Ignoring the ADA Could Cost Your Business A Bundle
with Disabilities Act is broken into titles. Title III is presently a
grave problem for businesses. Under Title III of the ADA,
a business has to comply with many requirements imposed by the ADA. These
requirements are intended to make facilities accessible to persons with
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 a
disabled person in the business of suing.
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.
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.
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
comp complied with the
modifications. If the business fails to comply, another lawsuit can
result from another disabled
perso person for the same
exact violations. So, attorneys representing disabled persons don't want
any facilities to
accessible, they have no incentive to insure businesses comply.
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
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.
is relevant when determining if the disable person has a case is the time
of when the disabled person visited the premises. 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.
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 revenue if the modifications
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.
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. Recently in a local case a Federal District Court
judge caught one of these attorneys in one of these extortion
attorney made a demand of a property owner to pay up or else he would
sue. In this case there was no
violation, because the building was vacant and boarded up. The attorney never went in or visited
the building. He claimed a violation when there was no violation! See local newspaper story at
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
opportunity to cure, a violation, regardless of whether it is innocent or
not results in monetary damages to the business establishment violating