New Law Provides for a Certification Process and Judicial Enforcement To Ensure that Newly Constructed or Altered Buildings are Accessible to Citizens with Physical Disabilities

August 5, 2009

For Immediate Release                                   James Fox or Richard Cohen, contact at 228-0432

Last week Governor John Lynch signed into law a bill passed by the Legislature this session which will greatly improve accessibility of buildings to children, adults and seniors with physical disabilities.  Coming on the heels of the nineteenth anniversary of the Americans with Disabilities Act, HB 530 adds two features to existing laws to ensure that new construction, addition or alteration of buildings that are open to the public comply with the accessibility standards of the state building code.  While the state building code has for many years required that newly constructed or renovated buildings such as restaurants, movie theaters, town offices, retail stores, etc. meet accessibility standards, “many of these buildings remain inaccessible to individuals with disabilities because of a lack of compliance with accessibility requirements,” according to the prime sponsor of the bill, Representative Trinka Russell of Stratham.

HB 530 which applies to new construction, additions or alterations commenced on or after July 1, 2010 requires contractors to obtain certification from a “qualified inspector” that the building design plans at the pre-construction stage and then the actual work performed at completion meet the accessibility standards in the state building code.  According to Attorney James Fox of the Disabilities Rights Center (DRC), under this law New Hampshire licensed architects, professional engineers, certified building officials, and master code officials are deemed “qualified inspectors”  without having to take an examination.  Other municipal officials or other private sector individuals can become qualified by passing the International Code Council’s examination. All inspectors must take two hours of relevant continuing education every three years.  The law also allows municipalities to voluntarily elect to perform the HB 530 inspection and certification. In those communities the contractor would not have to retain an independent private inspector.

Representative Russell noted that “this certification requirement is a very worthwhile investment because it helps ensure, up front, that buildings are designed and constructed in accordance with accessibility standards saving owners from having to make higher cost changes after completion.“ 

The bill’s second feature provides for a new judicial remedy to correct noncompliance when a covered building still does not meet the state’s accessibility standards despite the new certification process. The bill authorizes the DRC, the state’s designated and federally funded protection and advocacy agency, or an individual with a disability to obtain an order from superior court to require the owner to correct the deficiencies.  However this court order can only be sought after giving the owner nine months to come into compliance. The bill provides for an award of attorneys fees and costs against the owner if he/she loses in court as well as a civil penalty payable to the general fund.  Richard Cohen, DRC’s executive director, expects such “actions to be rare both because of the certification process and the deterrent effect provided by the specter of judicial enforcement and civil penalties in case of noncompliance.“

Representative Russell was overjoyed that the bill finally became law. “It took us two legislative sessions to educate the legislators and the stakeholders in order to get the bill passed and the bill allows another whole year until July 1, 2010 for everyone to get up to speed. We think it will be well worth the wait. The bill does not create new obligations; it just provides mechanisms to remedy barriers citizens with physical disabilities have been facing for years. It is another step forward toward full inclusion of all people in our communities.“

 

updated September 8, 2015