Let's not forget what ADA is actually for

Last modified: 12/30/2010 12:00:00 AM
Much has been written about the renovations to the fronts of the retail stores in Phenix Hall and the continuing barriers they present to individuals with disabilities, including a recent column by Betsy McNamara, a parent of a pre-teen with a disability ('Out of sight, out of mind,' Sunday Monitor, Dec. 26). In the initial news article, owner Mark Ciborowski implied he shouldn't have to comply with the requirements of the Americans with Disabilities Act because, he claims, the Disabilities Rights Center did not notify him of the ADA accessibility issues until he was 'two-thirds done with (his) work,' and would have 'to start ripping out' what he had done. Ciborowski's friends and colleagues have written letters to the editor to buttress those claims, one complaining that the DRC never notified Ciborowski of its concerns until November 2010.

This is not correct, and we would like to set the record straight.

However, we would first point out that Ciborowski was under an obligation to comply with the ADA, this 20-year-old civil rights law, regardless of whether the DRC contacted him or not. As described by a well-known local engineering firm and architect retained by DRC, the new Phenix building storefront entrance 'appears to have blatantly disregarded' the requirements of the law.

A notice in May

In fact, the DRC first wrote to Ciborowski on May 27, 2010, months before the renovations began and the November time frame mentioned in the letters. In the May letter, we requested a meeting with Ciborowski to talk with him about his plans and the possibilities as to access. (To see the full text of the letter DRC sent to Cibrowski, go to drcnh.org/PhenixHall.html.)

Ciborowski did not respond to our letter. With heightening concerns about the accessibility issues, we called him on approximately Sept. 1, further inquiring about his plans and to advise him about his obligations under the ADA. At that time, he informed us he was making only cosmetic changes to the front facade of the building. Such changes would not trigger the obligations of the ADA. We took him at his word, and the solid plywood barrier around the building gave no hint of the full measure of the work being done.

When we learned that he was actually replacing the steps in front of the three storefronts, we again wrote him on Oct. 4, informing him that this type of renovation clearly triggered the accessibility requirements of the ADA, unless it was 'not technically feasible' to make these changes accessible.

Again, you can see the full text of this letter on the DRC's website.

Given that Ciborowski suggested that making the entrances accessible was not 'technically feasible,' the DRC reviewed the project with a local engineering firm and one of its architects. They indicated that it was clearly feasible to make the Phenix Hall storefronts accessible. This is consistent with the many historic downtown buildings which have already been made accessible. We have shared that information with Ciborowski. Certainly the needed renovation would have been easier and less costly if it had been incorporated in the original design of the project, but failure to comply with the rules in the first place shouldn't allow a property owner to ignore them because it will be more expensive to do the right thing in the second place.

It defies common sense, good policy and the rule of law.

A different look

Ciborowski and his supporters also argue that his renovations should be exempt from the requirements of the ADA because they represent 'historic preservation' of the building.

In fact, photos at the New Hampshire Historical Society show that the original storefront as well as a post-fire 1890 storefront now occupied by The Works used different materials and had a significantly different look.

For example, the storefront had double doors rather than the current single door and did not have steps made of granite.

Inclusion in everyday life

Most important, we should not lose sight of the fact that the ADA, one of the most significant civil rights laws in this country, was enacted to enable everyone to be included in every day American life. The days of being isolated, segregated or 'homebound' by a physical disability should be a thing of the past, whether it involves a child at the schoolhouse door, a voter at the polling place or a would-be customer seeking to enter the marketplace.

To be sure, inclusion of individuals with physical disabilities often requires accommodations, in the form of adaptations or alterations.

But when historic or more recently constructed buildings undergo renovation, do we exempt them from modern building codes aimed at life-safety or energy efficiency? Don't we incorporate modern conveniences in renovations of historic buildings for the benefit of all uers?

When was the last time you saw someone use an outhouse outside an antique home or historic building?

The ADA and the disabilities rights movement are addressing an equally if not more compelling principle: requiring accommodations, when needed, so a previously excluded minority may be included in everyday American life.

And contrary to the statement of Timothy Britain in his Dec. 29 column that the ADA requires 100 percent compliance, the ADA has built-in allowances in recognition of the hardship and cost that may be imposed on making a small business fully accessible.

The interests and principles of both historic preservation and ADA accessibility can be served as Betsy McNamara describes in her column and as evidenced by the vast majority of historic and accessible store fronts in downtown Concord just as they are in other cities around the country and the buildings and monuments in our nation's capital.

While the new look of this old building may be aesthetically pleasing, it is hardly historically accurate. And it would be far more attractive if it welcomed Betsy McNamara's son and every other wheelchair user, temporary or permanent, to work, dine or shop in these stores.

DRC remains committed, as we were in May, to working this out cooperatively with Ciborowski to help achieve the goal of making Concord a truly inclusive community.

(Richard Cohen of Concord is executive director of the Disabilities Rights Center.)

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