By Whitney R. Brown, Esq.
According to al.com, 2014 saw a 288 percent increase in one type of lawsuit: Americans with Disabilities Act (ADA) access lawsuits. Retailers and restaurateurs have been hit particularly hard by these lawsuits, in which disabled individuals claim to have been denied similar access and enjoyment in places of public accommodation due to conditions that did not meet federal regulations for accessibility. The costs of repairs are generally minor, but getting rid of the lawsuit will generally require thousands of dollars in settlement costs and attorneys’ fees. Barring a change in the law, we have every reason to believe that the number of these suits filed in 2015 will triple again.
VIRTUALLY NO GRANDFATHERING
One of the most common and most understandable misconceptions is that the ADA regulations on accessibility apply only to buildings constructed or renovated after 1992 (the year the ADA took effect). This is not true. With few exceptions, the ADA accessibility regulations apply to virtually every publicly accessible structure. There is no “grandfather” clause that exempts older buildings entirely from the ADA.
MAKE ‘READILY ACHIEVABLE’ CHANGES
Not only must businesses ensure that renovations lead to an ADA-compliant space, they must remove barriers, where such barrier removal is “readily achievable.” Readily achievable means “easily accomplishable and able to be carried out without much difficulty or expense.” In most cases, there will be some solution that is readily achievable.
PROBLEM AREAS: RESTROOMS, PARKING LOTS
Even the most conscientious business owner likely does not perfectly comply with ADA access regulations. The 2010 ADA Standards for Accessible Design span 279 pages. These regulations are incredibly detailed, particularly when it comes to restroom facilities. To name a few: faucets must be easy to operate with one hand; there must be adequate knee and toe clearance under the sink; there is a height range for coat hooks; etc. It is worth mentioning that the Alabama State Building Code requires only the following private structures to provide public restrooms: hotels, motels, movie theaters, and private schools. Some municipalities and counties have their own building codes that should be investigated before bricking over public restrooms.
Parking lots are just as likely to be out of compliance, and often more costly to repair. Ramps between parking lots and sidewalks are also frequently out of compliance. Depending on the date of construction and the total vertical distance (rise) the ramp covers, the steepest slope permitted is between 1:8 and 1:12.
DEALING WITH CHANGING FLOOR PLAN
Retailers’ floor plans are often much more complex and varied than the fixtures that appear on a blueprint. The ADA requires that all public areas of the store be accessible to the disabled. There are dozens of situational rules for the required space for turning, opening doors and other maneuvers. However, you can ensure that your floor space is mostly compliant with this simple trick: have an employee walk the floor while holding a yardstick horizontally.
‘GOTCHA’ LAWSUITS BROUGHT WITH NO NOTICE
Unlike the employment-side of the ADA, which requires employees to air their grievances first before the EEOC, the access-side of the ADA does not require any government pre-screening or other notice to the business. It is common to see a half-dozen lawsuits filed in the same day by the same plaintiff and the same law firm against neighboring businesses.
WHAT TO EXPECT IF SUED OR A SUIT IS THREATENED
First, take a deep breath. If lawsuits were dentist appointments, this one would be a routine cleaning. Second, call a lawyer. You’ll need a lawyer to file the required responsive answer. The lawyer can also help you determine if the business really has all the deficiencies alleged in the lawsuit. These lawsuits are typically resolved quickly and inexpensively by the parties agreeing on what changes will be made. The only damages that the plaintiffs can collect from these lawsuits are the attorneys’ fees, so the dollar amounts paid are relatively low as long as resolution is quick.
At least one law firm sends a demand letter first. Should you get such a letter, we again advise that you contact an attorney to help you negotiate a resolution. In our experience, this firm will have already taken photographs of the non compliant conditions, so they will be able to sue even if the business immediately corrected the deficiencies.
HOW TO AVOID SUITS
There are experts who do nothing but preventive audits. The upside to these audits is that you have the benefit of an expert on your side, who can also suggest some of the cheapest, outside-the-box solutions. The downside is the expense and that the audits are limited to the conditions in your store on that day. Another downside is that the report could be discovered in a later lawsuit, which could be embarrassing or costly if the report recommended changing a condition that was the subject of a later suit (ADA access or slip-and-fall, for example). You can limit this risk if you have your lawyer hire the expert, so that certain legal privileges and protections might apply.
Examine the contracts related to your building, parking, and repair work. You may want to consider negotiating for guarantees of accessibility, indemnification or other protective measures.
Whitney Brown is a shareholder with Birmingham labor and employment law firm, Lehr Middlebrooks & Vreeland, P.C., which provides information for Alabama Retail’s Employment Law Resource Center. The firm represents employers exclusively regarding workplace matters. As an Alabama Retail member, another BENEFIT FROM THE VALUE of your membership is access to the Employment Law hotline operated by LMV.
This article originally appeared on Page 4 of the 2014 Holiday Edition (Vol. 14, No. 5) of Alabama Retailer.