The vast majority of publicly accessible properties – including hotels, stores, banks, movies theaters, doctors’ offices and barber shops – will be affected by new accessibility rules under the Americans with Disabilities Act governing public accommodations.
The rules, which will begin being enforced in March, require widespread changes. For example, one in six parking spaces must be van accessible, as opposed to one in eight under the previous rule.
There are fewer exceptions regarding what kinds of building entrances must be accessible. Facilities must accommodate mobility devices other than wheelchairs, and all shelves, counters, fire alarms and other reachable objects must be no more than 48 inches high.
Specialized facilities – from hotels to theatres to swimming pools – all have their own specifically modified guidelines.
The rules were revised in 2010 and went into effect March 15, with compliance required one year later.
Roughly 7 million public and private places of public accommodation must now take steps to ensure compliance.
“Facility owners should make a plan to improve their property for ADA compliance, and they should document that plan,” said Hanna Fister Norvell, a partner in the Houston office of Locke Lord. “That plan should be used in the event of litigation to show their effort.”
Property owners shouldn’t try to do all the work on their own, advised Marty Orlick, a partner in the San Francisco office of Jeffer Mangels Butler & Mitchell.
“Bring in a certified specialist [so you] have a compliance plan in place as soon as possible,” he said.
Defining ‘readily achievable’
While newly built structures are required to comply with the new guidelines at the onset, existing facilities – the vast majority of properties affected by the rules – are required to comply to the extent it is “readily achievable.”
The law defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.”
But for property owners and their lawyers, figuring out exactly what that means is the tricky part.
“It’s an evaluation on a case-by-case basis of whether or not an institution can perform these [modifications],” said Orlick. “Some of them are as simple as repainting a parking space or putting up signs. Others are much more complicated.”
Making that determination can require an evaluation of everything from the physical state of the building to the business’ bottom line.
“What ‘readily achievable’ means is you look at what you can do – what you can afford to do as well as what is physically possible to do to improve access to the disabled,” Norvell said.
Lawyers say the best approach for property owners is to prioritize, using the ADA guidelines to determine which parts of the property to update first, particularly if the amended rules apply to many aspects of their facilities.
“I get a lot of questions about the new pool lift requirement and accessibility rules for pools,” Norvell said. “But I warn owners that they shouldn’t forget the rest of the building. You shouldn’t focus on the pool in disregard of parking spaces and the customer counter and bathrooms. The pool lift may be most important if the main focus of the [facility] is the pool, but not for a facility that [just] happens to have a pool.”
The priority list should focus on the first things visitors encounter when arriving at the property.
“I tell my clients to start at the curb … and work their way up to the entrance,” Orlick said, emphasizing that parking spaces, sidewalk ramps and building entrances are of highest importance.
The next focus should be on the reason patrons come to the facility.
“You want to be able to use the service, whether it’s a hotel or a retail store or a bank,” Orlick said.
Increased plaintiffs’ suits, DOJ actions feared
The subjective nature of the “readily achievable” standard could mean more lawsuits under the new standards.
“There is always quite a bit of litigation under the ADA,” Norvell noted. She anticipates “litigation over what the ‘readily achievable’ standard means, given that it is a case-by-case evaluation.”
In addition to audits and enforcement actions by the Department of Justice, facilities owners can also be subject to suits by private plaintiffs alleging failure to conform to the new standards.
For existing small business properties, the bigger risk is private suits.
“Standards for new construction or alterations of larger institutes are what get the attention of the Department of Justice,” said Orlick, while plaintiffs’ complaints usually derive from a single visit to a property.
To protect against civil liability, it’s a good idea to keep a detailed paper trial of all compliance-related activity.
“If you don’t have a plan, you are going to have a difficult time responding to someone who contends you didn’t comply with the 2010 standards,” Orlick said.
But while the required changes are numerous, there’s no need to panic. In many cases, the new standards are an extension of the kinds of requirements commercial property owners are used to.
“These changes are getting a lot of attention – sometimes misguided attention,” Norvell said. “I don’t want people to get so lost in what’s new that they forget about what already exists. … Look at the whole ADA and your overall accessibility and really assess what you can do to make your facility more accessible.”