Dear Commissioner Hill: You have asked us about the issues related to access to Kringle’s Kingdom in the Warwick Building. It is our understanding that a certificate of occupancy has been requested for the Kringle’s Kingdom display on the second floor of the Warwick Building and that access to the second floor is only available by a freight elevator and stairs. It is our understanding that the operators of the Kingdom have asked to use the freight elevators to transport passengers to and from the second floor. It is our opinion that the freight elevator cannot be used to transport passengers to and from the second floor. We have reviewed some materials from the contractor which is charged with inspecting elevators in the City and the inspector has stated that the freight elevator lacks the necessary life safety elements. As such, it is our understanding that the elevator’s use should be limited to freight unless and until it is up-graded. It is also our understanding that the operators of Kringle’s Kingdom were advised of what improvements need to be made in order to make the freight elevators compliant for transporting people to and from the second floor of the building. If the City were to disregard the inspector’s report and any other information which has been discussed verbally, the City could be subject to liability in the event of a tragedy where people were injured or died as a result of the use of the elevator. Given that the city is well aware that the elevator is designed for freight use only, it is quite possible that in the event of litigation, the city could be found to be willful and wanton for allowing the elevator to be used which would take the matter outside of the protections of the Tort Immunity Act. Further, allowing the freight elevator to be used for passenger transportation could subject City officials involved in the issuance of a certificate of occupancy to punitive damages. Punitive damages are intended to punish tortfeasors for wrongful conduct and punitive damages may not be paid for by the proceeds of insurance policies and result in personal liability to officials. This is certainly not a risk which we recommend that the City and you consider taking. We have also done a cursory review of the impact of not having an elevator under the Americans with Disabilities Act (“ADA”). While not having done an exhaustive review, it appears that the operators of Kringle’s Kingdom could be charged with a violation of the ADA for not having a fully accessible operation but that it is unlikely that the City would also be responsible for that shortcoming. Rather the operator could be subject to fines or injunctive relief for failing to comply with the ADA. If the City were to issue a Certificate of Occupancy if all the other conditions had been met, the City should include a notation that the freight elevator is not to be used to transport passengers to and from the second floor. Further, the certificate of occupancy should note that the facility does not appear to to be accessible as required by the ADA. As a further safeguard to the city, you could require Kringle’s Kingdom of Lake County to enter into a hold harmless guarantee that the elevator won’t be used nor is there a guarantee that the City won’t be roped into an ADA compliance matter. If you would like us to prepare such an agreement, please let me know. If you have any questions in this regard, or if you would like to discuss this matter further, please do not hesitate to contact me. Very truly yours, /s/ Scott A. Puma Proud to be an Americancel. Glink, Diamond, Bush. DiCianni & Krafthefer, P.C.
Posted on: Tue, 26 Nov 2013 02:27:25 +0000
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