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ADA ACCESSIBILITY IN TEN MINUTES (Title III Americans With Disabilities Act)

www.lfhc.comJim Mulroy

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Why is this important to you?

Disabled customer base is large and growing Currently, 18% of total population is disabled – a growing

population with aging of the “Boomers” (72 million) “Drive By Litigation”

– Advocacy groups – Law firms that file multiple lawsuits for enforcement to obtain

monetary settlements Department of Justice compliance investigations Department of Justice lawsuits (usually involving multiple

violations and DOJ determines that the entity showed indifference)

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What are the ADA Accessibility Guidelines (ADAAG)?

A highly detailed set of rules which provide standards for, among other things,– Signage– Heights of sinks, counters and toilets in restrooms– Heights of water fountains– The number and size of parking places for the

disabled– Where handrails should be placed and how high

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What are the ADA Accessibility Guidelines (ADAAG)?

– Placement of paper and toilet paper dispenser– The size and shape of curb cuts– Requirements for ramps and other wheelchair

facilities– The size of doors– The size of passageways and removal of barriers

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What are the ADA Accessibility Guidelines (ADAAG)?

Not the same as building codes However, building codes may be certified by

the Attorney General as ADA compliant

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What are the risks?

Private Lawsuits– Individual lawsuits for injunctive relief and

attorneys’ fees under the ADA– No compensatory or punitive damages under

ADA– However, state law may augment ADA damages

(California for example)

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What are the threats?

Individual complaints or “DOJ compliance reviews” may result in exhaustive investigation of complaints

Lawsuits joined by DOJ or initiated by DOJ– Typically, DOJ joins in lawsuits in which it believes the

company is either indifferent to the ADA standards or involved in multiple violations of ADA standards

– DOJ litigation can result in injunctions, penalties, fines and compensatory damages

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What are the risks?

Significant remodeling expenditures can be incurred

New construction and remodeling must meet the ADA Accessibility Guidelines

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Definitions and Obligations

New construction includes anything built or remodeled after January 26, 1993

Pre-existing structures may require “barrier removal” when it is “readily achievable” to do so

“Readily achievable” is defined as easily accomplished without difficulty or expense

At trial, Plaintiff has the burden of proof

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Definitions and Obligations

Tax benefits are available for making structures ADA compliant

Readily achievable barrier removal includes:– Ramps– Curb cuts– Repositioning shelves and counters– Widening doors– Others

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What preventive measures should I take?

Negotiate with landlord to take responsibility for ADA compliance (providing for indemnity and defense in lease does not avoid direct liability)

Don’t be low hanging fruit for drive-by’s - audit facilities – correct obvious barriers and ADA issues (e.g., parking spaces, ramps, etc.)

Be sensitive to ADAAG issues in purchasing or building new properties or altering existing properties

Train employees to be sensitive to the issues (be helpful to disabled customers)

Consider alternatives to be used to barrier removal (e.g., curb service)

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What defenses are available?

That the complainant has no ADA disability (but consider state law)

The issue complained of by the plaintiff does not apply to the plaintiff

Plaintiff never used or intended to use the facility (but not required to do a futile act)

The removal of the barrier will be too expensive or burdensome The customer can be served alternatively without removal of

the barrier Denial of access not capable of repetition (individual suits) Safety

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War Stories and Suggestions

Most likely allegations in your industry– Ramps– Parking– Doorways– Barrier to sidewalk entrance– Restrooms

Negotiations with DOJ Be there or be square (DOJ contractors)

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Contents of Typical DOJ Compliance Consent Decree

Hire a compliance officer Comply with “standards” for remodeling Train Staff Require alterations (usually specified in great detail) Future facilities and remodeling standards Enforcement Fines Compensatory awards

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Resources

www.ada.gov– Background– Technical Manual– Training Materials– Regulations

B.N.A., Americans With Disabilities Act Manual (Architectural Survey at 30:0065)

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Jim Mulroy6410 Poplar Avenue

Suite 300Memphis, Tennessee 38119

Phone: (901) 767-6160Fax: (901) 767-7411jrmulroy@lfhc.com

www.lfhc.com