Avoiding ADA Compliance Drive-By Lawsuits Shopping center landlords are continually barraged with new and unexpected operating expenses. At every turn, another unforeseen cost emerges, further chipping away at the bottom line. For many landlords, ADA Compliance Drive By Lawsuits are one of these startling expenses. But this isn t your average nuisance, shaking a little more loose change out of landlords pockets. In fact, this growing trend has quickly become one of the most financially devastating issues to arise in the shopping center industry. The situation is total Catch 22. Spend the money to complete ADA Compliance upgrades, which may cost tens of thousands of dollars. Or risk being sued in an ADA Compliance Drive By Lawsuit and forced to pay damages and legal fees. It s no win situation that kills profits. ADA Compliance Law Overview Signed into federal law in 1990, the Americans with Disabilities Act (ADA) is a comprehensive civil rights law prohibiting discrimination against disabled. The law specifically defines accommodation businesses and institutions serving the public must provide for the disabled. For retail shopping centers, the most important aspect of ADA law is the establishment of minimum standards for building design and construction, known as 1991 ADA Standards for Accessible Design (ADAAG). ADAAG specifically defines requirements for shopping center handicapped parking and signage, sidewalk size, building access and interior layout. The law affects any business or institution providing goods and services to the public, known as a public accommodations, is subject to ADA Compliance laws. This includes: shopping malls or centers, stores, restaurants, bars, service establishments, theaters, hotels, recreational facilities, private museums, schools, doctors and dentists offices, in addition to commercial facilities such as factories, warehouses and office buildings. What Does an ADA Compliant Shopping Center Look Like? ADA Compliance legislation is a long and complex, consisting of several lengthy documents. As it pertains to retail shopping centers (specifically concerning Drive By Lawsuits ), however, the legislation can be divided in to four sections: Parking Signage Ramps Doors, and pared down to the:
Ten Most Common ADA Compliance failures resulting in lawsuits: I PARKING 1. Parking space and access aisle not level in all directions Parking spaces and access aisles are required to be level, with no more that a 2% slope in all directions to prevent a wheelchair from rolling away unexpectedly. 2. No access route from parking to building entrance Parking access aisles must be part of an accessible route to the building or facility entrance so that a person using a wheelchair, scooter or walker has a way of traveling from a parking space to the building entrance without being forced to use a potentially dangerous roadway or vehicular route. 3. No van accessible spaces provided in the parking lot One in every eight parking spaces must be able to accommodate a handicap accessible van, with the spaces a minimum of 96 (8 feet) wide. II Signage 4. International Symbol of Access (ISA) sign missing at building entrances International Symbol of Access International Symbol of Access must be displayed at every primary public entrance and every major junction on the accessible route, with a directional indicator pointing to said primary entrances. 5. Incomplete or missing disabled parking signs Warnings signs regarding unauthorized use of disabled parking spaces must be posted at each parking lot entrance and include the contact phone number to reclaim towed vehicles. III Ramps 6. Steep unprotected flares in curb ramp located across a circulation path A curb ramp located where pedestrians across that s not protected with handrails or guardrails, must have flared sides to prevent wheelchairs from tipping over. 7. Small ramp landing areas that change direction Ramps that change direction at landing area must be at least 60 by 60 to allow wheelchairs to turn on a level surface. 8. Handrails missing from access ramp Access ramp must include handrails both sides, at a height of 34 to 38 above the ramp and landing surface.
IV Doors 9. Door hardware requires grasping or twisting of the wrist to use Handles, pulls, latches, locks and other door operating devices must be formed in a shape that is easy to grasp with one hand. Lever operated, push type, and U shaped handles are acceptable designs, but must be mounted no higher than 48 above the floor. 10. Inadequate maneuvering clearance at doors Door area clearance (for non automatic or power assisted doors) must provide adequate space to maneuver a wheelchair, in addition to being level and clear of obstructions. What Are Drive-By Lawsuits? As the name implies, a Drive By Lawsuit is initiated by a plaintiff who simply drives by a shopping center, and surveys the site without ever actually getting out of their car. This approach indicates these plaintiffs are looking for the most obvious signs of ADA Compliance violations, such as improper parking lot configuration and incomplete or non existent handicap signage. In most cases a handicapped serial plaintiff (who is an attorney or in league with an attorney) conducts a series of drive by shopping center inspections and files lawsuits against ADA non compliant centers. Generally speaking serial plaintiffs are seeking a settlement to make a quick buck, and have little desire of actually following through with a trail, as this requires more time and effort and significantly delays the payoff The serial plaintiffs are anticipating the landlord or tenant (both parties can be named as defendants) will agree to settle for $4,000 (the minimum damages awarded in an ADA noncompliance lawsuit) to avoid being whacked with a higher judgment and incurring legal fees (for which the defendant is responsible to pay, and in some cases have been in excess of $100,000). How Can Drive-By Lawsuits be avoided? From a legal standpoint, as shopping center landlord, it s ultimately in your best interest to complete all ADA Compliance mandated upgrades, and bring your center up to current code. Otherwise, you re at risk of being sued in an ADA Compliance Drive by Lawsuit. Financially speaking, these upgrades can be a tall order when considering the potentially significant renovations costs. If you don t have the funds in your operating budget to complete all ADA Compliance upgrades (at one time), or prefer to spread out the costs over an extended period of time, you do have some options. Completing a few strategic upgrades can definitely lower your center s risk of being hit by a so called Drive By Lawsuit.
Non compliant Parking and Signage issues are the most frequent source of ADA Compliance Drive By Lawsuits. Therefore, addressing Parking and Signage is the best place to start your ADA Compliance upgrades here are few important tips: Properly striping your parking lot, and adding the 96 minimum designated handicap accessible van space Installing a R 100 tow away sign (officially sanctioned handicapped signage) conspicuously at each parking lot entrance, or immediately adjacent to and visible from each handicap accessible stall a minimum of 80 in width Installing a R 99C MOD Disabled van parking and R 99C disabled car parking sign (officially sanctioned handicapped signage) at the head of the designated van and car parking spaces, a minimum of 80 in width if post mounted, 60 in wall mounted Installing a designated no parking access aisle ramp leading to the centers sidewalk area. Here is some additional information on handicapped parking signage (link to signage diagram) and handicapped accessible parking lot layouts (link to parking lot layout). What Are the Costs Associated with Settling a Drive-By Lawsuit? $4,000 is the minimum for damages awarded in an ADA non compliance lawsuit. You also need to factor in legal costs, however, as the defendant is also responsible for all legal fees. If you agree to settle, generally speaking, there shouldn t be any additional legal costs perhaps you might incur a filling fee of some other administrative fee. Keep in mind, however, just because you settle one lawsuit doesn t mean you can t be sued again if you fail to make the necessary ADA Compliance upgrades. What Are the Costs Associated with Fighting a Drive-By Lawsuit in Court? If you are sued in a Drive By Lawsuit for ADA Compliance, refuse to settle, take the case to court and lose, you face a minimum of $4,000 in damages to the plaintiff for non compliance with federally mandated ADA laws. But the $4,000 in damages is not the BIG NUMBER in a Drive By Lawsuit case. You re also responsible to pay all legal fees. This includes court fee, the plaintiff s attorney s fees, and your own attorney s fees. Legal fees for this kind of lawsuit can amount to tens of thousands of dollars, even reaching six figures, depending on the circumstances involves. And here again, keep in mind that even if you go to court, regardless of whether you win or lose, you can be sued again if you fail to make mandated ADA Compliance upgrades. Average Costs Associates of ADA Compliance Mandated Upgrade
Making your shopping center ADA Compliant includes a rather long list of required upgrades. As mentioned above, however, serial plaintiffs are looking for several obvious noncompliance items (improper parking and signage being the chief culprits). Proactively completing these upgrades can definitely help your center avoid an ADA Compliance lawsuit. [The following information is not intended to represent concrete quotes for the ADA Compliance upgrade projects described herein. These figures are an averaging of bids received in the past. Construction prices vary by region and community, and each contractor calculates bids in a different fashion, often yielding wildly different bids for the same project.] Average ADA Compliance Parking and Signage Upgrade Costs: Officially sanctioned handicapped sign installation: approx. $500 ADA Compliant parking lot striping, including handicapped parking, van accessible parking and access path designation: a minimum of $1,000 Correcting or installing ADA Compliant parking lot slope and handicapped van aisle access: ranges from a minimum of $3,500 to many thousands of dollars, depending on your parking lots condition What, if Any Are the Exceptions to ADA Compliance? ADA Compliance is mandated by both federal and state law. Furthermore, neither federal nor state law holds the power override one another. Instead, the most strident law takes precedence. In short, there s very low probability of circumventing ADA Compliance. The only potential exception relates to ADA Compliance mandated upgrades that compromise a building structural integrity. For Example: If moving or removing a load barring a support column to accommodate a wider sidewalk or install an access ramp compromises a building structural integrity, theoretically the support column wins over the ADA Compliance upgrade. This type of exception, however, is still not cut and dry. To be granted an exception, the structural issue preventing the ADA Compliance upgrades needs to be verified with an inspection and documented in a written report, completed by an Architect/Engineer/Consultant who has completed California s Certified Access Specialist Program (CASp). The inspection process and report can cost thousands of dollars, often exceeding the cost of settling an ADA Compliance lawsuit. Additionally, to be considered valid for defense against future lawsuits, the report must be recorded with both the city and county. SB1608
Senate Bill 1608, which took effect in 2009, is intended to clarify and amend ADA Compliance laws in an effort to curb frivolous and opportunistic Drive By Lawsuits and protect the rights of small business owners. The priamry under SB1608 relates to the CASp report. Any business sued for ADA Compliance that obtains said report has the right to request a 90 day stay of the lawsuit and an Early Evaluation Conference (EEC). The lawsuit can be settled or dismissed in the EEC, saving the defendant thousands of dollars in legal fees. The Best Advice We Can Offer Regarding ADA Compliance All in all, it s not a question of whether you will get sued for ADA Compliance, it s really a question of when. Therefore, it s in your best interest to complete all federal and state ADA Compliance upgrades to your center as soon as possible. Bite the bullet and spend the cash now, or prepare to face bigger consequence down the line.