Issues that are the subject of so-called drive-by lawsuits are typically those that are readily visible to the public, including parking spaces, exterior routes, and building entrances. Professional plaintiffs will seek out anything that does not follow the ADA standards – missing parking spaces designated as accessible, non-compliant public restrooms, checkout counters that are too high. However, in a majority of these cases, the filed lawsuits are legitimate complaints where the owner or tenant should have been compliant a long time ago.

California introduced the voluntary Certified Access Specialist (CASp) Program, Senate Bill 1608, to increase ADA compliance in California communities by providing equal public access at businesses and promoting accessibility, all while protecting businesses from unwarranted litigation. A CASp is a person who has been trained, tested, and meets specific guidelines for experience related to accessibility. Hiring a CASp to review a building or site for compliance with applicable state and federal construction-related accessibility standards demonstrates that the building owner/operator/tenant has an intent to follow the law, and above all that they want to provide equal access for their customers.

Having this CASp certification also plays a critical role in providing protection from liability in case a lawsuit is filed. Specifically, being proactive and obtaining a CASp report and certification prior to a lawsuit being filed entitles the owner to a 90 day stay. This is a temporary stop to attorneys from engaging in activities that compound legal fees. It will also allow the owner to schedule an early evaluation conference. This is a conference administered by the courts, where there is opportunity to resolve dispute between both parties, deterring frivolous cases, and discussing opportunities for early settlement. For example, if the complaint in a lawsuit is something that can easily and expeditiously be fixed, further litigation would not be necessary.

Knowledge Is King

When it comes to ADA compliance, having a clear understanding of applicable requirements and potential issues is key. An Accessibility Survey, will assess all areas of a facility and outline any elements that are not in compliance with ADA Standards. This will allow you to proactively address any shortcomings, which is likely to be much cheaper than settling a lawsuit – I have reviewed complaints where the plaintiff paid settlement fees when all they had to do was move a shopping cart out of the access aisle and add parking signage!

An Accessibility Survey will also help you to prioritize corrective actions needed. Short of addressing issues/removing barriers upfront, developing a proactive and detailed plan, schedule and budget for repairs will go a long way to proving your intent to follow the law (much like hiring a CASp). This will be an important defense in lessening punitive damages in case of a lawsuit.

Building owners and operators can help the process by regularly performing visual evaluations of their facility, and practicing good housekeeping. Things to look out for may include: are the parking spaces wide enough? Do they have an access aisles? And do they have the required signs? Are parking spaces designated as accessible close to building entrances, is there a direct route to the main entrance without the use of stairs or curbs, and is this path in good condition.

Importantly, getting a step ahead of “professional plaintiffs” is also critical to avoiding any reputational liabilities associated with a lawsuit because of a business' non-compliance.

Language in the Regulations

As mentioned, ADA uses terms in its regulations that may make it more difficult for businesses to understand exactly what improvements they are required to implement to ensure compliance. For example, ADA stipulates that existing properties (meaning the building permit was received prior to January 26, 1993), can remove barriers up to what is considered readily achievable. Readily achievable means that it is able to be carried out without much difficulty or expense. Of course, what is easy to accomplish and what exactly constitutes “difficult” or “expensive” can vary based on the size of a business and its available resources.

For example, an improvement that is “readily achievable” for a conglomerate like Target is quite possibly far too expensive or cumbersome to be readily achievable for a small family owned donut shop.

However, there are generally accepted rules of thumb as to what is considered readily achievable. For example, adding a curb ramp or striping a parking lot would generally be considered readily achievable for most businesses, whereas adding an elevator may be acknowledged to be more difficult and expensive. An ADA specialists will be able to provide further clarity on the applicability of ADA's language in specific situations.

Understanding all the different requirements in the ADA and other accessibility laws can be compliacted. Accessibility related lawsuits, especially in the state of California, continue to be on the rise. Many business are unaware of the requirements or assume that their business is “grandfathered,” but the ADA is a retroactive law with no such clause. Any business that is a public accommodation needs to comply with the ADA. Your best approach to ensure compliance and avoid lawsuits is it to be proactive, know where your building falls short, order an accessibility survey, and create a plan and schedule to have your property comply with the law.