ADA compliance: ‘Drive-by’ lawsuits may go up this year

 Infrastructure Management, Planning, Risk Management, Walkability/ADA  Comments Off on ADA compliance: ‘Drive-by’ lawsuits may go up this year
Aug 132012
 

Source: Kami Corbett, Tampa Bay Business Journal

As the Tampa Bay area spiffs up its appearance for the Republican National Convention this month, local businesses need to be mindful that back in 2010 the Department of Justice modified the Americans with Disability Act (“ADA”) compliance standards, imposing new design standards for new construction and alterations to existing structures.

Mandatory compliance with those standards began on March 15, 2012. All businesses must be aware of the new standards, whether they are constructing a building, completing a major renovation, undertaking small scale projects or just making cosmetic upgrades.

Getting the facts straight

Misunderstanding No. 1: If a business is located in an older building it is “grandfathered” and need not be concerned with compliance. This is not the case. The ADA does not exempt existing buildings. In fact, it actually requires every business to undergo a fact-specific inquiry as to whether making the business accessible is readily achievable. This means that unless making the building accessible is an undue burden on the business, a business must make the necessary changes to make it accessible.

Unfortunately, there is no bright line test for determining what constitutes an undue burden. It is a fact-specific analysis that takes into consideration the nature and cost of the alteration that would be necessary to make the business accessible, along with the financial strength of the company (including parent companies) and the overall effect on the business.

Misunderstanding No. 2: Tenants are not responsible for ADA compliance. A tenant is also required to analyze whether it is readily achievable to make the business accessible. Therefore, it is highly likely that both the landlord and the tenant will be named in a non-compliance suit, leaving the private parties to argue about who is most responsible for bearing the cost of compliance.

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