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The Legal Consequences of Having a Non ADA Compliant Building

America is the land of the free promising equal opportunities for everyone regardless of age, gender, religion, or presence of disability.

In a landmark move, an accessibility law was passed by the Bush administration in 1990 with The Americans with Disabilities Act (ADA). For three decades now, the rights of persons with disabilities to enjoy public and private goods and services have been safeguarded by this civil rights law. Whether your disability can be plainly observed or not, the ADA seeks to protect you from discrimination.

Despite the amount of time that has passed, however, the number of violations continues to go on the rise. In fact, in 2019, over 11,000 ADA Title III federal lawsuits were recorded, which is more than 4 times the figure recorded in 2013 when only 2,722 cases were tallied.

Why are ADA violations increasing?

Today, there are an additional 22 million US citizens compared to the census of ten years ago when the Department of Justice (DOJ) published the 2010 ADA Standards for Accessible Design. The DOJ issued these necessary revisions in the hope that it will be easier for facilities to be compliant. After all, the ADA was created to protect everyone’s rights and not to make life harder for people who want to conduct business.

When we look at the numbers reported by Seyfarth Shaw who tallies ADA-related lawsuits, California leaps out of the pack, taking the lead every year with the most number of cases. This can be interpreted because of the economic foot traffic of the state, not to mention its 11% slice of the US population. Another factor that points to the increase of complaints is the presence of the Unruh Act. This California legislation is very similar to the ADA in that it protects the rights of citizens against discrimination based on several grounds including disability. Under this civil rights law, a complainant can receive a $4,000 payment in statutory damages for every instance of violation reported. In a nutshell, it motivates citizens to report businesses who are non compliant as they essentially get a reward.

Title III of the ADA deals with public accommodations and commercial facilities. Businesses falling under these categories are usually the receiver of such complaints reasonably because of the number of visits they can get in a day. In a moral sense, the more customers you cater to, the higher your responsibility to comply with the ADA. The Unruh Civil Rights Act covers the same definition of establishments. This is the main contributing cause for the great number of California violations.

Why should my business strive to be ADA compliant?

They say that any publicity is good publicity. However, one would be hard put to find a business who would readily strive for negative press. People are getting more and more vocal and aware of their rights and simply put, non compliance to the ADA is tantamount to injustice for persons with disabilities. There are also very serious and legal consequences if a court finds you accountable for such a complaint.

Although the ADA also covers websites and the internet, for this particular article, we will be focusing on the physical category of businesses, those who occupy buildings.

We have already mentioned that there is a minimum fine of $4,000 for each case filed against your business, but this is just the tip of the iceberg. An additional $75,000 can be collected for your first ADA violation and a whopping $150,000 for subsequent instances. These are on top of attorney’s fees you can accumulate and the loss of income you will experience for days when you won’t be able to operate.

What is a CASp report?

If you are about to open a business, it will be to your advantage if you invest in a CASp report. It is the basic test to know if your site of operations is in keeping with the ADA.

A Certified Access Specialist (CASp) is a professionally trained expert in accessibility requirements. They can conduct an inspection and provide a report if you are ADA compliant. The provisions of the ADA can be complex for civilians to interpret and follow. A properly filed document on your compliance can certainly help you defend your business should a complaint be filed against you.

Title III violations are usually construction-related claims and these carry a serious weight since this means the missing or erring building features have already existed for a time. Building plans go under a lot of checks before any construction is even begun. Ideally, you should have a CASp report before you start any operations and when you do, this affords you a “Qualified Defendant” status in the event that a violation is reported.

What happens if I receive a complaint?

Since ADA compliance is a legal obligation, a complaint will require you to get the assistance of a lawyer. If your business has insurance, you might also want to let your provider know about your situation. Whatever the case, your site will need to be fully inspected by a specialist to determine your liability in court.

As a Qualified Defendant in an ADA Title III lawsuit, you can apply for a 90-day stay or temporary stoppage as well as an early evaluation conference. This gives you enough time to assess the validity of the claim and correct this error to show the court that you are willing to obey with the law. However, these are all in the worst case scenario. CASp reports already serve to protect entities from unnecessary litigation.

The ADA is solemn evidence that the state is committed to defend the freedoms enjoyed by everyone. Compliance is not optional and should be seen as a serious responsibility by anyone who wishes to provide the public with goods or services. Time and again, the government has strived to help citizens meet its demands in everybody’s interest. But there is still space for abuse on both sides so businesses should make it a point to be sure that they have been able to do their part.

This article does not necessarily reflect the opinions of the editors or management of EconoTimes

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