On April 9, 2013, the Florida Building Commission voted to issue a declaratory statement to resolve confusion among building officials regarding the proper application of the 2012 edition of the Florida Accessibility Code for Building Construction, which is published as the Accessibility Volume to the 2010 Florida Building Code, to multifamily residential developments that do not receive government funding or sponsorship. The creation of the 2012 Accessibility Code included the adoption of the Americans with Disabilities Act’s (ADA) 2010 Standards for Accessible Design and added certain Florida‐specific requirements. Because the combination of federal standards and state‐specific requirements created a code with some unwieldy language, there has been confusion throughout the state as to whether the legislature and Florida Building Commission intended to impose the requirements of the ADA’s Standards on residential developments not previously covered by the Accessibility Code. If multifamily residential developments were to be covered by the 2012 Accessibility Code, then additional requirements regarding unit configurations and common area features such as swimming pool lifts would be imposed, which multifamily residential projects had not previously been subject to.

On behalf of clients, Greenberg Traurig Shareholder Robert Fine petitioned the building commission for a declaratory statement to clarify whether and how the Accessibility Code applies to multifamily housing developments, including rental apartments and residential condominiums that will be permitted and constructed in Florida. The commission voted to answer the two questions posed in the petition as follows:

Question #1: Are areas of apartment buildings and multifamily housing developments intended solely for the use of residents and their guests (including dwelling units and common use areas), that are not subject to Section 504 of the Rehabilitation Act (programs receiving federal financial assistance) and are not subject to Title II of the Americans with Disabilities Act (state and local government services), subject to the Accessibility Code except for the requirement set forth in Section 553.504(2), Florida Statutes, as provided for in Section 101.1.3 and 201.1 of the Accessibility Code?

Answer to Question #1: No. Pursuant to Section 553.507 (1‐2), Florida Statutes, multifamily residential dwellings such as rental apartments and residential condominiums (and their associated common use areas) that are not the recipients of government financial assistance or sponsorship (federal, state or local), are not subject to the Accessibility Code, with the exception of Section 553.504(2), unless they are places of public accommodation or commercial facilities. An exception to this would be discrete areas contained within multifamily residential dwellings that fall within the definitions of “place of public accommodation” or “commercial facilities,” such as a leasing or sales office, restrooms and parking (and the accessible route that connects these elements). Such areas would be subject to the Accessibility Code unless otherwise exempted by the Accessibility Code.

In accordance with Section 553.503, Florida Statutes, the commission has adopted the Department of Justice’s definitions of “public accommodations” and “commercial facilities” found at 28 C.F.R. 36.104. Please note that the current printing of the Accessibility Code contains a scrivener’s error in the definition of “commercial facilities” in Section 106.5 of the Accessibility Code and, therefore, the definition found in 28 C.F.R. 36.104 should be used instead.

Question #2: Are swimming pools that are part of common use areas of the apartment buildings and developments that are intended solely for the use of residents and their guests (and not otherwise available to the general public) and which are not the recipients of governmental financial assistance or sponsorship, subject to the Accessibility Code because Section 424.1 classifies them as “public swimming pools” or any other reason?

Answer to Question #2: No. The technical requirements of Section 424, Swimming Pools and Bathing Places (Public and Private), including the definition of “public swimming pools” or “public pools” of the 2010 Florida Building Code, are standalone/independent provisions which have no bearing on the technical scope of the 2010 Florida Building Code, Accessibility. Further, according to the “Questions and Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public Accommodation” as published by the U.S. Department of Justice (which may be relied upon pursuant to Section 553.503, Florida Statutes), the answer to the subject in question is as follows:

“Community pools that are associated with a private residential community and are limited to the exclusive use of residents and their guests are not covered by the ADA accessibility requirements. On the other hand, if a swimming pool/club located in a residential community is made available to the public for rental or use, it is covered under Title III of the ADA. If a community pool is owned or operated by a state or local government entity, it is covered by Title II of the ADA, which requires ‘program accessibility.’ ” Click here to see an overview.

The Florida Building Commission will be issuing an order formalizing the declaratory statement shortly, which will be binding on all Florida building departments.