Category: ADA

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The ADA’s “Grandfather Clause”

One of the most common questions from businesses sued under the American’s with Disabilities Act (ADA) in California is whether they are protected by a “grandfather clause.” Generally, such clauses in the law protect an existing building or facility from complying with new rules made after they were built. While the ADA has such a clause, it is neither as extensive or as protective as the ones they are used to.

Businesses usually meet this kind of exception to the law when they work with the local city building codes and inspectors. Making sure your facility qualifies for “grandfathering” often saves lots of money in renovations and construction. However, the ADA is a federal law and, under the Constitution, it trumps local California laws. City permits and inspectors are concerned with local law, so they will often certify or permit architectural features that are acceptable under local law, but are actually prohibited by the ADA. Entrepreneurs should keep in mind that the city permit and inspection process gives little to no insight into whether your facility is “accessible” under the federal rules of the ADA and the ADAAG guidelines.

The first misconception about the ADA is that, if your facility was either compliant or otherwise acceptable when it was built, that you need do nothing about making it accessible under ADA standards now. This is what most people think of as “grandfathering.” But the ADA’s clause does not actually allow this. The ADA allows buildings with that were built before the updated ADA regulations to be grandfathered in as long as the deficiency is not readily achievable. I other words, regardless of when or how your facility was built, you must do everything that is “readily achievable” to make your facility accessible or you will eventually face a lawsuit alleging that you discriminated against disabled people under the ADA and related state laws.

“Readily achievable” is a slippery legal term and you should get the advice of a knowledgeable lawyer to help you determine what you must do and what you can let go. However, certain things are almost always “readily achievable” – such as: putting up the proper signs, properly striping your parking lot to provide accessible parking, leveling out minor slopes, and placing dispensers at the proper height. In fact, parking lot striping and signs are the number one most common complaints in ADA lawsuits. The readily achievable standard is a factor-based test that looks into a number of areas. Some of those factors include the practicability of bringing your location to ADA compliance, your financial situation, the physical universe that your location occupies and so on. Sometimes it is just impossible to bring your location into compliance. Many judges and courts have differing opinions on what is readily achievable and its best not to risk making judgments without proper advice.  If you are concerned about your parking lot or other features on your property, you should get hire a CASp inspector immediately. They are worth the price.

Besides making all “readily achievable” changes, you must comply with the ADA when you make “alterations” to your property. “Alterations,” like “readily achievable,” is a slippery legal term and you should consult a knowledgeable lawyer before making any changes to your property. In very broad terms, alterations mean structural repairs or additions that go beyond routine maintenance and upkeep. While the ADA does not require full compliance to features that were not “altered,” there are important exceptions. For example, in many cases, you are required to provide an accessible path of travel to the altered area, even if the path of travel is not part of the alterations.

The bottom line is that businesses can’t count on a “grandfather clause” to protect them against lawsuits. There are simply too many exceptions. A CASp inspection followed by making any minor changes required is your best defense.

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Are Both the Tenant and the Landlord Liable for ADA Claims?

Who’s to blame, the tenant or the landlord?

One of the first things we hear from our clients is they are not responsible for the alleged “barrier” on the property – it is the landlord’s or the tenant’s responsibility under the terms of the lease. This is always a difficult question to answer because the law is counter-intuitive about this situation.

In Botosan v. Paul McNally Realty, the Court addressed this question head on. In that case, Botosan, a wheelchair-bound person, claimed that he was denied access to a realtor’s office due to a lack of handicapped parking and sued both the landlord and the tenant under the ADA and Unruh Act. However, it turned out that the lease between the landlord and the tenant had allocated all responsibility for ADA compliance to the tenant. The landlords asked the Court to dismiss them from the case because it was not their responsibility. The Court ruled that it was their responsibility, at least as to Botosan. That didn’t mean that the landlord didn’t have a case against the tenants under the lease, but, as far as the disabled plaintiff was concerned, they were liable to him.

First, there is an exception to this rule. Tenants are not responsible for ADA compliance as to elements they have no control over. So, if the realtor was one of several tenants on the same property that shared a parking lot and had no control over the parking spaces, they could ask the Court to dismiss them. You can’t be held responsible for something you don’t have the power to change. But other than this one exception, both landlord and tenant have to see the case through to its conclusion and are jointly and severally liable for any amounts awarded by the Court.

That doesn’t mean the language of your lease is null and void, though. Either within the ADA suit itself or in a separate lawsuit, you can enforce the terms of the lease, including attorney’s fees and indemnification provisions. So, in the Botosan example, the landlord could get all of his expenses, possibly including attorney’s fees (depending on the specific wording in the lease), from the tenant. The only thing is that it would be a separate matter from whether the disabled plaintiff could recover from the landlord.

Generally speaking, turning a case from a two-way battle between the disabled plaintiff and the landlord/tenant into a three-way battle between all three ends up costing both the landlord and the tenant more. However, some landlords and some tenants are not cooperative, which can be an even bigger problem whose only solution is to start a new lawsuit to get the wayward defendant in line.

Why am I being sued for disability access?

The ADA lawsuit problem has been going on for decades. As a result, most commercial leases now include terms apportioning ADA compliance, often (but not always) solely to the tenant. As a landlord, it is important that you monitor your tenant’s compliance as well as your own compliance in common areas. As a tenant, it is important to notify your landlord of potential common area issues as well as making sure your own premises is accessible. But neither landlord nor tenant should believe that it is possible to hide behind the lease and avoid the ADA lawsuit. The Court won’t allow it.

What should I do about my lawsuit?

We have helped landlords and tenants fight against wrongful disability access lawsuits in Orange County, Inland Empire, Los Angeles and Northern California. If you think your business is being targetted by a professional litigant, contact an attorney right away by calling (949) 287-6901.

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How to Respond to an ADA Lawsuit

If you have been targeted by an ADA lawsuit, you have 3 possible responses: you can ignore it, settle it or fight it.

Ignoring it is simple, expensive and exactly what the other side wants. If you do not respond, they will ask the court for an “entry of default.” In many cases, this will be within a week of missing the deadline to answer their complaint, which is less than a month after you were served with the complaint. Then, after a time, they will ask the Court to decide your case. The Court will have to make the decision with only the information provided by the plaintiff and his lawyer. In other words, you are very likely to lose the case. Then the Court will issue a judgment against you. This will have three parts: $4,000 in statutory damages to the disabled plaintiff, attorney’s fees to his lawyers, which could range from $5,000 to $20,000 depending on many factors, and that you repair the non-compliant features of your building in a certain time.

As you might imagine, this is the worst possible outcome. You will have to pay the most money and have to make repairs, no matter how expensive. Nonetheless, many business owners prefer to bury their heads in the sand and ignore the situation.

The second option is to settle it. This is the main way that the other side makes its money. Except for a few law firms, they will typically settle one of these cases for between $3,000 and $5,000. Occasionally, you can fight for slightly less payout or they will hold out for more money. Unfortunately, the most active law firms settle at more than double this amount, usually no less than $7,000, but typically $9 or even $10 thousand. As part of the settlement, they will ask you to make the repairs, often in a 6 month period.

The advantage to this option is the certainty. The payout and the end of the case are certain. Often, the law firm will be agreeable to a payment plan. They also don’t necessarily follow up on the demand to make repairs, although that is dangerous for the business, since it leaves them open to another lawsuit, sometimes only months after settling the first one. Several businesses have faced this problem of multiple lawsuits.

The third option is to fight it. Changes in California law have allowed a quick and cheap strategy to fight these cases and win. However, you will have to pay your own lawyers’ fess. Most lawyers do not understand how to fight these cases in an economical manner and will quote you a price based on a typical court case – $10 or $20 thousand or more. Because that price is so steep compared to the cost of settling, only the most motivated businesses will agree to fight the lawsuit.

However, our firm knows how to fight these cases and win for less than the cost of settlement. If you are served with an ADA lawsuit, think about your options and choose the best one for you. Call or meet with one of our attorneys for a free consolation to fully discuss your options and help determine the best path for you.