabilitation Act of 1973, as amended, such entities shall provide residential dwelling units with mobility features complying with 809.2 through 809.4 in a number required by the applicable HUD regulations. Residential dwelling units required to provide mobility features complying with 809.2 through 809.4 shall be on an accessible route as required by 206. In addition, such entities shall provide residential dwelling units with communication features complying with 809.5 in a number required by the applicable HUD regulations. Entities subject to 233.2 shall not be required to comply with 233.3.

Advisory 233.2 Residential Dwelling Units Provided by Entities Subject to HUD Section 504 Regulations.

Section 233.2 requires that entities subject to HUD’s regulations implementing Section 504 of the Rehabilitation Act of 1973, as amended, provide residential dwelling units containing mobility features and residential dwelling units containing communication features complying with these regulations in a number specified in HUD’s Section 504 regulations. Further, the residential dwelling units provided must be dispersed according to HUD’s Section 504 criteria. In addition, Section 233.2 defers to HUD the specification of criteria by which the technical requirements of this code will apply to alterations of existing facilities subject to HUD’s Section 504 regulations.

233.3 Residential Dwelling Units Provided by Entities Not Subject to HUD Section 504 Regulations.

Facilities with residential dwelling units provided by entities not subject to regulations issued by the Department of Housing and Urban Development (HUD) under Section 504 of the Rehabilitation Act of 1973, as amended, shall comply with 233.3.

233.3.1.1 Residential Dwelling Units with Mobility Features.

In facilities with residential dwelling units, at least 5 percent, but no fewer than one unit, of the total number of residential dwelling units shall provide mobility features complying with 809.2 through 809.4 and shall be on an accessible route as required by 206.

Florida Building Code, Accessibility, Chapter 8

809 RESIDENTIAL DWELLING UNITS

809.2 Accessible Routes.

Accessible routes complying with Chapter 4 shall be provided within residential dwelling units in accordance with 809.2.

EXCEPTION: Accessible routes shall not be required to or within unfinished attics or unfinished basements.

809.2.1 Location.

At least one accessible route shall connect all spaces and elements which are a part of the residential dwelling unit. Where only one accessible route is provided, it shall not pass through bathrooms, closets, or similar spaces.

809.2.2 Turning Space.

All rooms served by an accessible route shall provide a turning space complying with 304.

EXCEPTION: Turning space shall not be required in exterior spaces 30 inches (760 mm) maximum in depth or width.

Advisory 809.2.2 Turning Space.

It is generally acceptable to use required clearances to provide wheelchair turning space. For example, in kitchens, 804.3.1 requires at least one work surface with clear floor space complying with 306 to be centered beneath. If designers elect to provide clear floor space that is at least 36 inches (915 mm) wide, as opposed to the required 30 inches (760 mm) wide, that clearance can be part of a T-turn, thereby maximizing efficient use of the kitchen area. However, the overlap of turning space must be limited to one segment of the T-turn so that back-up maneuvering is not restricted. It would, therefore, be unacceptable to use both the clearances under the work surface and the sink as part of a T-turn. See Section 304.3.2 regarding T-turns.

809.3 Kitchen.

Where a kitchen is provided, it shall comply with 804.

809.4 Toilet Facilities and Bathing Facilities.

At least one bathroom shall comply with 603. No fewer than one of each type of fixture provided shall comply with applicable requirements of 603 through 610. Toilet and bathing fixtures required to comply with 603 through 610 shall be located in the same toilet and bathing area, such that travel between fixtures does not require travel between other parts of the residential dwelling unit.

Advisory 809.4 Toilet Facilities and Bathing Facilities.

In an effort to promote space efficiency, vanity counter top space in accessible residential dwelling units is often omitted. This omission does not promote equal access or equal enjoyment of the unit. Where comparable units have vanity counter tops, accessible units should also have vanity counter tops located as close as possible to the lavatory for convenient access to toiletries.

Florida Statutes

553.509 Vertical Accessibility.

(1) This part and the Americans with Disabilities Act Standards for Accessible Design do not relieve the owner of any building, structure, or facility governed by this part from the duty to provide vertical accessibility to all levels above and below the occupiable grade level, regardless of whether the standards require an elevator to be installed in such building, structure, or facility, except for:

(a) Elevator pits, elevator penthouses, mechanical rooms, piping or equipment catwalks, and automobile lubrication and maintenance pits and platforms.

(b) Unoccupiable spaces, such as rooms, enclosed spaces, and storage spaces that are not designed for human occupancy, for public accommodations, or for work areas.

(c) Occupiable spaces and rooms that are not open to the public and that house no more than five persons, including, but not limited to, equipment control rooms and projection booths.

(d) Theaters, concert halls, and stadiums, or other large assembly areas that have stadium-style seating or tiered seating if ss. 221 and 802 of the standards are met.

(e) All play and recreation areas if the requirements of chapter 10 of the standards are met.

(f) All employee areas as exempted in s. 203.9 of the standards.

(g) Facilities, sites, and spaces exempted by s. 203 of the standards.

(2) However, buildings, structures, and facilities must, as a minimum, comply with the Americans with Disabilities Act Standards for Accessible Design.

History.—s. 1, ch. 93-183; s. 6, ch. 97-76; s. 12, ch. 2006-71; s. 28, ch. 2011-222.

Staff analysis:

Answer: No. Section 553.509, Florida Statutes, exempts “[f]acilities, sites, and

spaces exempted by s. 203 of the Standards,” from “the duty to provide vertical

accessibility to all levels above and below the occupiable grade level, regardless of

whether the standards [sic] require an elevator to be installed in such building, structure,

or facility…” § 553.509(1)(g), F.S. This exemption is restated in Section 201.1.1 of the

2012-FAC. Section 203.8 of the Standards provides that dwelling units that are not

required to provide the enhanced accessibility features required by the Rehabilitation

Act or the ADA (i.e., Sections 809.2 through 809.4) are not required to be on an

accessible route including a route that provides vertical accessibility. Therefore, in a multifamily residential building/development where all of the units that are required to

have the enhanced accessibility features of Sections 809.2 through 809.4 (by HUD or

DOJ regulations) are provided on the ground floor, the remaining floors above and

below the ground floor are not required to be on an accessible route that provides

vertical accessibility.