95% of commercial buildings violate of the ADA…and their owners don’t even know it.
But some lawyers make it their job to know. Here’s how to avoid a costly ADA lawsuit.
The Americans with Disabilities Act, or ADA, is a vital piece of legislation for ensuring that all Americans have equal access to the same resources. But it also means that property owners, builders, and business owners all need to comply with the law for this equal access to exist.
When building a new commercial property, or even renovating an existing one, being ADA compliant is paramount…and not only because of hefty government fines. As it turns out, being hit with an ADA lawsuit should be a much bigger concern.
Are You ADA Compliant?
Before we talk further about ADA lawsuits, it’s important to define what it means to be “ADA compliant.”
The ADA is precise when it comes to compliance. If there is a maximum or minimum allowable measurement, your building must fall within those parameters. If there is an exact measurement given (i.e. no “acceptable range”), your building must comply exactly with that measurement, not just “close.”
Simply being off by a fraction of an inch is considered “non-compliant.”
In our experience—both as commercial building inspectors and experts in court—it isn’t that businesses are failing to include necessary features, it’s that they are missing the mark on them.
Stair risers and treads don’t have the proper dimensions. Wheelchair ramp slopes are too steep. Doors close too fast or don’t have enough clearance.
The ADA also has guidelines for building features that most property owners would never assume to be non-compliant. For example, this is the diagram in the ADA for 180° turns around a wall or other feature that is less than 48″ wide.
As you can see, there are strict guidelines for the width of the walkway approaching, leaving, and going through the turn. This is just one example in a long list of ADA Standards.
The ADA is a long, precise, and often complex document. Without an ADA inspection, most property owners (and even builders!) aren’t even aware that they are non-compliant with the law.
Are You Prepared For an ADA Lawsuit?
When it comes to ADA compliance, the real issues don’t originate from the government, but from lawyers.
Lawyers can make a killing when it comes to ADA lawsuits. Some persons with disabilities go into buildings with the intention of checking for common ADA violations. When (not “if”) the disabled person finds an issue, the lawyer files a lawsuit for not being in compliance with the ADA.
Once a lawsuit has been filed, the plaintiff’s legal team is allowed to send experts into the building to look for other violations. And they will find them.
In our experience, 95% of all commercial buildings have ADA violations that their owners are unaware of. In fact, they usually don’t become aware of them until they are hit with a lawsuit.
And, because you were not in compliance with the law, a judge will rule in their favor and you will be ordered to pay for:
ALL renovations required to bring your property into compliance;
Any experts hired as witness by both parties;
Legal fees and court costs for both parties.
In addition you may be responsible for paying a $75,000 fine; for a subsequent violation the new maximum is $150,000.*
ADA lawsuits are extremely common and they only need to find one violation to open this can of worms.
*On March 28, 2014, the Department of Justice issued a Final Rule that adjusts for inflation the civil monetary penalties assessed or enforced by the Civil Rights Division, including civil penalties available under title III of the Americans with Disabilities Act of 1990 (ADA).
For the ADA, this adjustment increases the maximum civil penalty for a first violation under title III from $55,000 to $75,000; for a subsequent violation the new maximum is $150,000. The new maximums apply only to violations occurring on or after April 28, 2014.
This Final Rule is a non-discretionary agency action made pursuant to Section 4 of the Federal Civil Penalties Adjustment Act of 1990, as amended (Adjustment Act), which mandates the Attorney General to adjust for inflation the civil penalties assessed or enforced by the Department of Justice. The amounts of the adjustment were determined according to a specific mathematical formula set forth in Section 5 of the Adjustment Act. The previous adjustment under the ADA occurred in 1999.
How to Avoid an ADA Lawsuit
Since 95% of commercial buildings are in violation of the ADA, you wouldn’t be wrong to think of your real estate like a ticking time bomb. It’s only a matter of time until your building’s violations are discovered.
City and county inspections are not enough. At BIS, we routinely find ADA violations that were missed during municipal building inspections. By getting an ADA inspection, you will be able to remedy any shortcomings before they are discovered by litigious strangers.
The ADA isn’t something to be taken lightly.
As any lawyer can tell you, when it comes to legal compliance, the devil is in the details. And the standards listed in the Americans with Disabilities Act aren’t guidelines; they are exact standards.
The majority of commercial property owners aren’t aware that they are in violation until they are hit with an ADA lawsuit, and by then it’s too late. Once you are hit with a lawsuit, you will not only have to pay for renovation costs, you’ll have to pay for all relevant legal fees for yourself (your lawyers, experts, and fines) as well as the claimant (their lawyers, experts, and legal costs).
But the good news? There is a way that you can avoid ADA lawsuits. A proper, thorough ADA inspection can ensure that you save that money and avoid the headache of dealing with the fines and legal fees on top of necessary renovation costs.
At BIS, we have more than 40 years’ experience with tens of thousands of inspections to our name and have acted as an expert witness in county and state courts. We understand buildings and we understand the ADA.