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MINIMIZING THE
RISK OF ADA TITLE III LAWSUITS
Take proactive steps to avoid being faced with litigation.
Gary L. Cole
When the Americans with Disabilities Act (“ADA”)
was signed into law in 1990 by then-President Bush, disability
rights advocates hailed the legislation as a giant leap towards
ensuring a barrier-free society. While most states had already
enacted accessibility laws, the ADA provided a civil and federal
enforcement scheme that expanded the earlier Rehabilitation
Act of 1973 to ensure that businesses, new construction and
existing properties made the maximum accommodation to the disabled
public. Thirteen years later the law has become an integral
part of American society and businesses, but it has also given
rise to a rash of litigation by plaintiff’s attorneys,
disability rights activists and not-for-profit organizations.
While many ADA lawsuits are genuinely concerned with accessibility
for the good of the disabled public, like other well-intentioned
legislation, the ADA has also become an abused tool serving
special interest agendas. At risk by such abuse is the credibility
of the ADA and the accessibility rights movement in the eyes
of businesses on the receiving end of unexpected lawsuits. In
California, one individual has sued dozens of vineyards for
allegedly inaccessible wine tasting facilities. Class action
suits are common. A disability rights organization recently
declared a 50-lawsuit annual goal. Actor Clint Eastwood decided
to fight rather than settle a disabled guest’s suit which
alleged ADA violations at Eastwood’s historic Mission
Ranch Hotel in Carmel, California. Though the cost to make the
accessibility alterations to the hotel was estimated at $7,000,
Eastwood fought the suit and was later outraged by the plaintiff’s
attorney’s attempt to collect $577,000 in legal fees,
which Eastwood referred to as “a form of extortion.”
Two provisions of the ADA have contributed to the rise in ADA
lawsuits. First, the ADA permits civil actions by individuals
to be filed without first providing notice to the defendant
that ADA violations may exist. Second, the ADA awards plaintiffs’
attorney fees and costs in the event of judicial decision against
a defendant or in the case of a settlement in which alterations
result. Since most cases are settled before trial, defendants
usually bear the cost of all legal fees. As in the Mission Ranch
Hotel case, attorneys’ fees sometimes egregiously outweigh
the cost of removing barriers. Responding to business concerns,
Representative Mark Foley (R-FL) introduced the “ADA Notification
Bill (HR#728)” which would remedy the ADA’s lack
of notice provisions by requiring that prospective plaintiffs
provide a 90-day notice to business owners prior to filing lawsuits
for alleged ADA violations. While giving business owners the
opportunity to remove barriers prior to defending a lawsuit
is a reasonable amendment to the ADA according to the bill’s
supporters, accessibility rights activists have vehemently sought
the bill’s defeat in Congress, claiming, among other things,
that the bill would lessen the rights of people with disabilities
to equal access. Clearly, compliance with the ADA raises strong
passions on either side of the opinion fence.
Regardless of HR#728’s fate, businesses need not wait
until they are sued, either by customers, patrons, or “drive-by”
lawsuits to protect themselves and minimize the risk of accessibility
litigation. The most abused portion of the ADA falls under Title
III, which covers the physical accessibility of public accommodations
and commercial facilities, though public entities, such as municipalities,
have also been targeted. Broadly speaking, Title III of the
ADA sets forth three standards for full compliance with the
ADA’s implementing guidelines, the Americans with Disabilities
Act Accessibility Guidelines (ADAAG). Based on the physical
nature of the property and the barrier, these three standards
are the “new construction” standard for all new
construction which was permitted for construction after the
ADA’s enactment; the “alterations” standard
for alterations to existing properties after the ADA’s
enactment; and the “barrier removal” standard for
properties that are neither newly constructed or altered after
the ADA’s enactment.
Wisely, Congress recognized that requiring all buildings to
be modified for full accessibility would have been a compliance
nightmare for businesses and building owners. The “new
construction,” “alterations,” and “barrier
removal” standards sought a more reasonable, gradual approach
to accessibility. Of the three standards, new construction has
the highest burden of compliance with the ADAAG since all elements
of new buildings must fully comply with the ADAAG. Next, alterations
performed on an existing building must be made accessible to
the “maximum extent feasible” to do so. Finally,
the “barrier removal” standard refers to existing
properties that were not altered, but for which barrier to full
accessibility exists to certain public areas of properties and
must be removed to the extent that such removal is “readily
achievable.” Since all new construction should already
comply with the requirements of the ADAAG, the remainder of
this article will be concerned with minimizing the risk of ADA
litigation as relates to alterations and barrier removal at
existing properties. Risk management for ADA litigation suits
falls under the heading of “prevention,” which depends
on two factors: self-evaluation of ADA compliance and correction
of accessibility deficiencies.
Though no amount of risk prevention can completely eliminate
the risk of ADA litigation, the first step in prevention is
to pro-actively understand both the requirements of the ADA
and the ADAAG and the existing accessibility conditions of a
property through a complete self-evaluation of the property’s
physical assets. Owners may either conduct self-evaluations
themselves or engage experienced professionals to perform an
ADA evaluation. Along with the rise in litigation, an industry
of professionals engaged to assist defendants in accessibility
suits has developed. However, an important factor in an owner’s
engagement of a professional is the issue of the professional’s
basic qualifications, both to competently perform the evaluation
and as to their credibility in the event of litigation. At a
minimum, professionals should be well versed in the requirements
of the ADAAG, either by professional training or experience,
or both. Ideally, the professional, such as an architect, understands
not only the requirements of the ADAAG, but is also able to
integrate applicable local and national building codes into
the accessibility analysis. A proper understanding of all codes
and restrictions that affect properties will yield the best
analysis and the best recommendations for making the necessary
accessibility modifications. In the case of litigation, plaintiffs
may demand changes to properties for accessibility that are
not allowed by building or life safety codes, in which case,
alternative methods for ADA compliance must be found. For this
reason, defendants to accessibility suits should not rely on
the plaintiff’s expert to determine whether a property
is in compliance with the ADA. Whether an owner undertakes an
accessibility self-evaluation or engages a professional, a proper
checklist should be created that is tailored to the type of
property evaluated. The purpose of a checklist is to provide
a format for precisely noting the extent ADAAG compliance or
noncompliance of a property and determining the extent of modifications
necessary, as tailored for the type of property inspected. A
checklist for a hotel for example, will share many of the features
that are inspected for a restaurant, but will also have features
that do not occur in the restaurant. Commercial checklists are
published by a variety of organizations and are useful starting
points for creating customized accessibility checklists.
Following the self-evaluation and completion of an accessibility
checklist, a legal and cost-benefit analysis should be performed
to determine the extent of modifications required to comply
with the ADAAG, and to minimize the risk of an accessibility
lawsuit. Though a full discussion of the requirements and exceptions
to ADA compliance is outside the scope of this article, alterations
made to existing buildings must be made such that they are fully
accessible to the “maximum extent feasible” to do
so. Obviously, this falls somewhat short of the new construction
standard which requires full compliance with the ADAAG, but
generally speaking, the difference between the two standards
is not great and an owner who banks on the vagueness of the
ADA’s language to skirt making certain alterations may
be inviting a lawsuit. For properties that were not altered
or for portions of properties that were untouched by alterations,
barriers may still need to be removed to the extent such removal
is “readily achievable,” a standard which factors
difficulty and cost in doing so. Many of the “drive-by
lawsuits” are filed to remove barriers in existing facilities
that were not altered and were constructed before the enactment
of the ADA. Often, businesses are identified as likely candidates
for litigation because their property’s parking lots lack
sufficient handicapped parking spaces or proper accessibility
signage; this signals the strong possibility that the rest of
the building may also not fully comply with the ADA’s
requirements. Therefore, understanding the extent of a property’s
compliance with the ADA and the standard of applicable compliance
required will permit an owner to develop a proactive plan for
correcting accessibility deficiencies in advance of costly litigation.
Owners may also want to consult disabled individuals or even
accessibility rights organizations to assist in the planning
and execution of the changes to the property to appreciate the
viewpoint of the disabled public and address issues that may
not be apparent from a strict understanding and application
of the ADAAG, but may still expose a property to ADA litigation.
Finally, though this article has focused primarily on avoiding
ADA Title III litigation for businesses and current owners of
properties, exposure to accessibility lawsuits can also be minimized
during the transactional side of property ownership. Though
a full discussion of such strategies is outside the scope of
this article, parties to various types of transactions may seek
indemnification and hold-harmless agreements from the party
in the better position to know whether a property is in compliance.
(This should not excuse a purchaser or lender from performing
its own due diligence when contemplating the transaction). Purchasers
of properties may seek indemnification from sellers; landlords
from tenants; lenders from borrowers; and owners from architects
and contractors. In each of these transactions, all parties
may be named in ADA lawsuits and held liable, therefore no amount
of indemnification between the parties will completely avoid
legal liability exposure. However, by taking proper proactive
steps such as self-evaluation accessibility inspections, promptly
addressing any deficiencies and employing risk shifting strategies
during the transactional phase of ownership, property owners
and businesses can take great steps to avoid the current rising
trend in ADA litigation.
Gary Cole is a licensed architect and an Illinois- and Florida-licensed
attorney practicing in the Chicago office of Seyfarth Shaw law
firm.
©2004 France Publications, Inc. Duplication
or reproduction of this article not permitted without authorization
from France Publications, Inc. For information on reprints of
this article contact Barbara
Sherer at (630) 554-6054.
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