ADA Reform Supports Businesses and Limits Lawsuits
This year marks the 25th anniversary of the enactment of the Americans with Disabilities Act (ADA). This act was intended to make the built environment accessible to those with disabilities and be more inclusive of all people. An unintended result of this legislation is that businesses are now threatened by serial plaintiffs who serve demand letters requesting money in exchange for not filing a lawsuit – basically lining the pockets of unscrupulous attorneys. Worse yet, these demand letters never state what the violation actually is, so that businesses can correct the violations.
Property owners should be given the opportunity to fix any violations or respond to the complaint, within a reasonable time period, without a lawsuit being filed. As a member of the International Council of Shopping Centers’ (ICSC) Ohio Government Relations Committee, we have been testifying as a proponent for House Concurrent Resolution (HCR) 32 in support of federal legislation HR 3765, the ADA Education and Reform Act of 2015. These bills will provide disincentives to filing these frivolous lawsuits, requiring that the violation be identified and a 120 day notice and cure period be provided prior to the commencement of any lawsuits. This will ensure that problems get fixed, rather than paid off without consequences.
Throughout my career there have been several experiences with clients where it became clear that we can do everything right, yet the client is still exposed to lawsuits, and thus we are exposed to lawsuits. This is especially true in existing shopping centers where the requirements are vague and up for interpretation. In addition, there are federal requirements (ADAAG and FHA regulations), state requirements (ANSI) and city building code requirements regarding accessibility that can conflict and it is often difficult to determine what regulatory body governs.
For example, when working on a shopping center renovation project our client was hit with an ADA lawsuit the week we started demolition. For existing facilities, ADA and the Ohio Building Code require that 20% of the cost of the alteration be spent on reducing or eliminating barriers. To determine where to spend dollars for barrier reduction the code establishes a list of priorities in the following order:
- Accessible entrance
- Accessible route to the altered area
- (1) Accessible restroom for each sex
- Accessible telephones
- Accessible drinking fountains
- Lumped together accessible parking and storage
As this was an existing center, the owner had a budget of approximately $4.9 million to renovate the interior and exterior of the center. They spent in excess of 20% on upgrades that reduced barriers including modifying grades leading to accessible entrances, providing automatic door openers, leveling the interior floor to eliminate cross slopes, modifying restrooms, modifying slopes at accessible parking and the route to the entrances from the parking.
In spite of all this, they were hit with a lawsuit by a plaintiff who had 17 open cases in Central Ohio at that time (and 89 cases in the Southern District). This plaintiff did not bother to check the building plans that were on file with the city showing the scope of work to be done —including a sheet labeled “ADA Compliance Plan” that clearly clarified a vague situation. Our client had to spend tens of thousands of dollars fighting the suit to eventually have it thrown out.
To combat these lawsuits, M+A Architects has taken extraordinary steps to mitigate ADA lawsuit risk for our clients. By reviewing all the city, state and federal accessibility regulations and taking the most restrictive requirement from each, we’ve created our own standards in excess of ADAAG requirements. For example, regulations do not account for construction tolerances, so we add 1 inch to all clearances, on all sides. Not to mention, with the freeze / thaw cycle, what complies in the summer may not comply in the winter.
The goal for ADA reform is to be accessible to everyone and go beyond usual measures to make sure this is the case. HCR 32 urges Congress to pass common sense updates to the ADA. Allowing a property owner to address such minor issues is not only good for business, but it protects the true intent of the ADA.
Let’s make the world more accessible, not make unscrupulous attorneys rich.
Managing Principal, Director - Mixed-Use Studio
Lori’s mixed use career at M+A started in 1997 with Easton Town Center and has grown expansively ever since. Creating dynamic, sustainable, active neighborhoods with great residential, retail, office and hospitality is what Lori does best. When she's not working on projects, she loves cooking and hanging out with her daughters.