ADA LAWSUITS: HOW TO DEFEND

By Mark M. Clairmont, Esq.
GERSON LAW FIRM APC

September 1, 2005

Does your property or business comply with the Americans with Disabilities Act?

Many people have heard of the Americans with Disabilities Act ("ADA") but few are aware of the potential trap that the ADA can be for property owners, business owners and tenants. Violating the ADA can result in a federal lawsuit and fines against a business owner, property owner or tenant, which usually leads to serious consequences and costs well into the thousands of dollars. Worse yet is the fact that the ADA is a strict liability statute: if a business/property is in violation, the owner is liable. The fact that the owner never intended to violate the ADA is irrelevant.

These ADA lawsuits are commonly known as "drive by lawsuits." The plaintiff (and his or her attorney) commonly drives through an area looking for violators and subsequently files suit against several businesses in that area on the same day. Essentially, it is tantamount to legal extortion; the plaintiffs' goal is often to merely make a business owner, property owner or tenant pay their attorneys' fees and costs.

Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181) prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed and altered in compliance with the accessibility standards established by the ADA.

More specifically, the ADA prohibits private entities from discriminating on the basis of disability in "places of public accommodation" (places open to the public, including hotels and other places of lodging, food and drink establishments, sales or rental establishments, etc.) and in "commercial facilities" (nonresidential places that, although not open to the public, affect commerce, including factories, warehouses and office buildings). The purpose is to insure that "public accommodations" and "commercial facilities" will be readily accessible to and usable by disabled persons.

As to "places of public accommodation," the ADA generally requires "retrofitting" (removing architectural barriers to access by the disabled) in existing buildings and precludes modifications or new construction that could create obstacles to the disabled. Retrofitting can include a broad range of required modifications (e.g., installing ramps and making curb cuts in sidewalks and entrances, widening doors and installing accessible door hardware, repositioning shelves and telephones, adding raised markings on elevator buttons, installing flashing alarm lights, installing grab bars in toilet stalls and raised toilet seats, creating specially-designated and accessible parking spaces, and removing high-pile, low density carpeting, etc.)

With the law's exacting standards, violations are easy to find and some experts estimate that less than 2 percent of public buildings are in compliance.

If a property owner or tenant is sued, they usually have no defense. Many persons with disabilities feel discriminated against by businesses where they cannot enter, properly use the facilities, or are made to feel like an outcast due to their disability. Many of the people who sue businesses for ADA violations are honest and just want the business they patronize, or would like to patronize, to adhere to the law and make the proper modifications to allow them free and unhindered access. It should also be noted that it is also in the business owner's best interest to make his or her business as accessible as possible to all customers, disabled or not.

Unfortunately, there are many individuals whose ADA lawsuits are primarily motivated by money. Regardless of the motivation for an ADA lawsuit, the result of such a lawsuit is that the unwitting defendant (business/property owner and/or tenant) will incur attorney's fees, court costs, expert fees, possible fines and other legal fees to defend the lawsuit.

Most businesses, property owners or tenants end up paying around $15,000 to lawyers on both sides, $5,000 in court costs and still must hire a contractor to perform the required ADA modifications to the property, while hoping that the federal government or the state refrains from issuing fines.

Penalties and legal remedies for violations of the ADA include:

Injunctions. An injunction is a court order that requires a person to do something or refrain from doing something. In the context of the ADA, a property owner or tenant who is found in violation may be ordered to install ramps, modify entrances or otherwise comply with the ADA.

Actual and punitive damages. If a plaintiff can show that he or she suffered damages as a result of the violation, the owner may be ordered to pay money as compensation (actual damages), which may even include compensation for emotional distress. In some cases, the owner's violations may be so flagrant or in such bad faith that a court will order him or her to pay extra money as punishment (punitive damages).

Civil Penalties. The ADA itself sets monetary damages. Up to $50,000 for the first violation; up to $100,000 for subsequent violations.

Attorney Fees. In many cases, a property owner or tenant who violates the ADA will be ordered to pay the plaintiff's attorneys' fees.

City or county employees cannot be trusted to advise business or property owners as to ADA compliance. One must hire an expert in ADA law to do an evaluation and suggest ways to comply with the ADA.

The most important compliance item is the parking lot. Plaintiffs' often drive through an area looking for ADA violations. The most visible compliance item from a moving vehicle is the parking lot. From a Plaintiffs' perspective, if the parking lot is in compliance, chances are good that the rest of the establishment is in compliance. As such, any business must ensure that its parking lot is properly designed to be wheelchair and van accessible with the correct number of handicapped parking spaces with appropriate markings, lines and signage.

Access doors, ramps, curb cuts, bathrooms, aisles, barriers, register counters and shelves are also major compliance items. Essentially, a person in a wheelchair must be able to access and use all publicly accessible areas of the business. Any areas that are not for public use must be clearly marked as "employee only" or something similar.

The landlord of a particular property containing a place of public accommodation and the tenant who owns or operates the place of public accommodation are both subject to the ADA.

As between a landlord and tenant, allocation of responsibility for compliance with the ADA is usually determined by the lease. However, landlords cannot eliminate their ADA compliance obligations by contract; nor can a lease validly shift all responsibility for ADA compliance to the tenant. Typically, a lease will allocate ADA compliance of common areas to the landlord and ADA compliance of the leased premises to the tenant. However, many landlords and tenants are operating under older boilerplate pre-ADA leases that fail to spell out who must pay for ADA compliance.

Furthermore, there are many other ADA issues and ADA-specific lease provisions that should be addressed as between the landlord and tenant.

Hiring an ADA experienced attorney to: (1) represent the property/business owner or tenant's interest, (2) negotiate and/or review the lease, (3) examine the property, (4) arrange for a formal inspection report, and (5) suggest proper remediation is necessary to avoid an ADA lawsuit and to preserve the confidentiality of the inspection report through the attorney-client privilege. It should be noted that the IRS does offer a large tax credit and generous deductions for small businesses that endeavor to comply with the ADA.