ADA – Be Proactive
The volume of “snail mail” is down tremendously compared to a few years ago, so when a business owner gets a letter in the mail claiming that the business has a disability access problem, it should stand out. Unfortunately, it doesn’t, even when it should. A letter about “ADA” is not something about your great-grandmother’s elderly neighbor: it is about the law regarding disability access. This is one of the truest cases where a little prevention saves a lot later.
The ADA. In 1990, Congress passed and President George H.W. Bush signed the Americans with Disabilities Act (“ADA”). The ADA sought to stop discrimination against those with disabilities, and bring as many of the disabled as possible into the mainstream of society. It required that businesses provide “reasonable accommodations” for those who are disabled. This led the ADA to be called the “Full Employment for Lawyers Act,” as lawyers were brought in to decide what is “reasonable” under what circumstances.
One of the ADA’s most contentious portions is Title III, the Public Accommodations Act. It sought to ensure that no one is prevented from enjoying any place of public accommodation – like restaurants, hotels, sports stadiums, schools, and universities – because of their disability. Congress did not require such places from rebuilding everything anew. Congress imposed the requirement only when there was “new” construction – which included any modifications or alterations, even if the “modifications” had nothing to do with disability access. Many businesses ignored the requirement, to their loss.
Thomas Frankovich is a disability access lawyer who was in the legal press recently. Some serial ADA plaintiffs have filed dozens, if not hundreds, of ADA lawsuits. They actually seem to make a living from suing businesses that have failed to cure problems. The ADA makes this possible, because it allows a successful party in ADA litigation to recover their attorneys’ fees – something not normally the case in the United States.
I have encountered Frankovich a few times. I could never get away with dressing like Frankovich. However, he was professional, fair, and knew both the law in general and the facts of the particular case. He did not draft the ADA, nor did he draft California’s Unruh Civil Rights Act, which allows damages of at least $4,000 and attorneys’ fees. Congress and the California Legislature drafted these laws; Frankovich and his clients cannot be blamed for taking advantage of them, anymore than Sandy Koufax and Bob Gibson could be blamed for being only 60 feet, six inches from home plate when they fired their fastballs at hitters.
In my experience, Frankovich and his clients give three written warnings to companies to fix the disability problems. While one of Frankovich’s clients was sanctioned several years ago for repeatedly claiming the same physical injuries in multiple cases on the same day (and actually 13 cases over five days), Frankovich largely prevailed in a state bar proceeding based upon the same case; the bar found there was a lack of evidence that Frankovich engaged in any unprofessional conduct (other than improperly communicating with a represented party on a two minute phone call). My single reservation, based upon my own experience, is that most of defendant businesses are run by first-generation immigrants, who may not have as thorough understanding of the laws here in the United States.
There are defenses to the ADA — modifications to meet the ADA only need to be done when there is other work done on the property, but after 20 years few properties fit this definition anymore. There can also be insurance under the general liability insurance policy, but insurers are diligently trying to erase that possibility. But the best thing to do is to invest in some preventive maintenance, to make the property compatible under current ADA guidelines.
There are two morals of this story. First, obey the law; don’t just ignore letters claiming a disability access violation. Second, don’t make scapegoats out of those who use the laws Congress passes; take complaints to the ones who wrote the laws, not to those who work under them.