We are coming up on six months of “shelter- in place, mask wearing, hand sanitizing” all the while reducing the number of people who can be inside a tenant’s space depending on their type of business.
And all of this has no end in sight …
Small business owners are hanging on by a string, and many are unable to pay their rent.
Restaurants are especially impacted here in California with thousands of small, medium and large operations closing their doors for good.
The few lucky ones are saving their business by providing “To-Go” and “Delivery Options” that they otherwise wouldn’t provide. In the last few weeks, restaurants were given the green-light that they can now provide “outside dining” with restrictions on the number of customers and the spacing between tables.
In the last two weeks, I have had the pleasure of eating at a couple of my favorite restaurants (at least ones that are still open) and a few I had never been to before Covid-19 hit. Last week it was a breakfast meeting with a client in Lodi at a well-known pancake shop that had taken up the entire first row of parking stalls facing the building with outdoor seating.
To the untrained eye everything seemed fine, but as I was seated, I noticed several alarming issues. The two disabled parking stalls were covered up by pop up tents and plastic folding tables and chairs. At least the seating area had a curb cut ramp in the walkway which was now blocked off with safety tape and hand-written paper signs stating, “This area closed”
The most recent was a great deli near my office. I stopped in after completing an inspection nearby and was shocked at what I saw as I approached the building. Here’s what I saw …
The deli operator had taken up four “15-Minute Parking Only” stalls directly in front of their store. The area had outdoor carpet, great wooden picnic tables for seating and wood pallets placed around the perimeter as a temporary fence. Still visible was the 6” raised curb painted green with “15-Min” parking. There was absolutely no ADA access into this outdoor seating area, and lack of ADA accommodation was exaggerated by the fact that the shop owner did not provide an ADA table up on the walkway nor any directional signage alerting disabled customers to the appropriate area.
Landlords and property managers have a constant concern over their properties ADA elements and the level of compliant access provided at any given time. But now, we have tenants taking over areas of, in what I saw, the parking lot to provide make-shift “outdoor seating” without any thought of ADA access.
Well, apparently, these quickly built seating areas are drawing the attention of many professional ADA plaintiffs who are aggressively filing lawsuits at a record pace.
In the last thirty days, my office has received dozens of phone calls and emails from defense attorneys and panicking landlords trying to wrap their arms around these lawsuits.
Even though these “outdoor seating” areas are drawing the attention of many professional plaintiffs, they are not the only areas of violation that are being called out.
Here is a list of the most common violations that I have identified from thirty-five current lawsuits brought by five plaintiffs:
- Disabled parking surface slope, striping and signage non-compliant
- Curb ramp slope exceeds 8.3% and lacks truncated domes
- Accessible path of travel not provided from disabled parking to tenants main entry (items placed outside on walkway reduce clear width)
- Tenant entry door lack accessible door handle and pounds of push/pull pressure to open door exceeds 5 pounds max
- Entry door landings exceeds 2% max in all directions
- Entry door exhibits a raised lip transition to door threshold greater than ¼”
- Entry door exhibits non-compliant door mat and interior walk-off mats exhibit worn, lifted corners and unsecured to floor
- Clear space within tenant space reduced below 36” minimum around displayed product and shelves.
- Tenant sales counter height does not provide for wheelchair access and lacks a compliant point of sales machine
- Restrooms lack compliant signage, lacks clear space around toilet, grab bars not positioned properly or lacking, mirrors, soap and paper towel dispensers too high, toilet flush handle on wrong side, lavatory too close to near wall and pipes underneath not properly wrapped.
These are just the alleged violations that are repeatedly called out in most of the lawsuits I am dealing with now. There are many more that involve violations specific to sight impaired, hearing impaired and those using mobility devices.
Alleged violations specific to the “outdoor seating” areas are as follows:
- Ground surface slope throughout seating area exceeds 2%
- Lack of wheelchair access to the seating area
- Lack of wheelchair accessible tables
- Head clearance reduced below 80” due to “pop-up” tents
- Pop-up tent tie-down straps creating “trip & fall” hazard
- Outdoor carpeting not secured, edges curled & uneven transitions
- Poor or insufficient lighting which creates shadows increasing trip and fall hazard
- Lack of compliant disabled parking near outdoor seating area
- Lack of compliant path of travel from closest disabled parking into the seating area
- Lack of accessible wayfinding and directional signage in and around the seating area
When the Covid-19 shut down started, I noticed that all calls and emails involving ADA lawsuits virtually stopped coming in. I hoped that it was due to professional plaintiffs staying home and taking a break from their normal activities. But when the courts opened back up, the flood of lawsuits began to flow, and it is picking up speed.
We all know there is never a good time to be served with an ADA lawsuit, but especially right now with so many small businesses severely damaged by the shutdown. If there was ever a time to be focused on your properties and your tenants’ business … it is now.
If you own a business that is currently providing outdoor seating or you’re a landlord with tenants requesting permission for outdoor seating, we need to talk today.
There is no reason to just hand over our hard-earned income to professional plaintiffs’.
If I can help you, or you have additional questions, give me a call.
I look forward to hearing from you.