August 3, 2021 • By Dennis Beaver
Long Beach, California attorney John Coates is not someone you want to hear from if you own commercial real property that has, for example, a parking lot open to the public.
There’s nothing wrong with Coates, in fact he is a very nice guy and first-rate lawyer, but a letter from him announces bad news; “You have been sued in Federal Court–not by me–but by a law firm that specializes in violations of the Americans with Disabilities Act, and in your case, something incredibly minor.” My client received a letter from Coates.
You are probably wondering, “So, what did your client do?”
Now, tighten your seatbelt for a wild ride, but first a little history, as Coates related:
“What the United States Congress and President George H.W. Bush accomplished on July 26th, 1990, has cost innocent property owners millions of dollars in fines and attorney fees — paid to lawyers who file hundreds of thousands of suits — most of them petty, ridiculous, and do nothing to further the Access goals of the ADA but make these lawyers multimillionaires in the process.
“Before signing it into law, Bush was cautioned that the ADA was vague, costly and would lead to an explosion of litigation. His reply? “The legislation was carefully crafted to provide clear guidance to the business community.”
Coates points to a 2018, well-researched article in the University of Baltimore Journal of Land and Development, titled, “ADA Regulatory Compliance: How the Americans with Disabilities Act Affects Small Business.” It finds that:
“For all its noble purposes, the ADA is a license for lawyers to print money at the expense of small business owners.”
Have you heard of the term Parking Lot Slope? Until my client was sued, I had not either, but according to the National Association of Truck Stop Owners, an astonishing 95% of all ADA suits contain an issue regarding parking spaces.
“Handicapped accessible parking spaces and aisles must have no more than a 2.08% slope in any direction,” Coates says. “This means there can only be one inch of vertical change for every 50 inches of horizontal change because you don’t want too steep of a slope, so that a person in a wheelchair rolls away too rapidly and is injured.
“However, this is impossible to assure, because natural settling of parking lots, small earthquakes, and just the weight of vehicles constantly impacts the slope.”
I’ll bet you are thinking, “How does something as invisible as the slope of a parking lot wind up getting the property owner sued for an ADA violation?”
“These law firms hire people to wander all over cities with a slope meter,” Coates says, “looking for a handicapped parking space that exceeds the ADA limit. In every case I have seen, there were no reports of injuries due to a slope that was out of compliance.”
If sued, what should you do? Hint: Be objective!
One of the most unfair things about the ADA is that you can be sued without ever getting a notice that you are out of compliance and given a chance to remedy the situation beforehand.
Also, as the bulk of these suits are filed in Federal Court, the plaintiff is automatically entitled to attorney fees that run into the thousands of dollars. In fact, many small businesses have had to shut their doors because of technical, but harmless ADA claims brought by lawyers who judges routinely describe as unethical.
So, what should you do upon either being served with a lawsuit or notified that one has been filed against your business?
Coates outlines these important steps to take:
(1) Contact an experienced, Certified Access Specialist (CASp) inspector to find out if you are actually in violation.
(2) If so, don’t waste your money fighting the lawsuit! These violations are what we call Strict Liability, which is like a speeding ticket. If you are one mile an hour over the limit, you are guilty.
(3) Most likely you will receive letters from attorneys who represent defendants. Do not simply hire the first one who contacts you! Instead, ask, “What is this is going to cost me?”
If the CASp inspector has told you the bad news, and the lawyer can’t give you a solid number or says, “I think we can defend this,” RUN! Speak with a different attorney, as there are far too many lawyers who want to milk their clients! By fighting these cases you will spend far more than settling.
Can I minimize the chances of being sued?
Coates recommends that all commercial property owners have a CASp inspection performed so they are aware of potential issues and can remedy them.
“But neglect of the property is also an invitation to being sued,” he notes, adding, “for example, nothing says sue me like not taking care of your handicapped signs. If you do not have all three signs or stickers, you are begging for someone to come in and look for more issues.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.