The ADA Is Not Arbitrary

A lot of my clients inquire as why is it a big deal if my ramp is a little too steep or a door is a little too narrow.  Most believe that if they are somewhat in compliance with the ADA, they are O.K. and should not be subject to lawsuits.   Well nothing could be farther from the truth.

Nothing in the ADA is arbitrary.   The ADA was not developed in a vacuum; instead it was developed over years of working with government agencies, disability rights groups and many others to get a document that really does provide assistance to the disabled community.   The requirements of the ADA are based on the actual real life experiences of the disabled community and on what is needed to allow persons with a disability to function normally in society.

Take for example, a ramp that is a little too steep.   Most do not understand how difficult it is for a disabled person to wheel up the slope of a ramp.   It requires a lot of upper body strength that many disabled people do not have and for every degree of extra slope, it becomes increasingly more difficult for a disabled person to get to the top of a ramp.   This is also the reason the ADA specifies the need for a landing on the ramp which gives the disabled person the opportunity to stop on a level surface and take a mini break before proceeding to the top of the ramp.

In regards to the door, wheel chairs are built to a certain dimension and therefore a door opening must be large enough to allow the wheel chair to pass with a little extra clearance on each side.  Failure to provide an opening large enough does not allow a disabled person to enter a facility and could subject the owner or tenant to an ADA lawsuit.

As you can see from the two examples above, the ADA is not arbitrary……………every requirement or dimension has a basis of fact for the disabled community.   Despite this, many of my clients still continue to believe that if they get close to meeting the requirements of the ADA, they will be free from ADA lawsuits, but this is simply not true.   If you do not meet the requirements 100%, then you are subjecting yourself to a future ADA lawsuit.  This is also the reason the property owners and tenants must enlist the services of professionals who KNOW the ADA.  I have seen so many instances where owners have hired contractors to do the work only to find out the contractor did the work incorrectly when they get another lawsuit.   Do not subject yourself to unnecessary lawsuits by not enlist the services of an ADA Professional ( CASp in California ) to advise you on issues related to the ADA.

Another Non-Conforming Space

The photograph to the right shows another non-conforming parking space.   Previously, this restaurant did not have any accessible parking and then one day this accessible space appeared.  I suspect they have been   It’s obvious from looking at the parking space that someone with no knowledge of the ADA made the improvements. 

involved in an ADA lawsuit.

  

For starters, while you can certainly see the sign at the head of the space, it’s not reflectorized as required in by the ADA.   In addition, the image of an occupant in a wheel chair is facing the wrong direction.  The good news here is that the sign is required to be a certain minimum size and the sign on the wall far exceeds the minimum size requirements.   There are also other signs that should be included on the wall that are missing.

In regards to the parking space there are also numerous violations.   While the size of the parking stall is in question, there is no question that the aisle is not the proper size for a van accessible space and the aisle is on the wrong side of the space.   Additionally, the emblem of an occupant in a wheel chair is facing the wrong direction and the aisle is missing the signage that should be painted within its boarder.

While it’s impressive the business owner made an attempt to conform to the ADA, its clear there is still no understanding as to the intent of the ADA.   As an example, having a parking stall and aisle that is non-conforming will not allow an accessible van to load and unload its occupant and therefore could be the subject of a lawsuit.

The All Inclusive ADA

During the day I often receive a lot of telephone calls from business owners in trouble.  They have just received a lawsuit citing their non-compliance with the Americans with Disabilities Act (ADA) and they are in a total state of confusion as to how to proceed.  They will usually go on to explain that they have an ADA accessible parking space in front of their facility and their toilet rooms are also accessible so they have no idea as to why they have received a lawsuit for violations of the ADA.

After they explain their situation, I usually ask a few questions such as does your parking lot have a tow away sign mounted at the vehicular entry or does your toilet room have a circle or triangle on the door.   It’s at this point they are usually puzzled as to how to answer the questions.

I then go on to explain to them why these are important and they become totally bewildered.   Further, I go on to ask them questions such as does the front door exceed a push/pull force of 5 lbf and at this point they usually stop me and say they will just pay the plaintiff in an out of court settlement.

Paying a serial plaintiff in an out of court settlement sometimes works, but what business owners don’t understand is that many of the plaintiffs will return in six months or a year with even more violations of the ADA and file another lawsuit.  This is a really common practice for serial plaintiffs as building and business owners really have no idea as to how many violations their facilities actually have.

To further explain, a simple entry door has 17 separate checks that must be made to assure it meets the requirements of the ADA.  These checks include clearances around the door, size of the door, door closing speed to name just a few.   The number of issues that could be the result of an ADA lawsuit is simply mind boggling to many business owners, but it’s just a further indication as to how easy it is for business and property owners to become targets of a lawsuit.

So how can business owners protect their businesses?   The only real way to protect a business is to make sure it’s 100% accessible.   The problem is however that there is no good way to figure out exactly what needs to be done to make a business accessible.   That is why a business MUST enlist the services of an accessibility professional such as a Certified Access Specialist (CASp) in California or an Architect in other states.   A CASp or Architect is someone who can guide businesses in the right direction in their endeavor to fully meet the requirements of the ADA.

Not Just One Violation

I often find parking lots such as the one shown in the photograph at the right where the owners have obviously been involved in an ADA lawsuit.  The indications include bright new blue paint and shinny new post signs, however, what I usually find is that while the building owner now believes they are secure from future lawsuits, they are not.

 

Serial plaintiffs are very good at what they do.   Often they will perform a complete ADA Survey of a property without anyone knowing.   Their survey will include both the exterior and interior and may include as may as 30 violations, however, when they do file a lawsuit, they often only include 12 of the 30 items.   Why is this……………the answer is simple.   They know that building owners and tenants will only correct items described in the lawsuit and are totally oblivious to other violations that may exist unless they enlist the services of an accessibility professional.

This practice allows the serial plaintiffs to come back again and again and file separate lawsuits at a later date.   I have seen this happen several times.   It is for this reason, that those building owners or tenants who are involved in a lawsuit must enlist the services of accessibility professional and they must address ALL of the violations on the site.

What is not shown in the photograph is that numerous other violations occur on the site including the lack of a tow away sign, designated pathway from the parking to the entry, proximity of the accessible parking to the main entry, incorrect signage on the wheel stop and requiring a disabled person to wheel or walk behind a car that is not their own to name just a few of the many violations.

It is obvious from reviewing this photograph that the building owner did not enlist the services of an accessibility professional because if they had, there would not be the number of violations that I have noted above.   Building owners and tenants must understand that contractors do not have any formal training in the ADA.   As a result, they often make simple mistakes such as those noted above that continue to subject building owners and tenants to lawsuits.   To protect themselves, building owners and tenants are advised to hire an accessibility professional ( a CASp in California ) to survey the property and provide a report on the violations and then hire an Architect to develop construction drawings that can be submitted to the Authorities having Jurisdiction (AHJ’s).   Having plans approved by the AHJ’s for everything but the smallest violations is really the only way for a building owner or tenant to have a reasonable level of protection against future ADA lawsuits.

Warnings for the Blind

Detectable Warnings such as those shown in the photograph above have now become common place, but many facilities still do not have them and therefore are subjecting themselves to a lawsuit.

Some of the problem is that many buildings owners are confused about the use of Detectable Warnings.   This confusion is legitimate because although Detectable Warnings were originally included in the ADA, they were soon suspended so that research could be conducted regarding varying tactile surfaces such as grooves, dimples, etc.   The research found that in many cases those surfaces were in fact not detectable due to similarities to normal walking surfaces.   Finally, in July 2001, the suspension was allowed to expire and Detectable Warnings were again required.

The purpose of Detectable Warnings is warn the sight impaired that they are about to enter a vehicular traffic pathway.   The Detectable Warnings do this in two ways: 1) As opposed to other walking surfaces, they provide a very notable change of surface as someone is walking on them and 2) they are brightly colored so that they are highly visible to those with limited vision.

It should also be noted that the sight impaired usually have a heightened sense of hearing; however, with the new gasoline/electric engines that are much quieter, they are making it very dangerous for those with sight impairments.   Now there is a real possibility that someone with limited sight may actually walk in front of a moving car in a parking lot and get seriously injured, therefore it’s important that buildings owners install Detectable Warnings that are approved by the State of California at vehicular traffic ways to help prevent this from happening.  

Cross Slope on Accessible Pathways

The ADA requires an accessible pathway from the onsite accessible parking to the main entry door.   The pathway may slope in the direction of travel, however, it must never slope more than 8.33% and the ADA has certain requirements regarding handrails, curbs, etc for ramps.   In addition, the cross-slope (in a direction opposite of the direction of travel) must not exceed 2%.   These are just some of the requirements as there are also requirements for size and location of the accessible pathway to name just a few.

The photograph above shows a pathway violation at a facility that I recently visited.   The accessible pathway marked by the faded blue cross hatched area overlaps the sloped area of a drain.   Anyone can see the overlap is clearly sloped over 2% which is almost flat.   No measurements are necessary to determine the excessive cross slope and therefore this pathway could be the subject of a lawsuit by a serial plaintiff.   In addition, it’s not appropriate to have a disabled person navigate around a drain that may be full of water during a rain storm.

Although not shown in the photograph, another violation of the pathway is that it requires a disabled person in a wheelchair to wheel behind a car that is not their own.   This is dangerous because someone backing out of a parking space may not see a disabled person in a wheelchair behind them.