How to Avoid Common ADA Compliance Problems?
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For over a decade, as ADA California experts, we’ve protected businesses and property owners from ADA lawsuits, but never before have we seen such dramatic changes as what we are witnessing in 2020. Across state and local jurisdictions, ADA lawsuit volume spiked 30%. The regular serial litigants ramped up “productivity” and many new ones got into “the game” that can be played by referencing the requirements for public accommodations in Title III of the Americans with Disabilities Act. In all, they blasted out thousands of lawsuits and made millions of dollars suing business and property owners over noncompliant accessibility standards. But as we work through 2020, we wanted to take a moment to share some of the common problems for ADA compliance that can lead to lawsuits as they are what the Department of Justice specifies as legal guidelines from Americans With Disabilities Act.
Signage is designed to be eye-catching, but when you are dealing with ADA Parking Signage, property owners and property managers must be very careful on not only having the correct signage but making sure it is ADA compliant — this is one of the most common problems we see — many times caused by incorrect accessible design. There are hundreds of details that must be taken into consideration with ADA parking signage so that people with disabilities can safely access a commercial property. Everything from the height that a sign is installed on a post, to the size of the font used to fill in the specific contact details on a tow sign, everything must be precisely implemented to code… and if details are missed, an ADA lawsuit could be just around the corner, and ADA compliance could be compromised.
With 95% of all ADA lawsuits originating in parking lots, there is plenty of reason for property owners and property managers to be vigilant in ensuring their exteriors are compliant to ADA standards, and signage plays a huge role. ADA Compliance Professionals has seen countless compliance lawsuits over the last year that cited signage problems, making the exposure for a lawsuit even more treacherous. Navigating just what exactly makes a parking lot compliant and the ADA rules that must be followed is tricky. However, it must be done successfully so that people with disabilities can safely access a property.
Serial litigants are always seeking easy-to-spot infractions – they don’t need more than a few issues to justify a lawsuit that will cost the business and/or property owner thousands of dollars. Many times they aren’t even going to the property in person, but scoping it out on Google Earth, seeking out common problems from faulty accessible design. And one of the most regularly cited issues in ADA lawsuit complaints is signage that falls short of required ADA standards.
From the tow sign, which must be properly positioned, to the accessible parking signage, which has multiple requirements to ensure it is compliant, there is a lot of issues that must be properly addressed in a parking lot. Even regular maintenance plays a role because if an ADA parking sign is vandalized, that can also be justification for a lawsuit as all of the above can create barriers for people with disabilities to safely access a property.
With 95% of all ADA lawsuits originating in parking lots, there is plenty of reason for property owners and property managers to be vigilant to avoid accessibility problems. Navigating just what exactly makes a parking lot compliant and the ADA rules that must be followed is tricky, but we are here to help avoid these common problems.
One of the primary offenders for non-compliance which is constantly cited in lawsuit complaints: curb ramps. Curb ramps are a part of the required ADA standards and a crucial element of what is called public accommodation for ADA compliance. For reference, public accommodations are what is cited in Title III of the Americans with Disabilities Act, which was put into effect in 1993 by the Department of Justice to help ensure people with disabilities have the same level of accessibility as an able-bodied person; do not have access was ruled discriminatory.
Now that we’ve clarified what exactly is a public accommodation, let’s get back to curb ramps. They are a way of enabling somebody in a wheelchair, or with other disabilities, to transition from the parking lot or public sidewalk to a walkway, and the parameters for making one ADA compliant are strict. You cannot exceed 2% of a cross slope and 5% of a running slope and correct implementation can be challenging, but the ruling by the Department of Justice made this requirement necessary.
However, very very few curb ramps are ADA compliant. It is one of the most easily spotted non-compliant elements in a parking lot. The biggest offender is what is known as a “built-up curb ramp,” which is one of the most common problems we encounter.
Built-up curb ramps are cheap and easy to install, making them a favorite of many contractors who do not understand ADA requirements and compliant accessibility. Unfortunately, they are nearly impossible to make ADA compliant and are one of the clearest mobility impairments for people with disabilities. They also are a clear example of an ADA infraction, which leaves a property exposed to an ADA lawsuit for anybody with a discerning eye who is looking for lawsuit targets.
A built-up curb ramp is more of an “if not when” for an ADA lawsuit as a property or business owner must comply. The obvious exposure is simply too great to risk keeping them on a property. Not to mention, they are legitimately a danger for people in wheelchairs. Serial litigants are looking for low hanging, easily confirmed non-compliant accessibility items and a built-up curb ramp is at the top of the list of what can trigger a lawsuit for not abiding by ADA standards.
Since 1993 when the Americans With Disabilities Act went into effect, keeping a commercial property ADA compliant has always been a challenge. Whether we’re talking about a retail store, a hotel, a shopping center or restaurant, there is so much more exposure to possible issues. Such exposure has made the commercial properties prime targets for serial litigators, suing on behalf of plaintiffs with disabilities.
Allow me a moment to draw an important distinction between serial litigators and disabled people who simply want access to public spaces and are well within their rights to advocate through the legal process to gain the accessibility able-bodied people have. I have a family member with a disability and have experienced first-hand the frustration of not being able to access a restaurant or hotel.
However, there are roughly twenty-five law firms across California who specialize in state and local ADA lawsuits. These suits are driven by the lawyers, not the plaintiffs, and they sue multiple properties every day over accessibility issues. At ADA Compliance Pros, we hear the same names over and over again and while they claim they are working as advocates for civil rights, in many cases, they are looking to profit from the strict laws in place to protect people with disabilities from struggling to access commercial properties. They are prolific and only getting more sophisticated in their techniques as local governments do nothing to stop them.
Being on the front-lines, we are now seeing a new and concerning development in how these lawsuits originate. Ninety-five percent of ADA lawsuits cite exterior accessibility issues. This is due to how easily savvy people can determine if a property is indeed ADA compliant. For years, ADA lawsuits have therefore been coined “drive-by lawsuits” as enough info could be gleaned without people ever getting out of the car.
However, we are starting to see these serial plaintiffs opt for leaving the car in the garage and simply hopping on the computer to seek out noncompliant accessibility issues. With Google Earth having visually captured all of California (and the entire globe for that matter!) we are now seeing lawsuits being filed by people who make use of this new technology. Serial litigators can zoom in close enough to survey a parking lot and determine if the accessibility appears compliant.
While this all might seem complicated and overwhelming, it doesn’t have to be. The first step is getting an Accessibility Survey and learning what is indeed non-compliant with your facility. From there, a plan of attack can be put into place to bring your property into compliance. Getting ahead of the problem will save time and money and keep you from getting blindsided by an ADA lawsuit.
The best thing to ensure compliance is to know what must be done. People must get proactive. There are a few ways of going about that. You can study the laws and cross-check them with your own property’s public accommodations for people with disabilities, or you can hire an Access Specialist, also known as a CASp, to conduct an inspection to verify all of your conditions for ADA standards. A detailed Access Report should give a blueprint to what you must do to fix any problems to ensure compliance. But whichever route you choose, leaving things unchecked could lead to a costly lawsuit and expensive accessibility problems.
In sports, they often say the best defense is a good offense, and for business and property owners who must comply with Title III of the ADA standards, the same philosophy holds when dealing with compliance problems and accessibility issues. The best way to protect yourself from a lawsuit is to be proactive. Getting ahead of an accessibility lawsuit will save you thousands of dollars in legal expenses and settlement costs.