ADA Compliance: Dos and Don’ts for Small Business Owners
You might have heard that abuse of the Americans with Disabilities Act (“ADA”) is a big problem in California. It is true. In fact, there were over 2,500 ADA lawsuits filed in California federal courts against business owners and property owners in 2016 alone.
The Best Defense is a Good OffenseComplying with the ADA is the only way to ensure that predatory ADA plaintiffs cannot find a way to sue your business.
All business and property owners should obtain regular CASp inspections. CASp is short for Certified Access Specialist, a program run by the California Department of General Services. CASp inspectors are certified by the State of California to perform impartial ADA inspections.
Accessibility guidelines and the building codes are constantly changing. What was once considered "up to code" may no longer be the case. Even minor violations can result in your business being targeted in an ADA lawsuit. Therefore, I recommend CASp inspections every 18-24 months. Consider it cheap insurance.
Moreover, don't rely on common sense to tell you whether your business or property meets accessibility standards. Courts have ruled that ADA compliance is a "matter of inches." Even a bathroom mirror mounted an inch too high above the level floor is considered an ADA violation. What looks "good enough" to you and I will likely end up in a lawsuit.
In terms of high-impact areas for violations, the lack of accessible parking is probably the number one issue that results in ADA litigation. Common issues include faded parking lines, the lack of appropriate signage, all the way to the complete lack of accessible parking.
I always recommend that a business owner start fixing accessibility issues on the outside first. If your parking looks good, a drive-by ADA plaintiff will likely move on to someone else, thinking that the rest of the facility complies with the relevant accessibility standards.
Lastly, don't rely on the fact that your business or property is "grandfathered" and not subject to ADA violations. While this defense may have merit for your particular circumstances, litigating this issue can take many months and tens of thousands of dollars in attorney's fees.
What to do if you are SuedMost business owners' first notice of an ADA lawsuit is service of the summons and complaint to a lawsuit. That's right: under California law, an ADA plaintiff does not need to warn a defendant about ADA defects before filing a lawsuit.
In fact, Senate Bill 1186 passed in 2012 prohibits ADA plaintiffs from sending pre-litigation demand letters that contain a demand for a monetary settlement. ADA plaintiffs reacted to this well-intentioned legislation by skipping the demand letter step altogether. They now head directly to court, increasing the costs for everyone.
Most professional ADA plaintiffs will be demanding three things in a typical lawsuit: 1) an injunction requiring you to make ADA upgrades to your business or property; 2) money damages; and 3) attorney's fees.
Under California law, with a few exceptions, an ADA plaintiff is able to demand a $4,000 statutory penalty for each visit to a non-compliant business. Additionally, plaintiffs are also able to ask for damages for times they allege they were deterred from visiting a non-compliant business. Keep in mind: the number of actual ADA violations does not actually matter when calculating damages. Even one minor ADA violation will trigger damages under California law.
These ADA lawsuits are generally filed in the United States District Court. This means that defendants are parties to a federal civil rights lawsuit. These cases are very serious.
No matter how you feel about the matter, as a business owner you must take swift action to preserve your rights. A surprising number of ADA lawsuits end up in default judgments. This means that the defendant did not respond to the lawsuit. When a defendant defaults, the court enters a judgment for the plaintiff. A default judgment can result in liens being placed on property and adverse credit consequences.
Don't wait until you are sued to take action to fix your ADA issues. Obtain a CASp report and immediately start working to fix any ADA deficiencies. Only diligent attention will keep you and your business out of court.