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Experts say the Barnett Arena, shown here, is not likely to close if Tuesday's election fails but will be under pressure from federal officials who want it brought into compliance with the Americans with Disabilities Act.

Journal file

Handicap accessibility issues have hovered over much of the debate on whether Rapid City should commit $180 million in sales tax revenues for an expansion of the Rushmore Plaza Civic Center.

The federal Americans with Disabilities Act has been a lynchpin in the argument in favor of building a new arena and renovating the existing 38-year-old Barnett Arena at the civic center. But when the fixes need to be made, at what cost, and what happens if they are not made right away are issues that have been questioned throughout the civic center debate.

Now, as a citywide vote approaches on Tuesday over the expansion, the Rapid City Journal has reached out to experts on the issues to answer the most pressing questions about the ADA and its impact.

Q: Would the Barnett Arena have to close, as some have alleged, if voters deny the expansion and Rapid City doesn’t bring it into full compliance with the Americans with Disabilities Act?

Not likely, said Rachael Stafford, project director for the Rocky Mountain ADA Center. She’s never seen a non-complying arena forcibly shuttered.

But that doesn’t mean the federal government wouldn’t employ other methods to force ADA compliance. That could include reducing or withholding some federal funding, or filing a lawsuit against the city.

“Once they’re kind of involved, they don’t really let you out of it,” Stafford said of the U.S. Department of Justice. “They say, ‘We’ve spent the time and the money and the effort, and now you’re on our radar.’ And they’ll continue to pursue whatever appropriate legal action they can until you make those changes.”

“One way or another,” she added, “it’ll have to be brought into compliance.”

The Rocky Mountain ADA Center, in Colorado Springs, Colo., is a member of the National Network of ADA Centers funded by the National Institute on Disability and Rehabilitation Research, a division of the U.S. Department of Education. The center’s mission is to provide information on ADA to people and organizations in a six-state region that includes South Dakota. The center is operated by Meeting the Challenge Inc., a for-profit consulting firm specializing in disability-law compliance.

Meeting the Challenge assisted with a survey of the Rushmore Plaza Civic Center. The survey identified 400 ADA issues and estimated the cost of repairs and retrofits to be $36 million. On Tuesday, voters will consider the $180 million expansion that, instead of merely fixing the arena, would add on a new 100,000-square-foot arena, re-purpose the Barnett Arena as a multi-use space, and add a parking garage, correcting all ADA issues along the way.

The required ADA fixes are spelled out in a voluminous settlement agreement between the city and the federal Justice Department, which was signed by the feds this week after being signed by Mayor Sam Kooiker in November. The agreement resulted from negotiations following a 2012 Justice Department inspection of the arena.

Q: Is the Barnett 'grandfathered' into compliance because it predates ADA?

Fear that the arena could be closed is just one of the ADA-related issues that has been debated in the days leading up to the election. Another is the assertion by some expansion opponents that the 38-year-old Barnett Arena is “grandfathered” into compliance because its construction predated the 1990 passage of the ADA.

That is not true, said Stafford. “There is no grandfathering under ADA,” she said.

Brendan Johnson, U.S. Attorney for South Dakota, offered a similar assessment of “grandfathering.”

“That’s not a concept I had heard in the context of the ADA, and the reason why is that it doesn’t exist,” Johnson said. “The city has to provide either a program access solution — moving events to a site that is accessible; or an architectural solution — make the changes so everyone can access the center.”

Q: Is there a possible 'safe harbor' way to avoid some fixes?

There is a concept known as “safe harbor,” which can protect entities that made ADA-related fixes after the original ADA standards became enforceable around 1992. It’s possible, Stafford said, that such entities could receive safe harbor against the updated ADA standards that became enforceable in 2012. To qualify, the work had to be completed between the effective dates of the two sets of standards.

“If you did something in there at that time and complied with the old standards and you haven’t touched it again or made any changes,” Stafford said, explaining the safe-harbor concept, “then you don’t have to run out and bring it into compliance with the new standards.”

But, she added, the duty to comply with the new standards kicks in if a new structure is built, or if the existing structure is once again modified.

There was ADA compliance work done elsewhere in the Civic Center during the years between the issuance of the two sets of ADA standards, but Brian Maliske, former executive director of the Civic Center, said no such work was done in the Barnett Arena.

“The hope was that if we didn’t touch it, somehow there would be this grandfather clause,” Maliske said, recalling arena renovation and expansion talks from the 1990s and 2000s. “We found out later that there is no grandfather clause.”

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Geoff Ames, a project manager for Meeting the Challenge, said the ADA compliance work done elsewhere in the civic center — including the theater and LaCroix Hall — does not earn safe harbor for the Barnett Arena. For the purposes of safe harbor, the federal government would view the civic center not as one building but as many connected elements.

“Safe harbor is on an element-by-element basis,” Ames said.

One of the common causes of confusion about grandfathering, safe harbor and other construction-related aspects of the ADA, Ames said, is the way the law is often erroneously equated with building-code concepts.

“The ADA is not a building code,” Ames said. “The ADA is a civil rights law. If something was built and in the way it’s built it effectively discriminates against people with disabilities, then the discrimination is what needs to be eliminated.”

Q: Why is ADA an issue now, 25 years after passage?

Another question some expansion opponents ask is why, after 25 years since ADA’s passage, has the idea suddenly arisen that the Barnett Arena is out of compliance and needs to be fixed?

Maliske said that under the city’s new, corrected understanding of the ADA, the arena was out of compliance since 1992. Apparently, it just took all these years for the arena to come under scrutiny from the federal government.

Johnson revealed this week to the Journal that he was the one who asked for the 2012 Justice Department review of the arena, after he’d talked to Rapid City residents, including Mayor Sam Kooiker, who expressed concerns about the arena’s accessibility.

Additionally, said Stafford, the federal government significantly stepped up its ADA enforcement efforts after an assessment during the law’s 20th anniversary year revealed low levels of compliance. A program known as Project Civic Access was launched, emboldening federal officials to “swoop in” to any state or local government jurisdiction and investigate ADA compliance, Stafford said. The project has produced 210 settlement agreements nationwide.

That was the program that brought Justice Department investigators to review Pennington County facilities in August 2012; while in Rapid City, and apparently acting on Johnson’s request, inspectors also visited the city-owned arena.

“They literally descend upon a local government office, and they say ‘show me your transition plan,’” Stafford said. “Once they come in, they don’t really leave. They are known for doing this now.”

Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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