The Americans with Disabilities Act was enacted in 1990 as an effort to prohibit discrimination based on disability. Contrary to popular belief, the ADA does not apply only to employment discrimination. There is an entire section of the ADA devoted to construction and design, and it details requirements for how business facilities must be designed, built, maintained and remodeled to accommodate individuals with disabilities. These wide-ranging requirements are commonly known as the ADA Standards for Accessible Design.
For nearly two decades following the ADA’s enactment, Springfield seemingly flew under the radar of ADA litigation. Since late 2010, however, more than 30 businesses in the Springfield area have been sued by individuals with disabilities in federal court for alleged violations of the ADA Standards, making Springfield a national hotbed for ADA litigation. Targets of these lawsuits range from major shopping centers to gas stations and motels to small, family-owned restaurants and shops. Allegations in these lawsuits cover a wide range of potential ADA violations, such as parking lots and sidewalks that are too sloped to successfully maneuver a wheelchair; too few accessible parking spaces; doors and entryways that are not wide enough; restroom fixtures such as paper towel holders and soap dispensers that have been installed out of reach; toilets, sinks and mirrors that are improperly placed; and restrooms that are too small to accommodate a wheelchair. Each lawsuit demands essentially the same relief: The plaintiff wants the court to force the business owner to make costly modifications to the property and to pay the plaintiff’s attorney’s fees.
This rash of lawsuits does not appear to be an anomaly. Many industry experts, in fact, expect a marked increase in ADA litigation in coming years, due to new ADA Standards that took effect March 15, 2012. These new standards impose various revised and additional design requirements for new construction and alterations.
In addition, and perhaps more importantly, these new standards eliminate the previously existing grandfathering of older buildings. In other words, most business entities – from stores to hotels to coffee shops to office buildings – must now comply with the ADA Standards on some level, even if they were built years before the ADA was enacted.
What this means, very simply, is that if your business or development is not compliant today, that noncompliance creates a risk of litigation that increases with every customer that enters your establishment. It just takes one person to file a lawsuit, and if you are not ADA compliant, you may be ordered to pay the fees for that person’s attorney in addition to paying for the modifications at your business.
The cost of ADA non-compliance is significant. Some business owners have spent hundreds of thousands of dollars on property modifications, attorney’s fees and litigation costs. The U.S. Department of Justice also actively enforces the ADA, and it may choose to investigate a business anywhere in the country. This can result in a term of court-ordered oversight, victim compensation and fines in addition to the cost of remodeling the property.
As a result of recent litigation and the new ADA Standards, business owners should take proactive measures to ensure that their facilities are compliant. Owners considering new construction or alterations should work closely with their architect and contractor to ensure compliance. Owners of existing businesses or developments should consider working with an attorney to coordinate a facility audit, which would create a priority list for ADA compliance. In many instances, through a few relatively inexpensive steps, business owners can determine if they are a likely target and protect their business from an ADA lawsuit.
Jason Smith is an attorney with Husch Blackwell LLP, concentrating in real estate and development and construction law. He can be reached at jason.smith@huschblackwell.com.
