BARRY L. GARBER, United States Magistrate Judge
THIS MATTER came to be heard on Defendants' Motion for Partial Summary Judgment Based On Dimensional Tolerances, Acceptable Variations, and Equivalent Facilitation Under ADAAG ("Defendant's Motion"), Plaintiffs' Concise Statement of Facts as to Which There Exists a Material Issue to be Tried ("Concise Statement of Facts") and Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Partial Summary Judgment Based on Dimensional Tolerances, Acceptable Variations and Equivalent Facilitation Under the ADAAG ("Opposition Memorandum"). The Defendants asserted that a number of particular construction elements which are limited in their placement or dimension by the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") are subject to identifiable construction tolerances, acceptable variations, and equivalent facilitation.
In support of their position, the Defendants offered evidence that standard construction industry practices may produce results not in conformance with design specifications but within acceptable industry tolerances; that certain construction elements governed by ADAAG are entitled to certain variations due to ambiguity in the guidelines themselves; and that certain elements can be constructed or applied in ways other than those suggested by the ADAAG while still providing substantially equivalent access for disabled persons. The Plaintiffs responded that the Defendants' sought-after "tolerances" were either nonexistent or substantially overstated from what industry reality would permit. The Plaintiffs argued that tolerances, if any, would have to reflect the distinction between new and existing construction set out in the ADA's regulations. Additionally, the Plaintiffs argued that it is possible to comply with ADAAG requirements if project specifications are precise and the contractor agrees to take the special care required to build the facility right, the first time.
The Parties have met in an attempt to resolve the differences between them and have chosen the wiser course of agreement on many of the issues. Through these settlement-oriented discussions, correspondence, and expert participation, the Parties were able to reach agreement on ten (10) of the eleven (11) issues proposed by the Defendants for resolution. As to the one issue on which the Parties failed to reach resolution, Defendants submitted their Reply Memorandum in Further Support of Defendants' Motion for Partial Summary Judgment on March 23, 2001. The Parties requested until April 30, 2001, to submit a proposed partial order on those issues as to which the Parties had been able to resolve their differences. The Court has taken all of these items under consideration. The Court will address the remaining disputed issue raised by the Defendants' Motion — that of surface slopes — in a separate order. The Court having considered the relevant portions of the file, as well as memoranda and reports filed by the parties, the Parties being in agreement thereto, and otherwise being fully advised in the premises the Court hereby rules as follows:
I. INTRODUCTION
Plaintiffs in this action are a class of similarly situated individuals with disabilities who allege that they have been denied equal access to and usability of the facilities of the Defendants, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12102 et seq specifically, Title III of that Act. Defendants, Ambulatory Surgery Center Group, Ltd., et al. (collectively, the "Defendants"), are separately incorporated entities, affiliated but operationally and financially independent, all engaged in the provision of health care services or in operating facilities at which medical services are provided. The Defendants individually own or operate several hundred medical care facilities, including specialty hospitals, outpatient care facilities, rehabilitation hospitals, professional medical offices, surgical centers, psychiatric hospitals, medical office buildings, and general services hospitals.
Plaintiffs filed suit in this action seeking injunctive and other equitable relief against Defendants for alleged discrimination in access to places of public accommodation, in violation of Title ill of the ADA. Subsequently, named Plaintiffs moved for class certification pursuant to Federal Rule of Civil Procedure 23 ("Rule 23") of a class of plaintiffs consisting of all people in the United States with disabilities who have been and who were entitled to the full and equal enjoyment of the goods, services, programs, facilities, privileges, advantages, or accommodations of any of the Defendants' Facilities, but who were denied such full and equal enjoyment due to architectural and/or communication barriers at the Defendants' Facilities. This Court granted certification pursuant to Rule 23(b)(2), as Plaintiffs sought only injunctive relief.
In the course of discovery and settlement discussions, the parties have been in consistent conflict with respect to deviations for certain building elements. The Defendants argue that such deviations are within standard industry tolerances for field conditions for such tolerances and that, therefore, the Plaintiffs' demands for changes in those elements are not warranted.
The Parties agreed in a Joint Stipulation of Facts submitted on December 3, 2000, that many of their disputed issues are issues of law, not fact. This Court agrees that the disputed issues raised by the Defendants' Motion are issues of law, as correctly stipulated by the Parties, because they are questions of regulatory interpretation, the result of which is not dependent on any particular factual scenario. The interpretation of federal regulations, like issues of statutory interpretation, is an issue of law for the court. See Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933 (11th Cir. 2000) (statutory interpretation is a pure question of law); Royal Caribbean Cruises, Ltd. v. U.S., 108 F.3d 290 (11th Cir. 1997) (affirming summary judgment based on court's appropriate interpretation of federal regulation).
The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. mandates that places of public accommodation and commercial facilities shall be accessible to persons with disabilitics. For commercial facilities and places of public accommodation, including office buildings and hospitals, this mandate is encompassed within Title III of the ADA, 42 U.S.C. § 12181 et seq. ("Title N"). Title N's provisions are implemented through regulations promulgated by the Department of Justice which include guidelines for new construction and alterations. See 42 U.S.C. § 12186 (a); 28 C.F.R. Part 36 and Appendix A. These guidelines are called the Americans with Disabilities Act Access Guidelines ("ADAAG"), and they are drafted and proposed by the U.S. Architectural and Transportation Barriers Compliance Board ("Access Board"). The ADAAGs were specifically designed for application to newly constructed and altered facilities, as those terms are understood in the context of the ADA. 28 C.F.R. § 36.406(a). Existing pre-1992 facilities that have not been altered since 1992 are governed by a barrier removal standard established by the DOJ by regulation in which the goal is to achieve accessibility as close to the new construction standards as possible given the constraints of the existing construction. See, generally, 28 C.F.R. § 36.304-.305.
In 1999, the Access Board recommended a new set of guidelines and published those proposed guidelines for comment and review. 64 F.R. 62248 (Nov. 16, 1999). The stated purposes of proposing these substantial revisions to the current ADAAG were to update the ADAAG to reflect technological developments, reconcile differences between the ADAAG and national consensus standards such as ANSI A117.1 (Accessible and Usable Buildings and Facilities, a national consensus standard on accessibility for buildings and facilities, published by the American National Standards Institute), and coordinate future ADAAG revisions with national standards and model code organizations. See 64 F.R. at 62249. These Proposed ADAAGs have not yet been adopted by the Department of Justice, although the Department of Transportation has noticed their intent to adopt the Proposed ADAAGs. 65 KR. 48444 (Aug. 8, 2000).
II. DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
The ADAAG incorporates the concept of construction tolerances in its provision that "All dimensions are subject to conventional building industry tolerances for field conditions." ADAAG 3.2. Defendants' Motion is premised on the application of this ADAAG section to the technical provisions of the ADAAGs. Defendants presented evidence that construction tolerances are commonly understood and accepted in the building industry. Construction tolerances may be defined as the permitted variations from given dimensions, locations, or alignments, based on field, material, manufacturing, and workmanship conditions.
There are other reasons that variations from desired results may occur. Specifications may not be specific enough to permit a reasonably precise set of results. Rules or codes may be ambiguous in their instruction, and thus result in variations in their application. Defendants have called these types of results "acceptable variations," and this Court finds that to be an adequate label for purposes of Defendants' Motion. The Court is mindful of the fact that it is Congress' legislative authority and the statutory and regulatory results of that authority which controls when ambiguities do not exist. These "acceptable variations," therefore, are uncommon.
In addition to construction tolerances, the ADAAG excepts from its stated requirements those alternative designs or technologies that meet or exceed the accessibility provided for in the guidelines. This "equivalent facilitation' exception arises from the recognition that the Access Board could not address all design possibilities or existing or future technologies in their guidelines, and that some of these alternatives could provide equivalent or even better accessibility. See Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 727 (D. Ore. 1997) ("The equivalent facilitation exception is an acknowledgment that the federal government does not enjoy a monopoly on good ideas, and that there may be more than one means to accomplish a particular objective."). The equivalent facilitation exception provides that:
Departures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.
ADAAG 2.2.
Equivalent facilitation permits the utilization of alternatives to provide equivalent access to a facility, but it can not be a method of evading accessibility requirements. This Court finds, however, that the Defendants have not sought to use equivalent facilitation as a justification for construction tolerances. Rather, equivalent facilitation stands on its own as an appropriate standard for certain results that may differ from the ADAAG standards.
II. APPLICATION TO VARIOUS ELEMENTS AS RAISED BY THE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
A. There Is a Construction Tolerance for the Placement of Accessible Water Closets and Placement at 16-18" is Equivalent Facilitation.
(1) Construction Tolerance
Under the current ADAAGs, accessible water closets are to be located at a distance of 18" from the side wall or stall wall to the centerline of the water closet fixture. ADAAG 4.17.3.
The Court finds that the building industry recognizes that field conditions will affect the placement of accessible water closets. For example, water closet plumbing is roughed in before walls and floors are built. The evidence suggests that dimensioning errors may result from this early layout of plumbing and the sequence of events and trades work preceding and following this layout. The Parties, therefore, agree that a construction tolerance of 1" from a given dimension (such as 18") as reasonable, standard, and conventional in both new and existing construction.
(2) Equivalent Facilitation
Additionally, the Parties have agreed and the Court finds that equivalent facilitation would support placement of accessible water closets at a centered distance from the side or stall wall in the range of 16" to 18" in recognition that this range provides substantially equivalent accessibility to and usability of the accessible water closet. This is supported by ANSI A117.1, Accessible and Usable Buildings and Facilities, a widely-accepted and adopted national standard in accessibility. ANSI A117.1-1998 § 604.2 provides for a range from 16" to 18" from the finished side wall or stall wall to the centerline of the accessible water closet. As this standard has been adopted by the Access Board in its 1999 Proposed ADAAG 604.2, the Court finds that this range of measurements does provide substantially equivalent access.
Thus, this Court also finds that the placement of an accessible water closet from 16" to 18" from the finished side wall or stall wall is in compliance with the ADA as equivalent facilitation.
B. There is an Acceptable Variation for Accessible Lavatory Rim or Counter Heights.
The current ADAAG says that lavatories shall be mounted with the rim or counter surface no higher than 34" above the finished floor, with an under-lavatory clearance of at least 29" above the finished floor to the bottom of the apron for knee and toe clearance. ADAAG 4.19.2. The Proposed ADAAG states that the higher of the front of the sink rim or counter top should be no more than 34" above the finished floor. Proposed ADAAG 606.3; see also ANSI A117.1-1998 606.3 (same).
Imprecision in the current standards has led to conflicts and confusion in dimensioning. The current ADAAG suggests that the 34" maximum height requirement may be measured to the top of either the sink rim or the counter top, meaning that a counter top could be at 34" while the sink rim could be above that, id., normally by one inch. In addition, the evidence suggests that the accessible lavatory rim or counter is subject to field conditions that may result in failure to achieve the precise desired dimension in height. Defendants put forth credible evidence that several clements leading up to the placement of the lavatory counter or sink may combine to produce a variance from dimension, including determination of the floor slab elevation, variance for floor drainage, installation of the lavatory sink carrier, and identification of the projected finished floor level or a change order in finish materials for the floor or substrate. In light of these field conditions, the Parties agree that a reasonable tolerance of 1" would apply to the placement of this element.
C. There Is No Tolerance for the Construction of Accessible Lavatory Apron Clearance.
ADAAG 4.19.2 provides that there should be a minimum clearance of 29" under an accessible lavatory or lavatory cabinet for knee and toe clearance. The Proposed ADAAG states that where knee clearance is required beneath an element as part of a clear floor space, including clearance under an accessible lavatory, the knee clearance shall be 27" above the finished floor with a minimum depth of 8". Proposed ADAAG 306.3.3; see also ANSI A117.1-1998 § 306.3.3 (same).
The Court finds that an apron clearance of at least 29 inches allows a person using a wheelchair to get as close as possible to the front of the lavatory. Knee space at least 27 inches high must be at least 8 inches deep measured from the leading edge. Clearance beyond knee space must provide adequate space for a person's legs and feet. Only a portion of the usable clear floor space can "count" as toe space, which is why a maximum depth and minimum height are specified for the front of the underlap of the required clear floor space.
The Court does not find that there is a conflict between the two ADAAG standards relating to accessible lavatory counters or rims and apron clearance, and does not find that the difficulties in the placement of accessible lavatories raised by the Defendants support a construction tolerance based on conventional building industry practices or procedures.
To the extent the Proposed ADAAG 306.3.3 becomes the standard, of course, Defendants will be entitled to comply with that standard.
D. Grab Bar Heights in Existing and New Construction to Date Are Subject to an Acceptable Variation Due to Ambiguity in the Relevant ADAAG.
The ADAAG provides that where grab bars are required they shall be mounted at a height of 33" to 36" above the finished floor. ADAAGs 4.16.4, 4.17.6, Figs. 29 and 30. Grab bars also must be 1.25" to 1.5" in diameter (or have an equivalent gripping surface). ADAAG 4.26.2. The Proposed ADAAG does not change these dimensions. The ANSi standard is nearly identical: ANSI 117.1-1998 § 609.4 provides for a mounting height range of 33" to 36" above the floor, with a grab bar diameter range of 1-1/4" to 2".
The current ADAAGs do not provide clear or unambiguous guidance as to where that range should be measured to on the grab bars. Furthermore, the evidence suggests that the ADAAGs, ANSI, and certain state accessibility codes (Florida's, for instance) provide inconsistent guidance on the appropriate measuring point for grab bars: top, bottom, or centerline. Given the required diameter of the grab bars at 1-1/4" to 1-1/2" under the ADAAG, this can lead to a variable in mounting heights equal to the diameter of the grab bar, independent of any field conditions that might contribute to imprecision in installation.
In sum, lack of guidance over measuring points has shown that precise measurements for toilet stall elements such as grab bars is not always achievable. An acceptable variation equal to the diameter of the given grab bar to account for the ambiguity in measuring is reasonable. Thus, in existing or new construction, grab bars mounted so that any point on the grab bar is within the range of 3 3-36" are compliant, not as a construction tolerance but as an acceptable variation to account for ambiguity in the ADAAG.
However, because Defendants are now on notice of the preference for a centerline measurement for grab bars, grab bars in future construction (that is, construction begun at some reasonable date after the entry of this Order) must be mounted from 33" to 36" above the floor as measured to the centerline of the grab bar.
E. Accessible Lavatory Mirror Height Is Subject to an Acceptable Variation.
ADAAG 4.19.6 provides that mirrors over accessible lavatories should be located at a height no greater than 40" above the finished floor measured to the bottom edge of the reflective surface of the mirror.
The evidence shows that mirror framing which is usually of an approximate 3/4" thickness results in a variation in the resulting measurement. Yet, the evidence also suggests that placement of mirrors at 40" above the finished floor to the reflective surface is based on the standard eye level range of adults seated in wheelchairs (43 to 51 inches). To allow a tolerance of two inches above the required height could preclude use of the mirror for a number of wheelchair users.
The Court finds that the Parties have agreed tat a variation of up to 3/4" for the placement of framed minors over accessible lavatories is acceptable. Otherwise, there is no conventional building industry tolerance for the placement of a lavatory mirror.
F. Accessible Water Closet Seat Height Is Subject to a Tolerance.
ADAAG 4.16.3 provides that accessible water closet seats should be at a height of 17" to 19" above the finished floor, as measured to the top of the seat.
Credible evidence suggests that, in existing facilities, where toilet seats cannot be replaced or lifted with filler rings, relocation of wall-mounted fixtures to lower the seat may be technically infeasible because of the necessity for demolition and relocation of waste water lines. The evidence also established that for toilets on the low end of the range, a filler ring or thicker toilet seat can usually resolve issues of low-hung toilets. The range provided in the ADAAG allows tradesmen to comply with accessibility requirements within a 2 inch deviation. Yet, the evidence suggested that several elements leading up to the final installation of the water closet fixture could produce a variance from dimension, including the rough-in of plumbing, determination of the floor slab elevation, variation for floor drainage, installation of the water closet carrier, and identification of the projected finished floor level. Based on this evidence of field conditions, the Court finds that a construction tolerance exists for water closet seat heights. That tolerance is 1/2" to the plus side, due to the difficulty of accurate placement of carrier plumbing lines and the extreme difficulty of lowering a toilet such a short distance. However, there is no construction tolerance to the lower side, due to the existence of a relatively inexpensive and simple fix: thicker toilet seats or filler rings under the toilet seat.
G. Accessible Urinal Rim Height in Existing Construction Is Subject to a Tolerance, While No Tolerance Exists Under New Construction Standards.
ADAAG 4.18.2 provides that an accessible urinal shall be of stall type or a wall-hung unit with an elongated rim at a 17" maximum height above the finished floor.
The evidence shows that normal variations and difficulties in the installation or placement of several elements would contribute to a conventional tolerance for the height of accessible urinals. In addition, the evidence presented shows that, in existing facilities, relocation of urinals may be technically infeasible. Yet, a tolerance of more than 1" could affect the usability of the urinal by the disabled.
The Court finds that the Parties' evidence is credible and supports a finding of a conventional building industry tolerance of 1" for the placement of urinals in existing construction. The Court further finds that no tolerance shall be allowed for new construction.
H. The Mounting Height for Wall-Hung Strobe Lights Is Subject to a Construction Tolerance, An Acceptable Variation, and Equivalent Facilitation.
ADAAG 4.28.3 provides that visual alarm notification devices (called "strobe lights" or "strobe light appliances") should be mounted at a height of 80" above the highest floor level (or at 6" below the ceiling, whichever is lower). There is no requirement in that ADAAG section, however, as to how to measure that 80" height — to the top, bottom, or center of the appliance. The ADAAG Manual (Access Board: July 1998) provides limited guidance on the application of ADAAG 4.28.3 by stating that the 80" may be measured to the centerline or to the bottom edge of the strobe light appliance. ADAAG Manual, p. 99. Technical assistance bulletin information from the Access Board states that the effectiveness of strobe lights mounted from heights of 80" to 96" is substantially equivalent. Bulletin #2: Visual Alarms (Access Board 1994). The Proposed ADAAG provides for a mounting height range of 80" to 96" as measured to the bottom of the strobe light appliance (except that if the appliance also contains a smoke detector it should be mounted 4" to 12" below the ceiling as measured to the top of the smoke detector). Proposed ADAAG § 702.3.3.1. This mirrors ANSI A117.1-1998, § 702.3.3, which provides that strobe lights should be mounted at 80" minimum and 96" maximum above the finished floor or ground, measured to the bottom edge of the strobe light appliance.
Bulletin #2 may be accessed at and printed from the Access Board website, www.access-board.gov. See Bulletin #2: Visual Alarms (Access Board 1994), http://www.access-board.gov/publications/2-VisualAlarms/a7.htm (last visited April 6, 2001).
(1) Construction Tolerance
This Court agrees that the mounting height of a strobe light/visual alann is subject to a tolerance of plus or minus 1". The difference in measuring to the bottom or the centerline of an appliance in relation to the electrical junction box (to which the appliance is later wired) will cause variances in location height. Furthermore, space conflicts in installation in conjunction with the multiple conduit lines serving alarms, mechanical, electrical, life safety and life support systems in a hospital or other complicated structure may require adjustments in the field, requiring electrical boxes to which the device is wired to be moved slightly higher or lower than originally anticipated. In addition, deviations in mounting heights may also be due to the need to work around an actual or potential obstruction in a given area. The Court finds that the combination of these electrical wiring and installation difficulties may result in a conventional building industry tolerance for the mounting height of strobe lights.
(2) Acceptable Variation
There is also an acceptable variation for strobe light mounting heights which may be as large as the height of the strobe light device. The first factor resulting in this acceptable variation is the lack of guidance in the ADAAG as to what point to measure to in mounting the strobe light. The ADAAG is silent as to whether the 80" height above the finished floor should be measured to the bottom, centerline, or top of the strobe light appliance, and the Access Board did not provide any technical assistance on the question until July 1998, when it suggested in the ADAAG Manual (an unofficial publication of the Access Board, in the sense that it is not adopted by the Department of Justice and is not readily available through the Access Board web-site) that the 80" can be measured either to the bottom edge or to the centerline of the appliance. ADAAG Manual p. 99.
This Court agrees with the Parties that ADAAG 4.28.3 is ambiguous in that it does not provide a measuring point on the strobe alarm device against which to measure the 80" requirement for mounting height. Given that ambiguity, it is natural that the heights for these devices may vary significantly from 80", depending on the selected measuring point and the size of the visual alarm notification device. This Court finds that, for existing construction (preADA) and for new construction (post-ADA) to date, if the device is mounted such that any point on the device measures to 80" in height above the floor, then that device is in compliance with ADAAG 4.28.3.
Given the limited clarification of the measuring standard for these devices — that they should be measured to the bottom or to the centerline of the device — future construction should be considered in compliance with the ADA for this element if the devices are mounted at 80" as measured to either the bottom or the centerline of the device. These measurements are also subject to the one-inch construction tolerance discussed above.
(3) Equivalent Facilitation
Altcrnativcly, mounting of strobes lights at a range from 80" to 96" would also constitute equivalent facilitation, because the evidence shows that strobe light devices mounted in that range provide equivalent access to or usability of a facility, as understood by ADAAG 2.2. Given that the Proposed ADAAG 702.3.3.1, in conformance with the corresponding ANSI Al 17.1-1998 provision, says that visual alarm devices may be mounted from 80" to 96" above the finished floor as measured to the bottom of the appliance, it is clear that the Access Board itself recognizes this range of heights as functionally equivalent to the 80" dimension set forth in the current ADAAGs. The Access Board explained their proposal of the 80" to 96" range for visual alarms as follows:
Section 702.3.4 addresses the required location of appliances. Wall-mounted appliances are required to be 80 to 96 inches above the floor (measured to the bottom of the appliance), except that appliances that are part of a smoke detector are to be located 4 to 12 inches from the ceiling (measured to the top of the smoke detector). These revisions are consistent with NFPA 72, including the mounting height for smoke detectors. ADAAG 4.28.3 . . . specifies an absolute height of 80 inches (or 6 inches below the ceiling, whichever is lower). However, photometric calculations of lamp intensity for mounting heights of 80 and 96 inches show only nominal differences and are practically equivalent. Further, the ADAAG height specification is considered too restrictive.
64 F.R. 62248, 62271 (Nov. 16, 1991) (emphasis added). See also Bulletin #2, p. 4 (reiterating the practical equivalency of strobe lights mounted between 80" and 96" above the finished floor).
As the Access Board has accepted a mounting height range from 80" to 96" for strobe lights (as measured to the bottom of the device), as equivalent and acceptable in addition to the fact that such a range has been incorporated into ANSI A117.1, it appears clear that where Defendants have strobe lights mounted within this range they are providing substantially equivalent access, which is in compliance with the ADA.
(4) Conclusion on Strobe Light Mounting Heights
The Court finds that ADAAG 4.28.3, regulating the mounting height of visual alarm notification devices, is ambiguous because it does not set a measuring point for the device. As a result, there is an acceptable variation in mounting heights equal to the height of the alarm device for alarm devices in construction up to the date of this finding. Going forward, the Defendants are on notice that the Access Board measures the 80" to either the bottom or the centerline of the device, resulting in a range of one-half the height of the device above and below the given dimension. In addition to these acceptable variations, the Court rules that there is a conventional building industry tolerance of plus or minus one inch to account for field conditions relating to electrical wiring and device installation. Finally, this element may legitimately be placed, as a matter of equivalent facilitation, in conformance with national standard fire code and consensus accessibility codes as well as the Proposed ADAAG at a height of 80" to 96".
I. Accessible Drinking Fountain Spout Height in Existing Construction Is Subject to a Construction Tolerance.
ADAAG 4.15.2 provides that an accessible drinking fountain should be installed or mounted so that the spout is at a maximum height of 36" above the finished floor.
Yet, the evidence shows that the plumbing trade regularly mounts fixtures at a height measured to the rim of the fixture, in accordance with standard installation method and practice. As a result of mounting the fixture 36" to the rim, the spout height will typically be from 1" to 2" higher, or up to 38" above the finished floor depending on the size of the fountain rim and spout.
In existing facilities, relocation of waterlines to lower a drinking fountain may be technically infeasible. Furthermore, it may be appropriate, as a barrier removal in existing construction for a water fountain that is too high, to install a cup dispenser at an accessible height. See 28 C.F.R. § 36.304 (b)(19).
The Court finds that for Defendants' existing construction only, a tolerance of 1" on the installation of an accessible drinking fountain is acceptable. J. Signage Designating Permanent Spaces Mounted At 59-61" Constitutes Equivalent Facilitation.
ADAAG 4.30.6 provides that signage designating permanent rooms and spaces shall be installed on the wall adjacent to the latch side of the door at a mounting height of 60" (1525 mm) above the finished floor to the centerline of the sign. The Proposed ADAAG and ANSI 117.1 1998 provide for a mounting range of 48" to 60" above the floor as measured to the baseline of the characters. See Proposed ADAAG 703.2.6; ANSI Al 17.1-1998 § 703.2.6 (same). As the Access Board explained in proposing the revised ADAAG:
There are changes in the mounting height and location of signs. Characters are required to be installed between 48 and 60 inches high measured from the baseline of the characters. ADAAG 4.30.6 specifics tactile signs to be centered at 60 inches above the floor, a specification that was considered inadequate because it does not regulate the location of the characters and can permit characters located outside the proper reach range.
64 ER. 62248, 62272 (Nov. 16, 1999).
Most of the permanent signage that is subject to the mounting requirements of ADAAG 4.30 has Brailled text. It has been noted that the reason for the 60" mounting height is to provide uniformity of sign location and consistency in Braille location for visually impaired persons. See 56 P.R. 35408, comments on "4.30 Signage" (pagination not available) (stating that original recommendation of a range of 54" to 66" was discarded in favor of a fixed dimension). However, by then linking the mounting height to the centerline of the sign rather than to the center of the Brailled text, the purpose behind the guideline has been defeated, at least in part, because Brailled text could end up being located well above or below the 60" goal depending on the size of the sign. In fact, the ADAAG Manual recognizes this with an exception: "At signs containing pictograms or other non-tactile information, this [60" mounting heighti should be measured to the centerline of the raised/Braille portion so that it is not too low (or high)." ADAAGManualp. 106.
The Parties have presented evidence that measuring signage height to the Brailled area of the sign would provide equivalent facilitation, making signs at least equivalently accessible, and perhaps more accessible for those visually impaired members of the public who are the intended beneficiaries of the signage location and character rules (such as character height and contrast guidelines, ADAAGs 4.30.3 and 4.30.5; see also Access Board commentary to ADAAG sections at 28 C.F.R. Part 36 Appendix A A4.30.1 and A4.30.2). It is clear that a range of heights provides substantially equivalent access to a facility, and should be recognized as such. As a result, this Court finds that installation of permanent space designating signage at heights from 59" to 61" to the centerline of the sign provides substantially equivalent access to or usability of a facility and is therefore in compliance with the ADA. Therefore, it is ORDERED AND ADJUDGED that:
1. The Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq., by and through the regulations and guidelines set forth in the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"), mandates that places of public accommodation and commercial facilities shall be accessible to persons with disabilities, which mandate includes dimensional requirements for various elements of the accessible environment, such as water closets, grab bars, lavatories, and placement of emergency alarm notification devices.
2. These guidelines also state that "[a]ll dimensions are subject to conventional building industry tolerances for field conditions."
3. "Conventional building industry tolerances for field conditions," or "construction tolerances," exist in varying amounts for different construction elements.
4. In addition, where ambiguous provisions or inadequate or inaccurate guidance or instructions are present in the ADAAGs, a variation at some acceptable level may result (an "acceptable variation"), which should be recognized for all of Defendants' construction to date.
5. Finally, equivalent facilitation as set forth in ADAAG 2.2 recognizes that alternative technologies or designs may be used to create substantially equivalent or greater access to or usability of facilities, which alternatives are not violative of the ADA merely by virtue of the fact that they do not comply with the strict terms of the ADAAGS. Where technology or designs present equivalent or better access, those results are in compliance with the ADA.
6. A. There is a construction tolerance of 1" for the placement of accessible water closets; and the placement of an accessible water closet at a centered distance of 16" to 18" from the finished side wall or stall wall provides equivalent facilitation.
B. There is an ambiguity in the ADAAG governing the height of accessible lavatory sink rims and counters, resulting in an acceptable variation of 1". This variation is acceptable only for Defendants' construction to date. In future construction (that is, construction which will begin after some reasonable time following the entry of this Order), accessible lavatory sink rims and counters should be installed in conformance with the now-clarified ADAAG requirement that the higher of the rim or counter be no higher than 34" above the finished floor.
C. There is no construction tolerance for the installation of an accessible lavatory apron, and clearance of at least 29" must be afforded beneath accessible lavatories unless and until the relevant ADAAG provision is revised.
D. There is an ambiguity in the ADAAG governing the height at which grab bars should be mounted, resulting in an acceptable variation equal to the diameter of the grab bar in question. Thus, a grab bar complies with the ADA and need not be moved if it is mounted at a height of 33" to 36", as measured to any point on the grab bar (such as the top, bottom, or centerline). This variation is acceptable only for Defendants' construction to date. Because this provision has been clarified to required measurement to the centerline of the grab bar, in future construction (that is, construction which will begin after some reasonable period following the entry of this Order) grab bars must be mounted at a height of 33" to 36" as measured to the centerline of the grab bar.
E. It is acceptable to mount a framed mirror over an accessible lavatory at a height of up to 40 and 3/4" from the finished floor to the reflective surface as long as the variation is due to the width of the frame, but there is no construction tolerance for the placement of mirrors over accessible lavatories.
F. There is a construction tolerance of up to 1/2" for the height of an accessible water closet seat, on the plus side of the range only.
G. There is a construction tolerance of up to 1" for the height of an accessible urinal rim in Defendants' existing construction only; there is no tolerance for new construction.
H. There is an ambiguity in the ADAAG governing the height of visual alarm notification devices which results in an acceptable variation equal to the height of the device on either side of the established dimension. This variation is acceptable only for construction to date. In future construction (that is, construction which will begin after some reasonable period following the entry of this Order), the height of strobe lights will be in compliance with the ADAAG if either the bottom or the centerline of the device is mounted at 80" above the floor. In addition, there is a construction tolerance of 1" for the mounting height of visual alarm notification devices, and the placement of otherwise compliant visual alarm notification devices from 80" to 96" above the floor serves as equivalent facilitation.
I. There is a construction tolerance of up to 1" for the spout height at an accessible drinking fountain in Defendants' existing construction only; there is no tolerance in new construction.
J. It is equivalent facilitation to mount signage designating permanent spaces at heights from 59" to 61" measured to centerline.
7. Each acceptable variation and equivalent facilitation recognized above applies with respect to the current ADAAGs, which are recognized to be under review at this time. Future ADAAGs and ADAAG revisions must govern future conditions.
DONE AND ORDERED