July 20, 2018 • By Dennis Beaver
No doubt you’ve heard of The Americans with Disabilities Act of 1990 (the ADA) and how it has been used by lawyers to commit what amounts to legalized extortion, ripping off business owners across the country for even the smallest technical violations.
Our story will briefly explain the ADA’s purpose, and why all business owners need to take it very seriously, which was our take-away after speaking with San Francisco-based attorney Matthew S. Kenefick, regarded as one of the nation’s foremost experts on ADA law. He both practices and lectures across the country, in addition to conducting Continuing Education Seminars for the Federal Bar Association and myLawCLE.com. regarding accessibility matters.
Open to the public? Then you are subject to the ADA
“The ADA,” Kenefick explains, “is often misunderstood, and just about every business owner – especially owners of real property –should be aware of their obligations.
“The ADA is intended to enable persons with disabilities to fully participate in society. It is a noble and important statute; however, can cost business owners thousands of dollars for non-compliance.”
As we learned, what’s important to know is that the ADA applies to any owner, operator, lessor or lessee of a public “accommodation” – which can mean any facility–including small businesses – which are open to the public. New facilities must be constructed in compliance with the ADA. Those which pre-date the ADA are required to remove barriers to access “when it is readily achievable to do so, which essentially means without great difficulty or expense,” he observes.
The most common ADA violations – Drive by lawsuits
One lawyer described his “Business Plan” which prints money with ‘Drive by Lawsuits.”
“I use Google Earth to spot hotels which lack a wheelchair lift at the pool. Our clients have never visited the property, or even been in the state, but we have them claim they intend to but without that lift, won’t be able to fully benefit from the hotel stay.
“Without warning, we file suit in federal court, serve the hotel operator, and in most cases, extract attorney fees and statutory damages, which is $4,000 under California law. The hotel promises to install the chair lift, and I am becoming very wealthy.”
That attorney is not alone.
As Kenefick points out, “Accessibility lawsuits are commonplace throughout the country. The ADA requires compliance and provides for a prevailing plaintiff to recover its attorneys’ fees, which makes non-compliance potentially very expensive. Certain states, such as California, can also provide minimum statutory damages for certain ADA violations.”
Common ADA violations include:
1. Failure to install a wheelchair ramp where necessary
2. Failure to provide accessible parking spots, including signage
3. Inadequate restroom accommodations
4. Lack of handrails in walkways
5. Walkways that are too narrow or steep
6. Improper transaction counter height and depth
Common misconceptions to avoid
Kenefick outlines common misconceptions – which he calls Urban Legends – which business owners have about the ADA:
1. My building pre-dates the ADA so I am not subject to it.
“If you can bring the building into compliance without great difficulty or expense, then you must do so. But if this cannot be accomplished, then you can provide access to persons with disabilities through equivalent means, or with alternate measures.”
2. I hired a licensed architect and general contractor to design and build my building, so I can rely on them to get it right.
“That would seem logical, but accessibility is very technical and barriers can be missed by even the most competent contractors and design professionals. An accessibility specialist should be part of your design and build teams to perform plan check, minor construction supervision and a final inspection of the finished product.”
3. The building department approved my plans, said I was code compliant and issued a Certificate of Occupancy, so it complies with the ADA, right?
“Not necessarily. It is common to find that approved construction has access errors. Additionally, barriers are often the result of operational and maintenance issues which occur after design and construction.”
Is your website ADA compliant?
What most people don’t know – and took us completely by surprise – is that the ADA also applies to websites. No, you do not need to clean your glasses or pinch yourself because you aren’t dreaming.
“In most jurisdictions, if a website is an integrated extension of a business, then it will be found to be a public accommodation and subject to the ADA. Website access is a very active area of litigation,” Kenefick underscores.
There is much more to this than space allows, and we recommend taking the time to Google: Websites ADA Compliance. So, for readers who have a business website, this is a huge heads-up.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.