Reducing the number of disability compliance lawsuits in our community: reader opinio

[mark handler]

Reducing the number of disability compliance lawsuits in our community: reader opinion

http://www.al.com/opinion/index.ssf/2014/07/reducing_the_number_of_ada_com.html

By Brett A. Smith

The Alabama legislature must address the problem arising for business owners due to an increase in disability compliance lawsuits. Numerous business owners, without warning, recently were served with threats of litigation based on vague allegations that their business is not in compliance with the Americans with Disabilities Act ("ADA").

One possible legislative proposal would be a notification and required remediation period. Upon notification from a plaintiff of a possible violation, business owners are allowed a fixed time to inspect, consult, and possibly remedy an alleged violation prior to the filing of a lawsuit.

Current Alabama or federal law does not require a potential ADA plaintiff to give notification or warning prior to litigation. As it stands today, business owners

faced with allegations are forced to hurriedly decide to either agree to settlement or defend against a potential lengthy and pricey lawsuit.

Oftentimes the vague allegations are not based on actual handicapped

individuals visiting the business but law firm representatives, including hired inspectors, driving by, taking photos, and determining the business is not in compliance. This practice has a very chilling effect on our business community. Alabama businesses do not have adequate time to determine if they are in

compliance before they are forced to decide whether they want to pay a settlement or defend against a lawsuit. These "drive-by" lawsuits are so numerous, many state legislatures throughout the country have enacted the very measure suggested here; a law that requires notification and a fixed time to evaluate, assess, and if needed address the problem prior to litigation.

This proposal helps to curtail litigation, aids the disabled, supports the intent of the ADA, and minimizes the additional burden on our court system. Adopting this

balanced approach does not do away with the plaintiff's right to sue but benefits the disabled community as a whole. Instead of paying out one plaintiff and their

attorney's fees (or the cost of suit), business owners, upon notification of a

potential violation, could do their own inspection, consultation, and if required

make repairs to their businesses, improving our community as a whole.

The intent of the ADA is to provide accessibility for our disabled citizens, not to pay out "drive-by" lawsuits and attorney's fees. Business should spend their money on making reasonable accommodations not on paying for costly settlements or defending a suit. Allowing business owners a fixed time to inspect, consult, and remedy an alleged violation prior to suit respects the intent of the ADA while protecting the future of our business community.

Brett A. Smith is a partner at the law firm of Huff Smith Law, LLC in Auburn.

He can be reached at brett@huffsmithlaw.com.

 

[Mr. Inspector]

a great idea

 

[mark handler]

a great idea

"remediation period". "notification or warning prior to litigation"...

How about the twenty four years since the law was passed?

 

[Msradell]

"remediation period". "notification or warning prior to litigation"...How about the twenty four years since the law was passed?

Well Put! They've already had 24 years to comply and there certainly has been enough publicity about the issues that they have to know about it and the consequences of not complying.

 

[Paul Sweet]

ADA requires making new buildings accessible, but does not require making existing buildings accessible, unless they are altered.

§ 36.401 New construction.

(a) General.

(1) Except as provided in paragraphs (b) and © of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

§ 36.402 Alterations.

(a) General.

(1) Any alteration to a place of public accommodation or a commercial facility, after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

(2) An alteration is deemed to be undertaken after January 26, 1992, if the physical alteration of the property begins after that date.

(b) Alteration. For the purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

(2) If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of appendix A to this part.

Tenant changes in furnishings or decoration are not "alterations" that trigger accessibility upgrades. A lot of businesses haven't made "alterations" since ADA became law.

 

[mark handler]

ADA requires making new buildings accessible, but does not require making existing buildings accessible, unless they are altered.

Not totally true, the owners MUST do Readily Achievable Barrier Removal or they can be sued

Under the ADA, Law, not the ADA Standards, public accommodations, shall be Accessible

Under the ADA, public accommodations are private entities that own, lease, lease to or operate a place of public accommodation. This means that both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities to remove barriers.

A place of public accommodation is a facility whose operations affect commerce and fall within at least one of the following 12 categories:

1) Places of lodging (e.g., inns, hotels, motels, except for owner‐occupied establishments renting fewer than six rooms)

2) Establishments serving food or drink (e.g. , restaurants and bars)

3) Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums)

4) Places of public gathering (e.g. , auditoriums, convention centers, lecture halls)

5) Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers)

6) Service establishments (e.g. , laundromats, dry‐cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals)

7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation)

8) Places of public display or collection (e.g. , museums, libraries, galleries)

9) Places of recreation (e.g. , parks, zoos, amusement parks)

10) Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools)

11) Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies)

12) Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

 

[conarb]

In the UK the disabled are using the Nazi black triangle.

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Use by disabled peoples' organizations Some UK groups concerned with the rights of disabled people have adopted the symbol in their campaigns. Such groups cite press coverage and government policies, including changes to incapacity benefit and disability living allowance, as the reasons for their campaigns. ¹

¹ http://en.wikipedia.org/wiki/ArbeitsscheuView attachment 1071

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[ADAguy]

I will repeat again that there is a common sense simple solution to this. SB1086 now requires commercial brokers to notify leasesees or buyers of commercial property to notify them as to whether a CASp inspection has been require one performed (it does not, unfortunately require one). Consider that current CBC has been updated, that Code enforcement can now be contacted about alledged non-compliance as within there authority to investigate. (requires participation by the disabled)

(agai, too logical?)

Then again, if cities were to require proof of compliance as part of their business license renewal, it would be so much easier and trackable. Notices can be included in annual renewal notices (too logical?) This would be code enforcement and not ADA but then Harris could not deny that that cities are responsible for enforcement (again, too loigical?)

 

[mark handler]

I will repeat again that there is a common sense simple solution to this. SB1086 now requires commercial brokers to notify leasesees or buyers of commercial property to notify them as to whether a CASp inspection has been require one performed (it does not, unfortunately require one). Consider that current CBC has been updated, that Code enforcement can now be contacted about alledged non-compliance as within there authority to investigate. (requires participation by the disabled) (agai, too logical?)

Then again, if cities were to require proof of compliance as part of their business license renewal, it would be so much easier and trackable. Notices can be included in annual renewal notices (too logical?) This would be code enforcement and not ADA but then Harris could not deny that that cities are responsible for enforcement (again, too loigical?)

There is no CASp in Alabama, where the OP originated.

 

[Francis Vineyard]

What would be readily achievable? From September 15, 2010, to March 15, 2012, if the elements in a business serving the public (public accommodation) do not comply with the requirements for those elements in the 1991 Standards, the elements must be modified, to the extent readily achievable, using either the 1991 Standards or the 2010 Standards. The public accommodation must use only one standard for removing barriers in the entire facility. For example, it cannot choose the 1991 Standards for accessible routes and the 2010 Standards for restrooms. On or after March 15, 2012, elements in a facility that do not comply with the 1991 Standards' requirements for those elements (for example where an existing restaurant has never undertaken readily achievable barrier removal) must be modified using the 2010 Standards to the extent readily achievable. March 15, 2012, is the compliance date for the 2010 Standards which include revisions to the 1991 Standards as well as supplemental requirements for which there are no technical or scoping requirements in the 1991 Standards (such as swimming pools, play areas, marinas, or golf facilities). Public accommodations must comply with the 2010 Standards' supplemental requirements in existing facilities to the extent readily achievable.

 

[kilitact]

Sounds like some common sense.

The standard is what is enforceable, yes any one can sue in order to make changes or money.

I would sure like to see these people that are familiar with every d-m law and standard that was passed in the last xxx years.

Title III (Public Accommodations)

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

This title prohibits private places of public accommodation from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on. This title sets the minimum standards for accessibility for alterations and new construction of facilities. It also requires public accommodations to remove barriers in existing buildings where it is easy to do so without much difficulty or expense. This title directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. It also requires that they take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities. This title is regulated and enforced by the U.S. Department of Justice.

 

[conarb]

As I'm sure most of you have read California is in one of it's cyclical droughts, farmers use 80% of our water, environmentalists (notably The Sierra Club) have demanded that we build no more dams and even have us tearing down dams "for the fish", I see a proposal from a Stanford professor to "allow" the environmentalists pay for the water (much like a carbon cap & trade).

Anderson believes that it may become an increasingly important tool in the future. It could, for example, allow environmentalists who want to protect salmon runs to pay farmers to leave water in the river. "A market is an institution that links up suppliers with demanders" ¹

Maybe a similar system could be set up for the "demanders" here, allow the disabled and their support groups to pay businesses to change their facilities to accommodate them.

¹ https://alumni.stanford.edu/get/page/magazine/article/?article_id=71847

 

[MASSDRIVER]

As I'm sure most of you have read California is in one of it's cyclical droughts, farmers use 80% of our water, environmentalists (notably The Sierra Club) have demanded that we build no more dams and even have us tearing down dams "for the fish", I see a proposal from a Stanford professor to "allow" the environmentalists pay for the water (much like a carbon cap & trade).Maybe a similar system could be set up for the "demanders" here, allow the disabled and their support groups to pay businesses to change their facilities to accommodate them.

¹ https://alumni.stanford.edu/get/page/magazine/article/?article_id=71847

Ah, Conarb.

Your youth and naivete is quite beguiling.

To suggest that those using the resources they demand actually participate in the funding thereof is, shall we say, amusing.

Brent

 

[conarb]

Ah, Conarb.Your youth and naivete is quite beguiling.To suggest that those using the resources they demand actually participate in the funding thereof is, shall we say, amusing. Brent

Brent:I guess I'm old enough to remember this as a free country when every business had a sign saying:

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Or actually state who we don't want to do business with:

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But we've lost our rights to free speech and freedom of association.

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[mark handler]

I guess I'm old enough to remember this as a free country when every business had a sign saying:

Or actually state who we don't want to do business with:

But we've lost our rights to free speech and freedom of association.

 

[mark handler]

 

[mark handler]

 

[MASSDRIVER]

Completely different.

No comparison.

Brent.

 

[Paul Sweet]

From ADA 36.104 Definitions:

Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include—

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Restriping some parking spaces and putting up a sign is "readily achievable". Regrading the parking lot isn't. Adding an accessible toilet or modifying existing restrooms is not "readily achievable".

Small business owners who rent their space have no control over the landlord's property, which includes the parking lot, yet they get sued if a landlord puts a handicap parking sign on a space that exceeds 2% slope.

 

[mtlogcabin]

I guess I'm old enough to remember this as a free country

My 8 year old granddaughters question

"Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"

Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"

 

[mark handler]

My 8 year old granddaughters question "Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"

Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"

Ask any Disabled Vet:

Freedom is not Free

 

[kilitact]

My 8 year old granddaughters question "Why does everyone say we live in a free country if we have to pay money for everything at Wal-Mart?"

Unfortunately there are millions of adults who have the mentality of an 8 year old when talking about "freedoms"

Yes, but they figure they can sue for the free-dom.

 

[mark handler]

Always Driven by lawyers....

 

[Frank]

The way you show that the corrections are not "readily achieveable" due to inadequate resources, is when you go bankrupt trying to prove you don't have the money in Federal Court.

For a business with limited resources the defense costs can be the last straw.