Ignoring The Americans With Disabilities Act Could Cost Your Business A Bundle
Keywords: ADA, requirements, penalties, california disabilities act, unruh act
The Americans with Disabilities Act is broken into titles. Title II is what is presently a great problem for business. Under Title II of the ADA, a business has to comply with many requirements imposed by the ADA. These requirements are intended to make acilities accessible to persons with disabilities.
Virtually every business has failed to comply with some requirement or other. What this means is that any disabled person can file a lawsuit against almost any business. The most obvious, and usually triggering event, is the lack of a ramp or lack of parking space marked and set aside for persons with disabilities. These type of lawsuits are generally initiated by disabled person in the business of suing.
Some disabled persons have filed over a hundred cases. Some disabled persons make a very good living driving around and finding places to sue. It has become such a problem that even plaintiff’s attorneys feel uncomfortable with the ADA. Too some extent
the ADA has been equated to extortion of small business operators.
The ADA covers not only the owner of the property, but also the lessee and the business operator and anyone that has an interest in the property. A business cannot escape liability, by claiming no ownership.
In California the Unruh Act and Disabilities Act provides for damages of $4,000 to the disable person filing the lawsuit. Any violation of the ADA is a violation of the Unruh Act. In addition to the $4,000 in damages the statute also provides for reasonable attorney fees and costs.
In California $250 per hour is generally considered a reasonable rate for attorney fees, but some attorneys charge as much as $500 per hour. The preparation of the lawsuit itself alone often costs over $1,000.00. Among other things on top of the original lawsuit there are court costs, expert fees, and service of process costs.
If the business owner decides to fight it, there are filing fees and his own attorney fees to pay. When a business owner has legal entity such as an LLC or a corporation multiple filing fees may be required. Once the lawsuit is answered the owner has to pay an attorney at an hourly rate of around $250 per hour and if the lawsuit is lost the attorney fees are about doubled, because a court will order payment of fees due to the disabled persons attorney and this is on addition to the $4,000.00 plus costs associated with the lawsuit.
Sometimes no lawsuit is not filed and a demand letter for money damages and repair to a facility is sent out to businesses. More often than not, the disabled person’s attorney will not demand proof that the establishment complied with the modifications. If the business fails to comply, another lawsuit can result from another disabled person for the same exact violations. So, attorneys representing disabled persons don’t want any facilities to become accessible, they have no incentive to insure business comply.
Some attorney offices have teams of disabled persons that meet regularly with the attorney where they receive training on what to look for. These disable persons are educated on what the ADA requires and then they go out and look for violations to file suits and earn income. Some of these firms provide booklets, pamphlets, seminars, and even pep talks to
educate and motivate disabled persons into finding non compliant businesses and filing suits.
Most lawsuits result in a settlement, but even if there is a settlement, it does not mean another disabled person cannot sue after the settlement. Another disabled person can file a lawsuit, even after the facility has been made accessible. These lawsuits arise from the violation of the ADA and the injury to disabled person.
What is relevant when determining if the disable person has a case is the time of when the disabled person visited. If the disabled person visited when the facility was not accessible, then the disable person has a claim. Virtually every single establishment can be held liable for failure to make the facility accessible.
One of the few exceptions to avoiding liability is the cost of modifications. If the cost of making the facility accessible is too high or if making the required modifications will have a severe impact on sales or profits, then no modifications are required. This does not mean the establishment will never be sued, it only means the establishment will have a good defense. The issue in this type of defense is what is too much to make modifications or what is too big a loss of business.
Congress provided some guidance in determining how much is too much to spend, it stated that the business should expect to make a profit from the new business coming in from disabled persons as a result of the modifications made to the business establishment.
Ultimately, how much is too much is really a question for a judge or jury, but finding out will be at great expense to a business. Therefore most businesses are forced to pay, rather than to litigate. There are clearly situations when it is inexcusable to make an establishment accessible, such as new construction, but for existing buildings the ADA has
been characterized as legal extortion.
Every small business should buy an inexpensive checklist or review the guidelines provided for by the justice department to insure they are in substantial compliance. Small business should petition the Federal Legislature if these practices are to end. Currently there is not opporunity to cure, a violation, regardless of whether it is innocent or not results in monetary damages to the business establishment violating the ADA.
Arnold Hernandez, is a practicing attorney in San Marcos, California and represents small businesses and individuals primarily on employment law and personal injury. More information at www.arnoldhernandez.com
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