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Don’t be a victim of an ADA drive-by!

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This past year marked the 30th Anniversary of the Americans with Disabilities Act (ADA). The Act was signed into law on July 26, 1990. The Act is a civil rights law that promotes the inclusion of people with disabilities in every aspect of life, including existing buildings and facilities.  Under Title III, the Act defines “Public Accommodations” as a private entity that owns, leases, or leases to, or operates a “place of public accommodation.”  More specifically, a place of public accommodation is a private facility whose operations affect commerce and fall within at least one of 12 categories listed in Title III. Persons with disabilities are to be provided accommodations and access equal or similar to that available to the general public.  Services may be provided through the removal of “physical barriers” or “equal facilitation” as defined by the Act.

What most Owner’s are not aware of and are frequently alarmed to discover is that the responsibility to remove architectural barriers (steps, railings, steep grades on walks, lack of ramps…etc.) and communication barriers in existing “public accommodations” (with certain exceptions) has been their responsibility since the ADA’s adoption and then becoming effective in 1992. Moreover, ignorance of the Act and its requirements are no defense, and there is no grandfathering of any sort for facilities built before or after the enactment of the ADA, as these barriers were to have been removed as of 1992 so long as doing so was “readily achievable.”

Compliance was initially conducted exclusively by Department of Justice personnel through spot inspections. Those efforts gradually waned due to cost and inadequate manpower. However, Title III allows anyone with a disability, which is defined broadly as any physical or mental impairment that substantially limits one or more major life activities, and includes persons who have a past history or record of such impairments, and even persons who are simply perceived by others as having such impairments, to file a claim with the Court. And because Title III permits the prevailing party to recover their attorneys’ fees (which many times includes expert fees), such civil enforcement by what in slang terminology has become known as “drive-by” accessibility complaints has become commonplace.

Critics object to the potential profit-generating aspect of such actions, but – bottom line – owners are either in compliance with the ADA requirements or not; and not being in compliance violates the act and places owners at-risk for the monetary obligation. Moreover, compliance with the Act has numerous benefits, including demonstrating concern for the well-being of disabled persons, which can lead to varied positive results for business owners. For these reasons, it behooves all property owners to initiate proactive actions to assess, identify, and, as readily achievable, address any areas of non-compliance. The attorneys at Vandeventer Black are knowledgeable about ADA compliance matters such as these and available to assist property owners with their assessments, planning, and compliance actions. For more information about this topic, contact the author or any of the other attorneys in our law firms Construction and Government Contracts Practice Group.

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