Am I at risk for an ADA lawsuit?
How do commercial property owners and tenants protect themselves in today’s lawsuit happy environment?
How are you managing risk when it comes to being sued for an ADA violation?
So many people complain about the increase in litigation, and the threat of being sued for the smallest infraction, but in reality, are we as accessible as we should be?
Many barriers are very easy to remove … if you know what to look for!
For those not planning on performing any construction, they might not even realize there is an ongoing requirement for older “existing” building owners to remove readily achievable barriers.
So how do we identify what is “readily achievable” and what needs to be fixed first?The California Commission on Disability Access (CCDA) has just released a study in California that identifies the most common barriers being sued over. One of the tasks this commission has been charged with is to track alleged construction related physical access violations in the commercial and retail market.
They have been tracking the recorded demand letters and court filings in California state/federal courts. The CCDA has analyzed more than 3,500 claims over the last 18 months, which include three times that amount of violations. With the results, they have compiled information on the 10 most common violations of accessibility. Surprisingly enough the top 4 of these 10 all have to do with parking which comprises over 40% of the top 10.
The top two alleged violations were actually 25% of the total violations.So what does this mean in terms of analyzing our existing properties, and what we need to be aware of even for new construction:
Loading zones and van access aisles were the number one alleged violation. This means either the van access aisles were not 8′ minimum wide, or were not located on the passenger side of the van stall, or did not have appropriate markings, or had slopes in excess of 1:48, or worse … missing altogether. Loading zones for passenger drop-offs may not be the required 5′ minimum wide by the 20′ required length; they may be missing the appropriate markings, may not be on the same level as the pull-up space, or again, they may be missing altogether.
Existing accessible parking spaces not being compliant was number two for alleged violations. This could be a myriad of items from incorrect sizes, to excessive slopes or even potholes, to incorrect or missing markings on the parking surface, or even location of the accessible stalls in proximity to building entries.
The third-most alleged violation had to do with non-compliant or missing parking signage. Typical signs are the International Symbol of Accessibility (ISA) which is required at every accessible stall, the California $250 Minimum Fine sign also required at each accessible stall, van accessible signs at one out of every 6 accessible stalls, and the California Tow Away sign with the appropriate information visible from each accessible stall or vehicular entry from the public street. These signs also have requirements for installation height and contrast, among other things.
The fourth-most common alleged violation is the incorrect number of accessible stalls, whether missing altogether or just computed incorrectly. One item to note, with previous laws, the number of accessible stalls was computed based on the total number of stalls on the site. With the 2010 ADA, which became mandatory in March of 2012, this computation is based upon facility totals, not total overall spaces. Facility is parking structures and parking lots – each computed individually, many times giving a short fall of the amount actually required.
The other items on the top 10 list were:
insufficient path of travel to/from the parking lot and the public sidewalk
entry doors were not accessible or missing the ISA
curb ramps were not accessible
reception/ sales counters, bar counters, and work/ dining table surface heights and knee clearances were non-compliant
interior access aisles were non-compliant with items not located on an accessible route
toilet room entries were not accessible with incorrect or lacking wall and door signage, height, door pressures, insufficient clear space inside and fixtures mounted too high or protruding into the required maneuvering space
It goes without saying that it might be worth your while to evaluate the parking on your existing projects and properties.
While everything may appear to be fine on the surface, the current statistics show this as one of the prime concerns for inaccessibility. Re-grading may be more costly, but items such as re-striping with compliant sizes, signage, or even installing additional disabled stalls are a minimal expense and can greatly increase the level of accessibility, thereby reducing possible violations.It's time ... time to take a fresh look at your properties and determine how they fair against the list! Some simple striping and signage may very well prevent you from being the next ADA target.