Top Ten List

On this last day of 2013, I thought it would be appropriate to do a Top Ten List.   This list is for the exterior of the building and in no way should it be considered an all inclusive list.   This is simply a list of issues that are high on the plaintiff’s hit list based on my experience over the last several years. 

(1) Tow Away Sign – Is there a tow away sign at each vehicular entry way and more importantly, does it have the contact information completely fill out?   Also, is it the sign the correct size and is it mounted at the proper height?

(2) Accessible Parking Spaces – All businesses with parking must have at least one van accessible parking space.   If you have a parking lot and no accessible parking spaces, you will probably see a lawsuit in the next couple of years.   In addition, depending on the total number of spaces in your parking lot, you may be required to have more than one accessible space.

(3) Slope of Accessible Parking – Currently there is a flood of lawsuits for accessible parking spaces with excessive slope.   The accessible parking and accompanying aisle must be virtually flat; otherwise you are subjecting yourself to a lawsuit.   This is one of the most important issues for businesses as we begin 2014 and it should be addressed as soon as possible.

(4) Size of Accessible Parking – The size of the accessible parking stalls and associated aisles is based on the total number of parking stalls required by code.   By determining the number required accessible spaces, you can determine the parking stall and associates aisle size.    The parking stall size is frequently the subject of lawsuits against business owners.

(5) Accessible Parking Pavement Signage – Your parking space should have a profile view of a wheelchair with an occupant painted on the pavement at the rear of the parking stall that is at least 36” x 36”. 

(6) Accessible Parking Pole Signage – There must be certain signage at the head of the accessible parking stall based on the type of accessible stall.   In addition, the signage needs to be the correct size and mounted at the correct height.   Lack of proper signage is a big red flag to serial plaintiffs looking for businesses to file a lawsuit against.

(7) Public Way Access – It’s not uncommon for older properties to not have any access to the property from the public way.    You must have an accessible route that is not the driveway.   In addition, you must have an accessible route between all buildings on a site.

(8) Detectable Warnings – I have not previously discussed this in my blog, however, if an accessible pathway crosses a vehicular way in a parking lot then there should be a detectable warning at each end of the pathway as it crosses the vehicle way.

(9) Access to the Door – There must be access from the public way or accessible parking stall to the main entry door.   The pathway must be the proper width and it must not exceed the slope as acceptable for a ramp.   Additionally, the accessible way must not have any changes in vertical elevation of more than ½”.

(10) Protruding Objects – The accessible pathway to the door should be free of protruding objects that are not detectable by a sight impaired person using a cane.   Objects that protrude and are too high to be detected by a cane are dangerous for sight impaired individuals who may accidently injure themselves by walking into them.

Hopefully this list has provided some insight into the issues that business owners should be reviewing at their property.   I will provide additional list in a future blog that discussed additional issues inside the business.

Common ADA Mistakes That Businesses Make

I often get phone calls from attorneys who ask me to visit their client’s business to confirm the merits of an Americans with Disabilities Act (ADA) lawsuit against their client.   I usually tell the attorney that I can save them money by not visiting the site because I am almost 100% sure the violations claimed by the Serial Plaintiff are real.   You see, there are soooooooo many violations of the Americans with Disabilities Act (ADA) by small businesses that serial plaintiffs really do not need to make up violations that do not exist.   If a serial plaintiff claims they exist, then they probably do.  After all, it has been estimated that 98% of businesses in California have at least one violation of the ADA that could result in a lawsuit. 

Serial plaintiffs are really good as what they do and have honed their skills over the last several years.   They will typically visit a business and record several violations, however, when the lawsuit is filed, they only cite the violations in the parking lot knowing full well that they will get to the other violations in a separate lawsuit to be filed in six months or a year.   This is where many businesses go wrong…………they make the necessary corrections as described in the lawsuit and think they are in full compliance with the ADA, not realizing they have 20 other violations inside the building.

Another mistake that I see quite often is where business make the necessary ADA corrections based on the violations indicated in the lawsuit, but do so in such a way that they do not meet the minimum requirements of the ADA and therefore continue to subject themselves to an ADA lawsuit.   In order to save money on their ADA improvements, business owners frequently hire General Contractors to do the work, however, what business owners do not understand is that contractors have no formal training in the ADA and typically only make ADA improvements based on plans prepared by an Architect and approved by the Authorities having Jurisdiction (AHJ’s).  

In order to help prevent lawsuits for violations of the ADA, I would strongly encourage all businesses in California to enlist the services of an Architect who is also a Certified Access Specialist (CASp) (such as myself) so they can survey your business and provide you with a CASp Report and they can also prepare architectural drawings for the ADA improvements.    In addition, and to provide further protections to the business owner, I would strongly encourage that all drawings prepared by an Architect be submitted to the Authorities having Jurisdiction (AHJ’s) that will provide a final check to confirm the drawings meet the accessibility requirements.

For those businesses located outside of California, I would still encourage business to enlist the services of an Architect to review their business with regards to accessibility and who can also prepare drawings for the ADA improvements.  A drawing prepared by an Architect is one of the best ways to prevent lawsuits for violations of the Americans with Disabilities Act (ADA).

Disabled Access From The Public Way

It’s important to remember that not all of the disabled arrive to a property in an automobile.  Many are not able to drive and therefore must use public transportation.   As a property owner, it’s your responsibility to get the disabled safely from the public way (sidewalk) onto the property and into your facility.

Many business owners believe that disabled arriving to the site from the public way can simply use the same driveway that the automobiles do.   While this may be physically possible, this is not allowed by the ADA as it is dangerous for those in wheelchairs to interact with automobiles.   After all, you must remember that those in a wheelchair are sitting down and therefore may not be visible to drivers.

As you can see from the photograph at the right, this property has access from the sidewalk; however, it prohibits access by someone in a wheelchair.   This route needs to be modified to allow for access by the disabled.   This means all of the requirements of an accessible route must be addressed including the width and slope of the access way to name just a few of the requirements.

It’s also important to note that once on the property, the accessible route must get the disabled person to the doors of all facilities on the site.   This means that if there are several buildings on the site, they all need to be connected by an accessible route that meets all of the requirements such as ramps instead of stairs and maintaining the proper width.

Remember if a disabled person can not get from the public way (sidewalk) to the doors or your facility, then you are discriminating against that person and therefore may be the subject of a lawsuit.

The ADA - A Civil Rights Issue

Many of my clients do not understand that the Americans with Disabilities Act (ADA) is one of the most important pieces of CIVIL RIGHTS legislation of our time.   That’s right…….I said CIVIL RIGHTS.  Just as you would not deny access to a business based on race, religion, color or national origin, the ADA provides those same protections to those with disabilities.  It’s a misconception that the ADA is a building code.   While it is true that much of the ADA has been incorporated into the California and other Building Codes for newer buildings, this is not necessarily true for older buildings.

While it may not seem like it, many businesses continue to deny access to those with disabilities every day without even knowing it.   Examples include businesses with no accessible parking, stairs to the main entry doors and toilet rooms that are too small for those with disabilities.   Despite the fact that the ADA is over 20 years old, those with disabilities continue to find obstacles on a daily basis.   When a disabled person can not freely use your facility without encountering obstacles, then their civil rights have been violated and you could be subjected to a lawsuit for violations of the ADA.

Another misconception by many of my clients is that older buildings built before 1990 are granted “grandfather” status.   This is simply not true.   Any facility that serves the public including hotels, restaurants, theaters, gas stations, retail stores, beauty salons, to name just a few, must meet the requirements of the ADA regardless of age.   Even historic buildings must meet the requirements of the ADA, although to a lesser degree.

One of the reasons that serial plaintiffs are filing ADA lawsuits all over California is because as many as 98% of businesses in California have at least one violation of the ADA that could be the source of a lawsuit.   Despite many legislative changes, the serial plaintiffs are still at work filing lawsuits.   There is simply only one way to avoid a lawsuit…………conform to the Americans with Disabilities Act (ADA) ONE HUNDRED PERCENT.

Tow Away Sign

In general, the California Building Code (CBC) incorporates provisions from the Federal Americans with Disabilities Act (ADA) and in many cases it makes them more restrictive.   The Tow Away Sign shown above is a case in point.

In California you are required to have a Tow Away Sign at every vehicle entry or at the location of the accessible parking stall.   In the Federal ADA, there is no such requirement.   Missing Tow Away Signs are one of the quickest ways to get involved in a lawsuit for violations of the Americans with Disabilities Act (ADA).  It’s also important to note the ADA Tow Away sign is separate from any other Tow Away Signs on the property.   Many of my clients assume their regular Tow Away Signs are the same as the ADA Tow Away Sign and this is simply not true.

In addition to missing signs, the contact information as noted on the sign must be completed.   Missing information is the second quickest way to get involved in a lawsuit.   Owners are advised to contact the Traffic Enforcement Division of their local Police Department for contact information.

In addition to completing the sign with the required contact information, there are certain other requirements for the sign including overall size of the sign, text height on the sign and mounting height all of which could result in a lawsuit if they do not meet the requirements of the ADA.

Accessible Parking & The Main Entry

The ADA dictates that accessible parking be as close as possible to the main building entry.   The reason for this is obvious………..someone in a wheelchair may not have the strength and ability to travel long distances.  After all, you must remember that unless the wheelchair is motorized, as very few are, the disabled person must use their upper body strength to move from Point “A” to Point “B” and that can be quite difficult for those with disabilities. 

As I was out running errands, I took this picture of an accessible parking space as it caught my eye for being so far out of the way.  This accessible space has numerous issues, but one of the biggest is its location relative to the main entry of the facility that it serves.  This space appears to be in a secondary parking lot and will require someone in a wheelchair to transverse probably 150 feet of uneven paving to get to the main entry.   The location of this space is a BIG red flag to serial plaintiffs who are looking to file lawsuits against small business owners.   This space will catch their eye just as it did mine.

In addition to the location of the parking space, there are several other non-conforming issues.   It may be hard to fully appreciate from picture above; however, the parking stall and aisle are too small to meet the requirements of an accessible parking space.  In addition, the aisle is on the wrong side of the parking space.   Finally, the signage on the pole in front of the accessible space is too low and the emblem of a wheel chair on the pavement is located too far into the accessible space.  It should actually be located towards the outer end of the parking accessible space.

Accessible Parking Stall Slope

One of the biggest issues currently being targeted by the serial plaintiffs is the slope of the accessible parking stall and accompanying accessible aisle.   The ADA requires both to be virtually flat.   A slight slope for drainage is allowed.  

 

The reason there can be virtually no slope is because loading and unload of a wheelchair could be an issue as the wheelchair could roll away depending on the slope.  Another issue and probably the most important is that if there is any slope to the parking stall or accessible aisle, then a wheelchair ramp from a specially designed van will not come in direct and square contact with the ground.   As a result, in many cases, the disabled person will not be able to unload into the accessible aisle.   For a visual of a specially designed van with a wheelchair ramp, go to www.amsvans.com.

As you can see from the picture on the right, most of the accessible space and accessible aisle are on a steep slope.   This will make it very difficult, if not impossible for a disabled person to use this parking stall.   To make matters worst, there is a flat area of the parking lot several spaces to the right where the accessible space could be located to meet the requirements of the ADA.   I have contacted the building owner and notified them of this issue; however, they have decided not to move the space.   Needless to say, this space is a BIG red flag to serial plaintiffs looking to file lawsuits against businesses who don’t meet the requirements of the ADA.

When the ADA was first enacted in the 1990’s, many municipalities were fairly loose in their interpretation of the ADA and allowed a ramp to be located in the accessible aisle as shown in the photograph on the left as a “stop gap” until a curb ramp could be installed at a later date.   The thought was to do what they could immediately to provide access to those with disabilities.   This practice is no longer allowed and where these ramps still exist, they are subject to a lawsuit as the ADA specifically and accessible shall be virtually flat.

states the accessible stall

If your property has a sloped ramp in the accessible aisle as shown in the photograph, I would immediately make plans to remove it and install an ADA approved curb ramp.

Where Is The Accessible Parking?

 The picture above shows another example of a poorly maintained accessible parking space.   Simply putting a sign in front of a parking space does not make it qualify as an accessible parking space.  As you can see from the photograph, there are no markings on the pavement as required indicating the accessible space or the accessible aisle.   In addition, the sign that is visible seems to be acceptable, however, there are other required signs that are more than likely missing or covered by the landscaping.   This attempt at an accessible space is a red flag for any serial plaintiff driving by looking for easy money.

Another issue that keeps coming up more and more are people parking in the accessible aisle adjacent to an accessible parking space as you can see in the photograph above.   I see this quite often now days and I have even seen it happen while the car parked in the accessible parking space is occupied.  It’s not acceptable to parking in the accessible aisle for even one minute while you run into the store.   Aside from this being prohibited with the potential of receiving a ticket for several hundred dollars, this practice in many cases will make the accessible parking space useless for those with a disability that require the use of a special van and a special passenger side wheelchair ramp as they will not be able to exit/enter the vehicle.  It's best to just not park in the accessible aisle and allow those with disabilities the full use of the accessible parking.

AHJ's Approval Of Accessible Spaces

I have recently noticed that several of my clients have added accessible parking stalls without obtaining approval of the Authorities having Jurisdiction (AHJ’s).   Although this may seem like a cost effective solution, it could result in substantial cost at a later date.

If there are currently no accessible parking stalls in a parking lot and a van accessible stall and accessible aisle are added as required, then more than likely one standard parking stall will be lost.   The loss of a parking space is not something the AHJ’s take lightly.   In most cases, when a van accessible stall and accessible aisle are added to a parking lot, then plans need to be submitted to the AHJ’s.   In some cities this is simply an administrative procedure, however, in other cities, there may be certain requirements the must be met before the AHJ’s grant approval.   It’s important that businesses work with the AHJ’s to gain approval.   Failure to do so may have consequences.   

I recently worked on a project where the owner has previously made modifications to the parking lot layout without approval of the AHJ’s.   When the owner wanted to add a van accessible stall and accessible aisle ( due to a lawsuit ) the AHJ’s made the owner re-stripe the entire parking lot ( about 30 spaces ) to bring it into conformance with plans approved in 1960.   Needless to say, this was a substantial cost the owner had not included in their budget.   

If you are adding a van accessible space to your parking lot, you should enlist the services of an architect ( such as myself ) who can draw plans of the existing parking lot with the added van accessible space and submit them to the AHJ’s for approval.  

It’s also important to note that if you decide as part of your normal maintenance to resurface and restripe your parking lot, the Americans with Disabilities Act (ADA) and the California Building Code (CBC) require that accessible parking be provided based on the codes in effect at the time of the resurfacing.

Accessible Parking Stall Aisles

The ADA requires a certain number of accessible parking spaces based on the total number of spaces in a parking lot.   At a minimum, there must be one accessible space and it must be a van accessible space with an accessible aisle on the passenger side as shown in the photograph above.   

Many do not understand why an accessible space needs an accessible aisle.   The reasons are simple………..those with disabilities simply need more area to maneuver as many have walking aids such as walkers, canes and more importantly wheel chairs.   One of the biggest reasons for the accessible aisle is because many of the disabled use a specially designed van that has either a hydraulic lift or ramp on the passenger side of the van so they can load/unload directly into the area allowed by the accessible aisle.   Some believe the accessible aisle is too big as it eliminates one standard parking stall; however, if you work out the dimensions of the device used to load/unload a wheel chair, it soon becomes clear why so much space is required.

The photograph on the left is what appears to be an accessible stall, however, as your can see, there is no accessible aisle on either side.   It’s clear that who ever painted this stall had no concept as to the use of the stall.   This stall has no advantage to a person with disabilities.