Over the last couple of months, I have received this phone call close to once a week. So, I thought I should write a preventive law approach to dealing with this. The situation goes like this: potential client owns a small business/restaurant/shopping mall and is worried about fending off a serial plaintiff either presently or in the future. Often times, small business/restaurant/shopping mall was built before the ADA and no alterations were performed since then. How do they go about doing it? Keep in mind, that there is no way to prevent these kind of lawsuits, but there is a way to set it up so that these lawsuits become difficult for plaintiffs to win. With apologies to Texas, the way to approach this is to do the two-step. The two steps are: 1) Get the property surveyed for compliance with the applicable ADAAG guidelines/standards; and 2) Use a knowledgeable attorney to analyze the results of that survey in order to assess just what are your legal obligations.
There are some other things to keep in mind.
- Even assuming that the structure was built pre-ADA and no alterations occurred since then, you do not get a free pass. You still will have to do whatever is readily achievable per 28 C.F.R. §36.304. What is readily achievable is a legal call, but a call that can’t be made without knowing what is out of compliance with the applicable guidelines/standards.
- If alterations did occur, then those alterations as well as the path of travel to those alterations must have been done in accordance with the applicable ADAAG guidelines/standards. As far as what is an alteration, check out this blog entry.
- Remember, that both the landlord and the tenant are liable for ADA accessibility issues. So, you want to be sure that the lease between the landlord and the tenant covers ADA accessibility. Such a lease apportioning ADA responsibility, per 28 C.F.R. §36.201, does not affect liability (after all, compliance with the ADA is a nondelegable duty), but does affect reimbursement for the repairs. Also, with respect to any such lease, you are much better off phrasing such a clause in terms of reimbursement rather than indemnification in order to get around the nondelegable duty issue.
- Another thing to consider is that readily achievable ultimately comes down to a question of the financial resources of the entity. So, you may want to consider incorporation if that is not in place already.
- Where do you find a qualified surveyor to assess what needs to be done to make the facility compliant with the applicable ADAAG guidelines/standards? In Texas and in California, they have certified access/accessibility specialists who do nothing else than survey facilities for ADA compliance with the applicable guidelines/standards. Other states do not have such a system, and so you are left with having to find qualified people to do this (using such people may also give you additional legal protections under state law). ADA compliance surveyors aren’t necessarily easy to find, and over time, you might develop a network of people that do this, such as I have for Texas and here for the Chicago area in Illinois. Also, this website of a national firm, which firm I have contacted in the past, may also be helpful. Make sure that the survey report includes an estimate of what it would cost for each repair they find needed in order to become compliant with the applicable ADAAG guidelines/standards.
- What about the cost for doing this two-step process? Getting the property surveyed for ADA compliance might costs 5-10,000 dollars or so. Perhaps more or perhaps less depending upon the facility involved and the expenses of the person doing the surveying. Then, it might be another five hours of lawyer time or so to figure out just what the compliance obligations are. Sounds like a lot, but consider this article from San Francisco where it says that the average costs in San Francisco of an ADA settlement is $30,000, including attorney fees. That settlement figure might be higher for California as California has a law that can make damages quite large for title III violations, while other states do not have such a law. Also, I don’t know if that figure includes attorney’s fees of the defendant as well at the plaintiff or just attorney’s fees for the plaintiff. In those other states that do not have laws running up damages for violations of title III, it certainly isn’t unusual to see a 4-5,000 dollar demand letter. Keep in mind, that settling with a serial plaintiff will not protect you from other serial plaintiffs.
- So, doing the two-step means an initial outlay of five to $10,000 possibly more or less to get the compliance survey done. Then, a matter of some hours of attorney time. But, think about what you save. First, you have a process in place to deal with plaintiffs who may come by and look for easy targets. Once a lawyer has evaluated the compliance survey, it can then be determined whether the things that are out of compliance are in need of an immediate fix or whether the things out of compliance can be prioritized to be solved later, as discussed in this blog entry for example. Once you have that information, and a plaintiff persists in demanding immediate accessibility for items that need not be immediately accessible, you can defend on the grounds you are doing everything that the law mandates you do. Also, you can argue to the plaintiff that since you are doing everything that the law mandates you need to do, further litigation on their part may set themselves up for a claim for attorney’s fees from the defendant per this blog entry.
So, do the two step!